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Cornell University Library 
 KF 570.H65 1855 
 
 V.1 
 
 The American law of real property. 
 
 3 1924 018 814 198 
 
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/cu31924018814198 
 
Catalogue 
 
 OP 
 
 VALUABLE LAW BOOKS 
 
 PUBLISHED BY 
 
 BANKS, GOULD & CO., NEW YORK, 
 
 AND 
 
 GOULD, BANKS & CO., ALBANY. 
 
 ADAMS ON' EJECTMENT. A Treatise on the Principles and Practice of the Action of 
 Ejectment, and tlie Resulting Action for Mesne Profits, bj' John Adams, sergeant-at- 
 law. The fourth American from the London edition, with Notes of the Decisions made 
 by the Supreme and Circuit Courts of the United States, and by the Courts of the several 
 States, whose decisions have been reported; together with the Statutory provisions, in 
 relHiion to those actions, contained in the Revised Statutes of New York; and Prece- 
 dents of Entries, Pleadings, and Process adapted thereto, by John*L. TiUinghast, couu- 
 sellor-ac-law: To which are added Annotations and References to the most recent 
 American Decisions, by Thomas W. Glerlje, counsellor-at-law. Carefully collated, and 
 made to correspond with the latest London edjtion, corrected by the author; together 
 with additional Notes and Decisions in the Courts of the several States. By William 
 Hogan, counsellor-at-law; and continued by T. W. Waterman. Embodying all the 
 American and English Actions, to the present time. $5. 
 
 ALLEN ON SHERIFFS. The Duties and Liabilities of Sheriffs, in their various relations 
 to the Public and to Individuals, as governed by the principles of common law, and regu- 
 lated by tlie Statutes of New York. Revised, Corrected, .and Enlarged, by Otis Allen, 
 counsellor-at-law. $3. 
 
 THE AMERICAN CHANCERY DIGEST. Being an Analytical Digested Index of all the 
 Reported Decisions in Equity of the United States Courts, and of the Courts of the seve- 
 ral States, to the present time, with Notes and a copious Index. Also an Introductory 
 Essay, comprising an Historical Sketch of the Court of Chancery, an account of the na- 
 ture, powers, and functions of the Court, and the organization and equity jurisdiction of 
 the Court of the United States, and of each of the States of the Union. By Thomas 
 W. Waterman, of the New York Bar. 3 Vols. $15. 
 
 ANTHON'S NISI PRIUS REPORTS. The Law of Nisi Prius: Being Reports of Cases 
 determined at Nisi Prius, in the Supreme Court of the State of New York; with Notes 
 and Commentaries on each case. Second edition. With many additional cases never 
 published belbre. Judges preaiding : — -Chief Justice James Kent, Justices Van Ness, 
 'Thompson, Spencer, and Yeates. 1 Vol. $4. 
 
 ARCHBOLD'S CIVIL PLEADING. A Digest of the Law relative to Pleading and Evi- 
 dence in Civil Actions, by Jolin Frederick Archbold, barrister-at-law. Second Ameri- 
 can, from the last London edition. $4. 
 
 ARCHBOLD'S PLEADING AND EVIDENCE. Archbold'a Summary of the Law rela- 
 ting to Pleading and Evidence in Criminal Cases: with Statutes, Precedents of Indict- 
 ments, &u., and the evidence necessary to support them. By John Jervis, Esq., Q. C, 
 
ii BANKS, GOULD &. GO'S PUBLICATIONS. 
 
 of the Middle Temple, barrister-at-law, with the Patent of Precedence. American, 
 from tine London edition ; much Enlarged and Improved, by W. N. Welsby, Ksq., ot 
 the Middle Temple, banister-at-law, Beeorderof Chester. 1^ which are added innu- 
 merable American and English Cases, and brought down lo the present time. By 
 Thomas W. "Waterman. 3 Vols. $16 50. 
 
 BAEBOUR'S CHANCERY PRACTICE. A Treatise on the Practice of the Court of Chan- 
 cery, with an Appendix of Precedents. By Oliver L. Barbour, counsellor-at-law. 2 
 Vols. $12. 
 
 BARBOUR'S CHANCERY REPORTS. Reports of Cases argued and determined in the 
 Court of Chancery of the State of New York, from 1 845 to 1847 By Oliver L. Barbour, 
 counsellor-at-law, successor o( Paige, and in continuation of Johnson, Hopkins, and 
 Paige. These decisions are considered the ablest and most reliable of any other in our 
 country. 3 Vols. $15. 
 
 BARBOUR'S CRIMINAL TREATISE. The Magistrate's Criminal Law : a Practical Trea- 
 tise on the Jurisdiction, Duty, and Authority of the Justices of the Peace in the State of 
 New York in Criminal Courts. Containing also a Summary of the Law relative to 
 Crimes and Punishments, with an Appendix of Porms of Proceedings. By Oliver L. 
 Barbour, counsellor-at-law. Second edition. Much enlarged with Notes and Refer- 
 ences, and additional Forms. $5. 
 
 BARBOUR'S LAW OP SET-OPP. A Treatise on the Law of Set-Off, with an Appendix 
 of Precedents. By Oliver L. Barbour, counsellor-at-law. $2. 
 
 BARBOUR'S SUPREME COURT REPORTS. Reports of Cases, in Law and Equity, in 
 the Supreme Court of the State of New York, under the New Constitution, 1846. By 
 Oliver L. Barbour, counsellor-at-law. 1'7 Yols. $59 50. 
 
 BEAMES' NE EXEAT. A Brief Tiew of the "Writ of Ne Exeat Regno, with Practical 
 Rennarks upon it as an Equitable Process. By John Beames, ,of Lincoln's Inn, barrister- 
 at-law. First American edition, with Notes of the recent English and American Deci- 
 sions. By H. "W. "Warner, solicitor and counsel in Chancery. $0 75. 
 
 BEEBE'S QUESTIONS TO GRAHAM'S PRACTICE. Questions adapted to Graham's 
 Practice of the^ew York Supreme Court; and comprising an Analysis of that work. 
 By Pierre Ogilvie Beebe, student-at-la.w. $2. 
 
 BENEDICT'S AMERICAN ADMIRALTY. The American Admiralty: its Jurisdiction 
 and Practice, with Practical Forms and Directions. By Brastus C. Benedict. $5 50. 
 
 BLYDENBURGH ON USURY. A Treatise on the Law of Usury, to which are added 
 the Statutes of the several States relating to interest now in force, together with a Di- 
 gest of all the Decisions, and an Index to the Reported Adjudications from the Statutes 
 of Henry Till, to the present time. By J. "W. Blydenburgli, counsellor-at-law. $3. 
 
 BRIDGMAN'S CHANCERY DIGEST, Vol. IV. A Digest of the Reported Cases on 
 Points of Practice and Pleading in the Courts of Equity in England and Ireland, and of 
 the Rules and Orders of the same Courts; from the earliest period to the present time; 
 intended as a Companion to Bridgham's Equity Digest. By R. 0. Bridgman, of Lin- 
 coln's Inn, barrister-at-law. 
 
 BEIGHT'R HUSBAND AND "WIPE. A Treatise on the Law of Husband and "Wife, as 
 respects property; Partly founded on Roper's Treatise, and comprising Jacob's Notes 
 and Additions thereto, by John Edward Bright, Esq., of the Inner Temple, bHrri.ster-at- 
 law. "With copious Notes and References to the American Decisions, and also an 
 Appendix, containing the Statutes of every State in the Uin'on, in relation to the rights 
 and properly of females before and after marriage. By Ralph Lockwood, counsellor-at- 
 law. 2 Vols. $10. 
 
 GAINES' CASES. Cases argued and determined in the Court for the Trial of Impeach- 
 ments and Correction of Errors in the State of New York. By George Gaines, coun- 
 sellor-at-law. $4. 
 
BANKS, GOULD & OO.'S PUBLICATIONS. iii 
 
 GAINES' REPORTS. New York Term Reports of Cases argued and determined in the 
 Supreme Court of tliat State. Tliird edition just publislied, containing Notes and Refer- 
 ences to all the American and Rnglisli decisions, to the time of publication, by "Water- 
 man; with Corre'etions and Additions. By George Gaines, counsellor-at-law. 3 Vols. 
 Sl2. 
 
 CALIFORNIA PRACTICE. A Treatise on the Practice of the Courts of the State of 
 California, carefully adapted to the existing law. By J. B. Hart, of the San Francisco 
 Bar. $3 50. 
 
 CAMPBELL'S NISI PRIUS REPORTS. Reports of Cases determined at Nisi Prius, in 
 tlie Court of King's Bench and Common Pleas, and on the Home Circuit, from the sit- 
 tings after Michaelmas Term, 48 Geo. Ill, 1807, to the sittings after Hi|ary Term, 56 
 Geo. Ill, 1816, bolh inclusive. By John Campbell, of Lincoln's Inn, barrister-at-law. 
 To which are added Notes referring to the American Authorities. By Samuel Howe, 
 counsellor-at-law. 4 Vols. New York, 1810 to 1821. 
 
 CHITTY'S CRIMINAL LAW. A Practical Treatise on the Criminal Law, comprising the 
 Practice, Pleadings, and Evidence, which occur in the course of Criminal Prosecutions, 
 wlietlier by Indictment or Information : with a copious collection of Precedents of In- 
 dictment."!, Information, Presentments, and every description of Practical Forms, with 
 Comprehensive Notes upon each offence, the Process, Indictment, Plea, Defence, Evi- 
 dence, Trial, Verdict, Judgment, and Punishment. By Joseph Chitty, of the Middle 
 Temple, barrister-at-law. Fourth American, from the Second and last London Edi- 
 tion, corrected and enlarged by the author; with Notes and Corrections. By Richard 
 Peters and Thos. Huntington To which are now added. Notes and References to the 
 oases decided in the Courts of the United States and of tlie several States, to the pre- 
 sent time, as well as to the late English decisions. By J. C. Perkins, counsellor-at- 
 law. 3 Vols. $12. 
 
 CLANCY'S RIGHTS OP WOMEN. A Treatise on the Rights, Duties, and Liabilities of 
 Husliand and Wife, at Liw and in Equity. By James Clancy, barrister-at-law. 
 Second American, from the last London edition. In press. 
 
 CLARKE'S GFIANCBRY REPORTS. Reports of Chancery Cases, Decided in the Eighth 
 Circuit of the State of New York, by Hon. Frederick Whittlesey, Vice-Ghancellor. By 
 Charles L. Clarke, counsellor-at-law. $5. 
 
 COMYN ON CONTRACTS. The Law of Contracts and Promises, upon various subjects 
 and with particular persons, as settled in the Action of Assumpsit. In Three Parts. 
 By Samuel Gomyn, of the Middle Temple, barrister-at-law. The fourth Amerioan, 
 from the last London edition. Revised and Enlarged by the addition of American and 
 later English Cases. In press. 
 
 COMSTOCK'S REPORTS." Reports of Cases argued and determined in the Court of Ap- 
 peals of the State of New York. By George F. Comstook, Esq., State Reporter. 
 Judges' names : Freeborn G. Jewett, Greene C. Bronson, Addison Gardner, Cliarles H. 
 Ruggles, Samuel Jones, Wilham B. Wright, Thomas A. Johnson, Charles Cray, Elisha 
 P. Hurlburt, Ira Harris, Daniel Pratt, Henry -W. Taylor, Selah B. Strong, Daniel Cady, 
 William H. Shankland, James G. Hoyt. 2 Vols. $5. 
 
 CONNECTICUT REPORTS. Reports of Cases argued and determined in the Supreme 
 Court of Errors in the State of Connecticut, from 1814 to 1853. inclusive; prepared 
 and published in pursuance of a Statute Law of the State. Second edition. Corrected, 
 With Notes and References to the several State Reports. This series of very valuable 
 Reports is now to be had complete, and at a Reduced Price. By the Hon. Thomas 
 Day. 21 Vols. $105. 
 
 COURT RULES. Rules and Orders of the Court of Chancery of the State of New York, 
 as Revised and Established by Chancellor Walworth, in 1844, with Precedents of 
 Writs, Orders, and Bills of Costs, approved by the Chancellor, and Notes of Decisions, 
 showing the Practical Constructiot] of the Rules. 
 
 Rules and Orders of the Supreme Court of the State of New York, Revised and 
 Established by the Court, in May Term, 1 845. 
 
 Rules of the Court of Appeals of the State of New York. Adopted at a Term of 
 the Court held at the Capitol in the City of Albany, on the 6th day of July, 1847. 
 
 Rules of Practice of the Supreme Court of the State of New York, at Law and in 
 Equity, as established by the Court at July Term, 1847. With Precedents of Writs, 
 Orders and Bills of Costs, and Notes of Decisions. 
 
 Rules of Practice of the Superior Court of the City of New York. 
 
 Rules and Orders of the Court of Common Pleas, for the City and County of New 
 York. 
 
iv BANKS, GOULD & CO.'S PUBLICATIONS. 
 
 COWEN'3 CIVIL TREATISE. By Bsok Cowen, Judge of the Supreme Court. Fourth 
 edition. Re-written and adapted to the present state of the law. By WilUam Tracy, 
 counsellor-at-law. $5. 
 
 COWEN'S REPORTS. Beports of Oases argued and determined in the Supreme Court for 
 the Trial of Impeachments and the Correction of Errors of the State of New York, from 
 1823 to 1828. By Esek Cowen, counsellor-at-law, and successor of Johnson. 9 Vols. 
 $45. 
 
 CROWN CIRCUIT COMPANION. The Crown Circuit Companion: First American edi- 
 tion, into which has been incorporated the work formerly publislied under the name of 
 the Grown Circuit Assistant. Both works have also been carefully Revised, and such 
 additions made thereto as modern Statutes and Decisions have rendered necessary. $3. 
 
 DART'S LAW AND PRACTICfi; OF VENDORS AND PURCHASERS OF REAL 
 ESTATE. A Compendium of the Law and Practice of Vendors and Purchasers of 
 Eeal Estate. By J. Henry Dart, of Lincoln's Itm, barrister-at-law. With Notes and 
 References to American Decisions, by Thomas W. Waterman, counsellor-at-law. $5 50. 
 
 DATTON'S SURROGATE. The oESce of Surrogate, Surrogates and Surrogates' Courts, 
 and Executors, Administrators and Guardians, in tlie State of New York. A Compi- 
 lation of the Statutes, and a Summary of the Judicial Decisions of the State of New 
 . York, relating to tlie Office of Surrogate, tiie Proving of Wills, the granting of Probate, 
 Administration and Guardiansliip, and the Riglits, Duties atid Liabilities of Executors, 
 Administrators and Guardians, airauged in the form of a Treatise. By Isaac Daylon, 
 counsellor-at-law. With an Appendix, containing several decisions upon the above 
 named subjects, not elsewhere reported, and forms and precedents for practice in the 
 Surrogates' Courts, and for tlie use of Executors, Administrators and Guardians. 
 
 DEAN'S MEDICAL JURISPRUDENCE. Principles of Medical Jurisprudence, designed 
 ior the Professions of Law and Medicine. By Amos Dean, counsellor-at-law and 
 Professor of Medical Jurisprudence in the Albany Medical College. Second Edition. 
 $4 50. 
 
 DBNIO'S REPORTS. Reports of Cases argued and determined in the Supreme Court, 
 and in the Court for the Correction of Errors of the State of New York, from 1845 to 
 1848, inclusive. By Hiram Dcnio, successor of Hill, and the continuation of Johnson, 
 Cowen and Wendell. 5 Vols. $20. 
 
 DIGEST OP SOUTH CAROLINA REPORTS. A Digest of the Cases Reported in the 
 Constitutional Reports of South Carolina. By a Member of the Charleston Bar. 
 
 DUNLAP'S PALEY'S AGENCY. A Treatise on the Law of Principal and Agent, chiefly ■ 
 with reference to JlercHiitile Transactions, By William Paley, of Lincoln's Inn, Esq., 
 barrister-at-law. The tliird edition, with considerable Additions, by J. H. Lloyd, of 
 the Inner Temple, Ssq, barrister-at-law. Third American edition, with extensive 
 Additions, referring to, and embracing all the cases both Englisli and American, to the 
 present time. By John A. Dunliip, Esq.', counsellor-at-law. $4. 
 
 EDEN ON INJUNCTIONS. A Treatise on the Law of Injunctions. By the Hon. Robert 
 Henley Eden, of Lincoln's Inn, barrister-at-law. Third American, fi-om the last Lon- 
 don edition: to vvliicli is added copious Notes and References to all the decisions of 
 the Courts of tlie United States, and of the different States, on this subject. By Jacob 
 D. Wheeler, counsellor-at-law. A new edition, by James Haig, Esq., of Lincoln's Inn, 
 barrister-at-law. Fourth American edition, from the last English. By Waterman, 
 containing all the American and Eii.ylish Decisions to the presettt time, making two 
 large 8vo. vols., a complete work on this subject. $10. 
 
 EDWARDS ON PARTIKS IN CHANCKRY. A Practical Treatise on Parties to Bills 
 and other Pleadings in Cliancery: with Precedents. By Cliarles Edwards, counsellor- 
 at-kw and in equity. $2 50. 
 
 EDWARDS' CHANCRRY REPORTS. Reports of Chancery Cases decided in the First 
 Cn-cuit of the Slate of New York, by the Hon. William T. McCoun, Vice-Cliancellor. 
 By Cliarles Edwards, counsellor-at-law. 4 Vols. $20. 
 
 EDWARDS ON RECRIVKRS. On Receivers in Chancery, with Precedents. By Charles 
 Edward.-^, counsellor-at-law. Author of ''Edwards on Parties," and Reporter of the 
 Vice-Chancellor's Court of the First Circuit of the State of New York. $5. 
 
BANKS, GOULD, & CO.'S PUBLTOATIONS. V 
 
 ELLIOTT'S DIPLOMATIC CODR. The American Diplomatic Code, embracing a collec- 
 tion of Treaties and Conventions between tlie United Stiites and Poreijrn Powers, from 
 1778 to 1834; with an abstract of important Judicial Decisions on Points connected 
 ■with our Foreign Relations. Also, a Concise Diplomatic Manual, containing n sum- 
 mary of the Law of Nations, from the works of Wicquefort, Tattel, Martens, "Ward, 
 Kent, Storr, &c , &c., and other Diplomatic Writings on Questions of International Law, 
 useful for Public Ministers and Consuls, and for all others having official or commercial 
 intercourse with Foreign Nations. By Jonathan Elliott. 2 Vols. $12. 
 
 ENGLISH CH ANCKRT RRPORTS. These very valuable and important Decisions are re- 
 published verbatim from the London copy, with notes and references to Knglish and 
 American Authorities. By John A. Dunlap, and continued by tlie Hon. F/ F. Smith, 
 being the Reports of teases argued and determined in the High Courts of Chancery, 
 the Rolls Court, and tlie Tice-Chancery Courts of England. Published in full, 
 ■without any condensation whatever. The first 18 Vols, bound: each contain 2 Vols, 
 of the English Reports, and are sold for $5 per Vol. The subsequent 17 Vols, at 
 $3 per Vol. 53 Eiiglisli Vols in 35 American Vols., ■with Notes, &c. to American De- 
 cisions. This very Valuable Series of Reports will be published from time to time, 
 and at the very low price of $3 per Vol. 
 
 ESPINASSB ON PENAL STATUTES. A Treatise on. the Law of Actions on Penal Sta- 
 tutes in general. By Isaac Espinasse, of Gray's Inn, barrister-at-Iaw. First Ameri- 
 can from the last London edition. 
 
 EWING'S NEW JERSHT JUSTICE. A Treatise on the Office and Duty of a Justice of 
 the Peace, Slieriff, Coroner, Constable, and of Executors, Administrators and Guar- 
 dians, in wliich are particularly laid down the rules for conducting an action in the 
 Court for the trial of small catises. With approved forms, by James Ewing, Esq., late 
 ene of the Judges of the Court of Common Pleas, in the County of Hunterdon. Third 
 edition, revised and corrected by a Member of the Bar. With the New Constitution 
 added. $.S. 
 
 GRAHAM ON NEW TRIALS. An Essay on New Trials. By David Graham, Esq. 
 Second edition. Revised and Improved. By David Graham, Jr. 
 
 GRAHAM'S PRACriCE. A treatise on the Practice of the Supreme Court of the State of 
 New York. By David Graham, couiisellor-at-law. Tiiird edition. Revised, Enlarged 
 and'Improved, in 2 Vols. The first volume is already published. $5. 
 
 HILL'S Rl'! PORTS. Reports of Cases argued and determined in the Supreme Court, and 
 in the Court for the Correction o( Errors of the State of New York. By Nicholas Hill, 
 Jr., counsellor at-Iaw, and continuation of Johnson, Cowen, and Wendell. 7 Vols. $28. 
 
 HILLIARD ON REAL ESTATE. Fourth edition, very much Enlarged, with Notes and 
 References, by the author. 2 Vols. $12. 
 
 HOFFMAN'S CHANCERY REPORTS. Reports of Cases decided in the First Circuit of 
 the State of New York. $5. 
 
 HOFFMAN'S LEGAL STUDY. A Course of Legal Study, addressed to Students and the 
 Profession generally. By David Hoffman, Jr, Utr. Doct. Gottingen. Second edition, 
 Re-written, and much Enlarged. 2 Vols. $5. 
 
 HOPKIN'S CHANCERY REPORTS. Reports of Cases argued and determined in the Court 
 of Chancery of the State of New York. By Samuel Hopkins, counsellor- at-Iaw, and 
 successor of Johnson. 1 Vol. $5. 
 
 HOWARD'S PRACTICE REPORTS. Report of Cases argued and determined in the Su- 
 preme Court, at Special Term; with the Points of Practice decided, from October Termi 
 1844, to July, 1850. By Nathan Howard, Jun., couDsellor-at-law, and Deputy Clerk 
 of the Supreme Court. 10 Vols. $35. 
 
 HUMPHREYS' PRECEDENTS. A Collection of Practical Form.s in Suits at law; also 
 , Precedents of Contracts, Conveyances, Wills, &c. ; and Proceedings under the Pension, 
 
 Patent, and Naturalization Laws of the United States, with Annotations and References. 
 
 By Charles Humphreys, oounsellor-at-law. 2 Vols. $10. 
 
 JACOB AND WALKER'.S CHANCERY REPORTS. Reports of Cases argued and de- 
 termined in the High Court of Chancery, during the time of Lord Chancellor Eldon. By 
 Edward Jacob and John Walker, of Lincoln's Inn, barristers at-law. First Ameri- 
 can from the first London edition. With Notes and References to American Cases. By 
 Henry W. Warner, solicitor and counsellor in Chancery. 2 Vols. $12. 
 
Vi BANKS, GOULD AND CO.'S PUBLICATIONS. 
 
 JOHNSON'S CASES. Reports of Cases adjudged in the Supreme Court of Judicature of 
 the State of New York, from January 1799, to 1803, inclusive, together with Cases de- 
 termined in the Court for the Correction of Errors, during that period. A second edi- 
 tion. With many additional cases not inehided in the former edition, talien from the 
 Manuscript Notes of the late Hon. Jacob Radclilf, one of tlie Judges of the Supreme Court, 
 and associated with the Hon. Morgan Lewis, James Kent, (since Chancellor of the State,) 
 Egbert Benson, John Lansing, Brockholst Livingston, and Smith Thompson — the two 
 latter were subsequently appointed Judges of the Supreme Court of the United States. 
 "With copious Notes and References to the American and English Decisions. The writ of 
 MANDAMUS has been treated fully of in 2d Vol. of these reports, and references to the 
 cases in it, and have been introduced, together with a complete collection of forms and 
 precedents, not found elsewhere. By Lorenzo B. Shepard, counsellor-at-law. 3 Vols. 
 $16. 
 
 JOHNSON'S CHANCERY REPORTS. Reports of Cases adjudged in the Court of Chan- 
 cery of New York. By "William Johnson, counsellor-at-law. Containing the Cases 
 from March, 1814, to December, 1823, inclusive. With a General Digested Index of the 
 Cases Decided and Reported in the Court of Chancery, and in the Court for the Correc- 
 tion of Errors, on Appeal, from 1799 to 1822, inclusive, with a Table of the names of the 
 Cases, and of the Titles and References. James Kent was Chancellor during the above 
 Reports. 1 Vols. $40. 
 
 JOHNSON'S REPORTS. Reports of Cases argued and determined in the Supreme Court 
 of Judicature, and in the Court for the Trial of Impeachments and the Correction of Er- 
 rors in the State of New York. By "William Johnson, counsellor-at-law. Third 
 Edition. "With additional Notes and References. 20 Vols. $75. 
 
 LAMBERT ON DO'WER. A Treatise on Dower, comprising a Digest of the Ame*ricau 
 Decisions, and the Provisions of the Revised Statutes of the State of New York. By 
 Eli Lambert. $1. 
 
 LA"W OF FIXTURES. A Treatise on the Law of Fixtures, and other Property, partaking 
 both of a Real and Personal Nature ; comprising the Law relating to Annexations to 
 the Freehold in general ; as also, Emblements, Charters, Heir-Looms, etc., with an Ap- 
 pendix, containing Practical Rules, and Directions, respecting the Removal, Purchase, 
 Valuation, etc., of Fixtures between Landlord and Tenant, and between Out-going and 
 In-coming Tenants. By A. Amos, Esq., and J. Ferrard, Esq., barristers-at-law. The 
 second edition, with copious Notes and References to all the' English Cases to the time 
 of publishing, by Joseph Ferrard, Esq., barrister-at-law. The second American 
 edition, from the last English, will contain all the Cases decided in the Courts of 
 Law in the United States, and the courts of the several Slates on the subject, to the pre- 
 sent time. "With a Digest of the Statute Laws of the several States relating to the sub- 
 ject. By "William Hogan, counsellor-at-law. $3. 
 
 LA"WS OF THE UNITED STATES.— Vol. IX. Laws of tlie United States of America, 
 from the 4th of March, 1833, to the 3d of March, 1839, including all the Treaties nego- 
 tiated and ratified within that period, and several other valuable Documents which have 
 resulted from, or are connected with, the Actsof Congress and Treaties. Together with 
 copious Notes and References. Volume IX, corresponding with, and intended as a con- 
 tinuation of the Edition of Bioren & Co., as published by authority of an Act of Con- 
 gress. Printed by Authority of an Act of Congress. $9. 
 
 LOCK"WOOD'S REVERSED CASES. An Analytical and Practical Synopsis of all the 
 Cases argufed and reversed in Law and Equity, in the Court for the Correction of Er- 
 rors of the State of New York, from 1799 to 1847 ; with the names of the Cases, and » 
 Table of the Titles, &c. ,By Ralph Lockwood, counsellor-at-law. $4. 
 
 LUBE'S EQUITY PLEADING. An Analysis of the Principles of Equity Pleading, con- 
 taining a Compendium of the Practice of the High Court of Chiincery, and the Founda- 
 tion of the Rules, together with an Illustration of the Analogy between Pleadings at 
 Common Law and Equity. By D. G.Lube, of Lincoln's Inn, barrister-at-law. Second 
 American, from the last London edition. "With Notes and References to American 
 Cases. By J. D. "Wheeler, counsellor-at-law. $3. 
 
 MACOMB'S COURTS MARTIAL. The Practice of Courts Martial. By Alexander M'Comb, 
 Major-General of the Army of the United States. $2. 
 
BANKS, GOULD & CO.'S PUBLICATIONS. vii 
 
 MATHEWS PEESUMPTITB ETIDENCE. A Treatise on the Doctrine of Presumptioa 
 and Presumptive Evidence, as affecting tlie Title to Real and Personal Property. By 
 John H. Matliews, of Lincoln's Inn, barrister-at-Iaw. With Notes and References to 
 American Cases. By Benjamin Rand. $4. 
 
 MAULE AND SELWYN'S REPORTS.— Vol. VI. Reports of Cases argued and deter- 
 mined in 'the Court of King's Bench, with Tables of the Names of Cases and the Princi- 
 pal Matters. By George Maule and William Selwyn, of Lincoln's Inn, barristers-at- 
 law. Vol. VL Containing the Cases of Hilary, Easter, and Trinity Terms, in the 51th 
 year of George III. 
 
 MONELL'S PRACTICE. A Treatise on the Practice of the Courts of the State of New 
 York, adapted to the Code of Procedure, as Amended by the Act of April 11, 1849, 
 and the Act of April 16, to 1852, and the Rules of the Supreme Court, to which is added 
 the Practice in the Courts of Justices of the Peace. With an Appendix of Practical 
 Forms. By Cladius L. Monell, oounsellor-at-law. 1854. 2 Vols. $9. 
 
 NEW YORK DIGEST. A Digest of the Reports of Cases determined in the Supreme 
 Court of Judicature, and the Court for the Correction of Errors of the State of New 
 York. Together with the Reported Cases of the Superior Court forthe City and County 
 of New York, from the organization of said Courts; including Coleman's Cases; 
 Caine.s' Reports, 3 Vols.; Gaines' Cases in Error, 2 Vols.; Johnson's Cases, 3 Vols.; 
 Johnson's Reports. 20 Vols. ; Cowen's Reports, 9 Vols.; Wendell's Reports, 26 Vols.; 
 Hill's Reports, '7 Vols. ; Denio's Reports, 5 Vols. ; Barbour's Law Reports, 4 Vols. ; 
 Comstoek's Reports, 1 Vol. ; Hall's Reports, 2 Vols. ; Sandford's Reports, 1 Vol. ; and 
 Anthon's Nisi Prius. Revised and continued to the present time. By Wm. Hogan, 
 counsellor-at-law. 4 Vols. $16 50. 
 
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THE 
 
 AMERICAN LAW 
 
 REAL PROPERTY. 
 
 BY 
 
 FRANCIS HILLTARD, 
 
 COUNSELLOR- AT-LAT. 
 
 GEEATLT EKLAKGED AND IMPROVED. 
 
 IN TWO VOLUMES. 
 
 VOL I. 
 
 NEW YOEK : 
 
 BANKS, GOULD & CO., 144 NASSAU STREET. 
 
 ALBANY : 
 GOULD, BANKS & CO., 475 BROADWAT. 
 
 1855 . 
 
Entered according to Act of Congress, in the year One Tbouaand Eight Hundred and 
 Fifty-five, by Feancis Hilliakd, in the Clerk's Office of the District Court of Massa- 
 chusetts. 
 
PREFACE TO THE FIRST EDITION. 
 
 The following work is designed to be for the American lawyer, what 
 Cruise's Digest hitherto has been for him, and still continues to be for 
 the English lawyer. Cruise,' although undoubtedly one of the best 
 elementary law books that England has produced, and although heretofore 
 an indispensable part of the library of an American practitioner, has 
 been extensively used in this country, not because it is the book which 
 is wanted,- hxxt because it is the only one, in any degree answering the 
 purpose, which could he had. It is believed that the present work is the 
 first attempt to compile a book, upon the important subject of Keal 
 Property, corresponding in extent and general plan with the English 
 text-book, and, at the same time, thoroughly American in the materials 
 of which it is composed. It may be stated in few words, what are the 
 chief characteristics which distinguish this work as strictly American, 
 from the popular Abridgment above referred to. 
 
 1. Cruise's Digest contains a large amount of matter which is of no prac- 
 tical use whatsoever, to the American lawyer. It treats at great length of 
 subjects, which either never existed, or have become entirely obsolete, in 
 this country. That an occasional illustration or analogy of some value, 
 may be derived from principles which have no longer any direct prac- 
 tical applicabirity, is not denied. But it is obvious, that portions of the 
 law, which are useful only in this incidental way, ought to be treated 
 with proportional brevity, and not with the minuteness of detail which 
 isgdemanded in relation to topics in their nature of immediate practical 
 use. Now, as an example of the character of Cruise's Digest, in this 
 particular, it may be mentioned, that, in this work, the three titles of Ad- 
 vowson, Tithes and Dignities, occupy 150 closely printed pages ; Fine, Re- 
 covery andt Alienation hy Custom, about 400 pages ; Copyhold, 60 pages, 
 &c., &c. It is not too much to say, that no such titles as these are known 
 to American law. Upon a strictly scientific American plan, they would 
 find no place in a work upon the American Law of Heal Estate. But, 
 supposing them, though now obsolete, or never adopted in this country 
 to be so closely connected with other titles which are in force, that they 
 
iv PREFACE. 
 
 cannot with propriety be wholly passed over;, still, there is no propri- 
 ety in filling up a large space with the intricate decisions, formal classi- 
 fications, and nice distinctions, which appertain to them, as subsisting 
 branches of the English law. It is certainly within bounds to say, 
 that, in purchasing Cruise for the sake of the matter which he does want, 
 the American lawyer must pay one-third of his money for matter ivhich 
 he does not want. 
 
 2. While Cruise's Digest is thus ill adapted to the American lawyer, 
 by reason of surplusage or excess, its defectiveness is equally striking and 
 apparent. It is obvious, that in the course of forty years, an immense 
 mass of decisions must have been accumulating in the United States, 
 upon subjects pertaining to Eeal Estate. Even where these substan- 
 stantially corroborate the principles of the English law, they are of par- 
 amount importance to the American lawyer. And, for the innumera- 
 ble modifications, with which, in the various States, they qualify those 
 principles, they are still more indispensable. The present work pro- 
 ceeds upon the plan of collecting the American cases, not in the way of 
 merely stating the points decided, or copying the marginal notes, but 
 by summarily giving the facts, and often an abstract of the opinion of 
 the court, either in its own language, or otherwise. It is believed — 
 without any accurate enumeration, however, — that two-thirds of the 
 cases cited in this work, are American cases ; while, at the same time, 
 few or none of the English decisions are omitted. 
 
 3. The remaining, and most important characteristic of the present 
 work, as an American work, is, that it gives a view of the changes made 
 in this country m the English law of Real Estate. Every lawyer is aware 
 that these changes are vastly numerous and important ; but perhaps 
 few would suppose the number or importance of them to be such, as a 
 careful inquiry shows it to be. Take, for an example, such titles as 
 Descent, Estate Tail, Dower, Mortgage ; it is not too much to say, that 
 upon these subjects the English law is not our law, but that the American 
 statutes have built up a new system for the American States. It is be- 
 lieved, that in the preparation of the present work, the statutes of all 
 the States have been faithfully examined ; and that all their provisions, 
 bearing upon the subject of Eeal Property, will be found stated cor- 
 rectly, and with sufficient minuteness to make the work a safe and 
 satisfactory guide. Great care has been used, to avoid giving the 
 present work anything of a local character ; and to make it alike appli- 
 cable and useful in every State of the Union, where the common law of 
 England is adopted. For an obvious reason, the State of Louisiana has 
 been omitted. Should it be deemed expedient, the Law of Real 
 Property in this State may be hereafter noticed in an Appendix. 
 
 In the multitude of statutes of the several States which the author 
 
PREFACE. V 
 
 has examined, it would be folly to pretend that none have escaped his 
 notice, pertaining to the subjects treated of in this book. He may, 
 however, be permitted to claim the merit of a careful and thorough 
 investigation of all, or nearly all the printed laws of each State, so far 
 as the Indexes, Contents and Alphabetical Arrangements have afforded 
 him any aid in making it. It is proposed at the end of the second 
 volume, to form an Addenda of such statutory provisions as may chance 
 to have been overlooked, and those passed since the commencement of 
 the work. The author will be greatly indebted to gentlemen in any 
 State, who will suggest by letter any required alterations or additions, 
 which may occur to them in the perusal of these volumes, with respect 
 to the peculiar laws of their own States. 
 
 With the consciousness of having assumed a great undertaking, to 
 which he is incompetent to do full justice, but at the same time of un- 
 intermitted labor and strict fidelity in accomplishing it according to his 
 ability, the author submits the, work to the candid notice of the pro- 
 fession. 
 
 Boston, July 1, 1838. 
 
PREFACE TO THE SECOND EDITION. 
 
 In this edition, the work has been brought down to the present 
 time, by the addition of English and American cases decided, and 
 statutes enacted, since it was first published. 
 
 The new matter, incorporated into the text and notes, enlarges the 
 book at least one-fourth from its original size. It is believed, that by 
 this means, and the correction of such errors as have been discovered 
 in the former edition, the work has been rendered more worthy, than 
 before, of the patronage of the profession. 
 
 BoBTON. April, 1846. 
 
PREFACE TO THE THIRD EDITION. 
 
 In this edition, the same plan is retained, -vvhich was adopted in the 
 former editions, of making the work a summarj' abstract of the Amer- 
 ican Law of Real Property, as it now is, in the several States of the 
 Union. With the rapid multiplication of remote States, each adopt- 
 ing its own modifications of the law relating to this copious and intricate 
 subject ; the difficulty of preparing a complete view of that law, with- 
 out important omissions, on a perfectly accurate view, without import- 
 ant errors, is of course greatly increased. The author can only repeat 
 the remark made with reference to the first edition, that he has had 
 access to, and availed himself of, a large proportion of the recent 
 Statutes in the several States relating to real property, and, in as con- 
 cise a form as possible, stated their respective provisions. The English 
 and American decisions, also, made since the last edition, have been 
 incorporated into the work, with the purpose of making it a maniuil 
 for professional use, which may in part supply the want of the Reports, 
 and always furnish a ready guide and index to their use. 
 
 Boston, Januakt, 1855. 
 
CONTEI(TS. 
 
 CHAPTEE I. 
 
 REAL PROPERTY IN GENERAL, 
 
 41 
 
 1. 4. Lands, tenements and hereditaments. 
 2. Seir-looms. 
 6. Water. 
 
 1. Heal Estate — definition. 
 8. iMud — what it includes. 
 
 12. Chamber of a house. 
 
 13. Pews. 
 
 14 Building on another's land, ' 
 29. Mines. 
 
 30. Trees. 
 36. Growing crops. 
 41. Emblements. 
 1\. Sea- weed. 
 
 72. Wreck, && 
 
 73. Manure. 
 
 74. Fixtures. 
 
 107. Shares in corporations. 
 
 1 1 0. Money to be laid out in land. 
 
 CHAPTEE II. 
 
 ESTATES IN LAND. ESTATE IN FEE-SIMPLE, 
 
 1. Estates — meaning of the term. 
 5. Freehold. 
 
 8. Fee- simple. 
 
 9. Feudal law and American tenures. 
 16. Seizin. 
 
 21. Entry. 
 
 26. Seizin of heirs — Continual clami. 
 
 31. Seizin in law and deed. 
 
 33. Disseizin, 
 
 45. Abeyance. 
 
 48. Freehold in fiituro. 
 
 50. Rectors and parsons. 
 
 56. Incidents to a fee-simple. 
 
 34 
 
 CHAPTEE III. 
 
 QUALIFIED AND CONDITIONAL FEES AND ESTATES TAIL, 
 
 - 66 
 
 1. Fees, qualified, conditional, &c. 
 3. Estates Tail — origin. 
 
 5. Description. 
 
 6. What may be entailed. 
 
 12. Rights and duties of tenant in tail. 
 
 18. Conveyance by tenant in tail. 
 25. Contracts of tenant in tail. 
 
 27. Entailment — how barred. 
 
 28. Estates tail in the United States. 
 
VUl 
 
 CONTENTS. 
 
 CHAPTEE IV. 
 
 ESTATE FOR LIFE, 
 
 - 64 
 
 1. Definition. 
 
 2. How created. 
 
 3. Different forms of life estates. 
 6. Merger — estate 'pow autre me. 
 8. Estovers. 
 
 12. Praying in aid. 
 
 13. Title deeds. 
 
 16. Payment of incumbrances. 
 
 22. Transfer of estate. 
 
 23. Forfeiture. 
 
 40. Estate pour autre vie. 
 66. Presumption of death. 
 
 CHAPTEE V. 
 
 ESTATE TAIL AFTER POSSIBILITY OF ISSUE EXTINCT, 
 
 74 
 
 1. Life estates created byvlaw. 
 
 2. Estate tail after possibility, &o. 
 
 3. When it arises. 
 
 8. Qualities of the estate. 
 
 CHAPTEE YI. 
 
 CURTEST, 
 
 T6 
 
 1. Origin of the name. 
 
 2. Definition of the estate. 
 
 3. Curtesy in the United States. 
 
 4. Requisites. 
 
 5. Marriage. 
 
 6. Seizin. 
 
 13. Birth of issue. , 
 
 21. Aliens. 
 
 22. Conditional fees, &o. 
 25. Money to be converted into land. 
 27. Land to be converted into money. 
 29. Wife must have the inheritance. 
 
 35. Wild lands. 
 
 36. Entry not necessary. 
 
 37. How barred. 
 
 48. Effect of contract upon curtesy. 
 
 CHAPTEE YII. 
 
 LIFE ESTATE OP THE HUSBAND IN LANDS OF THE WIFE, 
 
 84 
 
 1. Description of estate. 
 
 2. Description and incidents. 
 
 4. Statute law as to conveyances, &c. 
 
 6. Liability to creditors. 
 
 7. Rents and profits. 
 
 8. Contract by husband. 
 
 9. Conveyances by husband and wife, and 
 
 statutory law relating thereto. 
 21. Separate trust estate of the wife. 
 
 CHAPTEE VIII. 
 
 DOWER. NATURE AND REQUISITES OF DOWER, 
 
 93 
 
 1. Definition of dower. 
 2-11. Dower in the United States. 
 10. Origin and history of dower. 
 12. Dower favored. 
 
 17. Requisites of dower. 
 
 18. Marriage. 
 
 19. Void and voidable marriage. 
 
 22. Marriage — how proved. 
 
 23. Marriage and divorce in England. 
 26. Marriage and divorce in the U. S. 
 
 31. Elopement, &c. 
 38. Seizin of husband. 
 42. Reversions and Remainders. 
 50. Dos de dote. 
 61. Instantaneous seizin. 
 66. Whether husband's seizin may be de- 
 nied. 
 
 68. Death of the husband. 
 
 69. Presumption of death. 
 
CQNTENTS. 
 
 OHAPTEE IX. 
 
 IX. 
 
 DOWER. WHAT PERSONS MAT BE ENDOWED, AND IN "WHAT THINGS, 109 
 
 1. Aliens. 
 
 7. Dower — in what things. 
 
 8. Things incorporeal. 
 
 9. Mines and quarries. ' 
 
 12. Wild lands. 
 
 13. State of cultivation — what 
 
 14. Improvement or depreciation by heir or 
 
 purchaser. 
 21. Increase or diminution of value from 
 
 extrinsic causes. 
 23. Land appropriated to public use. 
 
 25. Mill and fishery. 
 
 26. Annuities. 
 
 27. Lands held by improvement, &c. 
 
 28. Lands contracted for. 
 
 31. Slaves. 
 
 32. Estates tail, &c. 
 
 35. Estates iJoar autre vie. 
 
 36. Estates for years. 
 
 37. TJseft &c. 
 
 38. Wrongful estates. 
 
 CHAPTEE X. 
 
 DOWER. HOW BARRED, 
 
 181 
 
 1. Inchoate right. 
 
 2. Crime of husband. 
 
 3. Detimte of charters. 
 
 5. Transfer by the husband. 
 
 8. Exchange of lands. 
 
 9. Equitable bars of dower. 
 10. Implied " " 
 
 12. Partition. 
 
 13. Deed of wife in England. 
 
 14. Pine, &c. 
 
 15. Deed of husband alone, and sale of land 
 
 for debts. 
 20. Deed of husband and wife. 
 
 32. Wife's release, when void in equity. 
 
 34. Wife's release can operate only as such. 
 
 35. Devise or legacy, when a bar. 
 
 43. When an implied bar, in law or equity. 
 54. Legacy to widow, how regarded. 
 
 56. Apportionment of legacy. 
 
 57. Disposal of legacy, when renounced. 
 
 58. American law as to devises in bar of 
 
 dower. 
 61. Election between a devise and dower. 
 
 63. Time of election. 
 
 64. Mode of election. 
 
 OHAPTEE XI. 
 
 ASSIGNMENT AND RECOVERY OF DOWER. 
 
 ING, 
 
 PORMS OP PROCEED- 
 
 138 
 
 1. Necessity of assignment. 
 
 2. Nature of estate before assignment. 
 
 11. Tenancy in common with the heirs, in 
 
 Massachusetts, &c. 
 14 Assignment not required in equity. 
 18. Quarantine. 
 
 24. Assignment by the heir or other tenant. 
 30. Action at law for dower. 
 
 32. When the only remedy. 
 
 33. View. 
 
 34. Damages. 
 37. Demand. 
 
 41. Damages, how computed. 
 
 44. Costs. 
 
 45. BiU in equity for dower, 
 
 52. Assignment by Probate Court. 
 
 59. Porms of proceeding. 
 
 61. How far evidence of title. 
 
 63. When adverse and compulsory, or 
 
 otherwise. 
 70. Application for assignment-^by whom. 
 
 73. Wrong assignment — how remedied. 
 
 74. Assignment — when it may be de- 
 
 manded. 
 
 75. Limitation of suit for dower. 
 
CONTENTS. 
 
 CHAPTER Xn. 
 
 ASSiaNMENT OF DOWER. WHAT SHALL BE ASSiaNBD, AND BY 
 
 WHOM; AND THE EFFECTS OF ASSIGNMENT, - 154 
 
 1. By metes and bounds or otherwise. 
 3. Practice in the United States. 
 1. Value of land assigned. 
 9. Assignment in common. 
 
 12. Partition by husband. 
 
 13. Assignment by sheriff and oomraissioners. 
 15. Improper assignment by sheriff. 
 
 19. Assignment against common right. 
 
 21. Assignment of rent, &o. 
 
 23. Assignment must be absolute. 
 
 24. Assignment by parol. 
 27. Assignment by guardian. 
 29. Implied warranty. 
 
 30' Entry not necessary. 
 31. Assignment has relation. 
 
 CHAPTER Xni. 
 
 JOINTURE, 
 
 163 
 
 2. Definition. 
 ?. Origin. 
 
 5. Value. 
 
 6. When to take effect. 
 8. Quantity of estate. 
 
 11. Must be a legal interest. 
 
 12. Must be an entire satisfaction.. 
 
 13. And so stated. 
 
 15. Ante-nuptial. 
 
 16. Provisions not strictly jointures, 
 20. Equitable jointure. 
 
 23. Who may receive a jointure. 
 
 24. A provision — not a contract. 
 
 25. Infants. 
 
 26. Waste. 
 
 27. Emblements. 
 
 28. Eviction or breach of covenant; 
 
 the jointress' lien upon lands. 
 38. Favored in equity. 
 
 42. Interest. 
 
 43. How barred — by deed. 
 45. By elopement, &c. 
 
 47. By devise, &c. 
 
 58. Jointure in the United Stages, 
 
 and 
 
 CHAPTER XIV. 
 
 ESTATE FOR TEARS, 
 
 175 
 
 1. Estate less than freehold — estate for 
 
 years — ^lease. 
 3. Definition — " term," what is a. 
 
 5. How created, and for what time. 
 
 6. Must be certain. 
 
 9. Executors and trusteeSi 
 
 12. An inferior'estate. 
 
 13. Tenant not seized. 
 
 14. When, it commences — entry — interesse 
 
 termini. 
 18. Infuturo. 
 
 22. How terminated. 
 
 23. Is a chattel. 
 
 26-36. Limitation of. 
 
 27. Husband and wife, 
 31-5. Liable for debts. 
 
 32 Freehold cannot arise from. 
 
 33. Incidents. 
 
 34. Estovers. 
 38. Merger. 
 48. Swrrender. 
 
 55. Assignment and under-lease. 
 68. Assignment by reversioner. 
 
 77. Conveyance of. 
 
 78. Forfeiture. 
 
CONTENTS. 
 
 CHAPTEE XV. 
 
 2:1 
 
 LEASE, 
 
 192 
 
 1-2. Definition. 
 3. Form. 
 
 5. Presumption of. 
 
 6. "Words necessary; whether a contrmt 
 
 or a lease. 
 20. Whether a lease or an agmny. 
 
 23. " " partuership. 
 
 24. Contract ^on skasres. 
 
 25. Lease in some of the tJ. States. 
 
 27. Acceptance of lease. 
 
 28. Commencement and termination; 
 
 "date" and " day of the jiate." 
 32. "Lease," import of the word. 
 35. In the alternative. 
 
 31. Conditional. 
 
 40. "Who may leaast— tenants in tail. 
 
 42. Husband and wife. 
 
 45. Tenant for life. 
 
 46. Guardian. 
 
 50. Executor and heir. 
 
 52. Joint tenants, &o. 
 
 65. Infant. 
 
 56. Avoiding or forfeiture of lease, and 
 
 what will be a confirmation. 
 11. Covenants. 
 18. Renewal. 
 82. Estoppel. 
 101. License. 
 
 CHAPTER XVI. 
 
 RENT, 
 
 - 226 
 
 1. Definition. 
 
 2. Must be certain. 
 
 3. In what payable. 
 
 4. Effect of a reservation of part of the 
 
 produce, and whether the landlord 
 has a lien. 
 
 11. Einds of rent. 
 
 12. Rent-service. 
 
 13. Rent-charge. 
 
 15. Rent-seek. 
 
 16. Fee-farm rent. 
 11. Seizin of rent. 
 
 18. Prom what may it issue. 
 
 23. On what conveyance reserved. 
 
 24. Several rents reserved by one deed. 
 
 29. To whom reserved. 
 
 41. "When payable. 
 
 46. To whom it passes upon the lessor's 
 death. 
 52-3. Remedies for recovery of rent — dis- 
 tress. 
 
 61. Re-entry. . 
 
 62. Debt and covenant. 
 
 63. Assumpsit. 
 
 65. Election of remedies. 
 
 68. Restoration of land after forfeiture ; at- 
 
 tachment for — before due. 
 
 69. Suit in Chancery. 
 10. Estates in a rent. 
 86. Not lost by non-uper. 
 
 CHAPTER XVII. 
 
 RENT— DISCHARGE AND APPORTIONTMENT, 
 
 249 
 
 1. General rule — no apportionment as to 
 time. 
 
 4. Eviction by landlord or third persona ; 
 from the whole or a part of the pre- 
 mises. 
 
 1 Constructive eviction. 
 
 9. Eviction by mortgagee. 
 
 11. Other oases of eviction. 
 
 12. What is not an eviction. 
 
 16. Loss by act of God, &c. — total or par- 
 
 tial ; loss by fire ; debt and covenant. 
 
 24. Purchase of the land by landlord — ef- 
 
 fect upon a rent service. 
 
 25. Descent to landlord. 
 
 26. Apportionment by transfer of the land. 
 28. Lease by tenant for life. 
 
 32. Rent-charge — when extinguished and 
 
 when not. 
 36. When apportioned^ 
 
Xll 
 
 CONTENTS. 
 
 OHAPTEE XVIII. 
 
 WASTE, 
 
 - 260 
 
 1. Importance of the subject. 
 
 2. American doctrine. 
 
 3. Definition. 
 
 4. Voluntary or permissive. 
 6. Felling timber. 
 
 10. American law. 
 *12. ■Waste of buildings. 
 
 19. JJossby fire. 
 
 20. Disturbance of the soil — mines, &c. 
 23. Conversion of the land. 
 
 25. Heir-looms — destruction of. 
 26-59. Permissive waste — repairs. 
 30. Act of God. 
 32. Amount of waste. 
 
 34. Who punishable for — tenant for life, 
 
 &c.— Statutes of Marlbridge, &o. 
 36. Ecclesiastical persons. 
 39. American doctrine. 
 47. Who may sue and be sued for. 
 56. Waste by third persons. 
 58. Action on the case for. 
 60. Injunction and other equity proceedings. 
 68. Property in timber out, &c. — who has ; 
 
 contingent remainders, &c. 
 V6. Cutting of timber by order of court. 
 80. Ijease without impeachment of waste, &o. 
 92. Special provisions as to waste in the 
 United States. 
 
 CHAPTER XIX. 
 
 ESTATE AT WILL AND AT SUFFERANCE, 
 
 273 
 
 1. Estate at will — deffinition. 
 
 2. Incidents. 
 
 3. Estate from year to year — notice to quit. 
 5. Estate at will, whether assignable, &c. 
 
 6. How terminated. 
 
 18. Notice to quit, &c. 
 
 22. Statute of frauds. 
 
 27. Tenant at sufferance 
 
 CHAPTER XX. 
 
 USES AND TRUSTS. USES PRIOR TO THE STATUTE OF USES, 
 
 290 
 
 1. Origin. 
 
 3. Nature and definition of. 
 7. The three incidents of. 
 11. Who might be seized to. 
 
 12. How distinguished from legal estates. 
 23. Evils and mischiefs of, and statutes to 
 prevent. 
 
 CHAPTER XXI. 
 
 USES AND TRUSTS. 
 
 STATUTE OF USES, CONSTRUCTION AND EFFECT 
 THEREOF, - 
 
 294 
 
 1. Terms of the statute. 
 
 2. Adopted in the United States. 
 
 3. Instantaneous seizin of trustee. 
 
 4. Who may be seized to uses. 
 
 1. What estate may be held to uses. 
 
 9. There must be a cestui in esse. 
 10. What estate a cestui may take. 
 12. Feoffee and cestui must be different per- 
 
 sons; construction where they are 
 the same. 
 
 14. Exceptions to the rule. 
 
 15. There must be a use in esse. 
 
 16. Actual seizin vests in cestui. 
 
 17. Estate of feoffee will not merge. 
 
 20. Limitations to uses, how far subject to 
 
 common law rules. 
 22. Implied and resulting uses. 
 
 CHAPTER XXII. 
 
 TRUSTS, EXPRESS TRUSTS. 
 
 1. Trusts in general. 
 
 3. Trusts in real estate. 
 
 4. Uses preferred to. 
 
 6. Classifications of trusts. 
 
 297 
 
 8. How created— ;use upon a use. 
 
 11. Where the uses require a legal estate in 
 
 the trustee. 
 
 12. Intention of parties. 
 
CONTENTS, 
 
 Xlll 
 
 16. Trusts of married women. 
 
 24. Limitations with authority to mortgage, 
 &c. 
 
 27. Trust ceases when the objects are affect- 
 ed. 
 
 32. Ofj when the cesfai alienates. 
 
 34. Lands subjected to payment of debts— 
 not necessarily a trust estate. 
 
 36. "Where the estate is less than freehold — 
 a trust. 
 
 SI. Express trust, how created — statute 
 of frauds, &c. — need not be declared, 
 but only proved, by writing. 
 
 CHAPTER XXIII. 
 
 TRUSTS. IMPLIED AND RESULTING TRUSTS, 
 
 310 
 
 1. Implied trusts — not within the statute 
 
 of frauds. 
 
 2. Hos' proved. 
 
 6. General classification of 
 
 8. Distinction between an express and im- 
 
 plied trust. 
 
 9. Cannot contradict a deed. 
 10. Contract to convey land. 
 
 12. Purchase by one person with the money 
 
 of another ; parol evidence, Ac. 
 28. Cases not within the rule. 
 34. Aliens. 
 
 36. Rules in different States, 
 40. Purchase with trust money. 
 
 43. Election of cestui. 
 
 44. Conveyance without consideration. 
 49. Declaration of trusts in part. 
 
 53. Consideration to be determined after- 
 
 wards. 
 
 54. Trusts illegal, ko. 
 
 55. Trusts failing or exhausted. 
 
 56. Trusts to be afterwards appointed. 
 
 57. Renewal of leases, &o., in trustee's 
 
 name. 
 
 64. Conveyance obtained by fraud. 
 
 65. Conveyance to a father ia the name of 
 
 a child. 
 82. Conveyance to husband and wife, &c. 
 
 CHAPTER XXIV. 
 
 TRUSTS. NATURE, ETC., OP A TRUST ESTATE, 
 
 327 
 
 1. Analogous to legal estates. 
 
 2. Alienation of. 
 
 3. Curtesy. 
 9. Dower. 
 
 16. Subject to debts. 
 28., Merger. 
 
 29. Actions by and against the cestui, &c. 
 36. Conveyance of the legal estate, when 
 
 presumed. 
 39. Trust, how affected by lapse of time, 
 
 and the statute of limitations. 
 
 CHAPTER XXV. 
 
 TRUSTS— CESTUI AND TRUSTEE.— THEIR RESPECTIVE INTERESTS, RIGHTS 
 AND DUTIES, AS BETWEEN THEMSELVES, AND IN RELATION TO THIRD 
 PERSONS, - - - 339 
 
 1. Incidents of a trust — right of cestui to a 
 conveyance. 
 
 5. Cestui not prejudiced by any act, &c., of 
 
 trustee. 
 
 6. Change of estate by trustee. 
 
 7. Executory agreement — binding in favor 
 
 of cestui. 
 
 8. Conveyance by trustee to third persons — 
 
 notice of trust, &c. 
 22. Authorized sale by trustee — liability of 
 purchaser to the cestui. 
 
 37. Joint trustees — conveyances and receipts 
 
 by. 
 
 38. Liability of trustee to cestui. Release of 
 
 debts. 
 
 39. Sale of land. 
 
 40. One trustee, whether liable for another. 
 
 41. For what amount trustees shall account. 
 
 42. Exchange of lands. 
 
 43. Gestui's remedy against trustee. 
 
 44. Compensation and allowance to trustee. 
 49. Trustee shall not purchase the trust es- 
 tate. 
 
 68. Exceptions. 
 
 73. Disclaimer and release by trustee. 
 
 75. Trustee cannot delegate his power. 
 
 76. Statutory provisions as to joint trustees. 
 
 77. Joint trustees in New York. 
 
 78. Chancery may remove, appoint new 
 
 trustees, &c. 
 
 81. Descent of trust to heirs. 
 
 82. Who may be trustees. 
 
 83. Trtist fastens on the estate. 
 85. Hosv affected by escheat, &e. 
 
XIV 
 
 I. Trust terms. 
 
 CONTENTS. 
 
 CHAPTEE XXVI. 
 
 TRUST TEEMS. TRUSTS IN NEW YORK. 
 
 I 9. Trusts in New Tork. 
 
 368 
 
 CHAPTEE XXVII. 
 
 ESTATE ON CONDITION. NATURE AND KINDS OF CONDITIONS. 363 
 
 1. Definitions. 
 
 2. Implied or express. 
 
 4. Precedent or subsequent. 
 
 11. May belong to any estate. 
 
 12. Things executed and executory. 
 
 13. Must determine the whole estate. 
 15. To whom reserved. 
 
 18. Impossible conditions. 
 
 19. Illegal conditions. 
 
 20. Repugnant conditions. 
 
 23. Cannot be made void by a change in 
 the law. 
 
 25. Repugnant obligations. 
 
 28. Condition against assignment of lease. 
 
 38. Confession of judgment, whether a trans- 
 fer. 
 
 40. For re-entry, in ease of insolvency. 
 
 43. In restraint of marriage. 
 
 CHAPTEE XXVIII. 
 
 ESTATES ON CONDITION— PERFORMANCE, BREACH, DISCHARGE, 
 
 OF CONDITIONS, - . - - 
 
 ETC, 
 
 3,7T 
 
 1. Performance — conditions precedent and 
 
 subsequent. 
 
 2. Performatioe as far as possible. 
 
 3. Copulative condition. 
 5. Who may perform. 
 9. When performed. 
 
 12. Place. 
 
 14. Who hound by. 
 
 15. Impossible conditions. 
 
 20. Refusal to accept performance, &o. 
 
 23. 
 
 Breach and forfeiture at law ; condi- 
 tion and covenant, &c. 
 28. Relief in equity. 
 36. Breach, how taken advantage of. 
 42. Breach, who may take advantage of. 
 49. Effect of entry. 
 51. Waiver of condition. 
 
 53. Release of condition. 
 
 54. Accord and satisfaction. 
 
 55. Condition and Limitation — distinction. 
 
 CHAPTEE XXIX. 
 
 MORTGAGE— NATURE, FORM AND EFFECT OF A MORTGAGE, 
 
 391 
 
 1. Definition and history of mortgages. 
 
 4. Right of redemption. 
 
 5. In fee or for years. 
 
 6. Deed and defeasance. 
 
 20. What constitutes a mortgage in Chan- 
 cery. 
 
 23. 
 
 26. 
 
 47. 
 
 Personal liability of mortgagor. 
 
 Right of redemption cannot be re- 
 strained ; mortgage and conditional 
 sale, distinction between. 
 
 Power to sell, given to a mortgagee. 
 
 CHAPTEE XXX. 
 
 MORTGAGE— WHAT ESTATE IT CREATES IN THE MORTGAGOR AND 
 
 THE MORTGAGEE, - - 404 
 
 1. Estate remains in the mortgagor, as to 
 third persons, but not as to the mort- 
 
 1. Mortgagee may take possession, when. 
 8. Agreement for mortgagor's possession. 
 
 16. Mortgagor in possession, nature of his 
 
 estate — tenancy at will, &e, 
 
 17. Cannot commit waste, but not boundto 
 
 repair. 
 
 18. Lease by mortgagor before or after the 
 mortgage ; rights of the lessee and 
 mortgagee. 
 
 34. Mortgagee of leasehold, liable on cov- 
 
 enants. 
 
 35. Waste by mortgagee. 
 
 36. Lease by mortgagee. 
 
CONTENTS. 
 
 CHAPTEE XXXI. 
 
 XV 
 
 EQUITY OF REDEMPTION— NATURE OP THE ESTATE— "WHO MAY 
 
 EKDBEM, ETC., ... - 413 
 
 1. Distinction between an equity of re- 
 
 demption and a trust. 
 
 2. Mortgagor has seizin. 
 
 3. Curtesy. 
 
 4. Dower. 
 
 8. Wlietlier assets. 
 
 9. Subject to legal process. 
 
 12. Who may redeem. 
 
 13. Subsequent incumbrancers. 
 16. Dowress, &o. — on what terms. 
 
 22. The crown. 
 
 23. Whether the whole debt must be 
 
 paid. 
 25. Tacking. 
 
 29. Unknown in United States, 
 
 30. Future advances, &g. 
 38. Time of redemption. 
 
 43. No redemption in case of fraud. 
 45. Terms of redemption — account — re- 
 pairs — interest, &c. 
 
 MORTGAGE- 
 
 CHAPTER XXXII. 
 
 -ESTATE OF A MORTGAGEE— SUCCESSIVE MORTGAGEES 
 
 OF THE SAME LAND, - ■ 42D 
 
 1. Mortgage — personal estate — passes to 
 
 executors, &c. 
 4. Devise of mortgagee. 
 8. American doctrine, 
 1. Assignment of mortgage is the transfer 
 of an estate. 
 13. Mortgage and debt may be separated. 
 15. Interest of mortgagee, not liable to ex- 
 ecution. 
 18, Statute of limitations, and lapse of time, 
 23, Insurance, 
 
 24. Second mortgagee — general princi- 
 
 ples. 
 
 25. Rights of, not affected by transactions 
 
 between first mortgagee and mort- 
 gagor. 
 
 2"?. Assignment of first mortgage. 
 
 28. Mortgage to several persons by one 
 deed, 
 
 30. Equitable interference for subsequent 
 
 mortgagee. 
 
 31. Fraud, 
 
 CHAPTER XXXIII. 
 
 MORTGAGE— ASSIGNMENT, PAYMENT, RELEASE, ETC., OF MORTGAGES, 
 
 AND TRANSFERS OF EQUITIES OF REDEMPTION, . . 438 
 
 25. Discharge of execution — not conclu- 
 sive of discharge of mortgage, 
 
 26. Payment on mortgage, cannot be ap- 
 plied to other debts, 
 
 28, Substituting of one security for another, 
 &c. — in general, no payment of 
 mortgage, 
 
 34. Assignment and discharge of mortgage 
 — when atranafer will be construed 
 as an assignment, and when as a 
 charge.- 
 
 54. Satisfied mortgage — whether a stran- 
 ger may set it up. 
 
 56. Sale by mortgagee with mortgagor's 
 consent. 
 
 58. Joint release to mortgagee & mortgagor. 
 
 1. Mortgage cannot be assigned without 
 
 the debt. 
 
 2. Assignment cannot prejudice the mort- 
 
 gagor — notice, Ac. 
 6. Mortgage an incident to the debt — prin- 
 ciple considered — and whether pay- 
 ment revests the estate in the mort- 
 gagor. 
 
 15. Discharging mortgage upon the record. 
 
 18. Release of equity — whether a payment. 
 
 21. Release of mortgage — release in part. 
 
 23. Deposit of money with mortgagee — no 
 
 payment. 
 
 24. Deatli of mortgagor does not turn a 
 
 mortgage into payment — practice in 
 ■ case of insolvency. 
 
 CHAPTER XXXIV. 
 
 MORTgIgE- FROM WHAT FUND TO BE PAID, 
 
 450 
 
 1. Debt paid from the fund benefited — 
 
 executor and heir. 
 
 2. Mortgage by father and son. 
 
 3. Devi.sed lands. 
 
 6. Personal estate may' be expressly ex- 
 empted. 
 
 8. Exceptions to the rule of applying the 
 
 personal estate. 
 
 9. Rule in New York. 
 
 10. In Pennsylvania. 
 
 11. Recapitulation of oases. 
 
 41. Application of payments in equity. 
 
XVI 
 
 CONTENTS. 
 
 CHAPTEE XXXV. 
 
 SALE OF EQUITIES OF REDEMPTION ON BZECTJTION, 
 
 ■- 459 
 
 1. Estate of mortgagor — universally liable 
 
 to execution. 
 
 2. Effect of sale — mortgagor's right after 
 
 sale. 
 
 7. Levy upon two executions. 
 
 8. hevy in case of disseizin. 
 
 9. No ouster of mortgagee. 
 
 1 0. Purchaser becomes seized. 
 
 12. Attachment of equity— mortgage dis- 
 ■ charged before sale. 
 15-21. Redemption from purchaser — ^whon, 
 and on what terms. 
 16. Fraudulent mortgage; sale of equity- 
 void. 
 18. Right to redeem subsequent mort- 
 gages. 
 
 CHAPTER XXXYI. 
 
 MORTGAGE, WHEN VOID OR YOIDABLB, 
 
 466 
 
 1. General remarks. 
 
 2. Usury. 
 11. Infancy. 
 
 13. Eviction. 
 
 14. Fraud. 
 
 CHAPTER XXXVII. 
 
 MORTGAGE— REMEDIES OF MORTGAGEE AND MORTGAGOR AT LAW, 4Y1 
 
 1. Distinction between a mortgage and 
 
 trust as to remedy. 
 
 2. Action at law by mortgagor, aft,er pay- 
 
 ment. 
 i. Action at law by mortgagee, after pay- 
 ment. 
 
 5. Concurrent remedies. 
 
 6. Form of judgment for mortgagee. 
 
 8. Possession under a judgment, no pay- 
 ment. . 
 
 9. Title of mortgagee under a third per- 
 son, no payment. 
 11. No action at law by mortgagee in New 
 York and South Carolina. 
 
 13. Tender in court by mortgagor. 
 
 14. Suit by execution purchaser. 
 
 15. Assumpsit by mortgagor. 
 
 16. Remedy by scire facias, &c. 
 21. Commitment of mortgagor. 
 
 CHAPTER XXXVIII. 
 
 MORTGAGE— REMEDIES IN EQUITY— FORECLOSURE AND REDEMP- 
 
 TION, 
 
 4^ 
 
 1-14. Lapse of time. 
 
 2. General principles of foreclosure. 
 5-24. Massachusetts. 
 9-30. Maine. 
 
 11. New Hampshire. 
 
 13. Rhode Island. 
 
 16. Termont and Connecticut. 
 
 17. New York. 
 
 19. New Jersey. 
 
 20. Georgia. 
 
 21. North Carolina. 
 
 22. Ohio and Tennessee. 
 
 31. Foreclosure — whether payment of debt, 
 
 &6.' 
 40. Right of redemption may be revived. 
 44. Mortgage cancelled by mistake. 
 
 46. Equity will not relieve, where there is 
 
 a legal right. 
 
 47. Fraud. 
 
 48. Payment into court. 
 
 49. Mortgag'or cannot redeem on payment 
 
 by a third person. 
 
 1. Deposit of title deeds. 
 9. Lieu for purchase-money. 
 
 CHAPTER XXXIX. 
 
 MORTGAGE— EQUITABLE MORTGAGES AND LIENS, - - 490 
 
 I 45. Lien of purchaser after payment. 
 
CONTENTS. 
 
 XVU 
 
 CHAPTER XL. 
 
 LIEN OP MECHANICS, ETC, FOR LABOR AND MATERIALS, 
 
 600 
 
 1. Lien by legal process. 
 
 2. Lien of mechanics, &o. 
 
 3. Massachusetts. 
 
 4. Connecticut. 
 
 5. New Hampshire. 
 
 6. Rhode Island. 
 1. Maine. 
 
 8. Pennsylvania. 
 
 9. Ohio. 
 10. Indiana. 
 
 11. Illinois. 
 
 12. Missouri. 
 
 13. Tennessee. 
 
 14. Kentuclcy. 
 
 15. Michigan. 
 
 16. Arliansas. 
 
 17. Mississippi. 
 
 18. Georgia. 
 
 19. Alabama. 
 
 CHAPTER XLI. 
 
 REMAINDERr-VESTED AND CONTINGENT REMAINDERS, 
 
 - 512 
 
 1. Definition — cannot be after a fee. 
 
 4. By what words created. 
 
 5. Tested or contingent. 
 T. When contingent. 
 
 9. Classification of contingent remainders. 
 20. Exception to third class — limitation for 
 a long term — remainder after the ter- 
 
 mination of life. 
 24. Limitation after a life, where the term 
 
 for years is short. 
 28. Exceptions to fourth class — Shelley's 
 
 case — " designatio personce" &o. 
 34. Oh. J. WiUes' division of contingent 
 
 remainders. 
 
 CHAPTER XLII. 
 
 REMAINDER— VESTED AND CONTINGENT REMAINDERS, 
 
 518 
 
 I. Contingency of remainder depends on a 
 
 present capacity of talking effect. 
 
 2. Law favors vested remainders. 
 
 4. Remainder may be vested, though not 
 to take effect upon every possible ter- 
 mination of prior estate. 
 
 t. Intervention of contingent estate — re- 
 mainder not thereby contingent, un- 
 less the estate is a fee. 
 
 II. Contingent estates may be devised, as 
 
 substitutes for each other. 
 11. Cross remainders. 
 18. Prior limitation to trustees and their 
 
 heirs till a certain event. 
 20. "Where one of concurrent remainders, 
 
 Ac, vests — rest defeated. 
 
 21. Successive remainders — whether the 
 
 contingency named affects only one 
 or the whole. 
 
 22. Limitation after an estate, depending 
 
 on a contingency which never hap- 
 pens. 
 28. After the conditional termination of an 
 estate, which never takes effect. 
 
 30. After the conditional termination of ah 
 
 estate which takes effect, but termi- 
 nates otherwise. 
 
 31. Words importing not a contingent re- 
 
 mainder, but when a remainder shall 
 come into possession. 
 45. Remainder upon condition subsequent. 
 
 CHAPTER XLIII. 
 
 REMAINDER— TOID CONDITIONS, 
 
 530 
 
 2. Illegality. 
 
 4. Remoteness of probability. 
 
 1. Abridgment, &c., of preceding estate. 
 
 14. Or of preceding remainder. 
 
 16. Exception — enlargement of prior estate. 
 19. Devise — conditional limitation. 
 23. Limitation by way of use. 
 
xviu 
 
 COKTENTa 
 CHAPTER XLIV. 
 
 REMAINDER— BY WHAT ESTATE STTPPORTBD, 
 
 534 
 
 1. Contingent freehold remainder must be 
 limited on a freehold. 
 
 4. Contingent remainder for years. 
 
 5. Possession not necessary — a right of en- 
 
 try sufficient — to sustain a remainder. 
 
 9. Both estates must be created by one 
 instrument. 
 13. Estate of trustees sufficient to support 
 remainder. 
 
 CHAPTER XLY. 
 
 REMAINDEE^AT WHAT TIME IT SHALL TEST, 
 
 536 
 
 1. Remainder must vest during, or imme- 
 diately upon termination of, the prior 
 estate. 
 
 5. Subsequent revival of prior estate does 
 not render valid the remainder. 
 
 6. Remainder void, though a prior estate 
 
 for years continues. 
 9. Posthumous child. « 
 
 12. Vested remainder not affected by defeat 
 
 of prior estate. 
 
 13. Remainder may become void in part. 
 
 CHAPTER XLVI. 
 
 REMAINDER. REMAINDER BT WAT OF USE, 
 
 638 
 
 2. Since the statute of uses, a freehold 
 trust necessary to support contingent 
 remainders. 
 
 4. Preceding trust must continue till the 
 contingency happens. 
 
 6. Resulting trusts sufficient to support re- 
 mainders. 
 
 1. Contingent uses arise out of seizin of 
 trustees — discussions upon this sub- 
 ject — Ohudleigh's case, &c. 
 14. Springing and shifting uses. 
 
 CHAPTER XLVII. 
 
 REMAINDER— HOW DEPBATED, 
 
 543 
 
 1. By destroying the particular estate. 
 
 2. Whet'ier by a mere change of estate. 
 
 3. Where the particular estate and a subse- 
 
 quent remainder unite, whether con- 
 tingent remainders destroyed. Dis- 
 
 tinction of cases. 
 
 10. Remainder by way of use, how destroy- 
 ed ; whether actual seizin necessary, 
 &o. 
 
 19, American opinions and cases. 
 
 CHAPTER XLVIII. 
 
 REMAINDER. TRUSTEES TO PRESERYE CONTINaSNT REMAINDERS 549 
 
 1. Origin and history. 
 
 3. Trustees take an estate. 
 
 4. May destroy the remainders ; but it is a 
 
 breach of trust. 
 
 5. Exceptions — remote relations may be 
 
 barred. 
 1. If remainder-men join ; no breach of 
 trust. 
 
 8. Chancery sometimes directs a convey- 
 ance in favor of mortgagees, credi- 
 tors, &c. 
 
 12. But generally will not interfere. 
 
 16. Trustees cannot safely defeat the remain- 
 ders. 
 
 11. Power and duty in case of waste. 
 
CONTENTS. xix 
 
 CHAPTER XLIX. 
 
 REMAINDER— DOCTRINE OF ABET ANCB— CONDITION OF THE FEB 
 
 IN CASE OF CONTINGENT REMAINDERS, - ■ 534 
 
 1. Limitations to uses — ^uae resulta 
 4. Limitation by devise. 
 
 10. Limitation by common law convey- 
 ance. 
 
 CHAPTEE L. 
 
 REMAINDER. ALIENATION, ETC., OF CONTINGENT REMAINDERS, 556 
 
 1. Vested remainders alienable, &o. 
 
 2. Contingent remainders said to be de- 
 
 scendible and devisable. 
 
 10. Cannot be conveyed at law, but may be 
 in equity, and may pass by estoppel. 
 
 15. Transfer to creditors. 
 
 16. General remarks. 
 
 CHAPTER LI. 
 
 REMAINDERS IN NEW YORK, 
 
 660 
 
 1. Expectancies. Remainders vested and 
 
 contingent. 
 6. Fee upon a fee. 
 1. Remainder after estate tail. 
 8-18. Remainder after estate for life or for 
 
 years. 
 
 13. Remainder .not barred by destruction of 
 
 prior estate. 
 
 14. Not void for improbability. 
 
 15. Remainder to heirs. 
 
 16. Contingency may abridge prior estate. 
 
 17. Limited application of the statute. 
 
 CHAPTER LII. 
 
 RBTBRSION, 
 
 - 663 
 
 1. Definition and principle of the estate. 
 
 3. An incorporeal hereditament. 
 
 4. After conditional fee, So. 
 6. After base fee. 
 
 6. After estate for years. 
 
 1. May belong to a particular tenant, who 
 
 underlets. 
 8. Created by act of law. 
 
 9. Subject to same rules with estates in 
 
 possession. 
 10. Actions by reversioner for injuries to the 
 
 land. 
 21 Rights of reversioner in case of adverse 
 
 possession. 
 27. Reversion, how far liable for debts.1 
 34. Transfer of reversion — when set aside. 
 45. Miscellaneous provisions. 
 
 CHAPTER Lin. 
 
 JOINT TENANCY, 
 
 674 
 
 1. Number and connection of the owners 
 
 of real estate. 
 3. Joint tenancy, how created. 
 6. " " in a remainder. 
 8. " " for lives, and several in- 
 heritances. 
 
 12. Unities necessary to joint tenancy. 
 
 13. Unity of interest. 
 
 14. " " title. 
 
 16. Unity of time. 
 
 22. " " possession. 
 
 23. Survivorship. 
 
 24. Exceptions to the rule of survivordhij). 
 34. Who may be joint tenants. 
 
 45. Not subject to charges made by one. 
 
 46. Except by lease. 
 
 52. Severance of joint tenancy. 
 
XX 
 
 CONTENTS 
 
 CHAPTER LIV. 
 
 TENANCY IN COMMON, 
 
 ■ 684 
 
 .1. Tlirre forms oi joint ownership in Eng- 
 land. 
 
 2. Co-parcenary; obsolete in the United 
 Stai es. 
 
 B. Tenancy in common, what. 
 
 C. Joint tenancy favored in England, but 
 
 discountenanced in the United States; 
 Blatutory provisions changing it into 
 tenancy in conimon. 
 1 5. Exceptions— husband and wife. 
 
 20. Joint mortgagees. 
 
 25. Trustees and executors. 
 
 26. Statutes apply to vested estates. 
 30. Legislative grants. 
 
 34. Estate in common subject to the same 
 rules with a several estate. 
 
 37. But a tenant cannot convey by metes 
 and bounds. 
 
 47. General rights and remedies of tenants 
 in common, &o. 
 
 CHAPTER LV. 
 
 TENANCY IN COMMON, ETC.— PARTITION, 
 
 . 603 
 
 1. Methods of partition. 
 
 2. Stiitutes o£ the several States concern- 
 
 ing. 
 
 3. In the New England States. 
 9. New -York. 
 
 10. Pennsylvania. 
 
 11. New jersey, Alabama and Mississippi. 
 
 12. Maryland. 
 
 13. Delaware. 
 
 14. Tennessee. 
 
 15. Illinois. 
 
 16. Indiana. 
 
 17. Missouri. 
 
 18. Kentucky. 
 
 19. Ohio. 
 
 20. Virginia. 
 
 21. North Carolina. 
 
 22. South Carftlina. 
 
 23. Geoi'gia. 
 
 24. Miscellaneous decisions. 
 
 CHAPTER LVI. 
 
 WORDS NECESSARY TO CREATE ESTATEa WORDS NECESSARY IN A 
 DEED TO CREATE A FEE-SIMPLE OR A FEB TAIL, 
 
 617 
 
 1. Introductory remarks. 
 
 2. Heirs necessary in a deed. 
 
 5. Origin of the rule. 
 
 6. Exceptions — conveyance to a corpora- 
 
 tion. 
 
 8. Omission of the word his — the word heir. 
 
 9. One clause may atl'eot another. 
 
 10. Words of reference. 
 
 11. Releases. 
 
 12. Rule in equity. 
 
 1 3 . Eeirs necessary to estate tail. 
 
 15. Of the body — not necessary. 
 
 1 6. Heirs maUs. 
 
 18. Issue past and future. 
 19-30. Heirs of one deceased. 
 20. Premises arid habendum. 
 
 23. Remainder on failure of heirs. 
 
 24. Limitations to husband and wife, &c. 
 31. Rule in the United States. 
 
 CHAPTER LVII. 
 
 WORDS IN A DEVISE 
 
 NECESSARY TO CREATE 
 ESTATE TAIL, - 
 
 A EEE-SIMPLE OR AN 
 
 622 
 
 1. General principle. 
 
 2 What words su£6cient. 
 
 4. Power to sell, 
 14. Utvise for children, &e. 
 18. Heterence to other provisions. 
 22. Introduclijry words. 
 29. "Estate," Ac, meaning of terms. 
 43- Devise charged with debts, &&. 
 
 56. Devise over, on devisee's dying under 
 age. ' 
 Devise to trustees. 
 Devise of wild lands. 
 Estate tail, by what words created. 
 Debts charged upon. 
 71. Remainder after a devise in fee, &o. 
 96. Knlargement of life estate. 
 110. Rule in United States. 
 
 61. 
 
 67. 
 70. 
 
CONTENTS. 
 CHAPTEE LYIII. 
 
 XXI 
 
 TBE RULE IN SHELLEY'S CASE, 
 
 610 
 
 1. History of the rule — Shelley's case. 
 3-5. Effect of intervening estates between 
 the ancestor and heirs. 
 4. Life estate by implication. 
 6. Joint or several life estate and inherit- 
 ance — husband and wife, &c. 
 8. Two estates created by distinct instru- 
 ments. 
 13. Union of legal and equitable estates. 
 15. Use of the words issv£, children, &c. 
 18. Marriage articles. 
 
 31. Rule applies to devises, notwithstand- 
 ing other provisions implying a con- 
 trary intent. 
 
 37. Heir, next heir male, words of subse- 
 quent limitation added to the word 
 heir, &c. 
 
 48. Trusts, executed and executory — dis- 
 tinction. 
 
 56. Terms lor years. 
 
 62. Distinction as to subsequent words of 
 hmitation. 
 
 68. Rule where the h^rs are to have only 
 a lile estate. 
 
 10. Issue, effect of the word. 
 
 81. Union of trust and legal estate. 
 
 90. Case of Perrin v. Blake. 
 
 95. American doctrine. 
 
 CHAPTER LIX. 
 
 JOINT TENANCY, ETC., HOW CREATED, 
 
 - 660 
 
 2. Joint tenancy, &o., by deed. 
 
 8. Rule in United States. 
 11. Trust, how created by deed. 
 13. Cross-remainders by deed. 
 
 24. Joint tenancy, 4o., by devise. 
 36. Cross-remainders by devise. 
 53 . Condition, &c., by devise. 
 
 Vol I 
 
TABLE OF CASES CITED IN YOL. OI(E. 
 
 A 
 
 
 Allen V. Culver 
 
 236, 256 
 
 
 
 Hall 
 
 600 
 
 Abbe V. Newton 
 
 468 
 
 Holton 
 
 44, 592 
 
 Abbot V. Bokenham 
 
 65 
 
 McCoy 
 
 112 
 
 Burton 
 
 297 
 
 McKean 
 
 1 
 
 Abbott V. Sturtevant 
 
 464 
 
 MoRae 
 
 397 
 
 Upton 
 
 444 
 
 Parish 
 
 460 
 
 Abergavenney's case 
 
 119, 581, 684 
 
 Parker 
 
 406 
 
 Abingdon's case 
 
 158 
 
 Thayer 
 
 217 
 
 Abraham v. Twigg 
 
 619 
 
 ■Wooley 
 
 192 
 
 Acey V. Simpson 
 
 132 
 
 Allyn V. Mather 
 
 62 
 
 Acker v. Ledyard 
 
 230 
 
 Alpa0 V. Watkins 
 
 642 
 
 "Witherell 
 
 189 
 
 Alaherr v. Hawkins 
 
 107, 109, 110 
 
 Aokland v. Aokland 
 
 630, 631 
 
 Altemas v. Campbell 
 
 42 
 
 Atwell 
 
 267 
 
 Long 
 
 43 
 
 Lutley 
 
 68, 184, 633 
 
 AltersoU v. Stevens 
 
 566 
 
 Bring 
 
 179, 633 
 
 Altham v. Anglesea 
 
 299 
 
 TuUey 
 
 76 
 
 Altimus V. Elliott 
 
 347 
 
 Ackless V. Seekright 
 
 630, 633, 634 
 
 Amand v. Bradburn 
 
 347 
 
 Adair v. Lott 
 
 78, 335 
 
 Ambler v. Norton 
 
 165 
 
 Adams v. Adams 
 
 137 
 
 Weston 
 
 167 
 
 Barnes 
 
 467 
 
 Ambrose v. Ambrose 
 
 330 
 
 Barrow 
 
 158 
 
 American, &c. v. Dyett 
 
 92 
 
 Brown 
 
 427 
 
 Pringle 
 
 508 
 
 Buoklin 
 
 232,249 
 
 Ameriscoggin u. Bragg 
 
 222 
 
 Croft 
 
 69, 650, 657, 659 
 
 Amidown v. Peck 
 
 477 
 
 DunHee 
 
 384 
 
 Amis V. Amis 
 
 615 
 
 French 
 
 179, 189 
 
 Amory v. Carpenter 
 
 614 
 
 Prothingham 
 
 661 
 
 Francis 
 
 443 
 
 Paynter 
 
 478 
 
 Ancaster v. Mayer 
 
 397, 456 
 
 Savage 
 
 299, 539 
 
 Ancots V. Catherick 
 
 106 
 
 Smith 
 
 3, 11, 23 
 
 Anders v. Anders 
 
 600 
 
 Addis V. Campbell 
 
 573 
 
 Meredith 
 
 398 
 
 Addison v. Coon 
 
 435, 463 
 
 Anderson, &c. 
 
 68 
 
 Agar V. Young 
 
 218 
 
 Anderson v. Bacon 
 
 35 
 
 Aiken v. Appleby 
 
 201 
 
 Critcher 
 
 194, 285 
 
 Smith 
 
 197, 228- 
 
 Dawson 
 
 623 
 
 Aikin v. Morris 
 
 468 
 
 Hughes 
 
 604 
 
 Albany v. Bay 
 
 91, 405 
 
 Lemon 
 
 349, 354 
 
 Alden v. Gilmore 
 
 49 
 
 Nefif 
 
 414 
 
 Alderman v. Dunn 
 
 494, 498 
 
 Nesmith 
 
 199, 565 
 
 Treate 
 
 194 
 
 Prindle 
 
 284 
 
 Aldrich v. Parsons 
 
 8 
 
 Andrew v. Southouse 
 
 628 
 
 Sharp 
 
 476 
 
 Andrews v. Andrews 
 
 176 
 
 Aldridge v. Barbison 
 
 90 
 
 Scotton 
 
 347 
 
 Alexander v. Bonnin 
 
 195, 226 
 
 Semter 
 
 386 
 
 M'Murray 
 
 302, 336 
 
 Sparhawk 
 
 342, 344 
 
 Alford V. Vickerlng 
 
 28, 312 
 
 Tompkins 
 
 421 
 
 Alger V. Fay 
 
 618 
 
 Washburn 
 
 502 
 
 Allaire 11. "Whitney 
 
 178 
 
 Angell V. Dawson 
 
 345 
 
 AUard v. Lane 
 
 439, 446 
 
 Ankeny v. Pierce 
 
 216 
 
 Allen V. Allen 
 
 124 
 
 Ann Bedingfield's case 
 
 119 
 
 Bryant 
 
 353 
 
 Ann Mayowe's case 
 
 383 
 
 Clark 
 
 419, 485 
 
 Annable v. Patch 
 
 628, 591 
 
XXIV 
 
 TABLE OF CASES CITED IN YOL. ONE. 
 
 Anne, &o. 
 
 73 
 
 Austin 
 
 V. Sawyer 
 
 12 
 
 Ansliutz V. M'CIelland 
 
 503 
 
 
 Thomas 
 
 54 
 
 Ansten v. Taylor 
 
 648, 649 
 
 Aveling v. Barnum 
 
 218 
 
 Anthony v. Smith 
 
 494 
 
 
 Knipe 
 
 571 
 
 AppletuD V. Boyd 
 
 589 
 
 Avelyn 
 
 V. Ward 
 
 524 
 
 Archdeacon v. Bowes 
 
 479 
 
 Averill 
 
 V. Louoka 
 
 678, 579 
 
 Archer's ease 535,543, 
 
 544, 549, 652 
 
 Avery 
 
 V. Baum 
 
 48 
 
 Arden v. PuUen 
 
 210, 211 
 
 
 Cheslyn 
 
 22, 23 
 
 Ards V. Wathen 
 
 257 
 
 
 Guthrie 
 
 421 
 
 Areson v. Areson 
 
 627 
 
 
 Smith 
 
 283 
 
 Argryle v. Dwinel 
 
 608, 609 
 
 Ayer v. 
 
 Ayer 
 
 304 
 
 Armistead v. Dangerfield 
 
 537 
 
 
 Spring 
 
 113, 144 
 
 Arms V. Asliley 
 
 308, 309 
 
 Aylor I 
 
 . Chep 
 
 576 
 
 Armstrong v. Baker 
 
 134 
 
 Aymar v. Bill 
 
 438 
 
 Campbell 
 
 308 
 
 Ayres i 
 
 . Draper 
 
 283 
 
 Clark 
 
 245 
 
 
 Husted 
 
 437, 442 
 
 Park 
 
 134, 136, 351 
 
 
 Shannon 
 
 476 
 
 Peirse 
 
 333 
 
 
 Willis 
 
 131 
 
 "Wolsey 
 
 297 
 
 
 
 
 Zane 
 
 338 
 
 
 
 
 Arnold v. Arnold 
 
 524 
 
 
 B 
 
 
 Foot 
 
 427 
 
 
 
 
 Gilbert 
 
 aO, 359, 362 
 
 Babb V. 
 
 Perlev 
 
 81, 86 
 
 Hodges 
 
 204 
 
 Babcoek v. Albee 
 
 284 
 
 Ruggles 
 
 30 
 
 
 Smith 
 
 84 
 
 U.S. 
 
 ^201 
 183, 392 
 
 Baber v 
 
 . Harris 
 
 188 
 
 Arnot V. Post 
 
 Back V. 
 
 Andrews 
 
 326 
 
 Asay V. Hoover 
 
 413, 430 
 
 Backhouse v. 'Wells 
 
 652 
 
 Asliiiurst V Given 
 
 3H2 
 
 Bacon i 
 
 . Bowdoin 
 
 195, 410 
 
 Ashley v. Brightman 
 
 606 
 
 
 Brown 
 
 214, 376 
 
 Ashman v. Williams 
 
 7 
 
 
 Huntington 
 
 352, 397, 402 
 
 Asliton V. Ashton 
 
 6.55 
 
 
 Leonard 
 
 461 
 
 Dalton 
 
 490 
 
 
 M'Intire 
 
 424 
 
 Milne 
 
 424 
 
 
 Smith 
 
 271 
 
 Ashtou's case 
 
 166 
 
 
 Tavlor 
 
 206 
 
 Asplnwall V. Leigh 
 
 275 
 
 Baddeley v. Leppingwell 
 
 632 
 
 Aston V. Aston 
 
 428 
 
 Badger v. Bruce 
 
 141 
 
 Hare 
 
 514 
 
 Badham 
 
 V. Cox 
 
 498 
 
 Astor V. L'Amoreux 
 
 105 
 
 Badlam 
 
 V. Tucker 
 
 422 
 
 Miller 
 
 405, 412 
 
 'Baggett 
 
 V. Meux 
 
 56 
 
 Astreen v. Flanagan 
 
 67, .^24 
 
 Bagley 
 
 V. Bailey 
 
 464 
 
 Atlierstone v. Bostock 
 
 281 
 
 Bagot V 
 
 Oughton 
 
 456 
 
 Atlierton v. Pye 
 
 668, 669 
 
 Bagshaw v. Spencer 
 
 301, 305, 648 
 
 Atkins V. Cliilsou 
 
 241 
 
 Bailey v 
 
 . Boyce 
 
 134 
 
 Kron 
 
 67- 
 
 
 Campbell 
 
 244 
 
 Sawyer 
 
 416, 460 
 
 
 Carleton 
 
 43 
 
 Teomans 
 
 154 
 
 
 Carten 
 
 424 
 
 Atkinson v. Baker 
 
 66, 72 
 
 
 Delaplaine 
 
 184 
 
 Hall 
 
 479 
 
 
 Ekins 
 
 342 
 
 Maling 
 
 422 
 
 
 Lincoln 
 
 468 
 
 Attaquin v. Fish 
 
 273 
 
 
 Rust 
 
 601 
 
 AttersoU a Rittenhouje 
 
 84 
 
 
 Sisson 
 
 604 
 
 Stevens 
 
 566 
 
 
 WiUard 
 
 446, 486. 
 
 Attorney-General v. Bower 
 
 430 
 
 Bailis V. 
 
 Gale 
 
 628 
 
 Fishmonger's, &c. ' 336 j 
 
 Bain v. 
 
 31ark 
 
 16. 
 
 Governors 
 
 , &c. 357 
 
 Baines t 
 
 . McGhee 
 
 491 
 
 Holland 
 
 345 
 
 Baird v. 
 
 Baird 
 
 368. 
 
 Scott 
 
 302, 330 
 
 
 Remen 
 
 356 
 
 Sutton 
 
 638 
 
 Baker v. 
 
 Adams 
 
 284 
 
 "Winstanley 473 | 
 
 
 Baker 
 
 146i 159 
 
 Atwood V. Atwood 
 
 102, 105, 144 
 
 
 JBoston 
 
 223 
 
 Vincent 
 
 492 
 
 
 Bridge 
 
 621 
 
 Austin V. Austin 
 
 406 
 
 
 Gittings 
 
 
 283. 
 
 Bradley 
 
 359 
 
 
 Holtpzoffell 
 
 226 
 
 Cambridgeport 
 
 378, 527 
 
 
 Johnson 
 
 3 
 
 Oroome 
 
 66 
 
 
 Lorillard 
 
 521 
 
 Halsey 
 
 494 
 
 
 Root 
 
 281 
 
 Eaymond 
 
 383, 384 
 
 
 Thrasher 
 
 402 
 
TABLE OF CASES CITED IN YOL. ONE. 
 
 XXV 
 
 Baker v. Tucker 
 
 644 
 
 Barnes v. Raester 
 
 459 
 
 Wall 
 
 • 634 
 
 Wright 
 
 503 
 
 ■Whiting 
 
 328, 336 
 
 Barnett v. Barnett 
 
 356 
 
 Wind 
 
 376 
 
 Goings 
 
 327 
 
 Baloh V. Onion 
 
 424 
 
 Weaton 
 
 419 
 
 Baldrich v. White 
 
 667 
 
 Barney v. Frownar 
 
 113, 114 
 
 Baldwin v. Jenkins 
 
 392, 394 
 
 Keith 
 
 194 
 
 Norton 
 
 448 
 
 Barnitz v. Casey 
 
 557, 559 
 
 Whiting 
 
 595, 596 
 
 Smith 
 
 499 
 
 Balfour v. Welland 
 
 343 
 
 Barr v. Galloway 
 
 41, 77 
 
 Ball V. Carew 
 
 352, 353 
 
 Gratz 
 
 43 
 
 Church 
 
 129 
 
 Barrett v. Joy 
 
 308, 346, 347 
 
 Coleman 
 
 €44, 647, 648 
 
 Barron v. Barron 
 
 • 92 
 
 Harris 
 
 343 
 
 Martin 
 
 424 
 
 Ballantine v. Greer 
 
 229 
 
 Barrow v. Nave 
 
 602 
 
 Ballard v. Ballard 
 
 528 
 
 Barry v. Alsbury 
 
 366 
 
 Bowers 
 
 418 
 
 Barry 
 
 347 
 
 Carter 
 
 430 
 
 Edgeworth 
 
 62'7 
 
 Ballentine v. Joyner 
 
 263 
 
 Nugent 
 
 195 
 
 M 'Do well 
 
 244 
 
 Bartie v. Falkland 
 
 374 
 
 Ballinger v. Edwards 
 
 466 
 
 Bartlett v. Harlow 
 
 594, 595 
 
 Ballitt V. Musgrave 
 
 262 
 
 Hodgson 
 
 345 
 
 Balls V. Weatwood 
 
 216 
 
 Jaueway 
 
 156 
 
 Baltimore v. M'Kim 
 
 6, 38 
 
 Barton's case 
 
 183, 541 
 
 Bancroft v. .Andrews 
 
 152 
 
 Barwiok v. Poater 
 
 237 
 
 • . White 
 
 107 
 
 Baakin o Seechrist 
 
 219 
 
 Banham v. Neweomb 
 
 424 
 
 Baskins v. Giles 
 
 357 
 
 Bank, &o. v. Beverly 
 
 336 
 
 Bass V. Scott 
 
 304, 337 
 
 Carroll 
 
 417 
 
 Basset v. Basset 
 
 638 
 
 Crary 
 
 10, 13 
 
 Bassett v. Basaett 
 
 393 
 
 Curtiss 
 
 501 
 
 Mason 
 
 437, 486 
 
 Dunseth 
 
 145 
 
 Bates V. Norcroas 
 
 42 
 
 Finch, Ac. 
 
 421 
 
 Shraeder 
 
 270 
 
 Fox 
 
 488 
 
 Sparrel 
 
 4 
 
 MitcheU 
 
 437, 442 
 
 Thornberry 
 
 615 
 
 Mott 
 
 408 
 
 Webb 
 
 525 
 
 Peters 
 
 435 
 
 Batchelder v. Middleton 
 
 424, 478 
 
 Eose 
 
 426 
 
 Robinson 
 
 4,88 
 
 Smyers 
 
 43,47 
 
 Battle V. Griffin 
 
 488 
 
 Sprigg 
 
 397 
 
 Baush V. Ware 
 
 38 
 
 Tarleton 
 
 431, 445 
 
 Baxter v. Brown 
 
 195 
 
 Torrey 
 
 348, 351 
 
 Lansing 
 
 382 
 
 Whyte 
 
 397, 413 
 
 Baykes v. Baykes 
 
 338 
 
 Wise 
 
 11, 239 
 
 Bayley v. Greenleaf 
 
 498 
 
 Banks v. Eebbeok 
 
 198 
 
 Howan 
 
 388 
 
 Sutton 
 
 330, 338 
 
 Morris 
 
 644 
 
 Walker 
 
 468 
 
 Baylies v. Busaey 
 
 450 
 
 Banuso v. Madau 
 
 366 
 
 Taylor 
 
 566 
 
 Barber v. Caig 
 
 435 
 
 Willey 
 
 396 
 
 Harris 
 
 588 
 
 Baylis v. Newton 
 
 325 
 
 Boot 
 
 85 
 
 Staate 
 
 356 
 
 Barclay, &o. 
 
 507 
 
 Bayly v. Lawrence 
 
 254 
 
 Bard v. Fort 
 
 467, 478 
 
 Rees 
 
 346 
 
 Barker v. Barker 
 
 81 
 
 Bayne v. Gaylord 
 
 509 
 
 Bates 
 
 18 
 
 Beach v. Barons 
 
 236 
 
 Giles 
 
 666 
 
 Grain 
 
 212 
 
 Barkeydt v. Barkeydt 
 
 626 
 
 Gray 
 
 245 
 
 Salmon 
 
 44 
 
 Beadley v. Holdaworth 
 
 29 
 
 Barlow v. Barlow 
 
 62 
 
 Beale v. Sanders 
 
 213 
 
 Wainwright 
 
 280 
 
 Beall V. Barclay 
 
 438 
 
 Barnard v. Baton 
 
 468 
 
 Bean v. Mayo 
 
 iOI 
 
 Edwards 
 
 153 
 
 Bear v. Biizer 
 
 18 
 
 Large 
 
 552 
 
 Snyder 
 
 104, 146 
 
 , Pope 
 
 470, 605 
 
 Beard v. Nuthall 
 
 168 
 
 Barnardiston v. Coster 
 
 521 
 
 Beardslee v. Beardslee 
 
 388, 630* 
 
 Barnardistone v. Fane 
 
 382 
 
 BearJsley v. Knight 
 
 30 
 
 Barnes v, Ba;xter 
 
 437 
 
 Beare v. Prior 
 
 424, 426 
 
 Camark 
 
 440 
 
 Bears v. Ambler 
 
 211 
 
XXVI 
 
 TABLE OF OASES CITED IN VOL. ONE. 
 
 Beatton, ifco. 
 
 416 
 
 Bigelow v. Collamore 
 
 264 
 
 Beaty v. Gibbons 
 
 15, 25 
 
 Finch 
 
 281 
 
 Beavers ». Smith 113, 
 
 145, 147, 155 
 
 Jones 
 
 601 
 
 Beok V. Mcaillis 
 
 430 
 
 Willson 
 
 201, 417 
 
 XJliriok 
 
 342 
 
 Biggin v. Bridge 
 
 237 
 
 Beck's ease 
 
 621 
 
 Biggot V. Smith 
 
 615 
 
 Beoket v. Snow 
 
 437 
 
 Biniou v. Stone 
 
 323 
 
 Beokwith D. Bent 
 
 230 
 
 Binney v. Chapman 
 
 216,217 
 
 Boyoe 
 
 20, 22, 24 
 
 Birch i;. Wright 
 
 190,410 
 
 Lamb 
 
 88 
 
 Bird u. Gardner 
 
 417 
 
 Beokwith's case 
 
 298 
 
 Birsted v. Wilkiua 
 
 67 
 
 Beddingfield's case 
 
 60, 119, 160 
 
 Bislaad v. Hewett 
 
 493 
 
 Bedford v. Thomas 
 
 283, 284 
 
 Bisbee v. Eall 
 
 179, 187 
 
 Beebe v. Ooleman 
 
 191- 
 
 Bishop V. Bishop 
 
 337 
 
 Beeclier ». Parmelee 
 
 287 
 
 Doty 
 
 200 
 
 Beeman v. Green 
 
 184 
 
 Selleok 
 
 659 
 
 Beer v. Beer 
 
 257 
 
 Bishop, &o. 
 
 176 
 
 Beers v. St. John 
 
 23 
 
 Bishop of Bath's case 
 
 201 
 
 Beeson v. M'Nabb 
 
 156 
 
 Black u. Black 
 
 309 
 
 Beirne v. Campbell 
 
 493 
 
 Blackburn D. Baker 
 
 43 
 
 Belch V. Harney 
 
 424 
 
 Gregson 
 
 494 
 
 Belcher v. Mcintosh 
 
 211, 212 
 
 Pennington 
 
 499 
 
 Belding v. Manly 
 
 431 
 
 Warwick 
 
 466 
 
 Belfour i>. Davis 
 
 216, 218 
 
 Blaeklow v. Lawes 
 
 303 
 
 "Weston 
 
 254 
 
 Blaekman v. Blackman 
 
 163 
 
 Belingall v. Gear 
 
 476 
 
 Blaokwell «. Overby 
 
 396 
 
 Bell «. Fry 
 
 53 
 
 Blain i>. Harrison 127, 128, 
 
 139, 147, 14^ 
 
 Hartley 
 
 43 
 
 Blair v. Bass 
 
 311, 314, 332 
 
 Morse 
 
 432 
 
 PathklUer 
 
 38 
 
 Neely 
 
 101 
 
 Eankins 
 
 188 
 
 Scannon 
 
 54, 627, 630 
 
 Blake v. Blake 
 
 72 
 
 Twilight 
 
 69, 107 
 
 Crowninshield 
 
 201 
 
 Wilson 
 
 135 
 
 Foster 
 
 328 
 
 Bellasis ». Compton 
 
 313 
 
 Freeman 
 
 84 
 
 Belmont «. Smith 
 
 34 
 
 Miliken 
 
 599 
 
 Bells V. Westwood 
 
 216 
 
 Tucker 
 
 222 
 
 Benbow «. Townsend 
 
 314, 396 
 
 Blakemore v. Byrnside 
 
 397 
 
 Bend ». Susquehaunah, &o. 
 
 397 
 
 Blakesley v. Whieldon 
 
 9 
 
 Benedict v. Morse 
 
 282, 590 
 
 Blanohard u. Brooks 515, 
 
 521, 522, 606 
 
 Bennet v. Box 
 
 331 
 
 Kimball 
 
 477 
 
 Holt 
 
 402 
 
 Blaney u. Bearce 405, 
 
 406, 409, 412 
 
 Womack 
 
 208 
 
 Blanford v. Blanford 
 
 576 
 
 Bennett v. Butterworth 
 
 424 
 
 Blantiu a. Whitaker 
 
 216 
 
 Cooper 
 
 424 
 
 Blaxton v. Stone 
 
 637 
 
 Morris 
 
 652 
 
 Bleecker v. Smith 
 
 208 
 
 Bennook «. Whipple 
 
 394 
 
 Bleight v. Manufacturers, &e. 
 
 30 
 
 Benson i). Benson 
 
 306 
 
 Blewitt V. Millet 
 
 322 
 
 Bentley o. Burden 
 
 558 
 
 Bligh V. Brent 
 
 29, 30 
 
 Long 
 
 518 
 
 Bliss V. Smith 
 
 296 
 
 Phelps 
 
 397 
 
 Blodwell V. Edwards 
 
 530 
 
 Beresford's case 
 
 620 
 
 Blood V. Blood 
 
 106, 119 
 
 Berger «. Hiester 
 
 448 
 
 Wood 
 
 41 
 
 Bemal «. Bernal 
 
 88 
 
 Bloodgood v. Zeily 
 
 398 
 
 Berrien v. Conover 
 
 153 
 
 Blosse V. Clanmorris 
 
 543 
 
 Berrington v. Parkhurst 
 
 520 
 
 Blossom V. Brightman 
 
 593 
 
 Berry v. Mutual, &c. 
 
 492 
 
 Bloughton V. Langley 
 
 301 
 
 WiUiamson 
 
 301, 641, 648 
 
 Blount V. Hipkins 
 
 459 
 
 Bettes V. Dana 
 
 470 
 
 Winter 
 
 169 
 
 Betts u. Lee 
 
 6 
 
 Blow «. Maynard 
 
 103, 122 
 
 Betty V. Moore 
 
 59 
 
 Blowder v. Baugh 
 
 47 
 
 Beverley «. Beverley 
 
 616 
 
 Blower v. Moiret 
 
 132 
 
 Beverly v. Burke 
 
 48 
 
 Blunden v. Baugh 
 
 282 
 
 Bewick v. Whitfield 
 
 274 
 
 Blyer v. MonhoUand 
 
 437 
 
 Bicket V. James 
 
 503 
 
 Boarman 1). Catlett 
 
 416^460 
 
 jiBiokford v. Daniels ' 
 
 396 
 
 Groves 
 
 * 92 
 
 Bickley v. Bickley 
 
 169 
 
 Bodwell V. Webster 
 
 394 
 
 Biddeford ti. Onslow 
 
 565 
 
 Bogardus «. Trinity, &o. 
 
 48, 387 
 
 Biddle 11. Starr 
 
 612 
 
 
 
TABLE OF CASES CITED IN VOL. ONE. 
 
 xxvu 
 
 Boger V. Smith 
 
 220 
 
 Braoebridge's case 
 
 642 
 
 Bogers v. Newbanks 
 
 159, 160 
 
 Bracken v. Miller 
 
 341 
 
 Bogue V. Rutledge 
 
 106 
 
 Bracket v. Leighton 
 
 93 
 
 Bohannon v. Ithreshley 
 
 336 
 
 Bradford v. Belfield 
 
 629 
 
 Bolles V. Chauncey 
 
 444 
 
 Foley 
 
 623 
 
 Bolton V. Ballard 
 
 415 
 
 Perkins 
 
 630. 
 
 'Williams 
 
 493 
 
 Bradish v. Gibbs 
 
 92 
 
 Bombaugh v. Bombaugh 
 
 591 
 
 Bradlev v. Boynton 
 
 602 
 
 Bond V. Hopkins 
 
 424 
 
 Fuller 
 
 442, 447 
 
 Kent 
 
 494 
 
 Westoott 
 
 623 
 
 Susquehanna, &o. 
 
 Sdl 
 
 Bradshaw v. Ellis 
 
 12 
 
 Bonham v. Badgeley 
 
 4T, 155 
 
 Bradstreet v. Huntington 
 
 601 
 
 Galloway 
 
 443 
 
 Schuyler 
 
 338 
 
 Newoomb 
 
 400 
 
 Brady v. McCosker 
 
 605 
 
 Bonker v. Bull 
 
 437 
 
 Weeks 
 
 186 
 
 Bonner v. Proprietors, Ac. 
 
 605 
 
 Brailsford v. Heyward 
 
 328 
 
 Booker v. Gregory 
 
 428 
 
 Brainard v. BuShneU 
 
 201 
 
 Bool V. Mix 
 
 88 
 
 Brainer v. Stewart 
 
 473 
 
 Boon V. Barnes 
 
 493 
 
 Braithwaite v. Skinner 
 
 412 
 
 Boos V. Swing 
 
 494 
 
 Branch v. Doane 
 
 224 
 
 Booth V. Adams 
 
 422 
 
 Branson v. Tanoy 
 
 139, 142 
 
 Barnum 
 
 598 
 
 Brant v. Gelston 
 
 659 
 
 Boothby v. Vernon 
 
 81 
 
 Brashear v. Jackson 
 
 196 
 
 Borah v. Archers 
 
 615 
 
 Williams 
 
 83 
 
 Boraston's case 514, 
 
 624, 559, 630, 610 
 
 Bratton 
 
 496 
 
 Bordman v. Gaborn 
 
 188, 250 
 
 Bratton v. Clawson 
 
 27, 28 
 
 Borst V. Boyd 
 
 413, 424, 478 
 
 MitcheU 
 
 84, 149 
 
 Griffin 
 
 151 
 
 Bracton v. Lee 
 
 121 
 
 Boson V. Williams 
 
 480 
 
 Bray v. Tracy 
 
 270, 276 
 
 Boston V. Binney 
 
 217 
 
 Braybrooke v. In skip 
 
 410 
 
 Boston, &e. v. Bulfinch 
 
 51 
 
 Braithwaite v. Hitchcock 
 
 281 
 
 King 
 
 268, 428, 443 
 
 Brewer v. ConneU 
 
 122 
 
 Sparhawk 
 
 50 
 
 Hardy 
 
 548 
 
 Boteler v. Abington 
 
 302 
 
 Harris 
 
 176 
 
 Botham v. Melntier 
 
 480 
 
 Knapp 
 
 193 
 
 Botaford v. Burr 
 
 312 
 
 Staples 
 
 437, 441 
 
 Bottomley v. Fairfax 
 
 330 
 
 Van Arsdale 
 
 110, 116 
 
 Boughton V. Langley 
 
 302 
 
 Brekenridge v. Ormsby 
 
 472 
 
 Bould V. Kinston 
 
 547 
 
 Bree v. Holbeck 
 
 438 
 
 Bourne v. Littlefield 
 
 428, 484 
 
 Breeding v. Taylor 
 
 602 
 
 Simpson 
 
 121 
 
 Brent's case 294, 
 
 531, 540, 546 
 
 Boumonville v. Goodall 
 
 509 
 
 Brewster v. Striker 
 
 335 
 
 Bovey v. Smith 
 
 340 
 
 Brice V. Smith 
 
 635 
 
 Bowers v. Bowers 
 
 152 
 
 Brick, &o. 
 
 4 
 
 Edwards 
 
 398 
 
 Brick V. Getzinger 
 
 408 
 
 Porter 
 
 659 
 
 Brickhead v. Archbishop, &o. 
 
 119 
 
 Seeger 
 
 438 
 
 Bridge v. Hubbard 
 
 467 
 
 Bowie V. Berry 
 
 114, 115 
 
 Bridge, Ac. v. State 
 
 193 
 
 Bowker v. Ball 
 
 419 
 
 Briggs V. Earle 
 
 272, 276 
 
 Bowles V. Poore 
 
 247 
 
 French 
 
 468, 470 
 
 Bowie's case 
 
 66, 94, 520, 544 
 
 Richmond 
 
 488 
 
 Bowling V. Dobin 
 
 513, 561 
 
 Sholes 
 
 467 
 
 Bowman v. "Wathen 
 
 1 
 
 Thompson 
 
 228, 252 
 
 Bowsa V. Wright 
 
 604 
 
 Brigham i).Eveleth 
 
 596 
 
 Bowser t;. Bowser 
 
 190 
 
 Bright V. Wilson 
 
 268 
 
 Colby 
 
 385 
 
 Briles v. Pace 
 
 286 
 
 Scott 
 
 240 
 
 Brimmer v. Sohier 
 
 665 
 
 Boyd V. Graves 
 
 600 
 
 Brindernagle v. German, &o. 
 
 478 
 
 M'Combs 
 
 236 
 
 Bringloe v. Goodson 
 
 218 
 
 M'Lean 
 
 314 
 
 Brinsmaid v. Mayo 
 
 597 
 
 Shaw 
 
 479 
 
 Brisbane v. Stoughton 
 
 403 
 
 Sloane 
 
 245 
 
 Briscoe v. Bonnaugh 
 
 493 
 
 Stone 
 
 396 
 
 Campbell 
 
 493 
 
 Talbert 
 
 243 
 
 Wickliffe 
 
 2 
 
 Boyer v. Smith 
 
 216 
 
 Bristed v. Wilkins 
 
 67 
 
 Boyers v. Elliott 
 
 678, 579 
 
 Bristol V. Morgan 
 
 432 
 
 BoylstoQ V. Carver 
 
 430 
 
 Brocklehurst v. Jessop 
 
 424 
 
 Boynton v. Hubbard 
 
 571 
 
 Bromfield v. Crowder 
 
 529 
 
xxviu 
 
 TABLE OF CASES CITED IN VOL. ONB. 
 
 Bromley v. Hopewell 
 
 229 
 
 Buchanan v. Shannon 
 
 Brompton v. Alkis 
 
 577 
 
 TJpshaw 
 
 Bronson v. Eobinson 
 
 416 
 
 Buck V. Binninger 
 
 Brooks V. Avery 
 
 466, 467 
 
 Fisher 
 
 Briggs 
 
 20 
 
 Squiers 
 
 Dent 
 
 311, 326 
 
 Winn 
 
 Fowle 
 
 317, 318 
 
 Buckeridge v. Ingram 
 
 Harwood 
 
 419 
 
 Buckermaster 
 
 Towle 
 
 46 
 
 V. Necdham 
 
 Whitney 
 
 625 
 
 Buckingham v. Drury 
 
 Brothers v. Porter 
 
 314, 339 
 
 Buckland v. Butterfleld 
 
 Brough V. Higgins 
 
 67 
 
 Buckley v. Buckley 
 
 Broughton v. ErringtoB 
 
 171 
 
 Buckraan v. Buckman 
 
 Langley 
 
 302, 647 
 
 Bucksport V. Spofford • 
 
 Kandall 
 
 105 
 
 Buck worth v. Thurkell 
 
 Brown v. Adams 
 
 94, 138 
 
 Budeley v. Massey 
 
 Barkham 
 
 399 
 
 Buell V. Cook 
 
 Bartee 
 
 328 
 
 Buist V. Dawes 
 
 Brown 
 
 65, 308, 607 
 
 Bulkley v. Dolbeare 
 
 Cram 
 
 405 
 
 Bull V. Birkbeck 
 
 Dewey 
 
 396 
 
 Church 
 
 Edson 
 
 43 
 
 BuUerd v. Bowers 
 
 Elton 
 
 71 
 
 Copps 
 
 Farrar 
 
 125 
 
 Goffe 
 
 Hodgdon 
 
 134 
 
 Hinkley 
 
 Jones 
 
 321 
 
 Buller V. Cheverton 
 
 King 
 
 e, 47, 48, 280 
 
 Bullock V. Dommit 
 
 Lapham 
 
 415, 445 
 
 Griffin 
 
 M'Cormlck 
 
 222 
 
 Sneed 
 
 Meredith 
 
 138 
 
 Bulwer v. Astley 
 
 Parkham 
 
 4 
 
 Bulwer 
 
 Porter 
 
 54 
 
 Bum V. Sim 
 
 Quilter 
 
 255 
 
 Bumpus V. Platner 
 
 Ramsey 
 
 665 
 
 Bun V. Winthrop 
 
 Spand 
 
 86 
 
 Burbank v. Day 
 
 Sparel 
 
 89 
 
 Burohard v. Hubbard 
 
 Stead 
 
 446 
 
 Burden v. Thayer 
 
 Stewart 
 
 406, 408 
 
 Burdet v. Hopegood 
 
 Storey 
 
 409 
 
 Burdett v. Clay 
 
 Turner 
 
 608 
 
 Burgess v. Mawbey 
 
 ■Wenham 
 
 38 
 
 Sturgis 
 
 Wernwag 
 
 473 
 
 Wheate 
 
 ■Williams 
 
 124 
 
 Burgen v. Chevault 
 
 Wood 
 
 607 
 
 Burghart v. Turner 
 
 Worcester 
 
 419, 460 
 
 Burhans v. Van Zandt 
 
 Wright 
 
 394, 397 
 
 Burk V. Baxter 
 
 Browne v. Amyot 
 
 239, 635 
 
 Osborn 
 
 Jerves 
 
 635 
 
 Sherman 
 
 Potter, 
 
 107 
 
 Burke v. Hale 
 
 Smith 
 
 508 
 
 Wilder 
 
 Brownell V. Brownell 
 
 609 
 
 Burkes v. Chrisman 
 
 Browner v. Franklin 
 
 89 
 
 Burley's case 
 
 Browning v. Dalesme 
 
 4 
 
 Burling, &c. 
 
 Oymer 
 
 478 
 
 Burlicigham v. Belding 
 
 Haskell 
 
 202, 245 
 
 Burnett v. Pratt 
 
 Brownswords d. Edwards 
 
 527 
 
 Thompson 
 
 Bruce v. Halbert 
 
 24 
 
 Burnside v. Merrick 
 
 Wood 
 
 86,89 
 
 Weightman 
 
 Bruerton v. Eainsford 
 
 179 
 
 Burrell v. Davis 
 
 Brumfield v. Brown 
 
 283 
 
 Burridge v. Bradyl 
 
 Brundige v. Poor 
 
 91 
 
 Burril v. Page 
 
 Bryan v. Buckholder 
 
 229 
 
 Burhans v. Burhans 
 
 Fisher 
 
 252 
 
 Burton v. Baxter 
 
 Tucker 
 
 41 
 
 Burton 
 
 Brydges v. Brydges 
 
 333 
 
 Slattery 
 
 Buohan v. Sumner 
 
 578 
 
 Bush V. Allen 
 
 Buchanan v. Buchanan 
 
 168,169 
 
 Bradley 
 
 Deshon 
 
 109, 110 
 
 Bush V. Livingston 
 
 20, 
 
 479 
 470 
 288 
 221 
 51 
 
 340, 579 
 110 
 385 
 600 
 166 
 
 20 
 21, 22, 26, 578 
 
 48 
 53, 54, 166 
 
 86 
 
 303 
 
 197 
 
 512, 520 
 
 276 
 
 67 
 129 
 106 
 218 
 642 
 465 
 247 
 211 
 121 
 238, 265 
 
 67 
 
 14 
 
 31 
 
 341, 468 
 30l 
 146 
 222 
 
 188, 236, 238 
 537 
 
 421, 431 
 
 61 
 
 478 
 
 328, 413 
 
 302 
 
 661 
 
 47, 600 
 
 22 
 
 141, 216 
 416 
 216 
 637 
 497 
 647 
 510 
 631 
 474 
 194 
 578 
 12 
 210 
 132 
 116 
 604 
 431 
 629 
 399 
 304 
 277 
 
 466, 467 
 
TABLE OF CASES CITED IN TOL. ONE. 
 
 XXIX 
 
 Bush's case 
 
 129 
 
 Capis V. Middleton 
 
 43'J 
 
 Bussey v. Paige 
 
 408 
 
 Ciirey v. Callan 
 
 313 
 
 Bustard's case 
 
 160 
 
 Cargill V. Sewall 
 
 54 
 
 Bnswell v. Davis 
 
 443, 470 
 
 Carpenter v. Carpenter 
 
 67 
 
 Sutler V. Buckingham 
 
 90 
 
 Griffin 
 
 2O0 
 
 Butler 
 
 454, 534 
 
 Providence 
 
 434 
 
 Elliott 
 
 442 
 
 Schermerhorn 
 
 627 
 
 HaakeU 
 
 672 
 
 Carr v. Carr 
 
 lU 
 
 Hicks 
 
 342 
 
 Porter 
 
 €47, 652 
 
 Little 
 
 627 
 
 Carrington v. Roots 
 
 12, 222 
 
 Monnings 
 
 259 
 
 Carroll v. Carroll 
 
 622 
 
 Page 
 
 20, 29 
 
 Grains 
 
 508 
 
 Phelps 
 
 601 
 
 Carruthers v. Oarruthers 
 
 164 
 
 Butt V. Maddox 
 
 484 
 
 Wilson 
 
 122, 149 
 
 Butterfield v. Baker 
 
 227 
 
 Carson v. White 
 
 511 
 
 Butt's V. Edwards 
 
 241 
 
 Carter v. Barnardiatou 
 
 176, 554 
 
 Buxton V. Uxbridge 
 
 63, 635 
 
 Clark 
 
 117 
 
 Byrne v. Beeson 
 
 216, 220, 221 
 
 Cummins 
 
 255 
 
 
 
 Hammet , 
 
 189 
 
 
 
 Kerr 
 
 614 
 
 C 
 
 
 Parker 
 
 97, 107, 114 
 
 
 Rocket 
 
 424 
 
 
 
 Welch 
 
 496 
 
 Cadbury v. Duval 
 
 342, 344, 353 
 
 Williams 
 
 V7, 78 
 
 Cage V. Acton 
 
 182 
 
 Cartledge v. West 
 
 245 
 
 Caillanet v. Bernard 
 
 93 
 
 Carver v. Earl 
 
 48 
 
 Cairns v. Chabert 
 
 67 
 
 Jackson 
 
 529 
 
 Caldeoott v. Brown 
 
 67 
 
 Miller 
 
 268 
 
 Moon 
 
 212 
 
 Carnardine v. Wieshlade 
 
 478 
 
 Skilton 
 
 €27 
 
 Gary v. Prentice 
 
 444 
 
 Calhoun v. Calhoun 
 
 91 
 
 Gasborne v. Inglis 
 
 414 
 
 Cook 
 
 629 
 
 Soarfe 
 
 414 
 
 Curtis 
 
 11 
 
 Case V, Davis 
 
 230 
 
 Lester 
 
 223 
 
 Casey v. Inloea 
 
 51 
 
 Mahon 
 
 509 
 
 McDaniel 
 
 332 
 
 Calkins v. Calkins 
 
 424 
 
 Cass V. Martin 
 
 417 
 
 Munsell 
 
 419 
 
 Thompson 
 
 120 
 
 Calverley v. Phelp 
 
 478 
 
 Gassidy v. Rhodes 
 
 12, 17 
 
 €alvert v. Godfrey 
 
 338 
 
 Gason v. Lawrence 
 
 67 
 
 Simpson 
 
 286 
 
 Casporus v. Jones 
 
 143 
 
 Cameron v. Irwin 
 
 400, 403 
 
 Gasson v. White 
 
 508 
 
 Mason 
 
 492 
 
 Castle V. Dod 
 
 299 
 
 ©amp V. Barker 
 
 380 
 
 Castleman v. Bell 
 
 408, 409, 410 
 
 Camp 
 
 200, 220 
 
 Gaston v. Gaston 
 
 134, 153 
 
 Coxe 
 
 416 
 
 Clarke 
 
 331 
 
 Homesley 
 
 602 
 
 Caswell V. Diatrioh 
 
 200 
 
 Pulver 
 
 262 
 
 Ward 
 
 479 
 
 €ampbell 
 
 112, 257 
 
 Cater v, Longworth- 
 
 471 
 
 flampbell v. Arnold 
 
 565 
 
 Gatlicart's, &c. 
 
 416 
 
 Baldwin 
 
 492, 495 
 
 Gator V. Charlton 
 
 419 
 
 Campbell 
 
 46 
 
 Caufman v. Sayre 
 
 398, 423, 483 
 
 Drake 
 
 316 
 
 Caulfield v. Maguire 
 
 67 
 
 Knights 
 
 445 
 
 Cavendish v. Worsley 
 
 60 
 
 Love 
 
 304 
 
 Cavis V. M'Clary 
 
 411 
 
 Macomb 
 
 408 
 
 Cazenove v. Cutler 
 
 427, 428, 486 
 
 Pennsylvania 
 
 349 
 
 Cecil?;, Dorsey 
 
 613 
 
 Procter 
 
 283 
 
 Chadock v. Cowley 
 
 635, 667 
 
 Stetson, 
 
 185 
 
 Chaffee v. Dodge 
 
 620 
 
 Thomas 
 
 43 
 
 Chalfin V. Malone 
 
 48 
 
 Walker 
 
 349, 352 
 
 Chalker v. Chalker 
 
 207, 368, 384 
 
 Wallace 
 
 42 
 
 Challenger v. Shepard 
 
 625 
 
 Washington 
 
 396 
 
 Chalmers v. Stovi 
 
 131, 134 
 
 Canal, &o. v. Eailroad, &c 
 
 384 
 
 Chamberlain v. Thompson 
 
 405, 420 
 
 Oanby v. Porter 
 
 1, 185 
 
 Chamberliu v. Brown 
 
 286 
 
 Canedy v. Haskina 
 
 644 
 
 Shaw 
 
 200 
 
 Canon's case 
 
 620 
 
 Ghambrrlyne v. Drummer 
 
 273 
 
 Canoy v. Troutman 
 
 339 
 
 Chambers v. Chambers 
 
 646 
 
 Capel V. Bntlor 
 
 437 
 
 Goldsmith 
 
 398, 438 
 
xxx 
 
 TABLE OF OASES CITED IN VOL. ONE. 
 
 Chambers v. Hiae 
 
 393, 
 
 402 
 
 Church V. Church 
 
 Mauldin 
 
 
 417 
 
 Church V. Davis 
 
 Tarnall 
 
 
 509 
 
 Wyat 
 
 Champlin v. Foster 
 
 
 478 
 
 Churchill v. Loring 
 
 Williams 
 
 
 431 
 
 Grundy 
 
 Chandler v. Edaon 
 
 
 6 
 
 Marks 
 
 Spear 
 
 
 43 
 
 Monroe 
 
 Thurston 
 
 2'! 9, 
 
 282 
 
 City, &o. V. Dedham 
 
 Walker 
 
 
 50 
 
 Morehead 
 
 Chandos v. Talbot 
 
 
 262 
 
 Rice 
 
 Chaney v. Tipton 
 
 
 613 
 
 White 
 
 Chapin v. Hill 
 
 
 IH 
 
 Clabaugh v. Eyerly 
 
 Marvin 
 
 513 
 
 519 
 
 Clache's case 
 
 Chaplin v. Chaplin 
 
 248, 249 
 
 330 
 
 Cteflin V. Carpenter 
 
 Givens 
 
 340 
 
 355 
 
 Clagett V. Salmon 
 
 Chapman's ease 
 
 
 637 
 
 Worthington 
 
 Chapman v. Blisset 
 
 
 302 
 
 Claiborne v. Henderson 
 
 Bluok 
 
 
 194 
 
 Clapp V. Bromagham 
 
 Chapman 
 
 
 491 
 
 Draper 
 
 Gray < 
 
 
 179 
 
 Houghton 
 
 Mull 
 
 
 413 
 
 Paine 
 
 Smith 
 
 
 426 
 
 Stoughton 
 
 Tanner 
 
 
 498 
 
 Titus 
 
 Towner 
 
 
 196 
 
 Clapper v. Livergood 
 
 Turner 
 
 
 392 
 
 Titus 
 
 Chappel V. Brewster 
 
 
 62 
 
 Claridge v. M'Kenzi© 
 
 Charles v. Andrews 
 
 
 165 
 
 Clark V. Abbott 
 
 Dunbar 
 
 
 426 
 
 Austin 
 
 Charnley v. Hansbury 
 
 
 232 
 
 Beach 
 
 Charleston «. Ackworth 
 
 
 3 
 
 Bull 
 
 Chase v. Loolierman 
 
 345 
 
 430 
 
 Cummings 
 
 Palmer 
 
 
 481 
 
 Flint 
 
 Chatham v. Williamson 
 
 
 7 
 
 Hobbs 
 
 Cheeseman v. Thorn 
 
 
 611 
 
 Holdford 
 
 Cheever v. Pearson 54, 
 
 225, 218 
 
 279 
 
 Lucy 
 
 Chelsea, &o. v. Bowley 
 
 
 1 
 
 Munroe 
 
 Chelsey v. Thompson 
 
 
 599 
 
 Robbins 
 
 Cherokee, &o. v. Georgia 
 
 
 38 
 
 Smith 
 
 Cherry v. Clements 
 
 
 92 
 
 Thomson 
 
 Cheslyn v. Dalbee 
 
 
 433 
 
 Williams 
 
 Chesround v. Cunningham 
 
 
 601 
 
 Clarke v. Cummings 
 
 Chester v. Wheelright 
 
 
 442 
 
 Sibley 
 
 Chesterfield 
 
 
 571 
 
 Stanley 
 
 Chesterfield v. Bolton 
 
 
 265 
 
 Windham 
 
 Chew V. Commr's., &c. 
 
 
 77 
 
 Clason V. Rankin 
 
 Chickering v. Hatch 
 
 
 397 
 
 Clarendon v. Barham 
 
 Chichester v. Oxendon 
 
 
 627 
 
 Claxton V. Claxlon 
 
 Child V. Baily 
 
 
 201 
 
 Clay V. Hart 
 
 Clark 
 
 188 
 
 189 
 
 Sharp 
 
 Childeu. Willis 
 
 
 356 
 
 White 
 
 Childers v. Smith 
 
 
 236 
 
 Willis 
 
 Childs V. Clark 
 
 
 246 
 
 Clearwater v. Rose 
 
 Eussell 
 
 
 524 
 
 Clench v. Witherby 
 
 Smith HI 
 
 158, 263 
 
 , 273 
 
 Clemencew Steere, 
 
 Chilton V. Niblett 
 
 
 219 
 
 Cleppes V. Livergood 
 
 Chittenden v. Barney 
 
 
 459 
 
 Clere v. Pacock 
 
 Cholraley's case 
 
 
 530 
 
 Clere's case 
 
 Cholmondeley 
 
 
 549 
 
 Clerk V. Clerk 
 
 Cholmondeley v. Clinton 
 
 405, 426, 
 
 472, 
 
 Day 
 
 Chorlton v. Taylor 
 
 
 627 
 
 Cleves V. Willoughby 
 
 Chretien v. Doney 
 
 202 
 
 , 284 
 
 Cline V. Black 
 
 Christie v. Herrick 
 
 
 478 
 
 Clinton v. MeKenzie 
 
 Christopher v. Blackford 
 
 
 499 
 
 Close V. Hunt 
 
 Christophers v. Sparke 
 
 408 
 
 , 423 
 
 Clouch V. Puryoar 
 
 Ohudleigh's case 235, 296, 
 
 542, 543, 
 
 544, 
 
 Clough V. Elliott 
 
 545, 549 
 
 
 
 Clower V. Rawling 
 
 Church V. Brown 
 
 
 208 
 
 Clun's case 
 
 BuU 
 
 129 
 
 , 130 
 
 Clymer v. Dawkina 
 
 156 
 511 
 634 
 477 
 687 
 155 
 
 89 
 3 
 210 
 210 
 236 
 490 
 666 
 
 11 
 422 
 648 
 331 
 601 
 
 10, 
 
 78 
 
 28t 
 
 368, 527, 560 
 
 392 
 
 80 
 392 
 219 
 409 
 465 
 405 
 
 43 
 
 73, 258, 262 
 
 438 
 
 396 
 
 19 
 375 
 106 
 427 
 38, 427 
 204 
 
 38 
 388 
 413 
 435 
 
 92 
 
 43 
 
 458 
 
 275 
 
 31, 135 
 
 403 
 
 40, 41 
 
 403 
 
 431 
 
 398 
 
 262, 264, 265, 266 
 
 612 
 
 387 
 
 29& 
 
 660 
 
 634 
 
 210, 245, 252 
 
 255 
 
 224 
 
 508 
 
 263 
 
 415 
 
 492, 494 
 
 237 
 
 &00> 
 
TABLE OF CASES CITED IN TOL. OifB. 
 
 Coale V. Barney 
 Coau V. Parmentier 
 Coates V. Cheever 
 
 Wood worth 
 
 110, 150, 
 312, 
 
 Cobb V. Arnold 
 
 Thompson 
 Coburn v. Hollis 
 Cochrane v. Libby 
 Cockran v. O'Hern 
 Codman v. Coffin 
 Jenkins 
 Tinkham 
 Coffin V. Lunt 
 
 Morrill 
 Cogan V. Cogan 
 Cogswell V. Tibbets 
 Cohen v. Dupont 
 Ooit V. Pitch 
 Coke V. PearsaU 
 Colburn v. Mason 
 Colby?;. Poor 
 Colcord V. French 
 Swan 
 Cole V. Hall 
 
 Levingston 
 
 Patterson 
 
 Rawlinson 
 
 Scott. 
 
 Sury 
 Coles V. Marquand 
 
 Treoothiek 
 Coleman «. Freeman 
 McKinney 
 Packard 
 CoUett V. Mundeu 
 Collins' case 
 CoUms V. Barrow 
 Canty 
 Carlisle 
 Harding 
 Shirley 
 Torry 
 Colt V. Colt 
 Colquit V. Thomas 
 Colson V. Colson 
 Colthirst V. Bejushin 
 Colton V. Smith 
 Columbia, &o. v. Lawrence 
 Oolvin V. Baker 
 Col well V. Hamilton 
 
 "Woods 
 Comber i;. Hill 
 Combs V. Toung 
 Comfort V. Duncan 
 Comley v. Hendricks 
 Comly V. Strader 
 Commercial, &o. v. Cunningham 
 Commrs. &o. v. Hart 
 Commonwealth v. Stauffer 
 Commyns v. Latimer 
 Compton V. Oxenden 
 Conant v. Little 
 Conner v. Lewis 
 Cook V. Arnham 
 
 Bisbee 
 
 Cook 
 
 Colyer 
 
 613 
 631 
 
 154, 489 
 
 397, 424, 
 
 413, 476 
 
 216, 217 
 
 333 
 
 50 
 
 100, 107 
 329 
 
 622, 625 
 
 216, 244 
 606 
 
 280, '281 
 86 
 
 390, 532 
 100 
 253 
 487 
 409 
 
 600, 601 
 
 480 
 
 511 
 
 90 
 
 609 
 
 663, 668 
 238 
 628 
 495 
 236 
 185 
 353 
 
 500, 507 
 344 
 406 
 419 
 630 
 212 
 284 
 
 426, 622 
 257 
 478 
 
 415, 489 
 330 
 492 
 641 
 618 
 
 606, 607 
 434 
 281 
 476 
 394 
 667 
 120 
 15 
 478 
 99, 100 
 423 
 460 
 376 
 389 
 445 
 159 
 312 
 424 
 65 
 
 116, 119 
 
 423, 466 
 
 Cook V. Fountain 
 
 Hammond 
 
 Gerrard 
 
 Herle 
 
 Hutchinson 
 
 Lonley 
 
 Morris 
 
 Neilson 
 
 Nicholas 
 
 Steams 
 
 Soltan 
 Coombs V, Jordan 
 Coon V. Birckett 
 Coons V. Nail 
 Coonrod v. Ooonrod 
 Cooper V, Adams 
 Cooper 
 Davies 
 Henderson 
 Jones 
 Martin 
 Smith 
 
 "Whitney 102, 330, 
 416, 
 Copls 11. Middleton 
 Coppage V. Alexander 
 Coppin V. Coppin 
 Coppring j). Cooke 
 Copperthwait v. Dummer 
 Corbet's case 
 Corbet v. Stone 
 Corbin v. Healey 
 Corder v. Morgan 
 Cornell v. Lamb 39, 
 
 Sikes 
 
 Vanartsdalen 
 Cornish u. Strutton 
 Cornwall v. Hoyt 
 Corm 11. Huffey 
 Corwin v. Corwin 
 Coster V. Clark 
 
 Lorillard 
 Coster's &c. 
 Cotheal v. Blydenburg 
 Cotber v. Essex 
 
 Merrick 
 Coteman v. Freeman 
 Cotter V. Richardson 
 Dotterel v. Hampson 
 
 Loiig 
 Cotterell v. Purchase 
 Cothington v. Fletcher 
 Cottle V. Sydraor 
 Couch V. Couch 
 County &c. v. Brown 
 Couutz V. G-eiger 
 Courtney v. Taylor 
 Cousett V. Bell 
 Couster v. Dawson 
 Coutamt V. Servoss 
 Coventry v. Coventry 
 Covert V. Hertzogg 
 Cowan V. Wheeler 
 Cowie V. Goodwin 
 Cox V. Fenwiok 
 
 Grant 
 
 Jagger 
 
 McBurney 
 
 XXXI 
 
 297, 311 
 3, 161, 569 
 663 
 249 
 325 
 216 
 245 
 280 
 154 
 
 222, 224 
 
 424 
 
 12, 22, 420 
 
 208, 246 
 147 
 
 630, 634 
 
 6, 282, 283 
 
 333 
 
 405, 408 
 
 356 
 
 667 
 
 436 
 
 216 
 
 331, 392, 394, 
 
 445, 449, 489 
 
 437 
 
 64, 65, 390 
 
 494 
 
 426 
 
 473 
 
 368, 622 
 535 
 626 
 403 
 230, 231, 244 
 424 
 210 
 265 
 200 
 612 
 48, 600 
 30, 117 
 361 
 352 
 466 
 235 
 234 
 500 
 
 181,213 
 341 
 392 
 
 393, 399 
 
 396 
 
 43 
 
 339, 357 
 602 
 83 
 397 
 277 
 345 
 403 
 456 
 119 
 42 
 253 
 
 186, 495 
 
 312 
 
 138, 139, 140 
 
 578 
 
XXXll 
 
 TABLE OF CASES CITED IN VOL. ONB. 
 
 Cox V. Walker 
 Wheeler 
 iCoxe V. Smith 
 .Coy V. Leach 
 Cozens v. Stephenson 
 'Craddock v. Riddlesberger 
 &aft V. Webster 
 Wilcox 
 Craig V. Craig 
 Dale 
 Leslie 
 Tappin 
 Taylor 
 Watt 
 Cram v. Dresser 
 Cranoh v. Powie 
 Crane v. Crane 
 Deming 
 March 
 Marshall 
 O'Connor 
 Paine 
 Palmer 
 Oranmer's case 
 Cravenor v. Bowser 
 Crawford v. Chapman 
 Jarre tt 
 Morris 
 Leverson 
 Crawley's case 
 Cray v. WiUis 
 Cresson v. Stout 
 Crest V. Jack 
 Creswell v. Crane 
 Crewe v. Dicken 
 Crews «. Pendleton 
 Grickmere v. Paterson 
 Cripps V. Wolcott 
 Crisp V. Heath 
 Critteaden v. Barney 
 
 Woodruff 
 Croade v. Ingraham 
 Crocker v. Pox 
 
 Thompson 
 Croft a Powell 
 
 Slee 
 Crommelin v. Winter 
 Crocker v. Jewett 
 Crosby v. Bradbury 
 Chase 
 Harlow 
 Otis 
 
 Wadsworth 
 Zoop 
 Croskey v. Coryell • 
 Cross v. Carson 
 Coleman 
 Marston 
 Norton 
 Crotts V. Collins 
 Crouch V. Puryear 
 Crow V. Tinaley 
 Crowell V. Bebee 
 Crowley v. Tittey 
 Cru'ier v. Cruger 
 Crura pton v. IJallard 
 Crusoe V. Bugbee 
 Cudbery 11. Duval 
 
 205 
 
 450 
 
 336 
 
 73 
 
 179 
 
 12 
 
 628 
 
 528 
 
 358 
 
 15 
 
 30 
 
 421 
 
 601 
 
 55, 66 
 
 211, 214, 252 
 
 209 
 
 137 
 
 422 
 
 416, 432 
 
 48 
 
 179 
 
 426 
 
 493 
 
 642 
 
 220 
 
 185 
 
 229 
 
 193, 215 
 
 365 
 
 295 
 
 577 
 
 22 
 
 603 
 
 286 
 
 343, 354 
 
 16, 408 
 
 669 
 
 626 
 
 417 
 
 419 
 
 107 
 
 146, 188 
 
 152, 153 
 
 440 
 
 403 
 
 623 
 
 38 
 
 443 
 
 26 
 
 443, 446 
 
 409 
 
 87 
 
 11 
 
 238, 267 
 
 509 
 
 379, 384, 386 
 
 385, 394 
 
 22 
 
 314 
 
 178 
 
 111 
 
 465 
 
 43 
 
 193 
 
 92, 362 
 
 300 
 
 3/2 
 
 342, 353 
 
 Cud worth v. Hall 
 
 328 
 
 Cuffee V. Milk 
 
 634 
 
 Cullen V. Hilty 
 
 222 
 
 Cullum V. Emanuel 
 
 441, 486 
 
 Erwin 
 
 417, 433 
 
 Cully V. Smith 
 
 142 
 
 Gulp V. Pisher 
 
 441 
 
 Culpeper v. Aston 
 
 344 
 
 Cumberland v. Codrington 
 
 452 
 
 Cumberland's case 
 
 262 
 
 Gumming v. Cummins 
 
 437 
 
 Daniel 
 
 135 
 
 Goelet 
 
 286 
 
 Moody 
 
 329 
 
 •Cunningham v. Cunningham 
 
 100 
 
 Doe 
 
 76 
 
 Harper 
 
 394 
 
 Knight 
 
 106 
 
 Curl V. Lowell 
 
 282 
 
 Curling u. Shuttleworth 
 
 403 
 
 Cursham v. Newland 
 
 643, 666 
 
 Currin v. Pinn 
 
 no 
 
 Curteis V. Wolverston 
 
 670 
 
 Curtis V. Curtis 
 
 96, 147 
 
 Groat 
 
 6 
 
 Price 
 
 641 
 
 Curtiss V. Hoyt 
 
 7 
 
 Tyler 
 
 432, 434, 437 
 
 Cusack V. Cusack 
 
 645 
 
 Gushing v. Adams 
 
 226, 505 
 
 Ayer . 437, 438 
 
 478, 481, 486 
 
 Mills 
 
 194 
 
 Smith 
 
 481 
 
 Cushney v. Henry 
 
 360, 610 
 
 Cuthbert v. Baker 
 
 342 
 
 Lempriere 
 
 628 
 
 Wolfe 
 
 92 
 
 Cutler V. Haven 
 
 431, 432 
 
 Lincoln 
 
 439 
 
 Cuyler 11. Bradt 
 
 592 
 
 Dabney v. Green 
 Da Costa v. Davis 
 Dalamere v. Barnard 
 Dale V. Dale 
 
 Shirley 
 Daley i>. Desbouverie 
 Dallas V. Floyd 
 Dallraan v. King 
 Dalton V. Dalton 
 
 Whittem 
 Dame v. Weeks 
 Dauforth v. Lowry 
 Roberts 
 Smith 
 Talbot 
 Daniel v. Daniel 
 Daniels v. Mowry 
 Pond 
 
 Richardson 
 Dann v. Spurrier 
 Darby w. Harris 
 Darcus v. Crump 
 D'Arcy v. Blake 
 
 489 
 380 
 291 
 
 64 
 435 
 375,376 
 424 
 366 
 276 
 19, 28 
 
 98 
 330 
 425 
 415 
 524 
 
 85 
 
 481 
 
 IB, 279, 282 
 
 186, 257 
 
 202 
 
 28 
 350 
 330 
 
TABLE OF CASES CITED IN TOL, ONE. 
 
 XXXIU 
 
 Dare v. Hopkins 
 
 275 
 
 Darley v. Longworthy 
 
 3S0 
 
 Darling v. Rogers 
 
 359 
 
 Dart V. Dart 
 
 635 
 
 Dartmouth v. "Woodward 
 
 64 
 
 Daseomb v. Davis 
 
 50 
 
 Dash wood V. BIythway 
 
 487 
 
 Davenport v. Bartlett 
 
 694 
 
 Farrar 
 
 34, 116, 117 
 
 Oldis 
 
 667 
 
 TyrriU 
 
 600 
 
 Davidson v. Heydon 
 
 662 
 
 Davie v. Beardsham 
 
 312 
 
 Stevens 
 
 637 
 
 Davies v. Speed 
 
 639 
 
 Thomas 
 
 282 
 
 Weld 
 
 3B6, 551 
 
 Davinny v. Morris 
 
 351 
 
 Davis V. Anderson 
 
 405 
 
 Battine 
 
 434, 477 
 
 Brocklebank 
 
 15, 200 
 
 Burnell 
 
 242 
 
 Church 
 
 500, 508 
 
 Egton 
 
 14 
 
 Evans 
 
 424, 460 
 
 Farr 
 
 509 
 
 Gilliam 
 
 263, 271 
 
 Hayden 
 
 301, 620 
 
 Jones 
 
 20 
 
 Logan 
 
 107, 581 
 
 Mason 
 
 77 
 
 Maynard 
 
 443, 444 
 
 Mills 
 
 437 
 
 Norris, 
 
 612 
 
 jSTorton 
 
 523 
 
 . Simpson 
 
 3'48, 352 
 
 Smith 
 
 665 
 
 Speed 
 
 288, 554 
 
 Thomas 
 
 282, 399, 402 
 
 Tingle 
 
 93 
 
 Davison v. De Freest 
 
 468 
 
 Dawes v. Haywood 
 
 30 
 
 Dawson v, Dawson 
 
 69 
 
 Harrington 
 
 604 
 
 Mitchell 
 
 493 
 
 Day V. Merry 
 
 277 
 
 Perkins 
 
 28, 490, 678 
 
 Deadrick v. Armour 
 
 624, 628 
 
 Dean v. Dean 
 
 310 
 
 Dorringlon 
 
 66 
 
 Mitchell 
 
 115, 116 
 
 Richmond 
 
 91 
 
 Dearborn v. Dearborn 
 
 406 
 
 Dearden v. Evans 
 
 265 
 
 Deatly v. Murphy 
 
 317 
 
 Deaver v. Rice 
 
 227, 230 
 
 De Bevoir-e v. Sandford 
 
 337 
 
 Deboe v. Lowes 
 
 61 
 
 Lowen 
 
 657, 636 
 
 Debow V. Colfax 
 
 13,14 
 
 De Butts V. Bacon 
 
 466 
 
 Degraw v. CUison 
 
 132 
 
 De hon v. Redfem 
 
 68, 642 
 
 Deibles v. Berwick 
 
 498 
 
 Dejariiatte v. Allen 
 
 84, 85, 271 
 
 De Kay v. Irving 
 
 360 
 
 Delahay v. Clements 
 
 473, 476, 504 
 
 De Lancey v. Ga Nun 
 
 216, 240 
 
 Delancy v. Gamier 
 Delmonico v. Guillaume 
 Delong V. "Walker 
 Demainbray v. Metoalf 
 Demarcst v. Wyncoop 
 
 Willard 
 Demi v. Bossier 
 Doming v. Comings 438, 474, 
 
 Den V. Adams 
 
 Cartright 
 
 Crawford 
 
 Demarest 90, 616, 
 
 Dimon 
 
 McZnight 
 
 Spinning 
 Denham v. Harris. 
 Denk v. Hunter 
 Denn v. Shenton 
 Dennis v. Dennis 
 Dennison v. Goehring 
 Dennistou v. Potts 
 Denny v. Allen 
 
 Hamilton 
 Dent V. Hancock 
 Denton v. McKenzie 
 
 Nanny 
 De Peyater v. Clendening 
 Derby v. London 
 Derush v. Brown 
 Destrehan v. Scudder 
 Dethoridge v. Woodruff 
 Dewall V. Covenhoven 
 Dewey i'. Bellows 
 Field 
 Dupuy 
 Morgan 
 De "Wolf «. Harris 
 Dexter v. Arnold 420, 423, 
 
 Manley 
 Dey V. Dunham 
 De Young v. Buchanan 
 Dice V. Sheffer 
 Dick V. Balch 
 Maury 
 Dickenson v. Church 
 Jackson 
 Dickey v. McCullough 
 Dikeman v. Parish 
 Diller v. Young 
 Dillingham v. Jenkins 
 Dillon V, Foraine 
 Dilworth V. Siriderling 
 Dingley v. Dingley 
 Dinsmore v. Biggert 
 Dixie V. Davies 
 Dixon V. Dixon 
 
 Homer 
 
 Picket 
 
 Saville 
 Dobson V. Racey 
 • Land 
 Dod V. Dickinson 
 
 V. Dod 
 Dodaon v. Grew 
 Hay 
 Doe V. Abey 
 
 243 
 
 678 
 
 612 
 
 419 
 
 92 
 
 236 
 
 15 
 
 480, 481, 485, 
 
 488 
 
 288, 333 
 
 202 
 
 521 
 
 619, 557, 659 
 
 405, 432 
 351 
 
 433, 475 
 229 
 196 
 635 
 148 
 323 
 478 
 527 
 461 
 240 
 317 
 415 
 359 
 487 
 
 116, 331 
 
 252, 403 
 
 86 
 
 85 
 
 227 
 
 470 
 
 185 
 
 628 
 
 423 
 
 424, 425, 426, 
 
 428, 481, 600 
 
 209 
 
 395 
 
 213, 244 
 623 
 434 
 431 
 511 
 406 
 338 
 219 
 31 
 179 
 
 291, 646 
 347 
 
 527, 537 
 306 
 409 
 493 
 347 
 514 
 404 
 403 
 427 
 650 
 646 
 
 646, 652 
 329 
 686 
 
XXXIV 
 
 TABLE OF CASES CITED IN TOL. ONE. 
 
 06 V. Allen 
 
 3 
 
 Doe V. Olbey 
 
 Applia 
 
 638 
 
 Oliver 
 
 Archer 
 
 207 
 
 Parmemen 
 
 Ashbumer 
 
 194, 198 
 
 Parratt 
 
 Bannister 
 
 634 
 
 Passingham 
 
 Barton 
 
 216, 409 
 
 Perryn 
 
 Benjamin 
 
 194 
 
 Phillips- 
 
 Bernard 
 
 102 
 
 Pott 
 
 Bolton 
 
 302 
 
 Prevoost 
 
 Botts 
 
 666 
 
 Prigg 
 
 Brower 
 
 64 
 
 Prosser 
 
 Bucknell 
 
 409 
 
 Eichards 
 
 Burnett 
 
 24 
 
 Eivera 
 
 Burville 
 
 669 
 
 Roberta 
 
 Butcher 
 
 206, 207 
 
 Eock 
 
 Carew 
 
 369, 373 
 
 Eogera 
 
 Carter 
 
 372 
 
 Eoper 
 
 Challis 
 
 216 
 
 Rowland 
 
 Charlton 
 
 , 634, 641 
 
 Sandham 
 
 Clare 
 
 197 
 
 ScudamfJre 
 
 Clayton 
 
 625, 626 
 
 Seaton 
 
 Collins 
 
 652 
 
 Simpson 
 
 Cooper 
 
 184, 190, 639, 668 
 
 Shipphard 
 
 Crisp 
 
 390 
 
 Smarridge 
 
 Davia 
 
 335 
 
 Smith 
 
 Dixon 
 
 584 
 
 Spratt 
 
 Dowell 
 
 663 
 
 Stagg 
 
 Edwards 
 
 65 
 
 Steele 
 
 Ellis 
 
 305 
 
 Tom 
 
 Errington 
 
 219 
 
 Wainwright 
 
 Ponnereau 
 
 536, 642 
 
 Walker 
 
 Forwood 
 
 183, 190 
 
 "Warburton 
 
 Eranois 
 
 193 
 
 Watkina 
 
 Fuller 
 
 217 
 
 Watson 
 
 Fyldea 
 
 630, 635 
 
 Watt 
 
 Gataore 
 
 543 
 
 Watts 
 
 Giles 
 
 406 
 
 Webb 
 
 Goldwin 
 
 283, 405 
 
 Weller 
 
 Green 
 
 179, 666 
 
 Wells 
 
 Gregory 
 
 48 
 
 Wichelo 
 
 Gwinnell 
 
 95, 113 
 
 Wood 
 
 Hicks 
 
 312 
 
 Woodroffe 
 
 Hossaek 
 
 601 
 
 Worsley 
 
 Howland 
 
 588, 623 
 
 Dolan V. The Mayor 
 
 Hulae 
 
 600 
 
 Don V. Dimon 
 
 Hutton 
 
 80, 363, 569 
 
 Donahoo v. Scott 
 
 Jones 
 
 264 
 
 Donalds v. Plum 
 
 Keen 
 
 46 
 
 Donelson v. Posey 
 
 Kew 
 
 194 
 
 Donley v. Hays 
 
 Knebell 
 
 387 
 
 Donnell v. Matter 
 
 Lawea 
 
 181 
 
 Donovan v. Donovan 
 
 Lea 
 
 526, 527 
 
 Dorchester v. Coventry 
 
 Lean 
 
 625, 628 
 
 Dorrill v. Stephena 
 
 Lewis 
 
 71 
 
 Dorsey v. Clark 
 
 Long 
 
 266 
 
 . Gilbert 
 
 Luxton 
 
 71 
 
 Doton V. Russell 
 
 Maiaey 
 
 408 
 
 Dott V. Cunnington 
 
 Martin 
 
 541, 619 
 
 Doty V. Gorham 
 
 Martyn 
 
 557, 558 
 
 Doub V. Barnes 
 
 MoCleary 
 
 43 
 
 Dougall V. Fryer 
 
 McKay 
 
 281 
 
 Dougherty v. Lithioum 
 
 MoLoskey 
 
 405, 443, 473 
 
 M'Colgan 
 
 Mizem 
 
 • 281 
 
 Smithioum 
 
 Moore 
 
 529 
 
 Doughty V. Browne 
 
 Morgan 
 
 537 
 
 Douglas V. Congreve 
 
 Needs 
 
 176 
 
 Dowling V. Ford 
 
 Nioholla 
 
 526 
 
 Downe v. Morris 
 
 Nowell 
 
 627 
 
 Downer v. Clement 
 
 409 
 5B8 
 63T 
 580 
 302 
 
 521, B27, 530, 559 
 382 
 333 
 
 528, 559 
 626 
 600 
 631 
 81, 636 
 627 
 
 279, 312 
 79 
 
 622, 625 
 211 
 208 
 514 
 220 
 305 
 523 
 279 
 
 629, 639 
 
 526 
 
 184 
 
 71 
 
 408 
 
 662, 664 
 181 
 409 
 202 
 515 
 
 382, 384 
 203 
 667 
 206 
 70 
 635 
 629 
 56, 58 
 663 
 
 364, 389 
 431 
 609 
 305 
 347 
 
 431, 433 
 605 
 628 
 114 
 214 
 
 313, 316 
 338 
 439 
 650 
 
 8, 
 467 
 
 370, 388 
 
 460 
 
 402, 427, 430 
 
 464 
 
 623 
 
 634, 641 
 
 424, 426 
 
 413, 417 
 436 
 
TABLE OF CASES CITED IN TOL. ONE. 
 
 XXXV 
 
 Downer v. Downer 
 Doyle V. Sleeper 
 D'Oyley v. Loveland 
 Drake v. Munday 
 
 Pell 
 Drane v. Gregory 
 Drenkle's Estate 
 Driver v. Frank 524, 
 
 Drury v. Chapman 
 
 Drury 
 Dubber v. TroUope 
 Dubois V. Kelly 
 Dudley v. Oadwell 
 Mallery 
 Duffield V. "Whitlock 
 Dufify V. Calvert 
 Du Hourmelin v. Sheldon 
 Duke &o., V. Graves 
 
 Harper 
 
 Kin ton 
 
 St. John 
 Dumpor's case 
 Duncan v. Blackford 
 Duncan 
 Porrer 
 Sylvester 
 Dunch V. Kent 
 Duncomb v. Duncomb 
 Dundas v. Hichoock 
 Dunham v. Minard 
 Osborne 
 Dunkle v. Adams 
 Dunlap V. Gibba 
 Dunseth v. Bank, &c. 
 Dunshee v. Parmelee 
 Dunn V. Davis 
 
 De Nuovo 
 Dunwoodie v. Reed 
 Duppa V. Mayo 
 Durands v. Wyman 
 Darant v. Johnson 
 Durham v. Alden 
 Angier 
 "Wawn 
 Dumford v. Lane 
 Dursley v. Berkeley 
 Dutch, &c. V. Mott 
 Dutton V. Engram 
 Du Tigier v. Lee 
 Dwight V. Newell 
 Dwinel v. Perley 
 Dyer v. Cady 
 
 Dyer 
 
 Haley 
 
 Lincoln 
 
 Lowell 
 Dyett V. N. A. Coal Co. 
 
 Pendleton 
 Dyson v. Morris 
 
 E 
 
 Earl V. Hulet 
 
 Earl of Belvidere v. Eoohford. 
 Earl of Rockingham v. Drury 
 Earl, &o. V. Taylor 
 Eastoourt v. Weeks 
 
 612 
 
 East Haven v. Hemmingway ■ 
 
 363 
 
 324 
 
 Eastman v. Foster 
 
 6 
 
 339 
 
 Eastwood V. Kirke 
 
 170 
 
 195 
 
 Eaton V. George 
 
 446 
 
 524 
 
 Green 
 
 400, 492 
 
 90, 600 
 
 Jaques 
 
 412 
 
 166 
 
 Symonds 
 
 418, 427, 448 
 
 527, 529, 530, 557 
 
 "Whitaker 
 
 203 
 
 244 
 
 "Whiting 
 
 404, 433 
 
 585 
 
 Ebbs V. The Commonwealth 
 
 31 
 
 648, 652 
 
 Short 
 
 386 
 
 23,24 
 
 Eberle v. Fisher 
 
 123 
 
 431 
 
 Ebrand v. Dancer 
 
 324 
 
 660 
 
 Eckford v. De Kay 
 
 394 
 
 208 
 
 Ede V. Knowles 
 
 490 
 
 328, 341, 342, 357 
 
 Edge V. Pemberton 
 
 261 
 
 317 
 
 Stafford 
 
 281 
 
 302, 308 
 
 Edmondaon v. Dyson 
 
 622 
 
 216 
 
 Edmonds v. Povey 
 
 419 
 
 71 
 
 Edwards v. AUiston 
 
 663 
 
 268 
 
 Bishop 
 
 600 
 
 371 
 
 Bodine 
 
 478 
 
 287 
 
 demons 
 
 286 
 
 131, 134 
 
 Edwards 
 
 61 
 
 578 
 
 Hammond 
 
 52'^ 
 
 609 
 
 Insooe 
 
 382 
 
 341 
 
 Jones 
 
 393 
 
 104, 357, 544, 549 
 
 Morgan 
 
 130 
 
 .125, 136 
 
 Edward Seymour's case 
 
 117, 249 
 
 424 
 
 Egbert v. Thomas 
 
 139, 148 
 
 103, 105 
 
 Ege V. Ege 
 
 235, 239 
 
 383, 384 
 
 Bgerton );. Earle 
 
 63 
 
 1, 3 
 
 Eickelberger v. Barnitz 
 
 635 
 
 114, 154 
 
 Billiam v. Moore 
 
 106 
 
 428 
 
 Ela V. Card 
 
 128 
 
 659 
 
 Eldridge v. Forestall 
 
 103 
 
 184, 238 
 
 Knott 
 
 385 
 
 521, 547, 548 
 
 Preble 
 
 86, 93 
 
 238 
 
 Elder v. Rouse 
 
 397 
 
 186 
 
 Elkins V. Edwards 
 
 425 
 
 461 
 
 EUet V. Paiton 
 
 643 
 
 470 
 
 Ellia V. Diddy 
 
 141 
 
 153 
 
 Ellicott «. Hosier 
 
 143, 158, 159 
 
 599 
 
 Pearl 
 
 43, 50 
 
 583 
 
 Welch 
 
 493 
 
 342 
 
 Elliott V. Armstrong 311 
 
 313, 328, 331 
 
 338 
 
 Edwards 
 
 495 
 
 635 
 
 Elliott 
 
 • 224 
 
 423 
 
 Maxwell 
 
 399 
 
 498 
 
 Morrell 
 
 310 
 
 431 
 
 Patton 
 
 418 
 
 470 
 
 PiersoU 
 
 89 
 
 326 
 
 Sleeper 
 
 443 
 
 18 
 
 Smith 
 
 587 
 
 466 
 
 Stuart 
 
 117 
 
 608 
 
 Ellis V. Guavas 
 
 430 
 
 92 
 
 Lewis 
 
 128 
 
 250 
 
 Paige 
 
 280 
 
 434 
 
 Welch 
 
 34, 209 
 
 
 Ellison 
 
 180 
 
 
 Ellison V. Airey 
 
 346 
 
 
 Daniels 
 
 179, 431 
 
 
 Ellithorpe v. Dewing 
 
 441 
 
 9 
 
 Ellsworth V. Cook 
 
 77 
 
 Ford. 456 
 
 Mitchell 
 
 435 
 
 Tiry 166 
 
 Else V. Osborn 
 
 550 
 
 572 
 
 Elwell V. Sylvester 
 
 608 
 
 192 
 
 Elwes V. Maw 
 
 21,25 
 
XXZVl 
 
 TABLE OF CASES CITED IN VOL. OITE. 
 
 Elwood V. Klock 
 
 99 
 
 105 
 
 Farrar v. Stackpole 
 
 %1 
 
 Ely V. McGuyrS 
 
 
 460 
 
 Winterton 
 
 31 
 
 Emnns v. TurnbuU 
 
 
 18 
 
 Farris v. Walker 
 
 27 
 
 Emanuel v. Evana 
 
 
 892 
 
 Farrow v. Farrow 
 
 424 
 
 Embree v. Harris 
 
 
 119 
 
 Reea 
 
 446 
 
 Emmerson v. Harris 
 
 
 119 
 
 Farwell v. Feelis 
 
 494, 498 
 
 Emery v. Harrison 
 
 
 218 
 
 Faseant u. Lovell 
 
 408 
 
 Owinge 
 
 
 9 
 
 Faasetti). First Pariali 
 
 5 
 
 Emmerston v. Heelia 
 
 
 11 
 
 Faulkner v. Daniel 
 
 66 
 
 Empson v. Sod en 
 
 
 24 
 
 Faviell V. Gaskoin 
 
 15 
 
 Enswortli v. Griffith 
 
 
 400 
 
 Fawcett v. Whitehouse 
 
 32a 
 
 Enfield V. Connecticut 
 
 
 378 
 
 Fawyer v. Fawyer 
 
 374 
 
 Engle V. TJnderhill 
 
 
 475 
 
 Pay V. Brewer 
 
 406, 408 
 
 Waynes 
 
 
 438 
 
 Fay 
 
 34, 605, 639, 640 
 
 English V. Foota 
 
 
 26 
 
 Hunt 
 
 161 
 
 Ensign v. Colburn 
 
 
 408 
 
 Valentine 
 
 425, 480, 485 
 
 Erskine v. Townsend 
 
 
 480 
 
 Fellows V. Fellows 
 
 350 
 
 Eskridge v. McClure 
 
 496, 499 
 
 Lee 
 
 38 
 
 Estcourt V. Estcourt 
 
 
 166 
 
 Mitchell 
 
 345 
 
 Euston V. Friday 
 
 
 443 
 
 Feltham v. Cartwright 
 
 184, 225 
 
 Evans v. Astley 
 
 
 637 
 
 Felton V. Deall 
 
 199 
 
 Bicknell 
 
 
 470 
 
 Fenner v. Hepburn 
 
 196 
 
 Brittaia 
 
 
 661 
 
 Ferguson v. Corniah 
 
 202 
 
 Evans 
 
 116 
 
 150 
 
 Ferrall v. Kent 
 
 228 
 
 Elliott 
 
 408 
 
 412 
 
 Ferrand v. Wilson 
 
 265 
 
 Hastings 
 
 
 287 
 
 Ferrers v. Fermor 
 
 296 
 
 Hoffman 
 
 
 424 
 
 Person v. Dodge 
 
 524 
 
 Inglehart, 
 
 
 13 
 
 Field V. Arrowsmith 
 
 348, 354 
 
 Kingsbury 
 
 
 86 
 
 Hallowell 
 
 526 
 
 Measilion 
 
 
 40 B 
 
 Hanscomb 
 
 608 
 
 Montgomery 
 
 
 507 
 
 Howell 
 
 177 
 
 Roberts 
 
 
 11 
 
 Pelot 
 
 597 
 
 Suit 
 
 
 31 
 
 Swan 
 
 409, 410 
 
 Thomas 
 
 
 412 
 
 Wilson 
 
 424 
 
 Webb 
 
 
 139 
 
 Fields, Ac. 
 
 430 
 
 Evarts v. Nason 
 
 
 3-36 
 
 Fifty, &e. V. Howland 
 
 186, 242 
 
 Evelyn v. Evelyn 
 
 
 456 
 
 Finch V. Brown 
 
 ^23 
 
 Kvers v. Cliollia 
 
 
 522 
 
 Finch 
 
 313 
 
 Evertson v. Sutton 
 
 
 285 
 
 Redding 
 
 506 
 
 Ever V. Corbett 
 
 
 180 
 
 Biaely 
 
 384 
 
 Hohbs 
 
 405, 474, 608 
 
 Throckmorton 
 
 207 
 
 Eving V. Arthur 
 
 
 433 
 
 Winchelsoa 
 
 340, 499 
 
 Beauchamp 
 
 
 493 
 
 Findlay v. Hosraer 
 
 443 
 
 Burnett 
 
 48, 49, 50 
 
 Riddle 
 
 652, 654 
 
 Savery 
 
 
 662 
 
 Smith 
 
 263, 265 
 
 Ewings V. Eiiuable 
 
 
 124 
 
 Finlay v. King 
 Finn ii. Slfight 
 Finney v. Cochran 
 
 366, 378, 380 
 107 
 336 
 
 P 
 
 
 
 Watkina 
 First V. Spear 
 
 22, 25 
 5 
 
 Failing v. Sehenck 
 
 
 216 
 
 Fisk V. Howland 
 
 493, 496 
 
 Fiiiii V. Garthright 
 
 
 47 
 
 Fisher v. Barret 
 
 212 
 
 Fairfax v. Montague 
 
 
 424 
 
 Dewerson 
 
 605 
 
 Falkner v. Beers 
 
 216 
 
 285 
 
 Dixon 
 
 21 
 
 Falle V. Torrance 
 
 
 336 
 
 Fields 
 
 301, 308, 662 
 
 Fanning V Dunham 
 
 
 406 
 
 Forbea 
 
 167 
 
 Farley v. Craig 232, 
 
 242, 243 
 
 247 
 
 Glover 
 
 5 
 
 Tliompson 
 
 190 
 
 221 
 
 Johnson 
 
 230 
 
 Farmer V. CliauTette 
 
 
 20 
 
 Tucker 
 
 313,336 
 
 Farmers, ic. v. Cummercial, Ac. 
 
 460 
 
 Wigg 
 
 681,661 
 
 Dougliiss 
 
 
 438 
 
 Fisk V. Chandler 
 
 385 
 
 Edwards 
 
 380 
 
 440 
 
 Eastman 
 
 103, 144 
 
 Millard 
 
 
 483 
 
 Lacher 
 
 353 
 
 Seymour 
 
 
 419 
 
 Fiske V. Framingham 
 
 199 
 
 Farnum v. Bnutc-jle 
 
 
 443 
 
 Pitch V. Pitch 
 
 571 
 
 Piatt 
 
 
 201 
 
 Mann 
 
 44 
 
 F-arrar v. A y res 
 
 
 032 
 
 Pitchburg, &c. V. Boston 
 
 224 
 
 Ciia£fetet9 
 
 
 26 
 
 Melvea 
 
 190, 250, 261 
 
TABLE OF OASES CITED IN VOL. ONE. 
 
 XXXVU 
 
 Ktohet V. Adams 
 
 396, 384 
 
 Fothergill v. Fothergill 
 
 168 
 
 Fitzgerald v. Leslie 
 
 635 
 
 Fountain v. Coke 
 
 296 
 
 Fitzherbert v. Shaw 
 
 26 
 
 Foust V. "Wilson 
 
 505 
 
 Fitzhugh V. Foote 
 
 115 
 
 Fowke V. Faughtier 
 
 317 
 
 Flagg V. Flagg 
 
 407 
 
 Fowler v. Bott ' 
 
 255 
 
 Mann 
 
 322, 397 
 
 Bush 
 
 444 
 
 Flagler v. Flagler 
 
 129 
 
 Cravens 
 
 218 
 
 Flamank 
 
 33 
 
 Griffin 
 
 162 
 
 Flanders v. Brislow 
 
 443 
 
 Rice 
 
 396 
 
 Lamphear 
 
 406 
 
 Shearer 
 
 125 
 
 Flanigan v. Feuring 
 
 511 
 
 Thayer 
 
 592 
 
 Flannihen v. Lee 
 
 50 
 
 Fox V. Lipe 
 
 466 
 
 Fleming v. Donahoe 
 
 307 
 
 Phelps 295, 365, 389, 
 
 622, 627, 628,, 
 
 Ken 
 
 665 
 
 . 
 
 630 
 
 Fletcher u MoParlane 
 
 187, 252 
 
 Foxoroft V. Barnes 
 
 49, 608 
 
 Peck 
 
 38 
 
 Foxworth V. "White 
 
 102, 143 
 
 Robinson 
 
 330 
 
 Francis v. Garrard 
 
 145 
 
 Smiton 
 
 629 
 
 Hazlerigg 
 
 495 
 
 Stone 
 
 465 
 
 Franoiscus v. Reigart 
 
 302 
 
 Flinn v. Calow 
 
 192, 236 
 
 Frank v. Frank 
 
 165 
 
 Flint V. Hatchett 
 
 336 
 
 Mainwaring 
 
 60 
 
 Sheldon 
 
 467 
 
 Stovin 
 
 636 
 
 Flournoy v. Johnson 
 
 337 
 
 Franklin, &c. v. Blossoms 
 
 460 
 
 Flower v. Hartopp 
 
 188, 232 
 
 V. Harter 
 
 622, 626, 636 
 
 Floyer v. Lavington 
 
 397, 401 
 
 Fraser v. Hamilton 
 
 628 
 
 Foley u. Addenbrooke 
 
 22 
 
 Freeland v. Southworth 
 
 19 
 
 Folk V. Whitley 
 
 634 
 
 Freeman v. Baldwin 
 
 394 
 
 Polletti). Reese 
 
 494 
 
 Cram 
 
 511 
 
 Lyrer 
 
 80 
 
 Freeman 
 
 370 
 
 Folsom V. Moore 
 
 222, 280 
 
 McGaw 
 
 447, 464 
 
 Folts V. Huntley 
 
 214 
 
 Paul 
 
 182, 448 
 
 Fonnereau v. Fonuereau 
 
 625 
 
 Tompkins 
 
 204 
 
 Foote V. Calvin 
 
 270 
 
 Freligh v. Piatt 
 
 5 
 
 Dickinson 
 
 270 
 
 French v. Davis 
 
 130, 131 
 
 Forbes v. Moffatt 
 
 445 
 
 Eaton 
 
 607 
 
 Ross 
 
 345 
 
 French 
 
 294 
 
 Smith 
 
 32 
 
 Fuller 
 
 566 
 
 Forbush v. Philpot 
 
 405, 427 
 
 Lawrence 
 
 250 
 
 Willard 
 
 461 
 
 Peters 
 
 126 
 
 Ford V. Ford 
 
 102 
 
 Friedley v. Hamilton 
 
 395 
 
 Grey 
 
 581 
 
 Frische v. Kramer 
 
 476, 478 
 
 Katharine 
 
 323 
 
 Frogmorton v. Holy day 
 
 632, 634 
 
 Peering 
 
 66 
 
 Frohocki). Gustine 
 
 602 
 
 Forder v. "Wade 
 
 330 
 
 Frost V. Cloutman 
 
 63 
 
 Foreman v. Foreman 
 
 33 
 
 Deering 
 
 125, 126 
 
 Forrester v Leigh 
 
 457 
 
 Earnest 
 
 209, 253, 256 
 
 Forris v. "Walker 
 
 27 
 
 Etheridge 
 
 123 
 
 Forsaith v. Clark 
 
 73 
 
 Frost 
 
 381 
 
 Forster v. Hale 
 
 308 
 
 Peacock 
 
 124, 415 
 
 Mellen 
 
 463 
 
 Frothingham v. McCusick 
 
 408 
 
 Forsythe v. Clark 
 
 312, 315 
 
 Fry V. Breokrenridge 
 
 239, 240 
 
 Price 
 
 15 
 
 Porter 
 
 374 
 
 Forteseue v. Abbott 
 
 525 
 
 Frye v. Bank, &o. 
 
 420, 445 
 
 Satterthwaite 
 
 556, 570 
 
 Porte^ 
 
 533 
 
 Fortier ii. Bellance 
 
 216 
 
 Fuller V. Hodgdon 
 
 402 
 
 Fosdick V. Gooding 
 
 144 
 
 Pratt 
 
 394, 395 
 
 Fosgate v. Herkimer 
 
 47, 48 
 
 Van Geesen 
 
 482 
 
 Foss V. Crisp 
 
 79 
 
 Wadsworth 
 
 408 
 
 Foster v. Brigga 
 
 470 
 
 "Wason 
 
 112 
 
 Cook 
 
 131 
 
 Tales 
 
 129, 622 
 
 Craige 
 
 627 
 
 Fulton V. Stuart 
 
 186 
 
 Dugan 
 
 84 
 
 Fyler v. Fyler 
 
 341 
 
 Gorton . 
 
 140, 205 
 
 
 
 HiUiard 
 
 30, 67 
 
 
 
 Juniata 
 
 IS 
 
 G 
 
 
 Mar.shall 
 
 75 
 
 
 
 Spooner 
 
 261 
 
 Gable v, Pacey 
 
 60? 
 
 Trustees, &o. 311, 
 
 312, 493, 496 
 
 Gadsden v. Lord 
 
 346 
 
 YOL. I. 
 
 I 
 
 
 
XXXVlll 
 
 TABLE OF CASES CITED IN VOL. ONE. 
 
 Gaffield v. Hapgood 
 
 22, 25 
 
 Gilbert v. Chapin 
 
 Gage V. Rogers 
 
 17 
 
 Dyneley 
 
 Smith 
 
 243 
 
 Merrill 
 
 WA-d 
 
 415 
 
 Witty 
 
 Gahn v. Niemcericz' 
 
 91 
 
 Gilchrist v. Stevenson 
 
 Gaines v. Gaines 
 
 120 
 
 Giles V. Baremore 
 
 Wilson 
 
 141 
 
 Gilhooley v. Washington 
 
 Gaither v. Teague 
 
 402 
 
 Gilleland v. Failing 
 
 Galbreath v. Galbreath 
 
 600, 662 
 
 Gillespie v. Walker 
 
 Galloway v. Ogle 
 
 216 
 
 GiUet V. Stanley 
 
 Gait V. Jackson 
 
 402 
 
 Gillett V. Balcom 
 
 Gambril v. Doe 
 
 405 
 
 Gilman v. Brown 
 
 Rose 
 
 466 
 
 Wadden 
 
 Gammon v. Freeman 
 
 105, 101 
 
 Stetson 
 
 Gangwere 
 
 -174 
 
 Ginger v. Wliite 
 
 Gann v. Chester 
 
 498 
 
 Givens v. McCalmont 
 
 Ganton v. Bates 
 
 145 
 
 Glasgow V. Ridgley 
 
 Garber v. Henry 
 
 421 
 
 Glass V. Ellison 
 
 Gardiner v. Miles 
 
 124 
 
 Glassington v. Rawlins 
 
 Gardner v. Astor 
 
 182, 333, 445 
 
 Glassock V. Robinson 
 
 Corsen 
 
 566 
 
 Glegg V. Glegg 
 
 Gardner 
 
 92, 342 
 
 Glen V. Banks 
 
 Heath 
 
 408 
 
 Glengall v. Barnard 
 
 Ketteltas 
 
 208 
 
 Glenn d. Coleman 
 
 Shelden 
 
 512 
 
 Glenorchy v. Bonville 
 
 Webber 
 
 422 
 
 Glidden v. Andrews 
 
 Garey v. May 
 
 347 
 
 Hunt 
 
 Garland v. Thomas 
 
 666 
 
 Globe, &c. V. Lansey 
 
 Garrard v. Lauderdale 
 
 300 
 
 Glover v. Archer 
 
 Garret v. Evers ' 
 
 481 
 
 Fisher 
 
 Garrett V. Garrett 
 
 380 
 
 Payne 
 
 Scouton 
 
 379 
 
 Wilson 
 
 Garris v. Garris 
 
 143 
 
 Goddard v. Bolster 
 
 Garson v. Green 
 
 495 
 
 Chase 
 
 Garth v. Baldwin 
 
 249 
 
 Divoll 
 
 Cotten 
 
 276, 539, 549, 553 
 
 Railroad Co. 
 
 Gasage v. Taylor 
 
 642 
 
 Godfrey v. Humphrey 
 
 Gates V. Green 
 
 255 
 
 Watson 
 
 Jacob 
 
 403, 423 
 
 Godwin v. Gregg 
 
 Gause v. Wiley 
 
 600 
 
 AVinsmore 
 
 Gay V. Baker 
 
 251 
 
 Goff V. Kitts 
 
 Meriot 
 
 430 
 
 Golson V. Hook 
 
 Gee V. Gee 
 
 239 
 
 Good V. Lercher 
 
 Toung 
 
 14 
 
 Goodall's case 
 
 Geeckie v. Monk 
 
 213 
 
 V. Rowell 
 
 Geeger v. Harman 
 
 229 
 
 Goodburn v. Stevens 1^ 
 
 Geer v. Hamblin 
 
 102 
 
 Goodell V. Jackson 
 
 Geheebie v. Stanley 
 
 215 
 
 Goodenough v. Goodenough 
 
 Gentry v. Woodson 
 
 102 
 
 Goodhue v, Barnwell 
 
 Wagstaflf 
 
 78 
 
 Goodman v. Goodman 
 
 George v. Putney 
 
 251 
 
 Grierson 
 
 George's, &e. v. Detnold 
 
 272 
 
 Kino 
 
 Morgan 
 
 659, 637 
 
 Berrian 
 
 Germond v. Jones 
 
 55 
 
 Goodright v. Allen 
 
 Getman v. Getman 
 
 316 
 
 Barron 
 
 Gibbes v. Smith 
 
 356 
 
 Cormicke 
 
 Gibson v. Bailey 
 
 430,481 
 
 Davids 
 
 Cooke 
 
 389 
 
 Dunham 
 
 Crehore 140, 
 
 141, 417, 418, 426 
 
 Fowler 
 
 McKormioke 
 
 132, 478 
 
 Goodridge 
 
 Mountfort 
 
 635 
 
 Pullyn 
 
 Smith 
 
 273 
 
 Richardson 
 
 Welles 
 
 282 
 
 Stocker 
 
 Zimmerman 
 
 580 
 
 Goodrich v. Jones 
 
 Giddings v. Eastman 
 
 351, 352 
 
 Staples 
 
 Gifford V. Barker 
 
 570 
 
 Goodtitle v. Bellington 
 
 Manly 
 
 346 
 
 Bailey 
 
 662 
 
 346 
 
 454 
 
 668 
 
 350, 355 
 
 424 
 
 244, 253 
 
 468 
 
 332 
 
 601 
 
 407 
 
 493 
 
 481 
 
 599 
 
 650 
 
 263, 427 
 
 227, 230 
 
 405 
 
 201 
 
 493 
 
 167 
 
 126 
 
 67 
 
 506 
 
 59, 655 
 
 478 
 
 438 
 
 487 
 
 237 
 
 339 
 
 402 
 
 189 
 
 26 
 
 26 
 
 349 
 
 280 
 
 627 
 
 427 
 
 576 
 
 330 
 
 11 
 
 44 
 
 88 
 
 392 
 
 464 
 
 , 166, 459, 578 
 
 38 
 
 147 
 
 450, 616 
 
 92 
 
 397, 402 
 
 408 
 
 437 
 
 622, 632 
 
 622 
 
 534 
 
 207 
 
 521, 650 
 
 47 
 
 620 
 
 648 
 
 176, 201, 202 
 
 632 
 
 27, 279 
 
 478 
 
 632, 556 
 
 477 
 
TABLE OF CASES CITED IN VOL. ONE. 
 
 XXXIX 
 
 Goodtitle v. Herring 
 
 
 651 
 
 Gray v. Jenks, 
 
 416, 440 
 
 Knot 
 
 
 333 
 
 Johnson, 
 
 212, 216 
 
 Madden 
 
 
 •631 
 
 Parker 
 
 617 
 
 Morgan 
 
 
 492 
 
 Rawson 
 
 185 
 
 Stokes 
 
 
 661 
 
 Graves v. Porter 
 
 188 
 
 Way 
 
 
 197 
 
 "Weld 
 
 13 
 
 "Whitty 
 
 
 624 
 
 Grayson v. Moncure 
 
 147 
 
 "Woodhall 
 
 
 650 
 
 Great Falls 1). "Worster 
 
 405 
 
 Goodwin w. Hubbard 
 
 41, 318 
 
 351 
 
 Greber v. Kleckner 
 
 262 
 
 Richards 
 
 
 589 
 
 Green v. Armstead 
 
 •626 
 
 Stephenson 
 
 
 405 
 
 1 Borland 
 
 354 
 
 Gordon ». Graham 
 
 
 421 
 
 Brown 
 
 120 
 
 Hobart 424, 
 
 469, 481 
 
 484 
 
 Cartwright 
 
 17 
 
 Lewis 
 
 
 426 
 
 Chester 
 
 420 
 
 Gore V. Bacrier 
 
 
 113 
 
 Crockett 
 
 478 
 
 Floyd 
 
 
 195 
 
 Demoss 
 
 498, 698 
 
 JTenness 
 
 408 
 
 412 
 
 Bales 
 
 209 
 
 "Wright 
 
 
 184 
 
 Elkins 
 
 645 
 
 Gorham v. Daniels 
 
 103 
 
 138 
 
 Ely 
 
 608 
 
 Gorham 
 
 
 609 
 
 Fowler 
 
 493 
 
 Gorsia v. Brown 
 
 
 437 
 
 Green 
 
 172 
 
 Gorsing v. Shreve 
 
 
 416 
 
 Harvey 
 
 101 
 
 Gorson v. Blakey 
 
 
 403 
 
 King 
 
 680 
 
 Tucker 
 
 
 90 
 
 Leter 
 
 48 
 
 Gosling V. Warburton 
 
 
 129 
 
 London 
 
 244 
 
 Gott V. Cook 
 
 30 
 
 359 
 
 Marsie 
 
 237 
 
 Gough V. Howard 
 
 
 625 
 
 Putnam 
 
 103,139,597 
 
 Governors, &c. v. Harreld 
 
 
 232 
 
 Putney 
 
 347 
 
 Governor v. Powell 
 
 
 460 
 
 Rutherford 
 
 357 
 
 Gould V. Kemp 
 
 579 
 
 581 
 
 Spicer 
 
 307 
 
 Newman 
 
 
 432 
 
 Stephens 
 
 666 
 
 Tanored 
 
 426 
 
 428 
 
 Tanner 
 
 403, 420 
 
 Thompson 
 
 
 279 
 
 Thomas 
 
 366 
 
 Wamsaok 
 
 
 163 
 
 "Winter 
 
 347, 351 
 
 "Webster 
 
 
 13 
 
 Greening v. Fox 
 
 347 
 
 Goundie v. Northhampton 
 
 89 
 
 612 
 
 Greenlaw v. Greenlav/ 
 
 48 
 
 Gourdine v. Davis 
 
 
 356 
 
 Greenloafw. Francis 
 
 3 
 
 Goudy V. Shank 
 
 
 615 
 
 Greenlow v. King 
 
 349 
 
 Gouveneur v. Bibby 
 
 
 383 
 
 Greeno v. Munson 
 
 216 
 
 Gowen, &o. 
 
 
 136 
 
 Greenough v. "Wiggiston 
 
 600, 510 
 
 Gowing V. Rich 
 
 315 
 
 332 
 
 Greenwood v. Rothall 
 
 143 
 
 Grace v. Hunt 
 
 
 430 
 
 Taylor 
 
 443 
 
 Mercer 
 
 
 470 
 
 Greider, &o. 
 
 183, 184 
 
 Grady v. Bailey 
 
 
 107 
 
 Greider's Appeal 
 
 240 
 
 GrafTs. Castleman 
 
 
 340 
 
 Gregg V. "Welles 
 
 470 
 
 Graffith v. Tottenham 
 
 
 46 
 
 Gregory v. Paul 
 
 108 
 
 Grafton v. Doe 
 
 
 443 
 
 Gretton v. Howard 
 
 130 
 
 Grafton, 
 
 
 48 
 
 Grey v. Grey 
 
 325 
 
 Graggs V. Baily 
 
 
 494 
 
 Grewson v. Kissop 
 
 30, 338 
 
 Graghlee v. "Wheeler 
 
 
 44 
 
 Griffin v. Bixby 
 
 10 
 
 Graham v. Barnard 
 
 
 67 
 
 Mncauley 
 
 354 
 
 Diokerson 
 
 
 32 
 
 GrifBth v. Beecher 
 
 33 
 
 Donaldson 
 
 300 
 
 307 
 
 Dicken 
 
 43 
 
 Holt 
 
 
 506 
 
 Evans 
 
 648 
 
 McCambell 
 
 
 492 
 
 Grimes v. Doe 
 
 476 
 
 Sam 
 
 
 116 
 
 Grimstone v. Bruce 
 
 382 
 
 Graidus' Appeal 
 
 
 240 
 
 Carter 
 
 396 
 
 Grandison v. Pitt 
 
 
 171 
 
 Grinnel v. Baxter 
 
 357, 433, 439 
 
 Granger v. Collins 
 
 
 208 
 
 Griswold v. Johnson 
 
 695 
 
 Grant v. Chase 
 
 
 69 
 
 Groflf V. Leeson 
 
 16 
 
 Duane 
 
 
 416 
 
 Groton v. Boxborough 
 
 410 
 
 Mills 
 
 
 495 
 
 Grout V. Townsend 
 
 84, 623, 634 
 
 U. S. Bank 
 
 
 420 
 
 Grove v, Hooke 
 
 170 
 
 Grantham v. Hawley 
 
 
 10 
 
 Groves v. Baily 
 
 4 
 
 Grason v. Atkinson 
 
 
 628 
 
 Grow a. Albee 
 
 467 
 
 Gray v. Baldwin 
 
 
 408 
 
 Growning v Behn 
 
 493 
 
 Bates 
 
 
 43 
 
 Grubb V. Guilford 
 
 10 
 
 Blanchard 
 
 370, 382 
 
 384 
 
 Grugeon v, Garrard 
 
 419 
 
xl 
 
 TABLE OF CASES OITfiD IN TOL. ONE. 
 
 Grugeon v. Girard 
 
 
 443 
 
 Hammond v. Hopkins 
 
 394, 398 
 
 Grughter v. Wheeler 
 
 
 44 
 
 Washington 
 
 438 
 
 Grumble v. Jones 
 
 
 630 
 
 Hampton v. Broom 
 
 509 
 
 Grundy v Grundy- 
 
 
 153 
 
 Hodges 
 
 408 
 
 Grimes V, Boweren 
 
 
 22 
 
 Spencer 
 
 309, 396 
 
 Gubbins v. Creed 
 
 
 402 
 
 Hanbury v. Hussey 
 
 604 
 
 Gudgell V. Duval 
 
 
 286 
 
 Handy v. leavitt 
 
 609 
 
 Guier v. Kelly 
 
 
 350 
 
 Hancock v. Day 
 
 597 
 
 Guild V. Rogers 
 
 
 239 
 
 Hanly v. Sprague 
 
 340 
 
 Guion V. Anderaon 
 
 
 T7 
 
 Hanna v. Wilson 
 
 494 
 
 Gunn V. Scovill 
 
 
 244 
 
 Hannah, &c. 
 
 402 
 
 Gunning v. Gunning 
 
 
 266 
 
 Hannan v. Osborn 
 
 527 
 
 Guthie V. Gardner 
 
 
 326 
 
 Hanson v. Derby 
 
 410 
 
 Guthrie v. Guthrie 
 
 623 
 
 633 
 
 Willard 
 
 ■609 
 
 Sorrell 
 
 
 478 
 
 Hapgood V. Bent 
 
 59 
 
 Gwynne v. Cincinnati 
 
 
 115 
 
 Harcall v. The Madison 
 
 365 
 
 Jones 
 
 
 207 
 
 Harcourt v. Poole 
 
 Seymour 
 
 235 
 30 
 
 H 
 
 
 
 Hard v. Wadham 
 Harder v. Harder 
 
 381 
 314, 323 
 
 Haokenbury v. Carlisle 
 
 
 348 
 
 Harding v. Springer 
 
 680 
 
 Haddock v. Bulfinoh 
 
 439 
 
 443 
 
 Hardman v. Shumate 
 
 229 
 
 Hadle v. Healy 
 
 
 424 
 
 Hardy v. Commercial, &c. 
 
 443 
 
 Hadley's, &o. 
 
 
 356 
 
 Reeves 
 
 424 
 
 Hadley v. Chapin 
 
 
 445 
 
 Seyer 
 
 531 
 
 Haggard u. Rout, 
 
 
 524 
 
 Summers 
 
 613 
 
 Haggin v. Haggin 
 
 
 605 
 
 Hare v. Groves 
 
 256 
 
 Hagthorpe v. Hook 
 
 311 
 
 320 
 
 Harger v. Edwards 
 
 210 
 
 Haleombe v. Ray 
 
 
 394 
 
 Hargrave v. King 
 
 371 
 
 Halet). Estcott 
 
 
 543 
 
 Harker v. Birkbeok 
 
 9 
 
 Glidden 
 
 
 48 
 
 Conrad 
 
 610 
 
 James 
 
 
 115 
 
 Harlan v. Harlan 
 
 29 
 
 Rider 
 
 
 473 
 
 Harmel v. Lucas 
 
 542 
 
 Hales V. Petit 
 
 
 59 
 
 Harmon v. Short 
 
 401 
 
 Risley, 
 
 639, 543, 544 
 
 545 
 
 Harriet, &o. 
 
 430 
 
 Haley v. Bennett 
 
 
 482 
 
 Harpending v. Dutch 
 
 600 
 
 Hall V. Bell, 
 
 
 435 
 
 Harrington v. Barton 
 
 608 
 
 Byrne 
 
 
 397 
 
 Price 
 
 492 
 
 Chaffee 
 
 
 558 
 
 Wise 
 
 195 
 
 Cushman 
 
 
 478 
 
 Harris v. Barrett 
 
 307 
 
 Dench 
 
 
 405 
 
 De Graffenreidi 
 
 540 
 
 Dewey 
 
 
 218 
 
 Evans 
 
 202 
 
 Hall 
 
 
 127 
 
 Ely 
 
 483 
 
 M'DueP 
 
 
 490 
 
 Gillingham 
 
 6 
 
 Sayre 
 
 
 91 
 
 Goodwin 
 
 190 
 
 Seabrighfe 
 
 194 
 
 223 
 
 Jones 
 
 212 
 
 Stewart 
 
 
 216 
 
 Miller 
 
 1 
 
 Tufts 
 
 369 
 
 532 
 
 Mott 
 
 87 
 
 HalleU V. Collins 
 
 340 
 
 571 
 
 Preston 
 
 616 
 
 Wylie 
 
 
 255 
 
 Riding 
 
 8 
 
 Hallook«. Smith 
 
 493 
 
 494 
 
 Shaw 
 
 363 
 
 Halse V. Wright 
 
 
 300 
 
 Harrison v. Battle 
 
 332 
 
 Halsey v. Reed 
 
 442 
 
 452 
 
 Belsey 
 
 543 
 
 Hamblett v. Hamblett 
 
 
 130 
 
 Eldridge 
 
 473 
 
 Hamblin v. Bank 
 
 143 
 
 581 
 
 Perth 
 
 419 
 
 Hamilton v. Bishop 
 
 
 357 
 
 Lemon 
 
 393 
 
 Elliott 
 
 378 
 
 386 
 
 Mack 
 
 338 
 
 Ely 
 
 
 272 
 
 Monnomy 
 
 313 
 
 Harris 
 
 
 307 
 
 Phillips 
 
 400 
 
 Hempstead 
 
 
 62 
 
 Trustees, &c. 
 
 394 
 
 Hughes 
 
 
 115 
 
 Harsand v. Hardy 
 
 424 
 
 Mohun 
 
 
 141 
 
 Harshaw v. Davis 
 
 146 
 
 O'Niel 
 
 133, 
 
 134 
 
 Hart V. Clialker 
 
 421 
 
 Hamlin v. Hamlin 
 
 
 330 
 
 Gregg 
 
 322, 599 
 
 Hammerston's case 
 
 
 298 
 
 Hawkins 
 
 315 
 
 Hammick v. Bronson 
 
 
 580 
 
 Johnson 
 
 233 
 
 Hammond v. Barnum 
 
 
 605 
 
 Middlehurst 
 
 646 
 
 Hammond 
 
 622 
 
 627 
 
 Windsor 
 
 255 
 
TABLE OF CASES CITED IN VOL. ONE. 
 
 xli 
 
 Harten v. Harten 
 
 304 
 
 Helborne v. Brown 
 
 
 6 
 
 Hartshorn v. Hubbard 
 
 407 
 
 Helfeinstein v. Garrard 
 
 
 294 
 
 Hartshorne v. 'Watson 
 
 246 
 
 Helfield v. Newton 
 
 
 467 
 
 Hartz V. ■Woods 
 
 416 
 
 Hellawell v. Eastwood 
 
 
 22 
 
 Harvey v. Aston 
 
 369, 574 
 
 Helmer v. Shoemaker 
 
 
 623 
 
 Olmsted 
 
 628, G32 
 
 Helmpold v. Man 
 
 
 446 
 
 Harvy v. Dame 
 
 377 
 
 Helps V. Hereford 
 
 
 222 
 
 Hasbrook v. Paddock 
 
 364, 387 
 
 Hemings v. Brubason 
 
 
 178 
 
 Hasfall V. Key 
 
 18, 19 
 
 Hempshill v. Bekfeldt 
 
 
 251 
 
 Haskell v. Haskell 
 
 440 
 
 Hempstead v. Hempstead 
 
 
 313 
 
 Haslaw v. Haslaw 
 
 19 
 
 Henderson v. Harrod 
 
 
 43 
 
 Haslett V. Glenn 
 
 13, 14 
 
 Lowry 
 
 
 484 
 
 Hastings v. Crunkleton 
 
 263 
 
 Hendricks v. Robinson 
 
 
 421 
 
 Clifford 
 
 133, 136 
 
 Henklet). Allstadt 
 
 
 437 
 
 Dickinson 
 
 126, 164, 172 
 
 Henry v. Davis 
 
 
 398 
 
 Hasty V. "Wheeler 
 
 264 
 
 Pullerton 
 
 
 460 
 
 Haswell v. Goodohild 
 
 511 
 
 Henson v. Coope 
 
 
 221 
 
 Hatch V. Dwight 
 
 430 
 
 Hepburn v. Dubois 
 
 
 88 
 
 KimbaU 
 
 445 
 
 Snyder 
 
 
 412 
 
 Smith 
 
 49 
 
 Hepworth v. Heslop 
 
 
 470 
 
 "White 
 
 486, 487 
 
 Herbert v. Parsons 
 
 
 169 
 
 Hatcher v. Hampton 
 
 272 
 
 "Wren 
 
 127 
 
 ,147 
 
 Hatton V. "Wiser 
 
 92 
 
 Hesler v. Pott 
 
 
 292 
 
 Haven v. Poster 
 
 458 
 
 Hesseltine v. Leavey 
 
 
 183 
 
 Hemmingway 
 
 363 
 
 Heth V. Richmond 
 
 
 348 
 
 Low 
 
 405 
 
 Hetheringtou v. Graham 
 
 
 101 
 
 Hawell V. Hunt 
 
 661 
 
 Hethman v. "Walton 
 
 
 28 
 
 Hawkins v. Kelly 
 
 258 
 
 Hewitt V. Hewitt 
 
 
 277 
 
 May 
 
 421 
 
 Isham 
 
 
 223 
 
 Page 
 
 144 
 
 Loosemore 
 
 
 492 
 
 Sheff 
 
 14 
 
 Heydon v. Smith 
 
 
 261 
 
 Skigg 
 
 376 
 
 Heyer v. Pruyn 
 
 425 
 
 , 433 
 
 Hawley v Bradford 
 
 417 
 
 Hey ward v. Cuthbert 
 
 -96 
 
 ,145 
 
 James 30, 
 
 127, 133, J36, 356, 
 
 Heywood v. Miller 
 
 
 199 
 
 
 360, 561, 562 
 
 Hibbet V. Spurrier 
 
 
 461 
 
 Loper 
 
 608 
 
 Hickman v. Irvine 
 
 
 263 
 
 Northampton 
 
 56, 61, 647, 666 
 
 Quinn 
 
 402 
 
 ,658 
 
 Hayworth v. Herbert 
 
 101 
 
 Hicks V. Bingham 
 
 420,448 
 
 Wallace 
 
 510 
 
 Cochran 
 
 
 370 
 
 Hayden v. Stoughtou 
 
 368 
 
 Hioka 
 
 66, 398 
 
 402 
 
 Haydon v. Ewing 
 
 119 
 
 Hiern v. Mill 
 
 
 490 
 
 Hayer v. Pruen 
 
 451 
 
 Hiester v. Maderia 
 
 
 398 
 
 Hayes v. Poorde 
 
 641 
 
 Higbee v. Rice 
 
 
 591 
 
 Hayner v. Hayner 
 
 168 
 
 Higginbotham v. Orowell 
 
 129 
 
 133 
 
 Haynes v. Powers 
 
 146 
 
 Higgins V. Bruen 
 
 
 97 
 
 Hays V. "Ward 
 
 437 
 
 Prankia 
 
 
 437 
 
 Hayter v. Bods 
 
 181 
 
 Higglesworth v. Dalliaon 
 
 
 15 
 
 Hayward v. Cuthbert 
 
 155 
 
 Highway v. Banner 
 
 
 646 
 
 Ellis 
 
 348, 350 
 
 Hilchens v. Hilohens 
 
 
 105 
 
 Haywood v. Ensley 
 
 349 
 
 Hildreth v. Jones 
 
 
 415 
 
 Judson 
 
 604 
 
 Thompson 
 
 
 138 
 
 Moore 
 
 527 
 
 Hill's case 
 
 
 233 
 
 Head v. Bgerton 
 
 435, 492 
 
 Hill V. Barclay 
 
 
 383 
 
 Heap V. Barton 
 
 24 
 
 Bishop 
 
 
 252 
 
 Heard v. Pairbanks 
 
 12 
 
 Grange 
 
 
 388 
 
 Heardon v. "Williamson 
 
 633 
 
 Hill 
 
 
 216 
 
 Hearle v. Greenbank 
 
 329 
 
 Jordan 
 
 
 409 
 
 Heath v. Dendy 
 
 132 
 
 Payson 
 
 
 472 
 
 "Williamg 
 
 220 
 
 Smith 
 
 415 
 
 445 
 
 Hebron v. Centre 
 
 392 
 
 "West 
 
 
 90 
 
 Heek v. Clippenger 
 
 643 
 
 "Woodman 
 
 
 210 
 
 Hedge v. Holmes 
 
 474 
 
 Hillary v. Pollock 
 
 
 509 
 
 Heeny v. St. Peters 
 
 4 
 
 "Walter 
 
 
 335 
 
 Heermance v. "V"ernoy 
 
 12, 27 
 
 IJilliard v. Belford 
 
 128 
 
 135 
 
 Heffaer v. Knapper 
 
 635, 637 
 
 Hills V. Doe 
 
 
 591 
 
 Tount 
 
 367 
 
 Elliott 
 
 
 511 
 
 Heighway v. Pendleton 
 
 405, 476 
 
 Hillyer v. Bennett 
 
 
 468 
 
 Heimatreet v. Howland 
 
 193 
 
 Hilton V. Granville 
 
 
 272 
 
xlii 
 
 TABLE OP OASES CITED IS VOL. ONE. 
 
 Himershita v. Bernhard 
 
 135 
 
 Ilolma V. Williams 
 
 627, 62& 
 
 Hinohman v. Graham 
 
 510 
 
 Holt V. Robertson 
 
 597 
 
 Lybrand 
 
 510. 
 
 Holton V. Brown 
 
 485. 
 
 Hinde v. Gray 
 
 210 
 
 Tremper 
 
 244 
 
 Hingham v. Spragae 
 
 199, 565 
 
 Trout 
 
 311 
 
 Hinman v. Bonslaugh 
 
 642 
 
 Holtpzaffell v. Baker 
 
 255. 
 
 Covauway 
 
 42 
 
 Hone V. Fisher 
 
 397 
 
 Hinton v. Hintoa 
 
 135, 583 
 
 Van Sohaiok 
 
 359 
 
 Hitchcock V. Carpenter 
 
 107 
 
 Honor v. Honor 
 
 645. 
 
 Harrington, 
 
 144. 146, 41 5 
 
 Honore v. Bakewell 
 
 493, 494 
 
 Skinner 
 
 609 
 
 Honywood v. Honywood 
 
 557 
 
 Httohens v. Hitohena 
 
 104, 128 
 
 Hood V. Phillips 
 
 445 
 
 Hitchman v. Walton 175, 
 
 408, 563, 567 
 
 Hoogland v. Watt 
 
 415 
 
 Hoagland v. Latourette 
 
 498 
 
 Hooker v. Hooker 
 
 644 
 
 Hoatz V. Patteraon 
 
 503 
 
 Hudson 
 
 465 
 
 Hoave v. Harria 
 
 337, 338 
 
 Hooper 
 
 41 9i 
 
 Hobart v. Abbott 
 
 478 
 
 V, Eamsbottom 
 
 435, 492 
 
 Hanrich 
 
 49 
 
 Hoops V. Parsons 
 
 503 
 
 Sanborn 
 
 406 
 
 Hoot V. Sorrell 
 
 127 
 
 Hobbs V. Harvey 
 
 106, 113 
 
 Hoover v. Wheeler 
 
 508 
 
 Norton 
 
 470 
 
 Hopewell v. Ackland 
 
 628 
 
 Hobby 11. Pemberton 
 
 484 
 
 Hopkins v. Carey 
 
 326, 332 
 
 Hobson V. Bell 
 
 403 
 
 Conrad 
 
 510 
 
 Sherwood 
 
 605 
 
 Frey 
 
 115 
 
 Hoby V. Hoby 
 
 157, 158 
 
 Garrard 
 
 493 
 
 Hockley v. Bantock 
 
 491 
 
 Hopkins 
 
 302 
 
 Hodgdon v. Naglee 
 
 432, 438 
 
 Hulmore 
 
 236. 
 
 Hodge V. Att'y, &o. 
 
 490 
 
 Ward 
 
 334 
 
 Hodgea v. Croydon, 
 
 423 
 
 Hopper V. Hopper 
 
 14© 
 
 Galea 
 
 279 
 
 Liacoe 
 
 420. 
 
 Hodgea 
 
 369 
 
 Horlock V. Smith 
 
 427 
 
 Hodgkinaon v. "Wyatt 
 
 466 
 
 Home V. Lyeth 
 
 650, 652 
 
 Hodgson V. Ambrose 
 
 641 
 
 Horney v. Goings 
 
 604 
 
 Shaw 
 
 437 
 
 Horsey v. Horsey 
 
 90, 204 
 
 Hoffar V. Denent 
 
 585 
 
 Horsfall v. Key 
 
 18, 19^ 
 
 Hoffman v. Lee 
 
 471 
 
 Horton v. Buskirk 
 
 609 
 
 Hogan V. Stone 
 
 347, 426 
 
 Whitaker 
 
 523 
 
 "Welcher 
 
 617 
 
 Hosford V. Merwin 
 
 604 
 
 Hogeboom v. Hall 
 
 377, 379, 386 
 
 Hoskina v. Featherstono 
 
 263 
 
 Hogel V. Lindell 
 
 397 
 
 Helm 
 
 1-91 
 
 Hoggat V. Wade 
 
 493, 494 
 
 Ehoades 
 
 20O 
 
 Hogins V. Arnold 
 
 390, 396 
 
 Hough V. Birge 
 
 263, 279. 
 
 Hogle V. Stuart 
 
 153 
 
 De Forrest 
 
 447 
 
 Hohly V. German 
 
 227 
 
 Doyle 
 
 476 
 
 Holablrd v. Burr 
 
 426, 435, 437 
 
 Martin 
 
 273 
 
 Hoi brook v. Finney 
 
 106, 591 
 
 Houghtaling v. Houghtaling 
 
 1 
 
 Holoomb V. Holcomb 
 
 478, 479 
 
 Houghton V. Bartholomew 
 
 460 
 
 Holoroft 
 
 525 
 
 Cooper 
 
 266 
 
 Holden v. Gilbert 
 
 403 
 
 Hapgood 
 
 80, 81 
 
 Holder v. Coates 
 
 10 
 
 Houston V. Jamison 
 
 144 
 
 Holdernesa v. Carmarthen 
 
 58 
 
 Sprague 
 
 see 
 
 Holdfast V. Marten 
 
 627 
 
 Stanton 
 
 579 
 
 Holditch V. Holditch 
 
 128 
 
 Hovey v. Blanchard 
 
 284 
 
 Holdship t;..Abercrombie 
 
 507 
 
 Holcomb 
 
 307, 397 
 
 Holeridge dGilleaple 
 
 398, 402 
 
 Smith 
 
 20, 240 
 
 Holford V. Hatch 
 
 185 
 
 Howard v. Agry 
 
 490 
 
 Holland i;. Pack 
 
 38 
 
 Candish 
 
 158 
 
 HoUiday v. Marshall 
 
 187 
 
 Dill 
 
 239 
 
 Overton 
 
 617, 661 
 
 Ellis 
 
 184, ISO 
 
 HoUis V. Pool 
 
 288 
 
 First Parish 
 
 5 
 
 Thayer 
 
 311 
 
 Halsey 
 
 438 
 
 Holman v. Bailey 
 
 443 
 
 Harris 
 
 398 
 
 Bank Sca., 
 
 438 
 
 Howard 
 
 460 
 
 Exton 
 
 72 
 
 Lincoln 
 
 JO 
 
 Holme V. Harrison 
 
 630 
 
 Robinson 
 
 405, 508 
 
 Hohnea v. Grant S93, 394, 396, 402 
 
 Sedgeley 
 
 50.5. 
 
 Fisher 
 
 406 
 
 Shaw 
 
 244 
 
 MeyneU 
 
 &67: 
 
 Turner 
 
 36& 
 
TABLE OF CASES CITED IN TOL. ONE. 
 
 xliii 
 
 Howe V. Bishop 
 
 318 
 
 I 
 
 
 Blanden 
 Lewis 
 Wildes 
 Howel 0. Ashmore 
 
 Howel 
 Howell V. Baker 
 Howell 
 
 Price ^ 
 "Webb 
 Howery v. Goings 
 Howland v. Coffin 
 
 Hecksher 
 Hewlett V. Thompson 
 Hoxie V. Carr 
 
 Hoxie 
 Hoy V. Mester 
 
 25, 596 
 
 439 
 
 41 
 
 88 
 
 646, 664 
 
 348, 351 
 
 282 
 
 424 
 
 244 
 
 82, 604 
 
 185, 188, 221 
 
 130 
 
 492 
 
 311, 312, 319 
 
 357 
 
 623 
 
 Ibbetson v. Beckwith 
 Ibbetaon 
 Iddings V. Bruen . 342, 
 
 Nagla 
 Idle V. Cook 
 llderton v. Ilderton 
 lllingworth v. Miltenberger 
 
 626 
 
 2, 459 
 
 346, 348, 349 
 
 194, 200 
 
 620 
 
 97 
 
 241, 505 
 
 Inches v. Leonard 
 Inge V. Boardman 
 Ingersoll v. Knowlton 
 
 Sawyer 
 
 Sergeant 221, 
 Ingraham v. Baldwin 
 Dunnell 
 Ingram v. Morris 
 
 Smith 
 
 435, 436 
 137 
 625 
 465 
 231, 252, 259 
 84 
 566 
 106 
 484 
 
 Hubbard v. Ascutney, &o., 
 Austin 
 Bagshaw 
 Cummings 
 Hubbard 
 Norton 
 Savage 
 
 419 
 
 43 
 
 20, 24 
 
 468 
 
 132, 598 
 
 222 
 
 421 
 
 OiULliLl 
 
 Inman v. Jackson 
 Ipswich, &c. V. Story 
 Ireson v. Denn 
 Irven v. Campbell 
 Irving V. Thomas 
 Irwin V. Earrar 
 
 Earris 
 
 King 
 
 Tabb 
 Irwin's, &c. v. Longworth 
 Isaac V. Clark 
 . Isliam V. Morgan 
 Ives V. Legge 
 Ivie V. Ivie 
 Izon V. Gorton . 
 
 633 
 447 
 419 
 499 
 236 
 623 
 349 
 
 Hughes V. Edwards 
 
 Hughes 
 
 Kearney 
 
 Trustees 
 Hugunin v. Starkweather 
 Hulbert v. Grant 
 Huhng V. DrexcU 
 Humbert v. Rector 
 Hummerston's case 
 
 423, 413 
 524 
 496 
 219 
 443 
 352 
 398 
 423 
 298 
 
 615 
 
 436 
 
 437 
 
 219 
 
 3 
 
 519, 522 
 
 66 
 
 254, 281 
 
 Humphrey v. Einney 
 
 113 
 
 
 
 Snyder 
 
 394 
 
 J 
 
 
 Humphreys v. Harrison 
 
 403 
 
 
 
 Hungerford v. Anderson 
 
 621, 667 
 
 Jackman v. Ringland 
 
 316 
 
 Clay 
 
 412 
 
 Jackson v. Agan 
 
 375 
 
 Hunt V, Com stock 
 
 193 
 
 Aldrich 
 
 282 
 
 Hazleton 
 
 193 
 
 Andrew 
 
 26S 
 
 Hunt 51, 
 
 385, 430, 447 477 
 
 Aspell 
 
 152 
 
 Maynard 
 
 613 
 
 Bowen 
 
 467 
 
 Mullanphy 
 
 21 
 
 Bronson 
 
 406 
 
 Stiles 
 
 480, 488 
 
 Brownell 
 
 200, 373 
 
 "Watkins 
 
 13, 62, 67 
 
 Brownsun 185 
 
 207, 262, 263 
 
 Hunter v. Brown 
 
 615 
 
 ■ Brush 
 
 190 
 
 Chrisman 
 
 44 
 
 Bryan 
 
 280 
 
 Grant 
 
 479 
 
 Bull 
 
 630 
 
 Hunter 
 
 460 
 
 Cairns 
 
 85 
 
 Macklew 
 
 478 
 
 Cator 
 
 261 
 
 Osterhout 
 
 236, 389 
 
 Churchill 
 
 146 
 
 Huntington v. Mountjoy 
 
 9 
 
 Claw 
 
 109 
 
 Smith 
 
 404, 433 
 
 Cobbin 
 
 208 
 
 Hurd V. Casa 
 
 91 
 
 Golden 
 
 46S 
 
 Gushing 
 
 65 
 
 Crafts 
 
 381 
 
 Darling 
 
 197 
 
 Crisler 
 
 389 
 
 Grant 
 
 143 
 
 Davis 
 
 190, 216, 439 
 
 Huskiason v. Bridge 
 
 624 
 
 Delacroix 
 
 196 
 
 Huston V. Wickersham 
 
 182, 334 
 
 Delancy 
 
 190, 412, 430 
 
 Hutoherson v. Heirs 
 
 384 
 
 Dewitt 
 
 150 
 
 M'Nutt 
 
 389 
 
 Dominick 
 
 461 
 
 Hutchins v. Lee 
 
 320 
 
 Durland 
 
 526 
 
 Shaw 
 
 6 
 
 Eddy 
 
 253 
 
 Hyde v. Dallaway 
 
 412, 42 1 
 
 Edwards 
 
 611 
 
 Hyde 
 
 151 
 
 Forrest 
 
 316 
 
 Hyland v Stafford 
 
 467 
 
 Fuller 
 
 407, 41 
 
 Hyndman v. Hyndman 
 
 403 
 
 Gardner 
 
 183 
 
 
 
 Hallook 
 
 496 
 
xliv 
 
 TABLE OF CASES CITED IN VOL. ONE. 
 
 Jackson v. Harris 
 
 
 631 
 
 Jefferson v. Durham 
 
 267 
 
 Harrison 
 
 
 3V2 
 
 Jemmot v. Cooly 
 
 242 
 
 Henry- 
 
 
 466 
 
 Jencks v. Alexander 
 
 326 
 
 Hopkins 
 
 
 410 
 
 Jenifer v. Beard 
 
 307 
 
 Hughes 
 
 
 280 
 
 Jenisou v. Graves 
 
 311,313 
 
 Ingraham 
 
 
 38 
 
 Jenkins v. Church 
 
 206 
 
 Jackson 
 
 
 396 
 
 Eldridge 194, 319, 346, 347, 348 
 
 Johnson 
 
 48, 76, 11 
 
 568 
 
 
 428 
 
 Keisselbraoh 
 
 
 195 
 
 Young ^ 
 Jenks V. Backhouse 
 
 295, 296 
 
 Zipp- 
 
 
 243 
 
 63 
 
 Laughhead 
 
 
 410 
 
 Ward 
 
 460 
 
 Leeds 
 
 
 85 
 
 Jenner v. Morgan 
 
 257 
 
 Leek 
 
 
 581 
 
 Tracy 
 
 424 
 
 Luguere 
 
 661, 
 
 666 
 
 Jenness v. Robinson 
 
 419 
 
 Mancius 
 
 
 69 
 
 Jenney v. Alden 
 
 318, 324 
 
 Marsh 
 
 
 468 
 
 Jennings v. Ward 
 
 399 
 
 Matsdorf 
 
 323 
 
 325 
 
 Wood 
 
 439 
 
 MoCounell 
 
 
 588 
 
 Jennison v. Hapgood 
 
 351, 418, 458 
 
 Monorief 
 
 
 196 
 
 Lexington 
 
 235 
 
 Moore 
 
 
 335 
 
 Jenny v. Jenny 
 
 119 
 
 Myers 
 
 
 617 
 
 Jervis v. Brutou 
 
 59, 371 
 
 O'Donaghy 
 
 
 142 
 
 Jervoise v. Northumberland 
 
 301 
 
 Packard 
 
 
 466 
 
 Jesse r v. Gifford 
 
 564 
 
 Patterson 
 
 
 287 
 
 Jew V. Thirdwell 
 
 251 
 
 Pesked 
 
 
 566 
 
 Jewell V. Harrington 
 
 107 
 
 Pierce 
 
 
 335 
 
 Jewett V. Burroughs 
 
 83 
 
 Robbins. 
 
 
 623 
 
 Partridge 
 
 6 
 
 Rounseville 
 
 
 5 
 
 Patridge 
 
 406 
 
 Eowland 
 
 
 218 
 
 Stockton 
 
 595 
 
 Sellick 
 
 53, 11 
 
 568 
 
 "Ware 
 
 47 
 
 Sheldon 
 
 
 245 
 
 Jobsen v. Boden 
 
 503 
 
 Sohoonmaker 
 
 
 567 
 
 John V. Jenkins 
 
 196 
 
 Sisson 
 
 
 334 
 
 Johns V. Bolton 
 
 510, 511 
 
 Slater 
 
 
 424 
 
 Church 
 
 218 
 
 Stevens 
 
 
 588 
 
 Johns 
 
 110 
 
 Sublett 
 
 
 513 
 
 Johnson v. Bartlett 
 
 430, 433 
 
 Topping 
 
 
 387 
 
 Beauohamp 
 
 . 244 
 
 Van Hoesen 
 
 
 65 
 
 Bowie 
 
 420 
 
 Van Slyok 
 
 
 833 
 
 Candage 
 
 419, 480 
 
 "Waldron 
 
 
 556 
 
 Carter 
 
 288 
 
 Welden 
 
 
 217 
 
 Corbett 
 
 30 
 
 Willard 
 
 405 
 
 415 
 
 Elliott 
 
 113 
 
 Winne 
 
 
 525 
 
 Parlon 
 
 43, 48 
 
 'Woodman 
 
 
 41 
 
 Gine 
 
 468 
 
 Jacobs V. Graham 
 
 
 201 
 
 Hart 
 
 431, 587 
 
 James v. Dran 
 
 
 322 
 
 High 
 
 188 
 
 Eisk 
 
 
 89 
 
 Jones 
 
 412 
 
 Johnson 
 
 182, 438, 441 
 
 445 
 
 Kerman 
 
 627 
 
 Morey 
 
 182 
 
 421 
 
 Lewis 
 
 225 
 
 Roberts 
 
 
 468 
 
 Mcintosh 
 
 88 
 
 Scott 
 
 
 38 
 
 Morton 
 
 624 
 
 James, &c. 
 
 
 647 
 
 Neil 
 
 150, 157, 189 
 
 James' claim 
 
 
 652 
 
 Periey 
 
 112 
 
 Jameson v. McCredy 
 
 
 224 
 
 Shields 
 
 138, 139 
 
 Jamieson v. Bruce 
 
 
 405 
 
 Somers 
 
 193 
 
 Jaiiney v. Sprigg 
 
 
 81 
 
 Stagg 
 
 492 
 
 Jaques v. Bisler 
 
 
 468 
 
 Sugg 
 
 494 
 
 Gould 
 
 212, 238 
 
 239 
 
 Thomas 
 
 147 
 
 Trustees, &c. 
 
 
 92 
 
 Valentine 519 
 
 524, 527, 528 
 
 "Weeks 
 
 393, 394, 396 
 
 398 
 
 White 
 
 408, 438 
 
 Jarrot v. Vaughn 
 
 
 34 
 
 Johnston v. Jones 
 
 251 
 
 Jarvis v. Buttrick 
 
 
 662 
 
 Jones V. Alexander 
 
 507 
 
 Prentice 
 
 
 329 
 
 Betsworth 
 
 479 
 
 Quigley 
 
 
 660 
 
 Bramblet 
 
 621 
 
 Jason V, Eyres 
 
 
 398 
 
 Brewer 
 
 159, 160 
 
 Jasper v. Maxwell 
 
 
 337 
 
 Bruce 
 
 459 
 
 Howard 
 
 
 92 
 
 Bush 
 
 300 
 
 Jeffers v. Eadeliff 
 
 
 593 
 
 Chiles 
 
 48 
 
TABLE OF OASES OITED IN VOL. ONE. 
 
 xlv 
 
 Jones V. Clark 
 
 Creswioke 
 Doe 
 Flint 
 Hancock 
 Hill 
 Jones 
 Laughton 
 Morgan 
 Muldrow 
 Patterson 
 Phelps 
 Bead 
 Reynolds 
 Roe 
 
 Sherrard 
 Slubey 
 Smith 
 Snelson 
 Stanton 
 Steinbergh 
 St. John 
 Stookett 
 Thomas 
 "Weathersbee 
 Jordon v. Corey 
 
 Savage 
 Joslin V. Hammond 
 Joye V. Gunnels 
 Joyner v. Vincent 
 Joynes v. Slatham 
 Judd V. Fulton 
 Judson V. Emanuel 
 Jumel V. Jumel 
 Juvenal v. Jackson 
 
 K 
 
 Kane v. Bloodgood 
 
 Gott 
 
 Vanderburg 
 Kannan v. Rimington 
 Kannon v. Pillow 
 Kauffett V. Bower 
 Keaeh v. Sandford 
 Kearney v. Post , 
 Keating v. Smith 
 Keay v. Goodwin 190, 205, 
 Keech v. Hall 
 Keen v. Deardon 
 Keene v. Dickson 
 Keepers, &e. v. Alderton 
 Keith !). Swan 
 Keller v. Michael 
 Kelleran v. Brown 
 Kelley v. Weston 
 Kellogg V. Blair 
 
 Dickinson 
 Kellogg 
 Rand 
 Smith 
 Wood 
 Kelly V. Beers 
 
 Bryan 
 
 Burnham 
 
 Chapman 
 
 Dutch 
 
 412 
 
 480 
 
 . 617 
 
 12 
 
 507 
 
 268 
 
 278, 281 
 
 645 
 
 59, 67 
 
 287 
 
 87, 143 
 
 435 
 
 243 
 
 196 
 
 34 
 
 67, 84, 616 
 
 316 
 
 419, 470 
 
 27, 53 
 
 600 
 
 478 
 
 478 
 
 338, 347 
 
 348, 407, 460 
 
 601 
 
 89 
 
 166 
 
 632 
 
 68 
 
 399, 403 
 
 396 
 
 176 
 
 478 
 
 451, 452 
 
 252 
 
 336 
 
 30 
 
 273 
 
 612 
 
 273 
 
 499 
 
 322 
 
 209, 215, 393 
 
 665 
 
 282,287, 596, 598 
 
 408 
 
 305 
 
 522 
 
 266 
 
 477 
 
 123, 133 
 
 396 
 
 227 
 
 630 
 
 5 
 
 602 
 
 437 
 
 '38 
 
 338,440 
 
 398, 460, 461 
 
 396 
 
 460 
 
 504 
 
 209 
 
 Kelly V. Thompson 
 
 Waite 
 Kelsey v. Hanmer 
 Kemp V. Earp 
 Kempton v. Swift 
 Kenada v. Gardner 
 Kendall v. Garland 
 Hovey 
 Moore 
 
 New England 
 Kenege v. Elliott 
 Kennaird v. Adams 
 Kennedy v. Fury 
 
 Kennedy 
 McCartney 
 Mills 
 Nedrow 
 Kennedy v. Missouri, &c. 
 Kennick v. Beauolerc 
 Kennon v. McRoberts 
 Kent V. Harpool 
 
 Steward 
 Kenyon v. Nichols 
 Keppel V. Jackson 
 Kerr v. Day 
 
 Gilmore 
 
 Kitchen 
 
 Merchants 
 
 Murphy 
 Kerrick v. Saffery 
 Keyes v. Williams 
 
 Wood 
 Kidd V. Dennison 
 Kiddall v. Trimble 
 Killiok V. Fleany 
 
 Flexney 
 Killinger v. Beidenhauer 
 Kilpatrick v. Kilpatrick 
 Kimball v. Second 
 Smith 
 Kimmell v. Willard 
 Kinch V. Ward 
 King V. Axbridge 
 
 Beck 
 
 Boys 
 
 Bromley 
 
 Bullock 
 
 Burchall 
 
 Cotton 
 
 Duntz 
 
 Fowler 
 
 Hamlet * 
 
 Kincey 
 
 King 
 
 McViokar 
 
 Melling 
 
 Mims 
 
 Murray 
 
 Paddock 
 
 Rumball 
 
 Sharp 
 
 StatO) &c. 
 
 Watson 
 
 Wilcock 
 
 Wilcomb 
 Kingbury v. Collins 
 Kingdome v. Bridge 
 Kinge v. Laohenour 
 
 393, 394 
 
 282 
 
 84 
 
 397 
 
 627 
 
 219 
 
 192, 205, 216 
 
 147 
 
 211, 287 
 
 346 
 
 232, 241 
 
 469 
 
 334 
 
 301 
 
 38 
 
 129, 130 
 
 96^ 130 
 
 112 
 
 307 
 
 629 
 
 544 
 
 542 
 
 18 
 
 503 
 
 33 
 
 594 
 
 232 
 
 4 
 
 348 
 
 478 
 
 491 
 
 431 
 
 260, 276, 277 
 
 145, 147, 153 
 
 322 
 
 350 
 
 469 
 
 493 
 
 5 
 
 460 
 
 435 
 
 181 
 
 48 
 
 641 
 
 295 
 
 400 
 
 601 
 
 653 
 
 652 
 
 404 
 
 16 
 
 572, 573 
 
 395 
 
 397, 526 
 
 437, 440, 478 
 
 65o 
 
 70 
 
 216, 220 
 
 73 
 
 638 
 
 68 
 
 434, 435 
 
 565 
 
 25 
 
 23, 579 
 
 281 
 
 326 
 
 216 
 
xlvi 
 
 TABLE OF OASES CITED IN VOL. ONE. 
 
 Kingley v. Ames 
 
 
 288 
 
 Lane v. Dobyna 
 
 601 
 
 Kingman v. Sparrow 
 
 53, lOT 
 
 115 
 
 Erskine 
 
 478 
 
 Kingsland v'. Rapelye 
 
 636, 562 
 
 659 
 
 Lano V. Gould 
 
 49 
 
 Kiugaley v. Ames 
 
 
 403 
 
 Hawkins 
 
 627 
 
 School Directors 
 
 
 205 
 
 Hitchcock 
 
 408 
 
 Kinley v. Hill 
 
 
 445 
 
 King 
 
 16, 411 
 
 Kinney v. Doe 
 
 
 216 
 
 Losee 
 
 466 
 
 Ensign 
 
 
 447 
 
 Lanfair v. Lanfair 
 
 398 
 
 Kinsell v. Daggett 
 
 
 494 
 
 Langan v. Henderson 
 
 433 
 
 Kinsley w. Abbott 
 
 
 586 
 
 Langdon v. Keith 
 
 432 
 
 "Williams 
 
 
 494 
 
 Paul 
 
 408, 488 
 
 Kinsman v. Green 
 
 
 53 
 
 Langley v. Baldwin 
 
 638 
 
 Kintner v. McEao 
 
 
 118 
 
 Langworthy v. Chadwiok 
 
 272 
 
 Kirzee «. Trustees, .fco 
 
 
 193 
 
 Lanoy v. Duke, &o. 
 
 437 
 
 Kip V. Deniston 
 
 
 354 
 
 Laning v. Goelet 
 
 487 
 
 Kirby v. Tead 
 
 
 510 
 
 Pine 
 
 609 
 
 Kirch V. "Ward 
 
 
 59 
 
 Lapsley v. Lapsley 
 
 638 
 
 Kirger v. Day 
 
 
 83 
 
 Larcom v. Cheever 
 
 85, 86 
 
 Kirk V. Taylor 
 
 190 
 
 216 
 
 Large's case 
 
 514 
 
 Kirksey v. Mitchell 
 
 
 494 
 
 Larned v. Bridge 
 
 623 
 
 Kisler v, Kisler 
 
 308, 311, 
 
 314 
 
 Larrabee v. Lambert 
 
 435 
 
 Kitchen v. Shats 
 
 
 614 
 
 Larsh v. Larsh 
 
 661 
 
 Kite V. Brqwn 
 
 
 43 
 
 Lasher v. Lasher 
 
 96, 128, 130 
 
 Kittredge v. Locks, &,a. 
 
 
 601 
 
 Lasselle v. Barnett 
 
 460, 471 
 
 Rockingham 
 
 
 435 
 
 Latham v. Atwood 
 
 13 
 
 "Woods 
 
 
 13 
 
 Latham 
 
 142 
 
 Kleiser v. Scott 
 
 492, 493 
 
 496 
 
 Laugh lin v. Ferguson 
 
 441 
 
 Kline v. Beebe 
 
 11 
 
 205 
 
 Laughter's case 
 
 380 
 
 Lewis 
 
 
 498 
 
 Lauman, &c. 
 
 508 
 
 Klock V. Cronkhite 
 
 416, 441 
 
 447 
 
 Lausdale v. Clerke 
 
 479 
 
 Kneider v. Kneider 
 
 
 123 
 
 Laviolette v. Redding 
 
 506 
 
 Knetzer v. "Wysong 
 
 
 565 
 
 Law V. Patterson 
 
 600 
 
 Kniekerbaoker v. Boutwell 
 
 
 437 
 
 Lawrence v. Bayard 
 
 556 
 
 Knight V. Prampton 
 
 
 330 
 
 Boston 
 
 397 
 
 Selby 
 
 295 
 
 633 
 
 Brown 
 
 120 
 
 Knocker v. Bunbury 
 
 
 34 
 
 Fletcher 
 
 488 
 
 Knowles v. Maynard 
 
 
 409 
 
 Hunter 
 
 43 
 
 !Spence 
 
 
 424 
 
 Kemp 
 
 19, 24, 28 
 
 Knox V. Jenks 
 
 
 41 
 
 Lawrence 
 
 129 
 
 Moatz 
 
 
 437 
 
 Miller 
 
 93, 124 
 
 Kottman v. Ayer 
 
 
 287 
 
 "Williams 
 
 185, 241 
 
 Kramer v. Bank, &o. 
 
 421 
 
 437 
 
 Lawson v. Morton 
 
 147, 158 
 
 Krider v. Safferty 
 
 
 194 
 
 Sutherland 
 
 420 
 
 Kuhn V. Haler 
 
 
 U2 
 
 Lawton v. Lawton 
 
 20 
 
 Knnckle v. Holfersberger 
 
 398 
 
 402 
 
 Layton v. Butler 
 
 138 
 
 Kylerw. Tait 
 
 
 494 
 
 Leach v. Trollop , 
 
 169 
 
 Kyuaston v. Clarke 
 
 
 570 
 
 Leake v. Randall 
 Learned v. Cutler 
 Leavitt v. Lamprey 
 
 129 
 126 
 105 
 
 L 
 
 
 
 "Wooster 
 Leehaweaver v. Stower 
 
 627,630 
 122, 123 
 
 Lachland v. Downing • 
 
 
 644 
 
 Lec-hmere v. Lechmere 
 
 166 
 
 Lackett v. "White 
 
 
 382 
 
 Lecompt v. "Wash 
 
 93, 101, 143 
 
 Ladd V. Abel 
 
 
 13 
 
 Led better v. Gash 
 
 603, 616 
 
 Ladd 
 
 
 92 
 
 Lee V. Alsten 
 
 274 
 
 Lady Stowell's case 
 
 
 90 
 
 Chambers 
 
 505 
 
 Lagow V. BadoUet 
 
 
 498 
 
 Lee 
 
 116 
 
 Lake v. Delembert 
 
 
 356 
 
 Munroe 
 
 470 
 
 Lakeman v. Butler 
 
 
 626 
 
 Stephens 
 
 632 
 
 Lamar v. Scott 
 
 
 109 
 
 Stone 
 
 420 
 
 Lamb v. Poss 
 
 
 406 
 
 Leeds v. Cameron 
 
 421 
 
 Goodwin 
 
 
 470 
 
 Doughty 
 
 273 
 
 Lambert v. Paine 
 
 
 627 
 
 Legate v. Sewel 
 
 647, 648 
 
 Lamerson vr Marvin 
 
 
 483 
 
 Leggett V. Dubois 
 
 317 
 
 Lamott V. Sterett 
 
 
 255 
 
 Perkins 
 
 359 
 
 Laraoureux v. Tan Denburgh 
 
 
 471 
 
 Leigb V. Bean 
 
 508 
 
 Lamplugh v. Lamplugh 
 
 313 
 
 ,323 
 
 Leigli 1). Brace 
 
 620 
 
 Landen v. Beauchamp 
 
 
 284 
 
 Leighton v. Leighton 
 
 273 
 
TABLE OF CASES CITED IN VOL. ONE. 
 
 xlvii 
 
 Leitoh V. Little 
 
 
 597 
 
 Lloyd V. Brooking 
 
 543 
 
 545 
 
 Leland v. Gassett 
 
 
 20 
 
 Carew 
 
 
 542 
 
 Leland v. Loring 
 
 
 488 
 
 Hough 
 
 
 244 
 
 Leman v. Miles 
 
 
 22 
 
 Lloyd 
 
 
 376 
 
 Newnliam 
 
 
 456 
 
 Mackworth 
 
 
 336 
 
 Whitley 
 
 
 317 
 
 Mason 
 
 
 426 
 
 Lemon v. Lemon 
 
 
 128 
 
 Spillett 
 
 312 
 
 314 
 
 Lench v. Lenoh 
 
 
 324 
 
 Lock V. De Burgh 
 
 
 235 
 
 Lenoir v. South 
 
 
 44 
 
 Lockhart v. Hardy 
 
 
 486 
 
 Leonard v. Earl, &o. 
 
 554 
 
 654 
 
 Lookwood V. Sturdevant 
 
 
 448 
 
 Leonard 
 
 157 
 
 600 
 
 Lode V. Hamilton 
 
 
 31 
 
 McCool 
 
 
 280 
 
 Logan V. Dunlop 
 
 
 504 
 
 Morris 
 
 
 432 
 
 Green 
 
 
 183 
 
 Steele 
 
 
 130 
 
 Loraax 
 
 
 169 
 
 Lepman v. Thomas 
 
 
 505 
 
 London v. Pairclough 
 
 
 316 
 
 Leroy v. Piatt 
 
 
 27 
 
 London 
 
 120 
 
 147 
 
 Sayle 
 
 
 596 
 
 Long V. Dennis 
 
 
 375 
 
 Lessee, Sea. v. Butler 
 
 
 477 
 
 Fitzsimmons 
 
 
 212 
 
 LothieuUier v. Tracy 
 
 
 522 
 
 Mart 
 
 
 48 
 
 Leverett v. Harris 
 
 
 344 
 
 Longert v. Breden 
 
 
 506 
 
 Redwood 
 
 
 433 
 
 Longfellow j;. Quimby 
 
 
 602 
 
 Lewis V. Baldwin 
 
 
 686 
 
 Longley v. Hall 
 
 
 347 
 
 Caerton 
 
 
 1G3 
 
 Longsta£F«. Meagoe 
 
 
 28 
 
 Deforest 
 
 421, 427 
 
 437 
 
 Longstreet v. Ketcham 
 
 
 384 
 
 James 
 
 
 113 
 
 Shipman 
 
 
 441 
 
 Lyman 
 
 
 200 
 
 Loomer v. Wheelwright 
 
 445 
 
 468 
 
 Morrman 
 
 
 115 
 
 Wilbur 
 
 266 
 
 269 
 
 Nangle 
 
 
 457 
 
 Loomis V. Ratler 
 
 
 210 
 
 Payn 
 
 
 252 
 
 Lorel V. Brown 
 
 
 241 
 
 Smith 
 
 
 478 
 
 Lord Derby's case 
 
 
 516 
 
 Starke 
 
 
 431 
 
 Stafford's case 
 
 
 633 
 
 Lewisburg v. Augusta 
 
 
 367 
 
 Lorilard • Coster 
 
 
 358 
 
 Le wth waite v. Clarkson 
 
 
 490 
 
 Loring 
 
 
 495 
 
 Leihty v. Hager 
 
 
 87 
 
 V. Bacon 
 
 4 
 
 697 
 
 Liford's case 
 
 2, 27, 59 
 
 Cooke 
 
 
 420 
 
 Lifft V. Walker 
 
 
 393 
 
 Melendy 
 
 
 214 
 
 Lincoln College case 
 
 
 164 
 
 Steineman 
 
 
 73 
 
 Lincoln v. Durmmond 
 
 
 386 
 
 Lothrop V. Arnold 
 
 
 602 
 
 Edgecomb 
 
 
 49 
 
 Lott V. Wyckofif 
 
 634 
 
 669 
 
 Linden v. Hepburn 
 
 
 187 
 
 Loud V. Lane 
 
 
 445 
 
 Lindsay v. Pleasants 
 
 
 30 
 
 Love V. Dennis 
 
 
 216 
 
 Lindsey v. Platner 
 
 
 312 
 
 Edmonson 
 
 
 278 
 
 Stevens 
 
 
 67 
 
 Lovell V. Leland 
 
 
 488 
 
 Line v. Stephenson 
 
 198 
 
 209 
 
 Loveriug v. Fogg 
 
 
 396 
 
 Lining t). Peyton 
 
 
 341 
 
 Levering 
 
 209 
 
 261 
 
 Linslee v. Brown 
 
 
 88 
 
 Low V. Burrow 
 
 72, 116 
 
 247 
 
 Linton v. Boly 
 
 
 239 
 
 Lowe V. Morgan 
 
 
 478 
 
 Lippen v. Eldred 
 
 
 628 
 
 Lowell V. Daniels 
 
 
 477 
 
 Liptrot V. Holmes 
 
 
 305 
 
 Spaulding 
 
 
 211 
 
 Liscomb v. Root 
 
 600 
 
 605 
 
 Lowry v. Drake 
 
 
 379 
 
 Lister v. Lister 
 
 
 604 
 
 Loyd V. Currin 
 
 
 392 
 
 Zolley 
 
 
 209 
 
 Lucas V. Dennison 
 
 
 424 
 
 Litchfield V. Cudworth 
 
 
 464 
 
 Lockhart 
 
 
 300 
 
 Ready 
 
 388 
 
 408 
 
 Luckey v. Holbrook 
 
 
 406 
 
 Lithgow V. Cavenagh 
 
 
 630 
 
 Luddington v. Kyme 
 
 520, 521, 
 
 652 
 
 Little V. Palister 
 
 280, 282 
 
 283 
 
 Ludlow V. fi-rayall 
 
 
 499 
 
 Littlefield v. Crocker 
 
 128 
 
 415 
 
 Lull V. Matthews 
 
 392, 
 
 408 
 
 Kimball 
 
 
 461 
 
 Lund V. Lund 
 
 393 
 
 394 
 
 Livermore v. Aldrich 
 
 
 313 
 
 Woods 
 
 
 415 
 
 Livesay v. Harding 
 
 666 
 
 667 
 
 Lunsford v. Alexander 
 
 
 216 
 
 Livingston v. Clarkson 
 
 
 611 
 
 Lunt V. Brown 
 
 
 665 
 
 Haywood 
 
 
 565 
 
 Liisbington v. Boldero 
 
 
 277 
 
 Livingston 
 
 
 90 
 
 Lutwyoh V. Winford 
 
 
 345 
 
 Mott 
 
 
 567 
 
 Lyddall v. Weston 
 
 
 335 
 
 Reynolds 
 
 272, 
 
 278 
 
 Lyddel v. Weston 
 
 8 
 
 346 
 
 Stickles 
 
 247, 
 
 372 
 
 Lyford'scase 
 
 
 10 
 
 Llewellin v. Mackworth 
 
 
 336 
 
 Lyler v. Digge 
 
 
 651 
 
 Lloyd V. Baldwin 
 
 
 341 
 
 Lyman v. Green 
 
 
 493 
 
xlviii 
 
 TABLE OF CASES CITED IN TOL. ONE. 
 
 Lyman v. Hale 
 Lyon V. Hunt 
 
 Lyon 
 Lyster v. Holland 
 Lytle V. Lytle 
 
 Pope 
 
 10 
 272 
 119 
 416 
 619 
 
 M 
 
 Maohell v. 'Weeding 
 Mackay v. Prootor 
 Maokerell v. Clark 
 Maolot V. Dubrenil 
 Maekreth v. Symmona 
 Maddox v. Goddard 
 Maden v. Teavers 
 Magee v. Pisher 
 Mellen 
 Magenuia v. McCuUough 
 Magoun v. Lapham 
 Magruder v. Peter 
 Mahari;. O'Hara 
 Mahower v. Harrison 
 Malcolm v. Malcolm 
 Malin v. Malin 
 Mandeville v. Welch 
 Mandeville's case 
 Man gut V. Townley 
 Manhattan, &c. v. Greenwich 
 Manly V. Slaaon 
 Mann v. Richardson 
 Manners v. Charlesworth 
 Manning v. Laboree 
 
 Manning 
 
 Parish 
 Manning, &o. 
 Mause v. Buchanan 
 Mansell, &o. 
 
 V. Manaell 
 Manaer v. Marahall 
 Mansfield v. Blaokbume 
 
 Dugard 
 Mansony v. U. S., &o. 
 Maples V. Howe 
 Medlin 
 March w. Berrier 
 Maroy v. Darling 
 Maroy 
 Marker v. Marker 
 Marks v. Marks 
 
 Pell 
 Marney i>. Bird 
 Marquis, &c. v. Higgina 
 Marriott v. Given a 
 Marseilles v. Kerr 
 Marsellis v. Thahmer 
 Marsh v. Current 
 Rice 
 Turner 
 Marshall v. Anderson 
 
 Bond 
 
 Christmaa 
 
 Conrad 
 
 Crehore 
 
 McPherson 
 
 639 
 
 78 
 
 69, 60 
 
 47, 50 
 
 494 
 
 261, 698 
 599 
 205 
 121 
 183 
 41 
 493 
 300 
 
 312,314 
 647 
 
 313, 315 
 
 490 
 
 621 
 
 605 
 
 • 483 
 
 493, 494 
 419 
 611 
 
 125, 143 
 346 
 340 
 540 
 119 
 459 
 
 560, 553 
 
 659 
 
 23 
 
 524 
 
 410 
 
 155 
 
 340 
 
 32 
 
 8 
 
 601 
 
 276 
 
 378 
 
 396 
 
 185 
 
 I 399 
 
 334 
 
 184 
 
 78, 537 
 
 261 
 
 446 
 
 495 
 
 145, 147 
 448 
 493 
 271 
 
 605, 607 
 156 
 
 Marahall v. Stephens 
 
 Stewart 
 Martin v. Bowker 
 
 Knowllya 
 
 Martin 
 
 Mowlin 
 
 Rapelye 
 
 Smith 
 
 Waddell 
 Marwilk v. Andrews 
 Mason v. Allen 
 
 Pinch 
 
 Jones 
 
 Luke 
 
 Mason 
 Masengill v. Boyles 
 Maaaina «. Bartlett 
 Masters v, PoUie 
 Mather v. McMichael 
 Mathea v. Bennett 
 Matter of Hall 
 
 Howett 
 Matthew v. Manning 
 Matthews v. Aikin 
 
 Matthews 
 Temple 
 "Wallwyn 
 "Ward 
 Matthewaon v. Smith 
 Mattocka v. Stearns 
 Maury v. Mason 
 Maxwell v. Montacute 
 M'Clintock 
 May V. Hook 
 Mayburry v. Biern 
 Mayo V. Pletcher 
 Mayor, &o. i>. Attorney, &o. 
 Mayrant t>, Guignard 
 Maywick ». Andrews 
 M'Call V. Cooner 
 
 Eastwick 
 
 Lenox 
 M'CaUister v. Brand 
 M'Cartee v. Teller 
 M'Carthy v. Gordon 
 M'Caskle v. Amariue 
 M'Olanahan i;. Porter 
 M'Clure v. Donthill 
 
 Harria 
 M'Connell v. Hodson 
 Wilcox 
 M' Goon 0. Smith 
 M'Cormick v. Digby 
 Taylor 
 M'Corry «. King 
 M'Cosker v. Brady 
 M'Creary v. Cloud 
 Rosa 
 M'CuUough ti. Caldwell 
 
 Irvine 
 M'Cullough, &c. 
 M'Daniel v. Douglass 
 Priest 
 Zelf, 
 M'Daniels v. Colvin 
 
 Lapham 
 M'Dermott v. Palmer 
 M'Donald v. Alten 
 
 35T 
 
 400 
 
 424 
 
 598 
 
 91, 92, 327 
 
 430, 439 
 
 396 
 
 664 
 
 38 
 
 669 
 
 139 
 
 600 
 
 369 
 
 606 
 
 333, 359 
 
 177 
 
 479 
 
 10 
 
 230 
 
 139 
 
 73 
 
 510 
 
 ■ 524 
 
 437 
 
 611 
 
 538, 541 
 
 438 
 
 42, 334 
 
 415 
 
 78, 82, 85 
 
 336 
 
 396 
 
 524 
 
 583 
 
 148, 414, 581 
 
 287, 405, 407 
 
 357 
 
 342 
 
 382 
 
 43 
 
 509 
 
 405, 408, 410 
 
 136 
 
 167 
 
 156 
 
 230 
 
 145 
 
 90, 644 
 
 123, 165, 494 
 
 431 
 
 37 
 
 221 
 
 412, 443 
 
 160 
 
 78 
 
 302 
 
 145 
 
 601 
 
 508, 510 
 
 262 
 
 373 
 
 136 
 
 89 
 
 324 
 
 421 
 
 428 
 
 511 
 
 96 
 
TABLE OF OASES CITED IN YOL. ONE. 
 
 xlix 
 
 M'Donald v. Black 
 
 434 
 
 Methodist, &c. v. Jaques 
 
 
 326 
 
 Lindall 
 
 510 
 
 Meyer v. Campbell 
 
 
 406 
 
 M'Leod 
 
 402 
 
 Meyre v. Giles 
 
 
 583 
 
 Sims 
 
 336, 424 
 
 Meyriok v. Wishlaw 
 
 
 664 
 
 M'Elroy v. Wathen 
 
 145 
 
 Miami, &c. v. Bank, &o. 
 
 
 437 
 
 M'Parlen v. Watson 
 
 185 
 
 Michael v. Michael 
 
 
 348 
 
 M'Feely v. Moore 
 
 658 
 
 Micklethwaite v. Winter 
 
 
 8,9 
 
 M'Gee v. Gibson 
 
 227 
 
 Middlebury, Ac. v. Lawson 
 
 
 283 
 
 M'Gill V. Ash 
 
 598 
 
 Middlesex, &c. v. Minot 
 
 404, 
 
 443 
 
 M'Ginnis v. Porster 
 
 526 
 
 Mildmay's case 
 
 
 60 
 
 M'Given v. Wheeloek 
 
 44a, 445 
 
 Mildred v. Neill 
 
 
 124 
 
 McGregor v. Toomer 
 
 629 
 
 Miles V. Comstock 
 
 
 441 
 
 M'Intyre v. Humphreys 
 
 396 
 
 Hull 
 
 
 466 
 
 "Whitfield 
 
 406 
 
 Millay v. Millay 
 
 
 48 
 
 M'lver V. Cherry 
 
 102 
 
 Miller v. Beates 
 
 
 73 
 
 M'Keoa v. Whitney 
 
 185, 245 
 
 Beverly 
 
 
 143 
 
 M'Killip«. M'Killip 
 
 494 
 
 Donaldson 
 
 
 447 
 
 M'Kiuney v. Reader 
 
 183, 181 
 
 Hamblett 
 
 
 393 
 
 M'Kissiok v. Pickle 
 
 363, 368 
 
 Lynn 
 
 
 626 
 
 M'Lacklan v. M'Lacklan 
 
 380 
 
 Miller 70, 157, 
 
 591, 605 
 
 661 
 
 M'Lagan v. Brown 
 
 504 
 
 Musselman 
 
 
 437 
 
 M'Lanahan v. M'Lanahan 
 
 394 
 
 Oliver 
 
 
 510 
 
 M'Laren v. Turner 
 
 630 
 
 Plumb 
 
 
 26 
 
 Watson 
 
 193 
 
 Seagrave 
 
 
 647 
 
 M'Laughlin v. Shephard 
 
 395 
 
 Stagner 
 
 
 236 
 
 M'Lean v. Lafayette 
 
 438 
 
 Stump 
 
 414 
 
 493 
 
 M'Donald 
 
 624 
 
 Wilson 
 
 
 116 
 
 M'Lellan v. Nelson 
 
 92 
 
 Mills V. Wetherington 
 
 
 616 
 
 M'Mahan v. Kimball 
 
 123, 147 
 
 Millspaugh v. M'Bride 
 
 
 448 
 
 M'Meeken v. Marmau 
 
 332 
 
 Milner v. Harewood 
 
 
 134 
 
 M'Millenv. Robbins 
 
 no 
 
 Milton V. Colby 
 
 
 6 
 
 M'Mullin V. M'MuUin 
 
 359 
 
 Hogue 
 
 
 601 
 
 M'Murphy v. Minot 181, 
 
 188, 242, 412 
 
 Mims V. Macon 
 
 
 492 
 
 M'Murray v. Rawson 
 
 596 
 
 .Miner v. Stevens 
 
 
 406 
 
 M'Nish V. Gerrard 
 
 356 
 
 Minning v, Batdorff 
 
 526 
 
 643 
 
 M'Taggart v. Thompson 
 
 405 
 
 Minsker v. Morrison 
 
 
 334 
 
 M'Vay V. Bloodgood 
 
 433 
 
 Mitchell V. Billingsley 
 
 
 11 
 
 M'Wiiliams v. Nisby 
 
 56 
 
 Blain 
 
 
 132 
 
 Meacham v. Pitchburg 
 
 405 
 
 Do Roche 
 
 
 334 
 
 Stearns 
 
 346 
 
 Hazen 
 
 
 594 
 
 Means v. Welles 
 
 46 
 
 Holmes 
 
 
 346 
 
 Mechanics' Co. v. Edwards 
 
 182 
 
 Lite 
 
 
 48 
 
 Williams 
 
 85 
 
 Mitchell 
 
 123 
 
 163 
 
 Meeheelan v. Wallace 
 
 281 
 
 Preston 
 
 
 466 
 
 Megargel v. Saul 
 
 499 
 
 Sevier 
 
 
 85 
 
 Meggison v. Poster 
 
 490 
 
 Speedley 
 
 
 25 
 
 Meheffy v. Dobbs 
 
 612 
 
 U.S. 
 
 
 38 
 
 Meigs V. Dimook 
 
 496 
 
 Warner 
 
 
 l,-3 
 
 Mellon V. Lees 
 
 398, 401 
 
 Mix V. Cowles 
 
 
 421 
 
 Melny V. Cooper 
 
 493 
 
 Ely 
 
 
 509 
 
 Melvin v. Proprietors 
 
 84 
 
 Hotchkiss 427 
 
 442, 610 
 
 ,511 
 
 Menifee v. Menifee 
 
 141, 148,511 
 
 Moffatt V. Smith 
 
 
 210 
 
 Menough 
 
 236 
 
 Mohley 
 
 
 32 
 
 Menude v. Delaire 
 
 402 
 
 Monell V. Mouell 
 
 
 345 
 
 Menvill's ease 
 
 76 
 
 Monk V. Cooper 
 
 
 256 
 
 Meraman v. Caldwell 
 
 75, 86, 284 
 
 Montague v. Gay 
 
 
 257 
 
 Mercer v. Selden 
 
 76 
 
 , Monteill V. Evans 
 
 
 511 
 
 Meredith v. Andres 
 
 601 
 
 Montgomery v. Bruere 
 
 392, 405 
 
 ,415 
 
 Jones 
 
 296 
 
 Ives 
 
 
 78 
 
 Meres v. Murgatroyd 
 
 31 
 
 Monypenny v. Dering 
 
 
 463 
 
 Meriam v. Harsen 
 
 88 
 
 Moody V. Elliott 
 
 
 622 
 
 Merriam v. Merriam 
 
 480 
 
 King 
 
 9e 
 
 , 117 
 
 Merrick v. Lewis 
 
 ,194 
 
 Moody 
 
 
 598 
 
 Merrifield v. Cobleigh 
 
 389, 397 
 
 Mooney v. Evans 
 
 
 516 
 
 Merrill v. Brown 
 
 332 
 
 Moore 1J. Cable 
 
 
 427 
 
 Emery 
 
 135, 380 
 
 Campbell 
 
 
 43 
 
 Merritt v. Lambert 
 
 392, 482 
 
 City 
 
 lOS 
 
 , 124 
 
 Messiter v. Wright 
 
 419, 489 
 
 Degraw 
 
 
 426 
 
TABLE OF CASES CITED IN TOL. ONE. 
 
 Moore v. Denn 
 
 
 628 
 
 Murrey v. Fishbaok 
 
 424 
 
 Ellisworth 
 
 
 269 
 
 Murry v. Wyse 
 
 628 
 
 Eaty 
 
 104, 
 
 107 
 
 Muagrave v. Dashwood 
 
 583 
 
 Fletcher 
 
 
 3 
 
 Le Hooke 
 
 419 
 
 Gilliam 
 
 
 106 
 
 Musket V. Hill 
 
 222, 384 
 
 Green 
 
 
 336 
 
 Musaelman v. Eshleman 
 
 363 
 
 Harrisburg 
 
 
 445 
 
 
 
 Huaaey 
 
 
 201 
 
 
 
 Lyons 
 
 
 526 
 
 
 
 Maddon 
 
 
 393 
 
 N 
 
 
 Moherly 
 
 
 437 
 
 
 
 Moore 
 
 
 587 
 
 
 
 Parlier 
 
 536, 622 
 
 660 
 
 Nagleew. IngersoU 
 
 221, 250 
 
 Savil 
 
 
 369 
 
 Nagle's Appeal 
 
 32 
 
 Spelraan 
 
 
 333 
 
 Nairn v. Rouae 
 
 494 
 
 Wallace 
 
 143, 
 
 152 
 
 Nance v. Hooper 
 
 119 
 
 Webb 
 
 
 622 
 
 Nanfan v. Leigh 
 
 634 
 
 Moore's, &c. 
 
 
 438 
 
 Nannock v. Horton 
 
 623 
 
 Moorhouse v. Wainhouse 
 
 
 557 
 
 Napier «. Elam 
 
 438, 470 
 
 Morancy v. Buford 
 
 
 365 
 
 Naples V. Minier 
 
 460 
 
 Mordecai v. Tankersly 
 
 
 334 
 
 Nash V. Butler 
 
 650 
 
 Morehouse v. Cotheal 
 
 61, 262 
 
 660 
 
 Cutler 
 
 625 
 
 More's case 
 
 
 171 
 
 Spofford 
 
 90 
 
 Morgan v. Arthur 
 
 
 610 
 
 Nason v. Grant 
 
 41 
 
 Ballard 
 
 
 231 
 
 Nathans v. Morris 
 
 347 
 
 Bissell 
 
 
 196 
 
 Naylor v. Winch 
 
 353 
 
 Davis 
 
 424, 
 
 439 
 
 Nazareth v. Lowe 
 
 472 
 
 Larned 
 
 78 
 
 270 
 
 Neale v. Hagthorp 
 
 311,427 
 
 Moody 
 
 
 227 
 
 Neat^ V. Pink 
 
 338 
 
 Tipton 
 
 
 466 
 
 Neefiis v. Vanemere 
 
 466 
 
 Morner v. Miller 
 
 
 278 
 
 Neely v. Butler 
 
 76, 77 
 
 Morrall v. Luther 
 
 
 64 
 
 Neilaon v. Neilson 
 
 602 
 
 Morris v. Harring 
 
 
 236 
 
 Lagow 
 
 405, 618 
 
 Kiffin 
 
 
 237 
 
 Nellis V. Lothrop 
 
 219 
 
 Mowatt 
 
 
 412 
 
 Nerhooth v. Althous 
 
 218 
 
 M'Oonnaghy 
 
 
 452 
 
 Nettleton v. Sikes 
 
 10, 11 
 
 Nixon 
 
 397 
 
 398 
 
 Nevea v. Scott 
 
 301 
 
 Ward 
 
 
 648 
 
 Nevill V. Nevill 
 
 663 
 
 Way 
 
 460 
 
 466 
 
 Neville i). Saunders 
 
 304 
 
 Morrison v. Temple 
 
 
 622 
 
 Newall V. Wright 
 
 251,411, 436 
 
 Tenney 
 
 
 284 
 
 Newell V Gibbs 
 
 218 
 
 Morton v. Barrett 
 
 
 302 
 
 Newcomb v. Smith 
 
 86 
 
 Southgate 
 
 
 337 
 
 Newcourt v. St. Peter's, &c. 
 
 424 
 
 Moses V. Murgatroyd 
 
 31, 396, 403 
 
 428 
 
 Newhall v. Wheeler 295, 301, 
 
 334, 346, 643 
 
 Wait 
 
 
 274 
 
 New Hampahire, &c v. Willard ' 443 
 
 Moaher v. Mosher 
 
 112 
 
 114 
 
 Newkirk v. Newkirk 
 
 34, 366, 370 
 
 Moshier v. Reding 
 
 
 194 
 
 Newland v. Shepard 
 
 625, 634 
 
 Moss V. Gallimore 
 
 190 
 
 403 
 
 Newman v. Jamea 
 
 85 
 
 Hawkins 
 
 
 557 
 
 Jenkins 
 
 85 
 
 Mott V. Clark 
 
 416 
 
 438 
 
 Rutler 
 
 192, 245 
 
 Walkley 
 
 
 413 
 
 Newman v. Warner 
 
 355 
 
 Moulton V. Norton 
 
 198 
 
 240 
 
 New Orleans, &o. v. Hogau 
 
 397 
 
 Mountague v. Maxwell 
 
 
 171 
 
 Newton v. Allin 
 
 250 
 
 Muirhead v. Muirhead 
 
 
 152 
 
 Griffith 
 
 62 
 
 Mulliday v. Machir 
 
 
 246 
 
 Hunt 
 
 571 
 
 Mumford v. American, &c. 
 
 
 466 
 
 Reid 
 
 369 
 
 Whitney 
 
 
 222 
 
 NiohoUs V. Butcher 
 
 628 
 
 Mumma v. Mumma 
 
 323 
 
 325 
 
 Nichols V. Cosaett 
 
 466 
 
 Monday v. Vawter 
 
 
 342 
 
 Dusenburg 
 
 211. 240, 241 
 
 Munroe v. Allaire 
 
 
 404 
 
 Reynolds 
 
 47 
 
 Murcell v. Roberts 
 
 
 568 
 
 Williama 
 
 279, 285 
 
 Murdock 
 
 
 353 
 
 Nicholson v. Halsey 
 
 333 
 
 Murdock v. Hughes 
 
 312 
 
 336 
 
 Laudersdale 
 
 336 
 
 Murphy v. Murphy 
 
 
 143 
 
 Nicoll V. Walworth 
 
 179, 306 
 
 Murray v. Armstrong 
 
 
 278 
 
 Nightingale v. Burrell 
 
 637, 639 
 
 Ballou 
 
 
 340 
 
 Niles V. Nye 
 
 415 
 
 Cargill 
 
 
 5 
 
 Stevens 
 
 355 
 
 Do Rotterham 
 
 
 347 
 
 Noble V. Boswortlj 
 
 27 
 
NAMES OF CASES CITED IK VOL. ONE. 
 
 li 
 
 Noel V, Bewley 
 Norfolk V. Brown 
 Norman v. Cunningham 
 North V. Belden 
 Crowell 
 Northen v. Steele 
 Northrop v. Wright 
 Northcut V. Whipp 
 Norris v. Wilkinson 
 Norton v. Coone 
 Ladd 
 Leonard 
 Norton 
 Stone 
 Warner 
 Norwood V. Marrow 
 Nott V. Foster 
 Nottingham v. Calvert 
 
 Jennings 
 Nourso V. Finch 
 Noyes v. Anderson 
 Clarke 
 Dyer 
 Sturdevant 
 
 
 
 Oakes v. Maroy 
 O'Brien v. Elliott 
 O'Conner «. Tynes 
 Oddie V. Woodford 
 O'Donnell v. M'Murdee 
 O'Keefe v. Kennedy 
 Oldham v. Henderson 
 Olmstead v. Olmstead 
 Orde V. Smith 
 Orford v. Churchill 
 Orvis V. Newall 
 Osborne v. Ballew 
 Ostrander v. Kneeland 
 Livingston 
 Otis V. Parshley 
 
 Smith 
 Otley V M 'Alpine's heira 
 Overton v. Norfolk 
 Oves V. Oglesby 
 
 Packard v. Packard 
 Packington v. Packington 
 Padlelord v. Padleford 
 Page V. Foster 
 Hill 
 Page 
 Paget V. Gee 
 Paget's case 
 Pain V. Smith 
 Paine v. Gupton 
 Samms 
 Webster 
 Painter v. Henderson 
 Palmer v. Ayre 
 Byre 
 Foote 
 Gumsey 
 Jackson 
 Mead 
 
 
 588 
 
 Palmer v. Wetmore 
 
 253 
 
 
 320 
 
 Tates 
 
 438 
 
 
 li, 507 
 
 Papillon V. Voice 
 
 647, 652, 654 
 
 
 421 
 
 Paramour v. Tardly 
 
 620 
 
 
 422 
 
 Pardee v. Van Arken 
 
 478 
 
 
 12 
 
 Paiham v. Parham 
 
 174 
 
 
 43 
 
 Thompson 
 
 12 
 
 
 102 
 
 Paris V. Vail 
 
 229 
 
 
 491 
 
 Parish v. Gilmanton 
 
 405 
 
 
 437 
 
 Rhodes 
 
 323 
 
 
 628 
 
 Parker v. Barker 
 
 469 
 
 
 303 
 
 Bragg 
 
 307 
 
 
 295, 306. 393 
 
 Brown 
 
 44 
 
 
 368, 483 
 
 Curtes 
 
 77 
 
 
 432 
 
 Elder 
 
 206 
 
 107 
 
 120, 142, 161 
 
 Gibbins 
 
 254 
 
 
 356 
 
 Harvey 
 
 161 
 
 
 106 
 
 Kelly 
 
 494 
 
 
 636 
 
 Lincoln 
 
 379 
 
 
 328 
 
 Parker 
 
 113, 139 
 
 
 178,254 
 
 Proprietors 
 
 601 
 
 
 419, 438 
 
 Stainland 
 
 12 
 
 
 43, 47 
 
 Parker's Appeal 
 
 230 
 
 
 395, 424 
 
 Parkins v. Cartwell 
 
 336 
 
 
 
 Coxe 
 
 263 
 
 
 
 Parkman v. Welch 
 
 419 
 
 
 
 Parks V. Boston 
 
 209 
 
 
 42 
 
 Brooks 
 
 115 
 
 
 122, 147 
 
 Parks 
 
 358 
 
 
 245 
 
 Parsons v. Camp 
 
 222 
 
 
 58 
 
 Mumford 
 
 893 
 
 
 245 
 
 Welles 
 
 392, 439, 440 
 
 
 190 
 
 Winslow 
 
 376 
 
 
 78, 84 
 
 Partridge v. Bere 
 
 401, 408 
 
 
 621 
 
 Parvis v. Brown 
 
 416, 668 
 
 
 425 
 
 Pary v. White 
 
 668 
 
 
 626 
 
 Pasley v. Englis 
 
 50 
 
 
 420 
 
 Passmore v. Moore 
 
 366 
 
 
 43 
 
 Pasteur v. Jones 
 
 211, 265 
 
 
 144 
 
 Pate V. Barrett 
 
 623 
 
 
 187 
 
 Paterson v. Lang 
 
 233 
 
 
 103 
 
 Patterson v. Boston 
 
 209, 256 
 
 
 4 
 
 John 
 
 495 
 
 
 615 
 
 Patty V. Pease 
 
 438, 442 
 
 
 604 
 
 Pawlet V. Clarke 
 
 206 
 
 
 22,27 
 
 Pawlett V, Attorney-General 
 
 413, 430 
 
 
 
 Payne v. Payne 
 
 329 
 
 
 
 Sale 
 
 643, 668 
 
 
 
 Payton v. Steth 
 
 218 
 
 
 527 
 
 Paxton V. Harron 
 
 438 
 
 
 297 
 
 Paxon V. Paul 
 
 472 
 
 
 262, 263, 268 
 
 Peaceable v. Reed 
 
 601 
 
 
 402, 427 
 
 Pearce v. Coden 
 
 4 
 
 
 219 
 
 Golden 
 
 215 
 
 
 318, 341 
 
 Pearsdall v. Kingsland 
 
 466 
 
 
 257 
 
 Pearson v, Clemson 
 
 349 
 
 
 270 
 
 Pearson 
 
 132 
 
 
 490 
 
 Pease v. Bancroft 
 
 461 
 
 
 93 
 
 Benson 
 
 480 
 
 
 387 
 
 Owens 
 
 65, 619 
 
 
 340 
 
 Pebus V. Milford 
 
 298 
 
 
 353 
 
 Peck V. Northrop 
 
 ■236 
 
 
 48 
 
 Hapgood 
 
 477 
 
 
 424 
 
 Peebles v. Lassitus 
 
 230 
 
 
 416 
 
 Pegues V. Peguea 
 
 317 
 
 
 392 
 
 Pelte V. Clark 
 
 449 
 
 
 424 
 
 Pendleton v. Fay 
 
 340 
 
 
 468, 482 
 
 Penhay v. Harrell 
 
 298, 539 
 
lii 
 
 TABLE OF OASES CITED IN TOL. ONE. 
 
 Penn v. Lord Baltimore 
 
 
 357 
 
 Pitt V. Petway 
 
 
 349 
 
 Pennants' ease 
 
 
 207 
 
 Pitts V. Hendrix 
 
 
 12 
 
 Penniman v. HoUis 
 
 397 
 
 477 
 
 Planters, &o. v. Halker 
 
 
 12 
 
 Pennington v. Tell 
 
 138 
 
 139 
 
 Playford u. Playford 
 
 
 399 
 
 Pennock v. Hoover 
 
 
 611 
 
 Pleake v. Chambers 
 
 
 47 
 
 Penton v. Eobart 
 
 
 22 
 
 Plummer v. Neile 
 
 
 388 
 
 Peabody v. Patten 
 
 
 98 
 
 Plunkett V. Holmes 
 
 
 544 
 
 Tarbell 
 
 276 
 
 ,317 
 
 Levfia 
 
 
 323 
 
 People V. Conklin 
 
 
 526 
 
 Penson 
 
 
 415 
 
 Haskins 
 
 
 231 
 
 Plymouth v. Archer 
 
 
 277 
 
 Livingstone 
 
 
 37 
 
 Poignard v. Smith 49, 52 
 
 432 
 
 462 
 
 People, &o. V. Society, &c. 
 
 
 369 
 
 Poindexter v. McOannon 
 
 
 392 
 
 Peppard v. Deal 
 
 
 628 
 
 Pole V. Pole 
 
 
 324 
 
 Peppercorn u. Peacock 
 
 630 
 
 636 
 
 Polk V. Earris 
 
 
 658 
 
 Pocock 
 
 
 512 
 
 Pollard V. Shouffer 
 
 
 212 
 
 Perkins v. Dibble 
 
 394 
 
 430 
 
 Pomeroy v. "Winship 
 
 460 
 
 ,^80 
 
 Drye 
 
 
 398 
 
 Pond V. Clark 
 
 
 422 
 
 Hays 
 
 
 322 
 
 Poole V. Hathaway 
 
 
 445 
 
 Pitts 
 
 443 
 
 444 
 
 Poole 
 
 
 651 
 
 Perrin v. Blake 
 
 
 659 
 
 Pooley V. Budd 
 
 
 34 
 
 Lyons 
 
 
 657 
 
 Popkin -0. Bumstead 
 
 
 444 
 
 Perrot v. Perrot 
 
 
 272 
 
 Pope V. Biggs 
 
 
 411 
 
 Perry v. Adams 
 
 
 461 
 
 Orslen 
 
 
 417 
 
 Aldrich 
 
 
 257 
 
 Porsay v. Kain 
 
 
 609 
 
 Briggs 
 
 
 636 
 
 Port V. Kearney 
 
 
 187 
 
 MoHenry 
 
 
 312 
 
 Porter v. Bank 
 
 
 304 
 
 Pearson 
 
 
 397 
 
 Clements 
 
 
 419 
 
 Phillips 
 
 
 320 
 
 Doby 
 
 301 
 
 648 
 
 Peter v. Eussell 
 
 
 470 
 
 Gordon 
 
 
 280 
 
 Peterson v. "Willing 
 
 
 396 
 
 Hill 
 
 
 593 
 
 Pettibone v. Griswold 
 
 
 421 
 
 Millett 
 
 
 462 
 
 Stevens 427, 437, 442 
 
 482 
 
 Nelson 
 
 
 398 
 
 Pettingill v. Evans 
 
 29 
 
 410 
 
 Porter 
 
 
 336 
 
 Pettman v. Bridges 
 
 
 6 
 
 Portland v. Fox 
 
 426 
 
 473 
 
 Petty V. Doe 
 
 
 285 
 
 Portmore v. Taylor 
 
 
 572 
 
 Styward 
 
 
 577 
 
 Post V. Leet 
 
 
 483 
 
 Pharis v. Leclmiere 
 
 
 141 
 
 Potter V. Everett 
 
 
 139 
 
 Phelps V. Butler 
 
 
 460 
 
 Potter 
 
 
 121 
 
 Jepsou 
 
 
 586 
 
 Wheeler 
 
 
 157 
 
 Long 
 
 
 284 
 
 Pottre V. Towcker 
 
 166 
 
 628 
 
 Sage 
 
 
 472 
 
 Potts V. Curtis 
 
 
 572 
 
 Philbrook v. Delano 
 
 
 320 
 
 Powell V. M. & B. Manuf. Co. 
 
 
 113 
 
 Phillip V. Ewers 
 
 
 323 
 
 Monson 126 
 
 148 
 
 149 
 
 Phillips V. Cramond 
 
 315, 317 
 
 320 
 
 Powell 
 
 159 
 
 615 
 
 Humphrey 
 
 
 300 
 
 Triplett 
 
 
 240 
 
 Rhodes 
 
 
 18 
 
 Powers V. Ingraham 
 
 
 284 
 
 Sinclair 
 
 
 424 
 
 Powers 
 
 
 473 
 
 Phillipson v. Mullanphy 
 
 
 27 
 
 Powseley v. Blaokman 
 
 
 406 
 
 Phipard v. Mansfield 
 
 
 668 
 
 Poyntnell v. Spencer 
 
 
 468 
 
 Phipps V. Ackers 
 
 
 524 
 
 Pratt V. Bank 
 
 
 447 
 
 Phyfe V. Warden 
 
 
 213 
 
 Thornton 
 
 348, 
 
 413 
 
 Phyford v. "Wardell 
 
 
 322 
 
 Tan "Wyck 
 
 336 
 
 492 
 
 Pickard v. Sears 
 
 
 470 
 
 Pray v. Pray 
 
 
 116 
 
 Pickering v Pickering 
 
 
 379 
 
 Presbyterian Church v. Andrews 
 
 
 4 
 
 Pickers v. "Wilson 
 
 
 144 
 
 Prescott V. Nevers 
 
 
 47 
 
 Picket V. Breckenbridge 
 
 
 245 
 
 President, &c. v. Chambers 
 
 
 468 
 
 Pickett V. Peavy 
 
 
 130 
 
 Preston v. Christian 
 
 
 413 
 
 Pray 
 
 
 132 
 
 Prevost V. Gratz 
 
 
 309 
 
 Pidge V. Tyler 
 
 
 41 
 
 Price V. Blakemau 
 
 
 336 
 
 Pierce v. Potter 
 
 416,476 
 
 Lyon 
 
 4 
 
 601 
 
 Pierreporit v. Bernard 
 
 
 223 
 
 Methodist 
 
 
 5 
 
 Pife'r V. "Ward 
 
 504 
 
 511 
 
 "Williams 
 
 
 176 
 
 Pike V. Jowen 
 
 
 511 
 
 Priest V. Cummings 
 
 
 127 
 
 Pilkington v. Bradley 
 
 
 321 
 
 Prime v. Stebbing 
 
 
 170 
 
 Pillsbury v. Pillsbury 
 
 
 316 
 
 Prindlei;. Anderson 245, 281, 
 
 285 
 
 286 
 
 Pimb's case 
 
 
 295 
 
 Pritchard v. Brown ' 318, 
 
 340 
 
 460 
 
 Pinkham v. Grear 
 
 
 144 
 
 Probert v. Morgan 
 
 
 170 
 
 Pinson v. Ivey 
 
 
 308 
 
 Proctor V. Keith 
 
 
 183 
 
TABLE OT CASES CITED IN VOL. ONE. 
 
 liii 
 
 Proctor V. Thall 
 Possett, &c. V. Methodist, 
 
 Pursut 
 Proseus v. Molntyre 
 Pryer v. Duncau 
 PuUiam v. Pyrd 
 Pulling V. The People 
 Purdusou V. Brown 
 PuroeU V. 'WilsoQ 
 Purd V. Whitney 
 Purefoy v. Purefoy 
 
 Rogers 
 Pusey V. Cluson 
 Putnam v. Fisher 
 Wise 
 Putney v. Day 
 
 Dresser 
 Pye V. George 
 Pyle V. Pennock 
 Pynchon v. Stearns 
 
 Quackenbush v. Leonard 
 Quarrington v. Arthur 
 Queen v. St. Margaret 
 Quennell v. Turner 
 Quim V. Brittain 
 Quinoy 
 
 Quinebaug v. French 
 Tarbox 
 Quint V. Little 
 
 Eabe v. Fyler 
 Eackleff v. Norton 
 Eaekiey v. Sprague 
 Bad burn v. Jervis 
 KadcliCfe v. D'Oyly 
 EafFerty v. King 
 Eaiford v. Raiford 
 Eail V. Dohson 
 Eailroad v. Boyer 
 Kidd 
 Eaine v. Alderson 
 Eains v. Ware 
 Eainsford v. Eainsford 
 Ralls V. Hughes 
 Ralph V. Bailey 
 Ealston v. Hughes 
 Eambo v. Bell 
 Eamsay v. Dosier 
 Randall v. Cleveland 
 
 Doe 
 
 Phillips 
 
 Rich 
 
 Rigby 
 Randell v. Mallett 
 Randolph v. Carlton 
 Rands v. Kendall 
 Rangeley v. Spring 
 Rank v. Rank 
 Rankin v. Mortimer 
 
 Vol. I. 
 
 &0. 
 
 441 
 364 
 41 
 324 
 644 
 624 
 176 
 460 
 B99 
 339 
 419 
 
 643, 554 
 
 347 
 
 49 
 
 196, 199, 200 
 
 223 
 
 592, 515 
 
 552 
 
 29 
 
 181, 260 
 
 350 
 
 200 
 
 34 
 
 450, 627, 630 
 
 427 
 
 28 
 
 421 
 
 285 
 
 488 
 
 682 
 
 474 
 
 26 
 
 I, 58 
 
 268 
 
 478 
 
 347 
 
 624 
 
 565 
 
 274 
 
 10, 177, 264, 566 
 
 38 
 
 345 
 
 153 
 
 43 
 
 405 
 
 141 
 
 153 
 
 271, 565 
 
 327 
 
 689, 590 
 
 184, 251 
 
 186 
 
 436, 442 
 
 218 
 
 116, 415 
 
 87-90, 470, 480 
 
 227 
 
 398 
 
 Rankin v. Oliphant 
 Ten brook 
 Ranyan v. Mersereau 
 Rasor v. Quails 
 Eathbone v. Clark 
 Rathbun v. Colton 
 
 Rathbun 
 Ravarty v. Fridee 
 Rawley v. Adams 
 
 Holland 
 Rawlings v. Stewart 
 Eawlinson «. Wass 
 Eawson v, Eicke 
 Ray V. King 
 Raymond v. Andrews 
 
 Holden 
 Raynham v. Snow 
 
 Wilmarth 
 Read v. Errington 
 Thompson 
 Reading v. Blackwell 
 
 Royston 
 Reat V. Powell 
 Rector, &c. 
 
 Rector of Cheddington's case 
 Reed v. Bigelow 
 Campbell 
 Davis 
 Dickerman 
 Hatton 
 Kennedy 
 Eeed 
 Reese v. Waters 
 Reeve v. Allen 
 Long 
 Reeves v. M'Kenze ' i 
 Regina v. Fogassa 
 Haslam 
 Rehner v. Zeigler 
 Rehoboth v. Hunt 
 Reid V. Campbell 
 Stevenson 
 Stoney 
 Reinhart v. Bank 
 Reinicker v. Smith 
 Remington v. Cady 
 Ren wick v. Macomb 
 Representatives v. Comptroller 
 Reps V. Bonham 
 Reves V. Heme 
 Rex V. Matlingley 
 Minohin 
 St. Michael's 
 Williams 
 Reynard v. Spence 
 Reynish v. Martin 
 Reynolds v. Clark 
 
 Monkton 
 _ Reynolds 
 ' Sherler 
 Williams 
 Rhoades v. Canfield 
 Parker 
 Rice V. Adams 
 Barnard 
 Rich V. Baker 
 Loud 
 Rich. Liford's case 
 
 339, 
 
 94, 145 
 190 
 431 
 
 14 
 
 442 
 
 347, 348 
 
 348 
 
 125 
 
 30 
 
 299 
 
 427 
 
 622 
 
 196, 410 
 
 330 
 
 268 
 
 89-90 
 
 477 
 
 148, 415 
 
 298 
 
 216 
 
 30-31 
 
 681-600 
 
 625 
 
 176 
 
 557 
 
 461 
 
 120 
 
 406 
 
 134 
 
 632 
 
 581 
 
 427, 428 
 
 79 
 
 342 
 
 537, 543 
 
 289 
 
 59 
 
 19 
 511 
 
 10 
 133 
 108 
 238 
 437 
 596 
 581 
 479 
 495 
 621 
 374 
 405 
 262 
 405 
 577 
 131, 157 
 378 
 
 86 
 
 4 
 
 102, 104 
 
 19 
 565 
 436 
 406 
 
 21 
 578 
 273 
 608 
 267. 
 
 E 
 
liv 
 
 TABLE OE OASES CITED IN TOL. ONE. 
 
 Rich V. "Waters 
 
 524, 569 
 
 Robertson v. Stevens 
 
 78, 379 
 
 Richards v. Bergavenny 
 
 647 
 
 Robins ». Crutchley 
 
 97 
 
 Carl ■ 
 
 590 
 
 Kitcbin 
 
 221 
 
 Cooper 
 
 479 
 
 Robinson v. Bates 
 
 12S 
 
 Folsom 
 
 42 
 
 Brown 
 
 44 
 
 Richards 
 
 119, 213 
 
 Collier 
 
 469 
 
 Richardson v. Boright 
 
 468 
 
 Comyna 
 
 375 
 
 Eield 
 
 467 
 
 Cropsey 
 
 402 
 
 Ridgely 
 
 493 
 
 Green 
 
 11 
 
 The State 
 
 355 
 
 Guild 
 
 466 
 
 York 
 
 263, 274 
 
 Hicks 
 
 638, 639 
 
 Richie v. M'Cauley 
 
 230 
 
 Kettletas 
 
 214 
 
 Riokard v. Salbird 
 
 145, 153 
 
 Leavitt 
 
 419, 445 
 
 Eickard 
 
 600 
 
 Leeroyd 
 
 289 
 
 Rickett V. Sullick 
 
 281 
 
 Litton 
 
 276 
 
 Rider v. Mason 
 
 362 
 
 Miller 70, 105 
 
 138, 154, 638 
 
 Riddiek v. Walsh 
 
 84, 93, 108 
 
 Pett 
 
 345 
 
 Riddle v. Emerson 
 
 312 
 
 Preswick 
 
 28 
 
 Riddlesberger v. Mentner 
 
 119 
 
 Robinson 
 
 475, 639 
 
 Ridgeley v. Carey 
 
 338 
 
 Turner 
 
 479 
 
 Iglehart 
 
 493 
 
 Robison v. Codman 
 
 103, 328, 331 
 
 Johnson 
 
 355 
 
 Robson V. Earwell 
 
 307 
 
 Rawling 
 
 261 
 
 Rochford v. Harkman 
 
 68, 369, 390 
 
 Ridgway v. Stafford 
 
 241 
 
 Rockingham v. Penrice 
 
 238 
 
 Ridgway, &c. 
 
 579 
 
 Rockwell V. Bradley 
 
 408,410 
 
 Ridout V. Payne 
 
 629 
 
 Hobby 
 
 490, 499 
 
 Rigden v. Vallier 
 
 577, 583, 661 
 
 Rodgers v. Lathrop 
 
 227 
 
 Riggs V. Dooley 
 
 47 
 
 Rodgera 
 
 272, 273 
 
 Sally 
 
 63, 634 
 
 Roe V. Avis 
 
 636 
 
 Right V. Creber 
 
 527, 529 
 
 Baron 
 
 628 
 
 Proctor 
 
 194 
 
 Clayton 
 
 667 
 
 Righter v. Statt 
 
 466 
 
 Couch , 
 
 416 
 
 Riglertt Cloud 
 
 81, 356 
 
 Galliers 
 
 371, 373 
 
 Rigney v. Lovejoy 
 
 431 
 
 Grew 
 
 654 
 
 Eiker v. Darke 
 
 609 
 
 Griffiths 
 
 557 
 
 Riley v. Glamorgan 
 
 155 
 
 Harrison 
 
 ,207, 372 
 
 Dairy m pie 
 
 18 
 
 Popham' 
 
 288, 299 
 
 Rinehart v. Haj-rison 
 
 31 
 
 Beade 
 
 333 
 
 Olivine 
 
 227, 279 
 
 ' Soley 
 
 419 
 
 Ring V. Argand 
 
 279 
 
 Tranmer 
 
 541 
 
 Ringgold V. Ringgold 
 
 345, 348 
 
 Rogers v. Colt 
 
 328 
 
 Riply V. Tale 
 
 48, 2 1 9 
 
 IfcPorest 
 
 359 
 
 ■Waterworth 
 
 71, 72 
 
 Graze brook 
 
 406 
 
 Wightraan 
 
 254 
 
 Grider 
 
 588 
 
 Rising V. Stannard 
 
 280, 282 
 
 Ludlow 
 
 304 
 
 Ritchie v. Putnam 
 
 139 
 
 Maule 
 
 « 490 
 
 Williams 
 
 447 
 
 Moore 
 
 42 
 
 Rittenhouse v. Severing 
 
 149 
 
 Phillips 
 
 510 
 
 Rivis V. Watson 
 
 259 
 
 Rawling 
 
 388 
 
 Roach V. Cosine 
 
 353 
 
 Rogers 
 
 345, 659 
 
 Robb V. Ankenny 
 
 63 
 
 Ross 
 
 857 
 
 Bobbins v. Bates 
 
 396 
 
 Skillirome 
 
 342 
 
 Eaton 
 
 468 
 
 Woodbury 
 
 1 
 
 Bobbins 
 
 117 
 
 Rolfe V. Harris 
 
 383 
 
 Roberts v. Barber 
 
 15, 18 
 
 Rolleatone v. Morton 
 
 490 
 
 , Barker 
 
 279 
 
 Rollins V. Moor 
 
 281 
 
 Bozon 
 
 403 
 
 Somerville 
 
 277 
 
 Davey 
 
 388 
 
 Roning 
 
 612 
 
 Dixwell 
 
 654, 655 
 
 Rood V. Winslow 
 
 468 
 
 Halstead 
 
 431 
 
 Roon V. Murphy 
 
 494 
 
 Long 
 
 45 
 
 Root V. Bancroft 
 
 437 
 
 Rose 
 
 492, 498 
 
 Stow 
 
 437 
 
 Salisbury 
 
 498 
 
 Teomans 
 
 33T, 345, 353 
 
 Senriel 
 
 286 
 
 Roscanick v. Barton 
 
 392 
 
 Williams 
 
 460 
 
 Rose V. Hayes 
 
 269 
 
 Roberts, &o. 
 
 582 
 
 Roseboom v. Van Veohten 
 
 35, 65 
 
 Robertson v. Campbell 
 
 420, 462, 466 
 
 Ross V. Barker 
 
 334 
 
 Robertson 
 
 49, 316 
 
 Durham 
 
 601 
 
TABLE OF CASES CITED IN VOL. ONE. 
 
 Iv 
 
 Boss V. Grarrisoa 
 
 
 588 
 
 Sampson,'!;. Burnside 
 
 222, 225 
 
 Gill 
 
 
 271 
 
 Grimes 
 
 236 
 
 Haines 
 
 
 438 
 
 Sampson 
 
 323 
 
 Hamilton 
 
 
 126 
 
 Sanbord v. French 
 
 88 
 
 Hegeman 
 
 
 360 
 
 Sanborn v. 'Woodman 
 
 381 
 
 Overton 
 
 
 256 
 
 Sandback v. Quigley 
 
 154 
 
 Ross 
 
 60 
 
 , 161 
 
 Sanders v. Benson 
 
 185 
 
 Tremain 
 
 
 378 
 
 Morrison 
 
 357 
 
 Rowan v. Lytle 
 
 
 288 
 
 Reed 
 
 408 
 
 Rowe V. Grenfel 
 
 
 9 
 
 Richards 
 
 403 
 
 Johnson 
 
 
 154 
 
 Sanders 
 
 116, 136 
 
 Powers 
 
 
 157 
 
 Sanderson v, 'Walker 
 
 353 
 
 Toung 
 
 
 443 
 
 Sandon v. Hooper 
 
 412, 427 
 
 Rowland v. Rowland 
 
 
 588 
 
 Sands v. Champlin 
 
 365 
 
 Rowntree v. Jacob 
 
 
 492 
 
 Sanford v. "Wheeler 
 
 422 
 
 Rowton V. Rowton 
 
 
 115 
 
 Sarah v. Desilver 
 
 39, 40 
 
 Roy V Garnett 
 
 655 
 
 , 659 
 
 Sargeant v. Roberts 
 
 159 
 
 Rubey v. Barnett 
 
 
 623 
 
 Sargent v. MTarland 
 
 44, 47 
 
 Ruby V. Abyssinian 
 
 4:01 
 
 ,426 
 
 Sarles v. Sarles 60, 
 
 262, 266, 272 
 
 Ruckman v. Astor 
 
 231, 426 
 
 , 483 
 
 Saunders 
 
 265 
 
 Ruffey V. Henderson 
 
 
 225 
 
 Saunders v. Erost 
 
 419 
 
 Runlet V. Otis 
 
 
 396 
 
 M'Lin 
 
 11 
 
 Rundale v. Eeley 
 
 
 647 
 
 Saxton V. Hunt 
 
 43 
 
 Rung V. Shoneberg 
 
 
 48 
 
 Say V. Jones 
 
 304 
 
 RusaeU v. Blake 
 
 
 427 
 
 Sayer v. "Wisner 
 
 153 
 
 Clark 
 
 
 340 
 
 Soawin v. Soawin 
 
 323 
 
 Dudlye 
 
 
 465 
 
 Schenck v. Ellingwood 
 
 468 
 
 Elden 
 
 
 634 
 
 Schermerhorn v. Buell 
 
 262 
 
 Gee 
 
 113 
 
 155 
 
 Schley v. Lyon 
 
 301 
 
 Hamilton 
 
 
 473 
 
 School, &c. V. Dunkleberger 
 
 334 
 
 Lewis 
 
 301 
 
 332 
 
 Sohryver v. Teller 
 
 437, 442 
 
 Richards 
 
 
 6 
 
 Scituate v. Hanover 
 
 308 
 
 Russell 
 
 100 
 
 490 
 
 Scott V. Crawford 
 
 147 
 
 Southard 
 
 
 400 
 
 Davis 
 
 348 
 
 Stenton 
 
 
 565 
 
 Evans 
 
 423 
 
 Temple 
 
 
 30 
 
 Fields 
 
 397 
 
 Russell, &c. 
 
 
 494 
 
 Hancock 
 
 160 
 
 Rutgers v. Hunter 
 
 
 213 
 
 Hastings 
 
 338 
 
 Rutherford v. Green 
 
 
 30 
 
 Hawsman 
 
 184, 244 
 
 Reed 
 
 
 123 
 
 Lenox 
 
 267 
 
 Rutledge v. Smith 
 
 
 308 
 
 M'Parland 
 
 93, 480 
 
 Rutlege V. 'Walton 
 
 
 229 
 
 Scott 
 
 150, 158 
 
 Ruttra V. Tyler 
 
 
 617 
 
 Scriptui'e v. Johnson 
 
 460 
 
 Ryall V. RoUe 
 
 
 492 
 
 Scroop V. Scroop 
 
 325 
 
 Ryan «. Shillock 
 
 
 240 
 
 Second, &o. v. 'Woodbury 
 
 419 
 
 Rycrofru. Christy 
 
 
 301 
 
 Sedman v. Ingraham 
 
 140 
 
 Ryerss v. Farwell 
 
 
 236 
 
 Seider v. Seider 
 Sellers v. Hays 
 Sellioke v. Sellicke 
 Senior v. Armitage 
 
 141 
 47 
 
 176 
 15 
 
 S 
 
 
 
 Sevier v. Greenway 
 Sewall V. Lee 
 Seward v. Jackson 
 
 402 
 118 
 312 
 
 Sabin v. Stickney 
 
 
 483 
 
 • Seymour o. M'Donald 
 
 370 
 
 Sacket v. Wheaton 
 
 
 1, 2 
 
 Seymour's case 
 
 56, 59 
 
 Sackett v. Sackett 
 
 
 268 
 
 Seys V. Price 
 
 166 
 
 SafiFord v. Safiford 
 
 
 104 
 
 Shackleford v. Smith 
 
 43, 284 
 
 Baffin's case 
 
 
 179 
 
 Stockton 
 
 478 
 
 Sahl V. Wright 
 
 
 232 
 
 Sh apian d v. Smith 
 
 302 
 
 Salisbury v. Bigelow 
 
 341, 
 
 349 
 
 Shapley v. Porwood 
 
 33 
 
 Hale 
 
 
 213 
 
 Rangeley 
 
 480 
 
 Sallade v. James 
 
 
 16 
 
 Sharp V. Carlile 
 
 181 
 
 Salle V. Primm 
 
 
 73 
 
 Kelley 
 
 216 
 
 Salmon v. Olagett 
 
 69, 408, 
 
 479 
 
 Key 
 
 239 
 
 Mathews 
 
 251, 
 
 257 
 
 Pettit 
 
 145 
 
 Salter v. Boteler 
 
 
 247 
 
 Sharpe v. Kelly 
 
 46 
 
 Saltmarsh v. Beene 
 
 
 348 
 
 Shattuck V. Gragg 
 
 112, 159 
 
 Samme's case 
 
 
 296 
 
 S>haw V. Beveridge 
 
 4 
 
Ivi 
 
 TABLE OF OASES CITED IN TOL. ONE. 
 
 Shaw V. Boyd 
 
 143 
 
 Sims V. 
 
 Helling 
 
 490 
 
 M'Niah 
 
 478 
 
 Sims V. 
 
 Humphrey 
 
 279 
 
 Shaw 
 
 66 
 
 Singleton v. Gayle 
 
 493 
 
 White 
 
 115 
 
 
 Singleton 
 
 141, 160 
 
 Woodby 
 
 46'7 
 
 Sisson I 
 
 . Seabury 
 
 527, 643 
 
 Sheafe v. O'Niel 
 
 144, 148 
 
 Siter V. 
 
 M'Olanachan 
 
 32, 304 
 
 Shean v. Withera 
 
 218 
 
 Skeats 
 
 V. Skeats 
 
 323 
 
 Sheffield v. Oollier 
 
 226 
 
 Skeel V 
 
 Spraker 
 
 442, 451 
 
 Shelby v. Shelby 
 
 336 
 
 Skinner v. Brewer 
 
 '480 
 
 Sheldon v. Purple 
 
 365 
 
 
 Cox 
 
 392 
 
 Shelley's case 
 
 293 
 
 Skirving v. Neufville 
 
 449 
 
 Shelton v. Atkins 
 
 481 
 
 Slade V 
 
 Van Veohten 
 
 348 
 
 Carroll 
 
 141 
 
 Slainford v. FuUerton 
 
 5-4 
 
 Codman 
 
 180 
 
 Slaughter v. Foust 
 
 431, 478 
 
 Deering 
 
 127 
 
 Slaymaker v. St. John 
 
 811 
 
 Hampton 
 
 441 
 
 Slice V. 
 
 Derrick 
 
 50 
 
 Shelton 
 
 17 
 
 Sloan V 
 
 Whitman 
 
 146 
 
 Shepard v. Adams 
 
 438 
 
 Sloeum 
 
 V. Allen 
 
 460 
 
 Philbrick 
 
 16, 407 
 
 
 Catlin 
 
 445, 460 
 
 Pratt 
 
 462 
 
 
 Sloeum 
 
 30 
 
 Shepard 
 
 421, 437 
 
 Smack 
 
 V. Duncan 
 
 478 
 
 Spaulding 
 
 25, 183 
 
 Small V 
 
 Proctor 
 
 49 
 
 Sheperd v. M'ETers 
 
 855 
 
 Smeathman v. Bray 
 
 478 
 
 Shepperson v. Shepperson 
 
 88 
 
 Smiley 
 
 V. Smiley 
 
 116 
 
 Slierburne v. Jones 
 
 282 
 
 
 Wright 
 
 116, 120 
 
 Sherman v. Abbott 
 
 472 
 
 Smith 
 
 u. Atkins 
 
 229 
 
 Gassett 
 
 466 
 
 
 Baldwin 
 
 133 
 
 Sherrill v. Shurford 
 
 347 
 
 
 Benson 
 
 6,8 
 
 Sherwood v. Vandenburg 
 
 106, 149 
 
 
 Berry 
 
 629 
 
 Shields v. Batta 
 
 139, 152 
 
 
 Boone 
 
 285 
 
 Shirkey v. Warner 
 
 478 
 
 
 Burtis 
 
 49 
 
 Shirras v. Caig 
 
 422 
 
 
 FoUansbee 
 
 268 
 
 Shirtz V. Shirtz 
 
 114 
 
 
 Goodwin 
 
 408 
 
 Shively V. Wagner 
 
 182 
 
 
 Hilliard 
 
 624 
 
 Shoemaker v. Smith 
 
 314 
 
 
 Hardy 
 
 126 
 
 Walker 
 
 103 
 
 
 Howell 
 
 299 
 
 Shoher v. Hawser 
 
 301 
 
 
 Kelly 
 
 419, 431 
 
 Shotwell v Sedan 
 
 134 
 
 
 Lane 
 
 309 
 
 Shouffler v. Coover 
 
 156 
 
 
 Manning 
 
 418, 485 
 
 Shrepnel v. Vernon 
 
 328 
 
 
 Marrable 
 
 210 
 
 Shrewsbury 
 
 282 
 
 
 Miner 
 
 183 
 
 Shrewsbury v. Shrewsbury 
 
 59, 68 
 
 
 Moffat 
 
 285 
 
 Shunks, &o. 
 
 346, 347 
 
 
 Moore 
 
 405, 408 
 
 Shurtliff V. Witherapoon 
 
 347 
 
 
 Niles 
 
 198 
 
 Shurtz V. Thomas 
 
 89, 123 
 
 
 Parker 
 
 , 569 
 • 617 
 
 Shute V. Harder 
 
 332 
 
 
 Parkhurst 
 
 Shuttleworth v. Lanriok 
 
 419 
 
 
 Patton 
 
 324 
 
 Sidmouth v. Sidmouth 
 
 323 
 
 
 Paysenger 
 
 108 
 
 Sidney v. Sidney 
 
 82 
 
 
 Paythrep 
 
 92 
 
 Siglar V. Malone 
 
 219 
 
 
 People's, &o. 
 
 398 
 
 Van Riper 
 
 139 
 
 
 Poyas 
 
 266 
 
 Sigourney v. Eaton 
 
 461 
 
 
 Bamsey 
 
 336 
 
 Stookwell 
 
 477 
 
 
 Saokett 
 
 312 
 
 Silliok V. Booth 
 
 74 
 
 
 Sanger 
 
 51 
 
 Silvester v. Jarman 
 
 413, 430 
 
 
 Saratoga 
 
 246 
 
 Wilson 
 
 302, 655 
 
 
 Shaokleford 
 
 70 
 
 Simmons v. Gooding 
 
 81 
 
 
 Shepard 
 
 250, 251, 410 
 
 Simonds v. Brown 
 
 435 
 
 
 Sunona 
 
 224 
 
 Simonda 
 
 378 
 
 
 Smith 100, 185, 141, 145, 154, 
 
 Simpson 
 
 140 
 
 
 
 157 
 
 V. Ashworth 
 
 31, 634 
 
 
 Tarlton 
 
 578 
 
 Bowden 
 
 262 
 
 
 Taylor 
 
 406, 409 
 
 Clayton 
 
 186, 213 
 
 
 Tirman 
 
 H 
 
 Downing 
 
 . 41 
 
 
 Warner 
 
 647 
 
 Hawkins 
 
 250 
 
 
 Wells 
 
 303 
 
 Kelso 
 
 31 
 
 Smitheal v. Gray 
 
 307 
 
 Seavey 
 
 699 
 
 Smoot 
 
 V. Lecatt 
 
 77, 82 
 
TABLE OP CASES CITED IN TOL. ONE. 
 
 Ivii 
 
 Snales ». Dale 
 Sneed v. Atherton 
 
 Jenkins 
 Sneed «."Ward 
 Snelling v. TTtterback 
 Snow V. Cutler 
 Snowden o. M'Kinney 
 Snyder v. Snyder 
 Sohler o. ■Williama 
 Solomon v. 'Wilaon 
 Soudars v. Van Siekel 
 Souley V. Clookmakera 
 South ». Allen 
 South, &o. V. Blakerslee 
 Southard v. Parker 
 Wilson 
 Southcot o. Stowel 
 Southern v. Bellasis 
 Mendum 
 Sonthgate v. Taylor 
 Sowers v. Vie 
 Spader v. Lawler 
 Spalding v. Shalmer 
 Spangler v. Stanler 
 Spann v. Jennings 
 Sparrier v. Kingman 
 Sparks v. State, &e. 
 Sparrow v. Shaw 
 Speake v. Speake 
 Spear v. Puller 
 
 Hubbard 
 Speed V. Buford 
 Spelman v. Shook 
 Spence v. Etter 
 Spencer o. Burton 
 Pearoe 
 Eoper 
 Weston 
 Sperry v. Pond 
 
 Speny 
 Spiller V. SpUler 
 Spraker v. Van Alstyne 
 Spring V. Gseaar 
 
 Hawes 
 Springer ». Eeyser 
 Springle v. Shields 
 Spurgeou v. Collier 
 Spurr V, Trimble 
 Squibb v. Wynne 
 Squire v. Harder 
 
 Warder 
 Stabbaek v. Leat 
 Stafford ». Buckley 
 * Van Rensselaer 
 
 Stagg ». Beekman 
 Stanhope v. Stanhope 
 Stanley v. Hays 
 Stanley 
 Tuesgood 
 Stansbury «. Taggart 
 Stanton «. Hall 
 Stanwood v. Dunning 
 Staples V. Emery 
 
 Maurice 
 Stapp ». Phelps 
 Stark V. Hunter 
 
 Mercer 
 
 600 
 
 Starr o. Ellis 
 
 182, 
 
 446 
 
 600 
 
 Jackson 
 
 
 666 
 
 216 
 
 Pease 
 
 
 82 
 
 231, 385 
 
 State V. Preeman 
 
 
 38 
 
 314 
 
 Laval 
 
 
 460 
 
 535 
 
 Lawton 
 
 
 460 
 
 284 
 
 Nichols 
 
 
 31 
 
 356 
 
 Page 
 
 
 193 
 
 66 
 
 Stewart 
 
 
 280 
 
 403 
 
 Station v. Best 
 
 
 676 
 
 408, 411 
 
 Stayton v. Morris 
 
 
 236 
 
 351 
 
 Steadman v. Hilliard 
 
 
 42 
 
 304 
 
 Polling 
 
 
 82 
 
 48 
 
 Steams v. Godfrey 
 
 48, 
 
 390 
 
 192 
 
 Palmer 
 
 43, 50 
 
 481, 488 
 
 Stearns 
 
 
 150 
 
 621 
 
 Stedfaat v. Newle 
 
 
 637 
 
 238 
 
 Stedman v. G-asset 
 
 
 408 
 
 432 
 
 Weeks 
 
 
 604 
 
 488 
 
 Steed V. Cragh 
 
 
 180 
 
 180 
 
 Steel V. Cook 
 
 
 570 
 
 421 
 
 Steele v. Mander 
 
 
 479 
 
 345 
 
 Steeles v. Mast 
 
 
 202 
 
 116, 117 
 
 Steere v. Steere 
 
 309 
 
 312 
 
 306 
 
 Steiger v. Hillen 
 
 
 148 
 
 107 
 
 Stelle V. Carroll 
 
 
 414 
 
 28 
 
 Stephens v. Lynn 
 
 ? 
 
 244 
 
 638 
 
 Smith 
 
 115 
 
 120 
 
 167 
 
 Stephenson v. M'Creary 
 
 97 
 
 107 
 
 384 
 
 Thompson 
 
 311 
 
 312 
 
 470 
 
 Sterling v. Penlington 
 
 
 693 
 
 42 
 
 Sterricker v. Dickenson 
 
 
 629 
 
 505 
 
 Stert V. Platel 
 
 
 626 
 
 508 
 
 Stetson V. Gulhver 
 
 
 395 
 
 200 
 
 Veazie 
 
 
 51 
 
 499 
 
 Stevens o. Brittredge 
 
 
 642 
 
 74 
 
 Cooper 
 
 
 396 
 
 153 
 
 Ely 
 
 
 321 
 
 370 
 
 Owen 
 
 
 126 
 
 243 
 
 Smith 
 
 
 147 
 
 484 
 
 Stevens 
 
 
 226 
 
 630 
 
 Winship 
 
 69, 623 
 
 ^0 
 
 542 
 
 Stevenson v. Doe 
 
 
 43 
 
 419, 424 
 
 Richmond 
 
 
 218 
 
 508 
 
 Stonehill 
 
 
 608 
 
 141 
 
 Steward «. Allen 
 
 
 460 
 
 398 
 
 Lombe 
 
 8, 20, 28 
 
 73 
 
 Stewart v. Brown 
 
 
 316 
 
 180 
 
 Chew 
 
 
 273 
 
 316 
 
 Clark 
 
 
 68 
 
 316 
 
 Doughty 
 
 13, 14 
 
 227 
 
 403 
 
 Hutchins 
 
 
 392 
 
 58 
 
 Ives 
 
 
 492 
 
 496 
 
 Kissam 
 
 302 
 
 304 
 
 357 
 
 M 'Martin 
 
 
 139 
 
 67 
 
 Roderick 
 
 
 221 
 
 209 
 
 Stewart 
 
 
 119 
 
 526 
 
 Stier V. Sarget 
 
 
 244 
 
 212 
 
 Stiles V. Cowper 
 
 
 207 
 
 48, 279 
 
 Stillman v. White 
 
 
 48 
 
 304 
 
 Stinson v. Sumner 
 
 
 126 
 
 105, 106 
 
 Thomaston, &c 
 
 
 107 
 
 279 
 
 Stiver v. Cauthon 
 
 
 157 
 
 661 
 
 Stockman v. Whither 
 
 
 267 
 
 466 
 
 Stockwell V. Marks 
 
 
 25 
 
 130 
 
 Stoddard v. Gibbs 
 
 
 78 
 
 487 
 
 Stoebler v. Knice 
 
 
 688 
 
Iviii 
 
 TABLE OF CASES CITED IN VOL. ONE. 
 
 Stokes V. M'Allister 
 
 141 
 
 142 
 
 T 
 
 
 M'Kibbin 
 
 81 
 
 218 
 
 
 
 Stone V. Hulsford 
 
 
 365 
 
 Tabele v. Tabele 
 
 415 
 
 Knight 
 
 
 191 
 
 Taffe V. Warwick 
 
 22 
 
 Lincoln 
 
 
 4'70 
 
 Taft V. Morse 
 
 343, 366 
 
 Patterson 
 
 191 
 
 411 
 
 Stephenson 
 
 493 
 
 Stone 
 
 
 194 
 
 Tait V. Jenkins 
 
 357 
 
 Stony, &o. v. American, &c. 
 
 
 466 
 
 Taitt V. Cootzer 
 
 346, 349 
 
 Storer v. Batson 
 
 
 318 
 
 Talbot V. Todd 
 
 300, 336, 616 
 
 Storm V. Mann 
 
 
 273 
 
 Tallman v. CoflSn 
 
 215 
 
 Story V. Johnson 
 
 468 
 
 604 
 
 Wood 
 
 648 
 
 Saunders 
 
 
 48 
 
 Tamworth «. Ferrers 
 
 277 
 
 Stouffer V. Coleman 
 
 
 498 
 
 Tanfield v. Rogers 
 
 233 
 
 Stoughton V. Leigh 
 
 1 
 
 116 
 
 Tanner v. Elworthy 
 
 350 
 
 Stover V. Com. 
 
 
 31 
 
 Livingston 
 
 630, 631 
 
 Stowell V. Pike 
 
 
 410 
 
 Tapley v. Smith 
 
 8 
 
 Strachy v. Francis 
 
 
 267 
 
 Tappan v. Bailey 
 
 578 
 
 Stratton v. Best 
 
 
 661 
 
 Evans 
 
 473, 477 
 
 Straw V. Jones 
 
 
 42 
 
 Tarpley v. Poage 
 
 312 
 
 Streatfield v. Streatfield 
 
 
 645 
 
 Tasburgh v. Echlen 
 
 401 
 
 Strong V. Bragg 
 
 
 140 
 
 Tate V. Crowson 
 
 381, 386 
 
 Hunt 
 
 
 591 
 
 Tatem v. Tatem 
 
 526 
 
 Skinner 
 
 
 92 
 
 Taverner 
 
 266 
 
 Stewart 
 
 
 396 
 
 Taylor 
 
 73, 194 
 
 Waterman 
 
 
 38 
 
 Taylor v. Bailey 
 
 194 
 
 Willis 
 
 
 356 
 
 Baldwin 
 
 498, 611, 597 
 
 Stuart V. Ki^m 
 M*ish 
 
 350 
 
 354 
 
 Bassett 
 
 447 
 
 
 346 
 
 Broderick 
 
 113, 144 
 
 Stubbs V. Sargon 
 
 
 321 
 
 BuUen 
 
 380 
 
 Stukeley ». Butler 
 
 10 
 
 3n 
 
 Cox 
 
 600 
 
 Stultz V. Dickey 
 
 
 15 
 
 Frobisher 
 
 524 
 
 Sturgion v. Painter 
 
 
 196 
 
 Gould 
 
 78, 181 
 
 Stuyvesant v. Davis 
 
 241 
 
 241 
 
 Horde 
 
 46 
 
 Hall 
 
 
 421 
 
 James 
 
 339 
 
 Mayor 
 
 
 364 
 
 King 
 
 341 
 
 Suaren v. Punpelly 
 
 
 357 
 
 Krocher 
 
 631 
 
 Sufott V. Shufelt 
 
 
 483 
 
 Mason 
 
 370 
 
 Summers v. Babb 
 
 139 
 
 ,160 
 
 McCraokin 
 
 142 
 
 Sumner v. Babb 
 
 113 
 
 114 
 
 Morris 
 
 355 
 
 Conant 
 
 
 89 
 
 Perry 
 
 177 
 
 Hampson 
 
 
 578 
 
 Eoberts 
 
 345 
 
 • Partridge 
 
 
 81 
 
 Stockdale 
 
 441 
 
 Stevens 
 
 
 48 
 
 Taylor 
 
 130 
 
 Sumpter v. Cooper 
 
 
 492 
 
 Townaend 
 
 29 
 
 Surget V. Arighi 
 
 
 209 
 
 Weld 
 
 480 
 
 Sutliflfi;. Porgey 
 
 
 108 
 
 Teaffi;. Hewitt 
 
 18, 19, 26 
 
 Sutton V. Edwards 
 
 
 116 
 
 Teal V. Awty 
 
 11 
 
 Eolfe 
 
 
 592 
 
 Teed v. Carruthers 
 
 443 
 
 Stone 
 
 
 60 
 
 Telford v. Barney 
 
 616 
 
 Temple 
 
 
 253 
 
 Telghman 
 
 31 
 
 Suydam v, Bartle 
 
 
 482 
 
 Tellman v. Bower 
 
 154 
 
 Swain v. Paine 
 
 
 147 
 
 Templeman v. Biddle 
 
 15 
 
 Rosooe 
 
 
 658 
 
 Tempest v. Eawling 
 
 196 
 
 Swan V. Wiswall 
 
 
 474 
 
 Tennent v. Dewes 
 
 426» 
 
 Swart V. Service 
 
 
 396 
 
 Tenny v. Childs 
 
 196 
 
 Swartwout v. Burr 
 
 
 30 
 
 Teppin v. Coson 
 
 298 
 
 Swayre v. Burke 
 
 
 334 
 
 Terrett v. Taylor 
 
 53 
 
 Sweetapple v. Bindon 
 
 
 80 
 
 Terrill v. Murray 
 
 600 
 
 Sweezy v. Thayer 
 
 
 33 
 
 Tessier v. Wise 
 
 273 
 
 Swett V. Horn 
 
 
 392 
 
 Teulon v. Curtis 
 
 392 
 
 Swilt ». Dean 
 
 
 218 
 
 Tew V. Winterton 
 
 169 
 
 Duffield 
 
 
 537 
 
 Thaoher v. Gammon 
 
 467 
 
 Eoberts 
 
 
 583 
 
 Thatcher v. Omans 
 
 302 
 
 Switzer v. Skiles 
 
 
 346 
 
 Thaxter v. Williams 
 
 507 
 
 Sydney v. Sydney 
 
 168 
 
 169 
 
 Thayer v. Felt 
 
 460 
 
 Syme v. Sanders 
 
 
 72 
 
 Mann 
 
 392, 433 
 
 Symouds v. Oudmore 
 
 
 670 
 
 Eicbards 
 
 415 
 
 Symson v. Butcher 
 
 
 207 
 
 Smith 
 
 480 
 
TABLE OP OASES OITBD IN VOL. ONE. 
 
 lix 
 
 Thelluson v. 'Woodford 
 
 
 537 
 
 Todd V. Beatly 
 
 
 139 
 
 Thomas v. Brinsfield 
 
 
 336 
 
 Hall 
 
 197 
 
 206 
 
 Brown 
 
 
 482 
 
 Toll V. Hiller 
 
 
 442 
 
 Cleaves 
 
 
 466 
 
 Tollemache v. Tollemache 
 
 
 276 
 
 Connell 
 
 232 
 
 236 
 
 ToUey v. Greene 
 
 
 130 
 
 Hatch 46, 48, 53, 599 
 
 601 
 
 Tollman v. Emerson 
 
 
 42 
 
 Haydeu 
 
 
 243 
 
 Tomlinson v. Dighton 
 
 
 623 
 
 Howell 
 
 
 380 
 
 Tompkins v. Elliott 
 
 
 366 
 
 MeCormaok 
 
 
 397 
 
 Tooke V. Blythway 
 
 
 487 
 
 Moody 
 
 
 16 
 
 Hardeman 
 
 
 153 
 
 Phelps 
 
 
 629 
 
 Tooker v. Squier 
 
 
 194 
 
 Simpson 
 
 
 150 
 
 Toovey v. Bassett 
 
 
 633 
 
 Thomas 
 
 
 102 
 
 Torrey v. Bank 348, 421 
 
 442 
 
 483 
 
 Ton KapEf 
 
 
 435 
 
 Wallis 
 
 
 212 
 
 "Walker 
 
 
 312 
 
 Torriano v. Young 
 
 
 282 
 
 Wood 
 
 30,32 
 
 Totten V, Stuyvesant 
 
 
 157 
 
 Thomaston, &o. v. Stimpson 
 
 
 467 
 
 Tower's, &c. 
 
 
 460 
 
 Thompson v. Barber 
 
 
 594 
 
 Towers v. Craig 
 
 
 64 
 
 Bostick 
 
 
 597 
 
 Davys 
 
 
 169 
 
 Boyce 
 
 
 415 
 
 Towle V. Ayer 
 
 
 47 
 
 Branch 
 
 
 307 
 
 Townsend v. Lawton 
 
 
 552 
 
 Bright 366, 384 
 
 388 
 
 Townsend 
 
 149 
 
 163 
 
 Chandler 
 
 
 436 
 
 Tracey v. Talbot 
 
 
 4 
 
 Cochran 
 
 
 116 
 
 Tracy v. Hereford 
 
 
 67 
 
 Gibson 
 
 
 294 
 
 Kilborn 
 
 
 628 
 
 Hallett 
 
 
 352 
 
 Trappes v. Barter 
 
 
 20 
 
 Leach ■ 
 
 
 543 
 
 Trask v. Patterson s 
 
 
 86 
 
 McGaw 
 
 136 
 
 137 
 
 White 
 
 
 423 
 
 Milford 
 
 
 43 
 
 Travell v. Danvers 
 
 
 386 
 
 Morrow 
 
 113 
 
 114 
 
 Treadwell v. Bulkley 
 
 
 577 
 
 Peebles 
 
 
 126 
 
 Roddick 
 
 
 50 
 
 Renoe 
 
 
 314 
 
 Treport's case 
 
 
 204 
 
 Spinks 
 
 
 229 
 
 Trevor v. Trevor 
 
 644 
 
 645 
 
 Thompson 
 
 14, 17 
 
 Trimble v. Trimble 
 
 
 97 
 
 Thornbrough v. Baker 
 
 
 430 
 
 Trimmer v. Heagg 
 
 
 87 
 
 Thorndike v. Spear 
 
 
 107 
 
 Heaggy 
 
 
 89 
 
 Thome v. Thorne 
 
 
 405 
 
 Troth V. Hunt 
 
 
 508 
 
 Thorneyc'roft v. Crockett 
 
 
 427 
 
 Trott V. Dawson 
 
 
 347 
 
 Thornhill v. Gilmer 
 
 
 460 
 
 Trotter v. Blocker 
 
 
 301 
 
 Thornton v. Ellis 
 
 
 29 
 
 Trudear v. M'Vioar 
 
 
 460 
 
 Eoss 
 
 
 52 
 
 True V. Ramsey 
 
 
 98 
 
 Kdox 
 
 
 494 
 
 Trull V. PulUr 
 
 
 21 
 
 Thornton 
 
 
 587 
 
 Owen 
 
 
 400 
 
 Thorp V. MeCullum 
 
 848 
 
 352 
 
 Skinner 
 
 395 
 
 400 
 
 Thorp 
 
 
 366 
 
 Trulock V. Robey 
 
 424 
 
 426 
 
 Thorpe v. Gardside 
 
 
 490 
 
 'J'ruscott V. King 
 
 
 421 
 
 Thunder v. Belcher 
 
 
 409 
 
 Trustees, &c. v. Bigelow 
 
 
 4 
 
 Thurston v. Dickinson 
 
 67 
 
 597 
 
 Clough 
 
 
 186 
 
 Tice V. Annin 
 
 
 416 
 
 Jaques 
 
 
 348 
 
 Tiernan v. Roland 
 
 
 02 
 
 Spencer 
 
 
 208 
 
 Tilburgh v. Barbut 
 
 
 636 
 
 Tubb V. Williams 
 
 
 48 
 
 Tilford V. James 
 
 
 437 
 
 Tubbs V. Lynch 
 
 
 586 
 
 Tilghman v. Cruson 
 
 
 565 
 
 Tucker v. Boswell 
 
 
 67 
 
 Little 
 
 
 220 
 
 Buffum 427, 428, 
 
 429, 
 
 465 
 
 Tillinghast v. Pry 
 
 415 
 
 420 
 
 Newman 
 
 
 566 
 
 Tilly V. Tiller 
 
 
 302 
 
 St. Clement's Church 
 
 
 361 
 
 Tilton V. Palmer 
 
 
 609 
 
 Tucker 359 
 
 360 
 
 362 
 
 Timewell v. Perkins 
 
 
 622 
 
 Tufnell V. Page 
 
 
 626 
 
 Tindall v. Den 
 
 
 219 
 
 Tuite V. Miller 
 
 
 139 
 
 Tinney v. Tinney 
 
 165, 
 
 166 
 
 Tunstall 
 
 
 356 
 
 Tipping V. Pigot 
 
 
 550 
 
 Turner 
 
 
 339 
 
 Tipping's case 
 
 
 641 
 
 Turner w. Bouehell 
 
 
 348 
 
 Titley v. Davis 
 
 
 419 
 
 Buck 
 
 
 271 
 
 Titus V. Neilson 
 
 
 415 
 
 Calvert 
 
 
 467 
 
 Tobey v. Reed 
 
 16, 
 
 407 
 
 Camerons 
 
 
 409 
 
 Webster 
 
 
 565 
 
 Doe 
 
 
 282 
 
 Tobias v. Frances 
 
 
 22 
 
 Johnson 
 
 68 
 
 370 
 
 Tod V. Baylor 
 
 114 
 
 145 
 
 Maule 
 
 
 366 
 
Ix 
 
 TABLE OF CASES CITED IN VOL. ONE. 
 
 Turner v. Patterson 
 
 527, 556, 643 
 
 Van Rensselear V. Jones 
 
 
 258 
 
 Petigrew 
 
 339 
 
 Kearney 
 
 
 62 
 
 Tebbult 
 
 366 
 
 Poucher 
 
 
 62 
 
 Tumey v. Sturges 
 
 159 
 
 Snyder 
 
 
 242 
 
 Tuttle V. Bean 
 
 284 
 
 Van Rhyn v. Vincent 
 
 
 336 
 
 Brown 
 
 448 
 
 Van Riper v. Bendam 
 
 
 613 
 
 ■Wilson 
 
 153 
 
 Williams 
 
 
 468 
 
 Tweedale v. Coventry- 
 
 569 
 
 Vansoe v. Russell 
 
 
 19 
 
 Twelves V. Williams 
 
 498 
 
 Van Valkenburgh v. Peyton 
 
 
 15 
 
 Twisden v. Look 
 
 664 
 
 Van Vechten v. Van Veohten 
 
 
 359 
 
 Twort V. Twort 
 
 599 
 
 Van Vronker v. Eastman 415, 
 
 417, 420 428, 
 
 Tyler '«). Hammond 
 
 52 
 
 
 
 484 
 
 Lake 
 
 304 
 
 Van Waggoner v. McEwen 
 
 
 268 
 
 Smith 
 
 42 
 
 Van Wyck v. Alliger 
 
 261, 
 
 408 
 
 Webb 
 
 490 
 
 Varick v. Edwards 
 
 
 336 
 
 Tylers, &o. 
 
 355 
 
 Vaughn v. Bacon 
 
 46 
 
 599 
 
 Tyree v. Williams 
 
 91 
 
 Veazey v. Whitehouse 
 
 
 365 
 
 Tyson v. Harrington 
 
 102 
 
 Vecht V. Brownell 
 
 187 
 
 483 
 
 Hollingsworth 
 
 16, 347 
 
 Venables v. Morris 
 
 302, 
 
 642 
 
 Postlethwaite 
 
 94 
 
 Verner v. Winstanley 
 
 
 402 
 
 Rickard 
 
 466 
 
 Vernon v. Bethell 
 Smith 
 
 
 398 
 435 
 
 IT 
 
 
 Vernon 
 
 
 258 
 
 
 
 Vernon's Case 
 
 164 
 
 165 
 
 tTnderhill v. Jackson 
 
 609 
 
 Vick V. Edwards 
 
 
 555 
 
 Union v. Emerson 
 
 28 
 
 Viokers v. Stone 
 
 
 526 
 
 Edwards 
 
 422 
 
 Vilea V. Moulton 
 
 
 446 
 
 Upham V. Bradley 
 
 609 
 
 Villers v. Handley 
 
 
 568 
 173 
 
 Varney 
 
 302 
 
 Vincent v. Spooner 
 
 
 Usher v. Richardson 
 
 127 
 
 Viner v. Vaughan 
 
 
 266 
 
 Uvedall v. Uvedall 
 
 520 
 
 Vischer v. Oonant 
 Viscount V. Morris 
 Vizard v. Longdale 
 
 
 144 
 413 
 165 
 
 V 
 
 
 Voorheea v. Freeman 
 
 26, 27 
 
 
 
 The Presbyterian, 
 
 &o. 4, 5 
 
 307 
 
 Tail V. Tail 
 
 359 
 
 Vredenbergh v. Morris 
 
 
 180 
 
 Vanaisdall v. Pauntleroy 
 
 77, 86 
 
 
 « 
 
 
 Van Arsdale v. Drake 
 
 609 
 
 
 
 
 Vance v. Campbell 
 
 129 
 
 W 
 
 
 
 Johnson 
 
 219 
 
 
 
 
 Vance 
 
 163, 165 
 
 Waddle v. Canton 
 
 
 448 
 
 Vanderheyden v. Crandall 
 
 295, 643 
 
 Waddington v. Bristow 
 
 
 11 
 
 Mallory 
 
 92 
 
 Wade V. Green 
 
 
 470 
 
 Vanderplant v. King 
 
 664, 666 
 
 Howard 
 
 440 
 
 472 
 
 Vanderpoel v. Van Allen 
 
 19 
 
 Merwin 
 
 
 461 
 
 Vanderwerker v. Vanderwerkef 609, 622, 
 
 Paget 
 
 
 333 
 
 
 626, 631 
 
 Wade's case 
 
 
 392 
 
 Van Deusen v. Prink 
 
 441, 448, 465 
 
 Wadleigh v. Glines 
 
 
 90 
 
 Vandevar v. Baker 
 
 123 
 
 Wadrop v. Wall 
 
 
 479 
 
 Van Duyne v. Thayer 
 
 417, 430, 489 
 
 Wafee v. Mocato 
 
 
 382 
 
 Vanduzer v. Vanduzer 
 
 82 
 
 Wager v. Wager 
 
 529 
 
 559 
 
 Van Dyne v. Van Ness 
 
 508, 510 
 
 Waggoner u. Hastings 
 
 
 43 
 
 Vane v. Ld. Barnard 
 
 277 
 
 Waggoner 
 
 
 357 
 
 Van Eps v. Van Eps 
 
 328 
 
 Wainright v. Warding 
 
 
 65 
 
 Van Hook v. Somerville 
 
 438 
 
 Wainwright v. Dove 
 
 
 605 
 
 Throckmorten 
 
 483 
 
 Ramsden 
 
 
 209 
 
 Van Home v. Dorvance 
 
 377, 380 
 
 Wait, &c. 
 
 
 228 
 
 Van Hyke v. Shelden 
 
 475 
 
 Wait-«. Day 
 
 
 324 
 
 Van Meter v. McPadden 
 
 492 
 
 Wait 
 
 
 324 
 
 Van Ness v. Hyatt 
 
 415 
 
 Wakeman v. Banks 
 
 408 
 
 410 
 
 Pacard 
 
 19, 20, 21, 23 
 
 Walcop V. McKinney 
 
 
 406 
 
 Vanneter v. Vanneter 
 
 421 
 
 Walden v. Bodley 
 
 
 216 
 
 Van Pelt v. McGrew 
 
 408 
 
 Waldo V. Hall 
 
 185 
 
 , 188 
 
 Van Rensselaer v. Akin 
 
 355 
 
 Walker v. Anskaly 
 
 
 510 
 
 Bradley 
 
 258 
 
 Brunjard 
 
 
 354 
 
 Gallup 
 
 187, 242, 258 
 
 Fetts 
 
 
 200 
 
 Hayes 
 
 238 
 
 Hallett 
 
 482 
 
 , 483 
 
 Jewitt 
 
 227, 242, 243 
 
 Hatten 
 
 
 208 
 
TABLE OF CASES CITED IN TOL. ONE. 
 
 Ixi 
 
 ■Walkers. Locke 
 
 
 318 
 
 Watson V. Dickens 
 
 397, 421 
 
 Physiok 
 
 
 232 
 
 Faxon 
 
 667, 669 
 
 Schuyler 
 
 
 114 
 
 Gregg 
 
 599 
 
 Sherman 
 
 
 20 
 
 Gri£f 
 
 46 
 
 Snedeher 
 
 
 421 
 
 HUl 
 
 601 
 
 "Walker 
 
 165, 
 
 396 
 
 Le Bow 
 
 312 
 
 Walkins v. Holman 
 
 
 279 
 
 Spence 
 
 498 
 
 "Wall V. Hill 
 
 
 10*7 
 
 Willard 
 
 494 
 
 ■Williamson 
 
 
 38 
 
 Watts V. Ball 
 
 328 
 
 WaUaoe v. Costen 
 
 
 92 
 
 Claudy 
 
 61, 660 
 
 Hall 
 
 
 138 
 
 Coffin 
 
 252 
 
 Maxwell 
 
 
 50 
 
 Lee 
 
 576 
 
 Waller v. Tate 
 
 416 
 
 431 
 
 Symes 
 
 419 
 
 Wallis V. Harrison 
 
 
 180 
 
 Wadell 
 
 87 
 
 Walling V. Aoken 
 
 
 421 
 
 Way V. Patty 
 
 493 
 
 Wallingford v. Hearl 
 
 
 568 
 
 Wane v. Middleton 
 
 303 
 
 Walsingham's case 
 
 
 59 
 
 Weale v. Lower 
 
 556 
 
 Walter v. Bould 
 
 
 60 
 
 Wease v. Pierce , 
 
 468, 471 
 
 Sleeper 
 
 
 508 
 
 Weatherford v. Weatherford 
 
 97 
 
 Walters v. Jordan 
 
 
 102 
 
 Webb V. Dixon 
 
 201 
 
 Walthen v. Crofts 
 
 
 206 
 
 Evans 
 
 183 
 
 Walton V. Oronly 
 
 
 396 
 
 Flanders 
 
 459 
 
 Coulson 
 
 
 536 
 
 Hearing 
 
 525 
 
 Walton V. Withington 
 
 
 426 
 
 Holmes 
 
 143 
 
 Walton's 
 
 
 357 
 
 Rice 
 
 396 
 
 Wamburzee v. Kennedy 
 
 300 
 
 322 
 
 Sugar 
 
 , 550 
 
 Wampler v. Shipley 
 
 
 338 
 
 Sturtevant 
 
 43 
 
 Wan dell 
 
 
 230 
 
 Townsend 
 
 111 
 
 Wansbrough v. Matin 
 
 
 19 
 
 Webber v. Mallett 
 
 594 
 
 Ward V. Amory 
 
 
 81 
 
 Shearman 
 
 239, 281, 588 
 
 Bull 
 
 244 
 
 256 
 
 Webber 
 
 430 
 
 EuUer 
 
 
 41 
 
 Webster v. Gilman 
 
 41, 181, 548 
 
 Jones 
 
 
 660 
 
 French 
 
 340 
 
 MaltbiuB 
 
 
 358 
 
 Wedderburn v. Wedderbum 
 
 3.36 
 
 Smith V. Wandell 
 
 
 352 
 
 Weed V. Beebe 
 
 472, 478 
 
 Warden v. Adams 
 
 431 
 
 432 
 
 Weedall v. Few Hamp. 
 
 481 
 
 Ware v. Polfaill 
 
 
 59 
 
 Weeks v. Hoas 
 
 327 
 
 Waring v. Darrell 
 
 
 347 
 
 Patten 
 
 130 
 
 King 
 
 
 202 
 
 Weeks 
 
 600 
 
 Page 
 
 
 282 
 
 Weeton v. Woodcock 
 
 24 
 
 Ward 
 
 
 454 
 
 Wegg V. Tillers 
 
 545 
 
 Warburton v. Lanman 
 
 
 435 
 
 Weidman v. Marsh 
 
 617 
 
 Warner v. Hitchens 
 
 
 211 
 
 Weir V. Tate 
 
 102, 103 
 
 Warren v. Child 
 
 
 460 
 
 Weight V. Rose 
 
 31 
 
 Davis 
 
 
 599 
 
 Welch V. Alien 
 
 618 
 
 Leland 
 
 10 
 
 220 
 
 Weld V. Peters 
 
 618 
 
 Warwick u. Bruce 
 
 
 12 
 
 Williams 
 
 634 
 
 Wartenly v. Moran 
 
 242 
 
 380 
 
 Welland v. Gray 
 
 421 
 
 Washburn v. Groodwin 
 
 
 416 
 
 Wellburn v. Williams 
 
 493 
 
 Sproat 
 
 
 5 
 
 Welles V. Cowles 
 
 29, 205 
 
 Titus 
 
 
 396 
 
 Hynes 
 
 51 
 
 Washburn 
 
 
 382 
 
 Wellook V. Hammond 
 
 670 
 
 Washington v. Abraham 
 
 
 32 
 
 Wells V. Beal 
 
 147, 153 
 
 Conrad 
 
 219 
 
 600 
 
 Bannister 
 
 7 
 
 Wasson v. English 
 
 
 350 
 
 Chapman 
 
 600 
 
 Waterman' «. Soper 
 
 
 10 
 
 Martin 
 
 119 
 
 Waters v. Baily 
 
 
 350 
 
 Morse 
 
 418, 423 
 
 Gorch 
 
 
 113 
 
 Smith 
 
 382 
 
 Mynn 
 
 
 395 
 
 Thompson 
 
 75, 82 
 
 Eandall 
 
 393, 398 
 
 ,400 
 
 Wendell v. Craindell 
 
 82, 518 
 
 Stuart 
 
 
 460 
 
 N. H. &c. 
 
 386 
 
 Waters 
 
 
 354 
 
 Van Rensselaer 
 
 470 
 
 Wathen v. English 
 
 
 602 
 
 Wenton v. Cornish 
 
 4 
 
 Wathwell v. Howells 
 
 
 24 
 
 Wentworth v. Wentworth 
 
 159 
 
 Watrous v. Spencer 
 
 
 482 
 
 Wentz V. Dehaven 
 
 439 
 
 Wells 
 
 
 492 
 
 Finoher 
 
 6 
 
 Willard 
 
 
 494 
 
 West V. Blakesley 
 
 23 
 
 Watson V. Bonney 
 
 
 92 
 
 Chamberlain 
 
 474 
 
Ixii 
 
 TABLE OF OASES CITED IN VOL. ONE. 
 
 Vest V. Brissey 
 
 646 
 
 White V. Woodberry 
 
 Lanier 
 
 62 
 
 White's .A.ppeal 
 
 &o. V. Chester 
 
 448 
 
 Whiting V. Brastow 
 
 Westenberger v. Keiat 
 
 619 
 
 Stephens 
 
 Western, &e. v. Kyle 
 
 385, 388 
 
 Whiting 
 
 Westlake v. De&raves 
 
 244 
 
 Whitlock V. Duffield 
 
 "Weston V. Foster 
 
 528, 606 
 
 Norton 
 
 Hunt 
 
 64 
 
 Whitmarsh v. Cutting 
 
 Woodcock 
 
 24 
 
 Walker 
 
 Wetherby v. Foster 
 
 26 
 
 Whittemore v. Moore 
 
 Whaler v. Brancomb 
 
 409 
 
 Whitney v. Allaire 
 
 Story 
 
 154 
 
 Gordon 
 
 Wharf ». Howell 
 
 397 
 
 Holmea 
 
 Wharton v. Gresham 
 
 637 
 
 Lovett 
 
 Shaw 
 
 31 
 
 Meyers 
 
 Wharton 
 
 60 
 
 Spencer 
 
 Whately v. Kemp 
 
 645 
 
 Swett 
 
 Wheale v. Power 
 
 222 
 
 Whitney 
 
 Wheatland v. Dodge 
 
 636 
 
 Whitten v. Whitten 
 
 Wheatley v. Best 
 
 103 
 
 Whitterue v. Lamb 
 
 Wheaton v. Andress 
 
 626 
 
 Whitticke v. Kane 
 
 Wheelan v. HUl 
 
 511 
 
 Whittier v. Dow 
 
 Wheeler v. Bomell 
 
 222 
 
 Whittington v. Bright 
 
 Barle 
 
 242 
 
 Whitworth v. Gaugain 
 
 TTill 
 
 186 
 
 Wickes V. Clarke 
 
 Hotohkiss 
 
 82 
 
 Wickerly v. Wickerly 
 
 Montefiore 
 
 28, 293 
 
 Wickersham v. Irwin 
 
 Smith 
 
 671 
 
 Wickham v. Hawker 
 
 Stone 
 
 52 
 
 Wickliffea. Clery 
 
 Thorogood 
 
 179 
 
 Ensor 
 
 Walker 
 
 383 
 
 Widlake v. Harding 
 
 Wood 
 
 281, 287 
 
 Wigg V. Wigg 
 
 Wheelwright v. Freeman 
 
 477 
 
 Wight V. Shaw 
 
 Loomer 
 
 428 
 
 Wilbur V. Wilbur 
 
 Whelpdale v. Cookaon 
 
 349 
 
 Wilcox V. Hubard 
 
 Whetstone v. Bury 
 
 302 
 
 Morris 
 
 Whichoote v. Fox 
 
 371 
 
 Randall 
 
 Lawrence 
 
 348, 350 
 
 Woods 
 
 Whipple 0. Foot 
 
 17 
 
 Wilcoxen v. Bowles 
 
 Whitaker v. Sumner 
 
 460 
 
 Wild V. Wells 
 
 Williams 
 
 470 
 
 Wild'a case 
 
 Whitaker 
 
 180 
 
 Wilder i). Smith 
 
 Whitbeck v. Cooke 
 
 90 
 
 Wiles V. Gibaon 
 
 Edgar 
 
 478 
 
 Wiley V. Smith 
 
 Skinner 
 
 211 
 
 Wilford V. Koae 
 
 Whitfield V. Bewit 
 
 265, 274 
 
 Wilhelm v. Tolmer 
 
 Faussitt 
 
 558 
 
 Wilkes V. Lion 
 
 Taylor 
 
 168 
 
 Wilkerson v. Daniels 
 
 Whithead's case 
 
 490 
 
 Wilkins v. French 
 
 Whithed v. Mallory 
 
 119 
 
 Washbinder 
 
 White V. Arndt 
 
 19, 21, 25 
 
 Whiting 
 
 Bailey 
 
 285 
 
 Wilkins 
 
 Baily 
 
 216 
 
 Wilkinson v. Hall 
 
 Bond 
 
 460 
 
 Parish 
 
 Brown 
 
 427 
 
 "Spearman 
 
 Carpenter 
 
 •312, 315 
 
 Will V. Peters 
 
 Carter 
 
 655 
 
 Willard v. Fiske 
 
 Clark 
 
 157 
 
 Harvey 
 
 Collins 
 
 652 
 
 Henry 
 
 Cutler 
 
 111 
 
 Tellman 
 
 Hillacre 
 
 419 
 
 Tulman 
 
 Knapp 
 
 446 
 
 Willet V. Beaty 
 
 Story 
 
 168, 159 
 
 Willett V. Winnell 
 
 Stover 
 
 494 
 
 Willingtbn v. Willington 
 
 Todd 
 
 441 
 
 Gale 
 
 Wagner 
 
 268, 271 
 
 Willink V. Vanderveer 
 
 Willis 
 
 111 
 
 Willion V. Graham 
 
 White 
 
 336 
 
 Berkley 
 
 643 
 
 28 
 
 22 
 
 88 
 
 59 
 
 218 
 
 94 
 
 14 
 
 11, 23, 222 
 
 214 
 
 178, 250 
 
 284 
 
 222 
 
 280 
 
 183 
 
 369 
 
 284 
 
 517, 569 
 
 318,326 
 
 66 
 
 396, 396 
 
 477 
 
 600 
 
 490 
 
 82 
 
 168 
 
 186 
 
 222 
 
 8 
 
 52 
 
 624 
 
 384 
 
 644 
 
 597 
 
 122 
 
 398 
 
 120 
 
 201 
 
 227 
 
 147* 
 
 636 
 
 494 
 
 232 
 
 634 
 
 271 
 
 331 
 
 519 
 
 478 
 
 405, 417, 418, 431 
 
 12 
 
 647 
 
 478 
 
 406 
 
 611 
 
 675 
 
 285 
 
 485 
 
 416, 436, 384 
 
 384, 386- 
 
 191, 192 
 
 256 
 
 160 
 
 389 
 
 56 
 
 406 
 
 316 
 
 495 
 
 612, 636 
 
TABLE OF OASES OITED IN VOL. ONE. 
 
 Ixiii 
 
 Willis V. Astor 
 
 213 
 
 Withers v. Jsam 
 
 63 
 
 Backer 
 
 623 
 
 Withers v. Morrell 
 
 468 
 
 Swett 
 
 413 
 
 Wolcott V. Sullivan 
 
 4U 
 
 "WiUia 
 
 312 
 
 Wolfe V. Bate 
 
 342 
 
 Williston V. "White 
 
 294 
 
 Dowell 
 
 439 
 
 "Willoughby v. Jenks 
 
 1 
 
 Van Nostrand 
 
 516, £19 
 
 Wills ti. Palmer 
 
 298 
 
 Wollaston v. HaskweU 185, 
 
 187, 231, 233 
 
 Wilton V. Dunn 
 
 409 
 
 Womble v. Battle 
 
 492 
 
 Williams v. Bosanquet 
 
 m, 412 
 
 Wood V. Baren 
 
 , 637 
 
 Burbeok 
 
 438 
 
 Chambers 
 
 219, 220 
 
 Castou 
 
 67, 12, 626 
 
 Gaynon 
 
 266 
 
 Chitty 
 
 166 
 
 Hewitt 
 
 19 
 
 Cowden 
 
 316 
 
 Hubbell 
 
 178 
 
 Cox 
 
 103 
 
 Jones 
 
 413 
 
 Duke of Bolton 
 
 274 
 
 Keyes 
 
 30 
 
 FuUerton 
 
 331 
 
 Mann 
 
 478 
 
 Halbut 
 
 246 
 
 Partridge 
 
 239, 250 
 
 HoUingsworth 
 
 312, 342 
 
 Reignold 
 
 546 
 
 Kelsey 
 
 469 
 
 Shurley 
 
 164, 168 
 
 Little 
 
 443 
 
 Southhampton 
 
 377 
 
 Morgan 
 
 150 
 
 Turner 
 
 216 
 
 Morris 
 
 233 
 
 White 
 
 338 
 
 Owen 
 
 402, 419, 437 
 
 Williams 
 
 478 
 
 Pope 
 
 86 
 
 Wood 131, 302 
 
 336, 338, 361 
 
 Potter 
 
 239 
 
 Wood's case 
 
 656 
 
 Powell 
 
 348 
 
 Wooden v. Butler 
 
 185 
 
 Reed 
 
 458 
 
 Haviland 
 
 468 
 
 Eoberts 
 
 493 
 
 WoodgateiJ. TJnwin 
 
 676 
 
 Sorrell 
 
 438 
 
 Woodhouse v. Haskins 
 
 550, 551, 552 
 
 Stevens 
 
 458 
 
 Woodiiff V. Drury 
 
 298, 641 
 
 Stratton 
 
 492 
 
 Woodman v. Blake 
 
 382 
 
 Tearney 
 
 609 
 
 Morrell 
 
 325 
 
 TFiurlow 
 
 439 
 
 Woodroffe v. Daniel 
 
 66, 60 
 
 Williams 
 
 327, 624 
 
 Woodruffs. Brown 
 
 44 
 
 Woods 
 
 492 
 
 Robb 
 
 395 
 
 Williamson v. Berry 
 
 528 
 
 Woods V. Bailey 
 
 494 
 
 Champlin 
 
 485 
 
 Biinks 
 
 60 
 
 Curtis 
 
 342 
 
 Huntingford 
 
 454 
 
 Field 
 
 478, 618, 527 
 
 Woods 
 
 73, 108 
 
 Leaber 
 
 348 
 
 Woodson V. Haviland 
 
 515 
 
 Richardson 
 
 238 
 
 Perkins 
 
 420 
 
 Wilson V. Anderson 
 
 209 
 
 Woodward v. Brown 
 
 216 
 
 Bailer 
 
 304 
 
 Seely 
 
 224, 225 
 
 Chalfant 
 
 225 
 
 Woodward 
 
 493 
 
 Cheslin 
 
 296, 333 
 
 Woolridge v. Wilkins 
 
 113 
 
 Collislian 
 
 601 
 
 Woorall V. Morgan 
 
 659 
 
 Douglass 
 
 177 
 
 Woorall 
 
 62 
 
 Hall • 
 
 41 
 
 Wooton V. Edwin 
 
 235 
 
 Leonard 
 
 208 
 
 Worsley v. Stewart 
 
 266, 272 
 
 Mason 
 
 340 
 
 Worlhington v. Lee 
 
 479 
 
 Oatman 
 
 113 
 
 Middleton 
 
 126 
 
 Smith 
 
 253, 263 
 
 Worthy v. Johnson 
 
 352 
 
 Troup 
 
 405, 447, 483 
 
 Wotten V. Hele 
 
 206 
 
 Wilson 
 
 349 
 
 Wright V. Atkins 
 
 628 
 
 Wilton V. Dunn 
 
 409 
 
 Barrett 
 
 10 
 
 "Winbush v. Tailbois 
 
 620 
 
 \ Bates 
 
 393, 398, 402 
 
 Winder v. Dififenderffer 
 
 338, 347 
 
 Cartwrlght 
 
 176 
 
 Windham v. Portland 
 
 104, 136, 161 
 
 Dowley 
 
 617 
 
 Windsor v. Gover 
 
 233 
 
 Holfbrd 
 
 668 
 
 Winn V. Cole 
 
 368 
 
 Jennings 
 
 145 
 
 Winnington v. Foley 
 
 651 
 
 Marsh 
 
 616 
 
 Winnington's Case 
 
 298 
 
 Moore 
 
 279 
 
 Winslow V. Merchants, Ac. 
 
 20, 22, 29, 405 
 
 Pearson 
 
 648, 649 
 
 Goodwin 
 
 560 
 
 Rose 
 
 428, 450 
 
 Rand 
 
 237 
 
 Bussel 
 
 626 
 
 Winter v. Lord Anson 
 
 495 
 
 Trevesant 
 
 194 
 
 Winter's case 
 
 233 
 
 Tukey 
 
 480 
 
 Wisecot's case 
 
 632 
 
 Woodland 
 
 499 
 
Ixiv 
 
 TABLE OF CASES CITED IN YOL, ONE. 
 
 Wright V. 'Wright 
 
 108 
 
 668 
 
 Telverton v. Telverton 
 
 296 
 
 Wrixton v. Cotter 
 
 
 400 
 
 Tork 0. Stone 
 
 583 
 
 Wroth V. Greenwood 
 
 
 302 
 
 Toung 0. Chambers 
 
 509 
 
 Wyatt V. Brown 
 
 
 121 
 
 Dake 
 
 286 
 
 Sadler 
 
 
 626 
 
 Poster 
 
 96 
 
 Wyooff V. longhead 
 
 
 46t 
 
 Jones 
 
 13 
 
 Wynne v. Alston 
 
 
 495 
 
 Lyman 
 
 603, 509 
 
 Wynne 
 
 
 180 
 
 Morton 
 Peachy 
 Wood 
 
 212 
 396 
 494 
 
 T 
 
 
 
 Tundt'a Appeal 
 
 304 
 
 Tates ». Ashton 
 
 
 SDV 
 
 Z 
 
 
 Paddock 
 
 146 
 
 ,160 
 
 
 
 Tates 
 
 360 
 
 361 
 
 Zeeter v. Bocoman 
 
 409 
 
 Tearworth v. Peiroe 
 
 
 18 
 
 Zyle V Duoomb 
 
 508 
 
 Telverton v. Shelden 
 
 
 431 
 
 Zylstra i). Ruth 
 
 488 
 
THE 
 
 AMERICAN LAW OF REAL PROPERTY. 
 
 CHAPTER I. 
 
 REAL PROPERTY IN GENERAL. 
 
 1.4. Lands, tenementa and hereditaments.- 
 2. Heir-looms. 
 
 6. Water. ' 
 
 7. Seal estate — definition. 
 
 8. Land — what it includes. 
 1^. Chamber of a house. 
 
 13. Pews. 
 
 14. Building on another's land. 
 29. Mines. 
 
 30. Trees. 
 
 36. Growing crops. 
 
 41. EmMements. 
 
 71. Sea- weed. 
 
 72. Wreck, &o. 
 
 73. Manure. 
 
 74. Fixtures. 
 
 107. Shares in corporations. 
 
 110. Money to be laid out in land. 
 
 1. Eeal PROPERTY, in the technical phraseology of the law, consists 
 of lands, tenements and hereditaments. The first of these terms is the least 
 comprehensive, including only corporeal or tangible property, while the 
 two last embrace also incorporeal property. Thus a rent or right of 
 common, though not land, is still real property, being both a tenement 
 and herediiament.{a) The term hereditament, which is the most com- 
 prehensive of the three, besides including the others, applies also even 
 to articles of personal property, provided they are such as pass to the 
 heir and not to the executor ; as, for instance, an annuity, limited to 
 heirs, or the condition in a bond. So the visitatorial power, vested in the 
 visiters of a corporation, has been termed an hereditament. So also a 
 land-warrant. So the right of permanently overflowing the land of 
 another by a mill-dam below it, and a corporate right to select and 
 acquire land for a corporate purpose. So a ferry. (1) 
 
 (1) Co. Litt. 6 a; 1 Cruise, 37 ; 2 Black. 
 17; Mitchell «. Warner, 5 Conn. 518 ; Canal, 
 &e. V. Railroad, &o., 4 Gill & J. 1 ; Allen v. 
 M'Keen, 1 Sumn. 301 ; Dunlap v. Gibbs, 4 
 
 Yerg. 94; Harris o. Miller, 1 Meigs, 158; 
 Sacket v. Wheaton, 17 Pick. 103 ; Bowman 
 V. Wathen, 2 MoL. 376 ; Radburn v. Jervis, 
 3 Beav. 450. 
 
 (a) A public way, says Mr. Justice Cowen, if not an hereditament in every sense, is cer- 
 tainly a quasi hereditament. Willoughby v. Jenks, 20 Wend. 99. A road was laid out over 
 land which had been taken by a turnpike company, improved by them, and afterwards sold 
 to an individual. Held, the old way of the company was not lajid, within the meaning of 
 the Road Acts and the Constitution of New Jersey. In the Matter, &e., 2 N. J., 293. 
 
 A water company, which has laid pipes in a land-tax division, under a statutory power, 
 but owns no land within the division, is not assessable there to the land-tax ; the right in 
 question being in the nature of an easement, and not land or hereditament. Chelsea, &c. v. 
 Bowley, 7 Eng. Law and Eq,, 376. 
 
 The grant of a whole mineral stratum, under the soil of the grantor, is a grant of a real 
 hereditament, Stoughton v. Leigh, 1 Taun. 402. 
 
EEAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 2. In England, the most frequent example of a personal heredita- 
 ment is an heir-loom. Heir-looms are certain chattels that accompany 
 the inheritance ; such as deer in a park, doves in a dove-house, or the 
 ancient jewels of the crown. So, an ancient horn, which had gone im- 
 memorially with the estate, and iDeen delivered to the plaintiff's ances- 
 tors to hold their land by.(l) It has been suggested, that nothing is 
 strictly an heir-loom, which passes by the general law, and not by spe- 
 cial custom. The instances mentioned are said to be merely in the 
 nature of heir-loom.s.(2) ' 
 
 3. In the United States, heir-looms, as such, are for the most part 
 ■unknown. They are, however, recognised by the statute law of Mary- 
 land,(3) and excepted from the general disposition of personal prop- 
 erty upon the death of the owner. And the principle applies to title- 
 deeds,{a) which Lord Coke calls " the sinews of the inheritance ; " the 
 chests and boxes containing them ; and to the keys of a house — all of 
 ■which undoubtedly pass with the land to which they pertain. So also, 
 in England, to family pictures.(4) In those States where slavery is 
 known, it would seem that the transmission of slaves is founded upon 
 a somewhat similar principle. In Virginia, Missouri and Maryland, 
 slaves are either declared by statute to be personal estate, or treated as 
 such, in reference to devises.(5) So, to a great extent, in Mississippi 
 and Kentucky. (6) But whether personal or real, technically speak- 
 ing, it is the almost universal practice to treat them, in many important 
 particulars, such as dower, or the formalities of transfer by deed or 
 execution, like real property ; or at least to place them on an inter- 
 mediate ground between lands and chattels. 
 
 4. "Lands, tenements(6) and hereditaments," is the phrase commonly 
 used in the American statute law, to denote real estate. But in Dela- 
 ware, Massachusetts, Maine and New Hampshire, it is provided, that 
 the words " land " or " lands " and " real estate," when used in a statute, 
 shall include "lands, tenements and hereditaments, and all rights 
 thereto and interests therein," unless the Legislature manifestly intend 
 otherwise. So in New York, with the terms " real property." And 
 in Missouri, real estate, when spoken of in the statute concerning exe- 
 cutions, is declared to mean lands, tenements, &c., and in the statute re- 
 lating to conveyances, to include chattels real. So in Arkansas, in the 
 statute relating to estates, &c.(7) 
 
 (1) 1 Cruise, 38; Co. Lit. 9 a, n. 1 ; Pusey 
 V. Pusey, 1 Vern. 213 ; Ibbetson v. Ibbetson, 
 5 My. & C. 26 ; Conduilt v. Soane, 1 Coll. 285 ; 
 N. H. Rev. St. 45 ; Maine lb. 45 ; Verm. lb. 
 240, 294. 
 
 (2) Amos on Fix. 161, et seq. 
 
 (3) Anthon's Shep. 428. 
 
 (4) Liford's case, 11 Co. 60 — an interesting 
 and valuable ease. 
 
 (5) Antli. Shep. 428, 494 ; Misso. St. 588. 
 
 (6) Smiley v. Smiley, 1 Dana, 94 ; 1 Ky. 
 Rev. L. 566"; Miss. L. 1839, 72; Briscoe);. 
 ■Wickliffe, 6 Dana, 164. 
 
 (7) Mass. Rev. St. 60; lb. 413 ; Misso. St. 
 124, 262; Ark. Rev. St. 189, 331; N. H. 
 Rev. St. 45 ; Me. St. 45; Vern. St. 240, 294; 
 N. Y. Code, 1851, 144; Dela. Rev. Sta. 7. 
 
 (a) It will be seen hereafter, (see ch. 4, ss. 3, 13,) that important questions may arise be- 
 tween parties holding distinct interests in the same land — as, for instance, tenant for life 
 and the owner in fee, or feoffee and cestui que use — in regard to possession of the title-deeds. 
 
 (5) The word tenement is frequently used in a restricted sense, as signifying a house or 
 building ; but it is also used in a much more enlarged sense, as signifying land, or any cor- 
 poreal inheritance, or any thing of a permanent nature, which may be holden. And where 
 it was used in a statute, providing a summary remedy for landlords to recover possession ; 
 held, that as the act was a remedial one, the latter sense of the word should be adopted. 
 Sacket v. ■Wheaton, 17 Pick. 105. 
 
OHAP. I.] REAL PROPERTY IN GENERAL. g 
 
 5. Lands, tenements and hereditaments, have been held to imclude a 
 reversion expectant upon a life estate, and also equitable estates. So 
 an insolvent debtor's assignment of " all his lands, tenements and 
 hereditaments," will pass all his real estate.(l) 
 
 6. Water is neither land nor a tenement^ and is not demandable in a 
 suit, except as so many acres of land covered with water. It is a mova- 
 ble, wandering thing, and must, of necessity, continue common by the 
 law, of nature. The air which hovers over one's land, and the light 
 which shines upon it, are as much land as water is.(.2) 
 
 7. It will be seen hereafter, that a subject of ownership, though in 
 its nature real, may be owned in such a way as to constitute a chattel 
 interest or personal estate. Thus, an estate for ^ea/rs in land is personal 
 property; (see ch. 14, s. 23.) So is every other estate less than freehold. 
 The terms real estate and personal estate, therefore, denote sometimes 
 the nature of the property, and sometimes the particular interest in that 
 property. The former is the popular, and the latter the technical use 
 of those expressions. In conformity with the latter, things real are said 
 to be "permanent as to place, and perpetual as to duration."(3) The 
 real estate required to gain a settlement has been held to mean a free- 
 hold interest, either rightful or wrongful. (4) 
 
 8. Land includes not only the ground or soil, but everything attached 
 to it above or below, whether by the course of nature, as trees, herbage, 
 stones, mines and water, or by the hand of man, as houses.(a) The 
 legal maxim is, " cujus est solum, ejus est usque ad ccelum." Hence, if a 
 man devises a. lot of land having a building upon it, the building will 
 pass with the land without being named, even though other buildings 
 are named, in the devise. But it is usual to insert the clause, " with 
 all the buildings thereon."(5) 
 
 9. A man conveys to A, his daughter, for the consideration of love 
 and affection, a lot of land with one-half of the buildings thereon. The 
 same -day he conveys to B, for the consideration of £300, one-half of 
 the buildings standing on the land this day conveyed to A. There was 
 nothing but the last clause, to show which was the prior deed. Held, 
 inasmuch as the time, person, consideration, subject and purpose of the 
 two deeds were different, and, as they were not given in pursuance of 
 any joint contract, one could not qualify the effect of the other, but 
 A took the whole land and buildings, and B took nothing. It 
 might have been otherwise, had both deeds been delivered simulta- 
 neously.(6)('5) 
 
 10. Land, upon which were a well and pump, was conveyed by 
 
 (1) Cook V. Hammond, 4 Mas. 488 ; Dun- 
 lap V. Gibbs, 4 Yerg. 94. See Moore o. 
 Denn, 7 Bro. P. C. 607, 2 B. & P. 247 ; Doe 
 V. Allen, 8 T. R. &03 ; Pingree v. Comatock, 
 18 Pick. 46. 
 
 (2) Mitchell v. Warner, 5 Conn. 497 ; Co. 
 Litt. 4 a. 
 
 (3) 1 Swift, 73. 
 
 (4) Charleston v. Ackworth, 1 N. H. 62. 
 See City, &c. v. Dedbam, 4 Met. 179-80. 
 
 (5) 14 n. 8, fol. 12; Com. Dig. Grant E. 3, 
 Co. Litt. 4 a; Adams v. Smith, Bre. 221; 
 Greenleaf u. Franeis, 18 Pick. 117; 4 Y. & 
 Coll. 403. 
 
 (6) Isham v. Morgan, 9 Conn. 374. 
 
 (a) Where the agents of the State are empowered to take certain "lands" for the con- 
 struction of a canal, they have authority to take the stones contained therein. Baker v. 
 Johnson, 2 Hill, 342. The projection of a building over a piece of ground purchased, will 
 justify the purchaser in rescinding the sale. Pope v. Garland, 4 Y. & Coll. 403. 
 
 (i) Williams, J., dissented. This case probably carries the principle stated in the text to 
 as great a length as any one to be found in the books. See Moore v. Fletcher, 4 Shepl. 63. 
 
REAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 metes and bounds, without mentioning them ; and the following words, 
 " with pump and well of water," were afterwards interlined. Held, as 
 the words did not change the legal effect of the deed, the alteration 
 was an immaterial one.(l) 
 
 . 11. The rule above mentioned is well settled as a general principle 
 of law ; subject, however, to many qualifications or exceptions, which 
 require to be distinctly considered. "We propose, accordingly, to state 
 the various cases in which movable things, connected with or attached 
 to land, are subject to a peculiar ownership ; and the respective rules 
 of law applicable to those cases. 
 
 12. It was anciently held, that there could be no freehold estate in 
 the chamber of a house, because it must fail with the foundation; and, 
 therefore, that it would pass without livery. But it seems to be now 
 settled otherwise. Ejectment will lie for a house, without any ]and.(a) 
 And where the chamber belongs to one person, and the rest of the 
 house with the land to another, the two estates are regarded in law as 
 separate but adjoining dwelling-houses.(2) So if a house contain several 
 rooms, with an outer door to each, and' not communicating with each 
 other ; they are held to be distinct houses. But if the owner lives in 
 the house, the unoccupied rooms are a part of it.(3) But a lease even 
 of the cellar and lower room of a building of several stories, passes no 
 interest in the land. Upon the destruction of the building, the whole 
 right of the lessee is gone. It would be so with the lease of a cawe.(4) 
 
 13. A pew in a meeting-house is in general deemed real estate.(&) 
 In England, (c) the right to a pew is a franchise, depending either on a 
 grant frorh the ordinary, or on prescription.(5) In Maine, Michigan, 
 and Connecticut,(6) pews are declared by statute to be real estate. So 
 in Massachusetts, (7) except in Boston, where they are treated as per- 
 sonal property. In New Hampshire,(8) they are personal estate. In 
 New York,(9) the precise nature of this kind of property has been a 
 subject of frequent discussion. It is held to be such an interest in real 
 
 (1) Brown v. Pinkham, 18 Pick. It 2. 
 
 (2) Bro. Abr. Demand, 20 ; Co. Litt. 48 b ; 
 Otis V. Smith, 9 Pick. 297 ; Loring v. Bacon, 
 4 Mass. 575; Aldrich v. Parsons. 6 N. H. 
 555 ; Doe v. Burt, 1 T. R. 701. See Prop'rs. 
 &c. V. City, &c., 1 Met. 538 ; See Gilliam v. 
 Bird, 2 Ired. 280; Browning v. Dalesme, 3 
 Sandf. 13; Gillist;. Bailey, 1 Post (N. H.) 149. 
 
 (3) Tracey v. Talbot, 6 Mod. 214. 
 
 (4) Winton «. Cornish, 5 Ohio, 478; Kerr 
 V. Merchants', &c., 3 Edw. 315. 
 
 (5) 2 Black. 428 ; 3 Kent, 402, u. 
 
 (6) 1 Smith's Stat. 145; Conn. L. 432; 
 
 Price V. Lyon, 14 Conn. 279; Mich. Rev. St. 
 266. 
 
 (7) Bates v. Sparrel, 10 Mass. 323 ; Mass. 
 Rev. Stat. 413. 
 
 (8) N. H. L. 186, Rev. Stat. 369. 
 
 (9) Elder «. Rouse, 15 "Wend. 218; Trus- 
 tees, &c. V. Eigelow, 16 lb. 28. See Brick, 
 &b., 3 Edw. 155; Baptist, &e. v. Witherell, 3 
 Paige, 302 ; Shaw v. Beyeridge, 3 Hill, 26 ; 
 Heeney v. St. Peter's, &o., 2 Edw. 608 ; 
 Toorhees v. The Presbyterian, &c., 8 Barb. 
 135. 
 
 (o) So, where land has a house on it, occupied by several tenants, who rent different 
 apartments, they are joint occupants of the land, and may be proceeded against jointly in 
 an action of ejectment. Pearce v. Golden, 8 Barb. Sup. Ct. 522. 
 
 (6) A suit against n pew-holder for rent, the pew having been granted to him and his 
 heirs by a church corporation, is an action in which the title to real estate comes in ques- 
 tion, it being necessary for the plaintiffs to show title in the defendants, in order to recover 
 the rent ; therefore the plaintiffs, in such a suit in the circuit, are entitled to full costs if 
 they prevail, though the verdict is for less than $100. Presbyterian Church v. Andruss, 1 
 New Jersey, 325. 
 
 (c) The parson has the freehold of his church, and the right in a pew is a mere easement 
 annexed to a particular messuage. Pews are subject to the control of the church-wardens, 
 under the ordinary. See Reynolds v. Monkton, 2 Carr. & K. 385. 
 
CHAP. I.] 
 
 REAL PROPERTY IN GENERAL. 
 
 estate as comes within the Statute of Frauds, though the contract relate 
 to a meeting-house not yet erected. But a statute, requiring authority 
 from the chancellor to empower a religious corporation to sell its real 
 estate, was held not applicable to a sale of the pews. In the same State, 
 it has been held, that a pew-holder has no interest in the soil. The 
 freehold is in the trustees, who may sell the property, notwithstanding 
 the rights of pew owners.(l)(«) The property in a pew, whether the 
 owner be a member of the society or not, is not absolute, but qualified 
 and usufructuary ; an exclusive right to occupy a certain part of the 
 meeting-house for the purpose of attending public worship, and no 
 other; and is necessarily subject to the right in the parish or town to 
 remove, take down, repair, &c., unless these acts be done wantonly. 
 If the house is burnt, or destroyed by time, the right ceases. In Mas- 
 sachusetts and Vermont, it has been held, that if the taking down of a 
 meeting-house is necessary, the parish is not bound to indemnify the 
 pew-holders ; otherwise, if merely expedient.ip) A subsequent case in 
 Massachusetts decides, that if the parish abandon the meeting-house as 
 a place of worship, though still fit for that purpose, but without proof 
 of its acting wantonly, or with intent to injure a pew-owner, and erect 
 a new one elsewhere ; it does not, thereby, incur any liability to such 
 pew-owner. The Revised Statutes provide for compensation to pew- 
 holders, in such eases, according to an appraisement, except where the 
 house has become unfit for public worship.(c) It has been held, that 
 where a parish proceeds legally in destroying a pew, a tender of the 
 value t0| the owner is a good plea to an action for damages.(2) 
 
 14:. If one man ei-ect huildings upon the land of another, voluntarily and 
 without any contract, they become a part of the land, and the former 
 has no right to remove them. Such buildings are, prima facie, part of 
 the realty. 
 
 15. A husband erected a dwelling-house and joiner's shop upon land 
 belonging to his wife, and died. Held, as no binding contract, in re- 
 gard to such erection could have been made with the wife during co- 
 
 (1) Freligh o. Piatt, 5 Cow. 494 ; Fassett 
 5. First Parish, fce^ 19 Wend. 361. 
 
 (2) Gay v. Baker, 11 Mass. 438 ; Howard 
 a. First Parish, &c., S Pick. 138 ; Mass. Rev. 
 Stat. 205 ; Fisher v. Glover, 4 N. H 180 ; S 
 Cow. 494 ; Price v. Methodist, &o., 4 Ohio, 
 
 515 ; Kimball v. Second, &e., 24 Pick. 347 ; 
 Pettnaan v. Bridger, 1 Phill. 316. See First, 
 &c. V. Spear, 15 Pick. 144; Second, &c. v. 
 Waring, 24 lb. 304 ; Stat. 1841, 206 ; Kellogg 
 V. Dickinson, Law Rep., May, 1846, p. 32 ; 
 18 Verm. 266. 
 
 (a) Where a raegting-house was conveyed to trustees to be used for public worship only, 
 and the deeds of pews referred to this eoaveyanee ; held, a pew-owner had the exclusive 
 right to his pew at edl times, and might use any means to shut out others, which would not 
 annoy other pew-owners. Jackson v. Rounseville, 5 Met. 127. Tenant in common of a 
 meeting-house may maintain trespass for an injury to a pew against one having no title 
 either in the pew or house. Murray v. Cargill, 32 Maine, 517 ; Kellogg v. Dickinson, 18 
 Vt. 66. A pew-owner may sustain an action of trespass on the ease against one who un- 
 lawfully disturbs him in the possession of his pew. lb. 
 
 (6) So in New York, whenever it is necessary or proper, the trustees may take down the 
 old edifice, and rebuild on the same spot or elsewhere, and may alter the Ibrm and shape 
 of the building, for the purpose of making it more convenient and spacious. Voorheea v. 
 The Presbyterian, &e., 8 Barb. 135. 
 
 In doing this, they may take down and remove the pews, wheo necessary. And the 
 pew-holders cannot maintain either trespass or ejectment. lb. 
 
 But if a pew is destroyed for convenience only, or if the trustees have been guilty of a 
 wanton and malicious abuse of their power in destroying it, the owner may recover dam- 
 ages, lb. 
 
 (c) By Statute of 1853, 959, a parish may sell the house, without taking down pewa,f 
 the purpose of building a new one. 
 
6 
 
 EEAL PEOPERTT IN GENERAL. 
 
 [CHAP. r. 
 
 rertuTe, the buildings belonged to her, and could not be applied to pay- 
 ment of his debts.(l) 
 
 15 a. A built a rail fence on B's land. B moved and kept the rails 
 without breach of the peace. Held, fro»er did not He against bim.(2) 
 
 16. So if one man take another's timber wrongfully, and use it in 
 erecting or repairing buildings upon his own land, it becomes his pro- 
 perty.(3)(o) And the same rule applies, where the timber consists of 
 the materials of a building taken down by one n»an and belonging to 
 another.(4) 
 
 17. After a mortgage of (land, with a dweWing-house thereon, to A^ 
 the mortgagor removed the building, used a part of the materials, with 
 others, in erecting a boase upon other land, and afterwards conveyetJ 
 the land and building last named, for valuable consideration, to B. A 
 brings trover against B for the new house and the materials used 
 upon it. Held, such materials became a part of the freehold, and B 
 became the owner of them by the conveyance to him - and that the 
 action woiald not lie.(5) 
 
 18. On the other hand, there are many cases where one rwan may 
 own, as personal ■property, a building erected upon the laad of an- 
 other.(6) 
 
 (1) 'Wasliburn v. Sproat, 15 Mass. 449; 
 Smith V. Benson, 1 Hill, 1T6 ; Brown v. King, 
 5 Met. 173; Baltimore «. McKira, 3 Bland, 
 465. 
 
 (2) Wentz v. Fincher, 12 Ired. 29r, 
 
 (3) Amos on Fixt. 9, n. a. 
 
 (i) Peirce ». Goctdard, 22 Piofc. 559. 
 
 (5) lb. 
 
 (®.) Russell V. Bicharda, 2 Pairf. 371 ; HiK 
 bornew. Browne, 3j 162.; JeweU. v. Piirtridge;. 
 lb. 243. 
 
 (o) But if A cut down B's trees; and make them into shingles and short logs, these arti- 
 oltes belong to B. So with coals made from another's wood. Betts v. Lee, 3 John. 348 ; 
 Chandler «. Edson, 9, 362 ; Curtis v. Groat, 6, 168. A agreed with B, to convey land to 
 B, when B should erect a house thereon, and B agreed to erect such house and mortgage 
 the premises to A. Held, the house did not belong to B' till he received a deed of the 
 land, and he could not njortgage the house as personal property. Milton w. Colby, 5 Met. 78i 
 
 Where a reversioner erects and occupies- a builditig on the land with the assent of the 
 tenant for life, and conveys it to a third person, the grantee cannot hold it against the 
 tenant for life. Cooper v. Adam3i 6 Cush. 87. 
 
 A erects a building upon the land of B, taking a bond from B ta convey the land to 
 him on payment of a certain surai within a certaii* time. H^ld, a mortgage of the building 
 from A to B need not be recorded, as against A's creditors; nor was the building for- 
 feited in 69 days, after breach of condition. Eastman vi Foster, 8>Met. 19. 
 
 Although buildings are erected on land by license of the owner, if the owner thereafter, 
 m a conveyance of the land to the person erecting them, call them hts (the grantor's) new 
 buildings, and convey them as a part of the estate f such person^ having accepted such a 
 conveyance, cannot establish a title to them as personal property. Grover t). Howard, 31 
 Maine, 546. 
 
 An exception, in a levy on real estate, of " buildings,"' includes by implication the land 
 underneath, and such other land and easements as- may be necessary for their enjoyment^ 
 if there be nothing in the description of the premises taken to rebut such an implijation. 
 And parol evidence is not admissible, to explain or vary tlie officer's return. lb. 
 
 In trespass quare clausum fregit, the plaintiff complained of an injury to the house on tha 
 land, as weB as to the land' itself^ the trial was had ,oo the question of title, aod a verdict 
 found for the plaintiff. Held, the plaintiff in error could not insist that tlfe h®use was per- 
 sonal property, and that trespass would lie for its> destruction. Houghtaliag v. HoHghtaling,, 
 5 Barb. 379. 
 
 It is no defiBnee to. a writ of entry,, that the tenant owns, a bHilding upoo the land,, erected 
 by her intestate with the owner's consent; for if so, whether the demandant recover od 
 aot, she is entitled to a reasonable time to remove it. And such tenant cannot defend such 
 actictn, on the ground that her intestate's conveyarvce of the building to the owner, undei? 
 whom the demandant claims, by a subsequent eonveyanoe, was fraudulent as against cred.- 
 itors, whom she represents as administratrix. She has simply a power to sell. Eulleaa.. 
 Arnold, 31 Maine, 5^3. Aee. Hutchins «. Shaw,. 6 Cush. 5S., 
 
CHAP. I.] REAL PROPERTY IN GENERAL. 7 
 
 19. A SOD, by permission, erected a house upon the land of his 
 father, under the mutual expectation that the land would be devised 
 to the son, but with no agreement that the father should own the 
 house, or be accountable for its value. Held, the house belonged to 
 the son as personal property.(l) 
 
 20. A town-house was built on land of the town, under a contract 
 with the builder, that the town should occupy a part of it at a certain 
 rent, and have the right to purchase the house at an appraised value. 
 Held, the house belonged to the builder as personal property.(2) 
 
 21. Trespass, for taking and carrying away the plaintiff's "small 
 fish-house or camp," and burning up and destroying his " wooden 
 camp or small house," upon an island in another State. The evidence 
 showed that the injury was done to a building without a cellar, about 
 nineteen feet square, used by the plaintiff and his men as a dwelling, 
 in the spring, while catching salmon. Held, neither the declaration 
 nor evidence showed the property to be real estate.(3) 
 
 21 a. In an action of trespass for an inj'Ury to a building, owned by 
 and in the possession of the plaintiff, the defendants justified the acts 
 complained of, on the ground that they did them by the direction of 
 A, who owned the land oq which the building stood, subject to a right 
 of way in the public, the building constituting an incumbrance on the 
 laud of A ; also that, the building being an obstruction in the highway, 
 the defendants removed it for the plaintiff, after he had been requested 
 and had neglected to remove it ; also, that such highway needed to be 
 graded and made, and the defendants removed the building on the 
 plaintiff's account, in order to grade and make the road. The plaintiff, 
 to show that he was the owner and in possession of the building, 
 offered in evidence a deed of it to the. plaintiff, executed by certain 
 individuals, as a committee of a fire engine company ; a vote of such 
 company, signed by all its members, authorizing the sale and transfer 
 of the building by said committee ; proof that the company erected the 
 building with their own funds ; that, up to the time of the sale, they 
 had used it exclusively for an engine-house, and for their library; that 
 all the members of the company, at the time of the sale, delivered, each 
 one, his key of the building to the plaintiff; that all prior members had, 
 on leaving the company, left the building to their successors, making 
 no claim to it thereafter ; that the avails of the sale to the plaintiff were 
 appropriated by the company to procure for them another engine- 
 house ; and that no other person had objected to the sale, or made any 
 claims to the avails thereof Held, such evidence was admissible 
 for the purpose for which it w^s offered ; and, thereupon, it was fur- 
 ther held : 1. That the members of the company had property in the 
 building; 2. That, though not incorporated, they, as individuals, could 
 hold the property ; 3. That the vote of the company, with the assent 
 of each individual member in writing, was binding, and imparted au- 
 thority to their committee ; 4. That the building, under the circum- 
 stances of the case, was personal estate, and might be transferred with- 
 out sale.(4) 
 
 22. A bathing-house was erected by an individual, on piles driven 
 into the bed of a navigable river, below low water mark, and after- 
 
 (1) Wells V. Bannister, 4 Mass. 514. I (3) Rogers v. Woodbury, 15 Pick. 156. 
 
 (2) AshmUQ V. Williams, 8 Piolc. 402. | {i) Curtias v. Hoyt, 19 Conn. 154. 
 
8 
 
 EEAL PROPERTT IN GENERAL. 
 
 [CHAP. I. 
 
 wards mortgaged by Mm. Held, as he had no interest in the soil, the 
 building was a chattel, and no equity of redemption remained m him, 
 liable to be taken on execution.(l) 
 
 23. But a building so erected, may be sold on execution as personal 
 property, and the purchaser may legally enter on the land to remove it. 
 The occupant has the right of passing over the close of the owner of the 
 land, to and from the highway. (2) 
 
 24. Such building will pass by bill of sale, and not with a deed of 
 the land ; nor can it be extended upon, or recovered in a real action. 
 Trover will lie for it as for other chattels. But it may be validly at- 
 tached, like real estate, without taking actual posse^sion.(a)(3) 
 
 25. The owner of the land will not gain a title to the building, 
 merely by a neglect, on the part of the owner of the latter, to occupy or 
 claim it. 
 
 26. A erected a saw-mill on the land of B, with his permission. The 
 building was sold to C, upon an execution against A, and B afterwards 
 sold the land to D. The building remained vacant three years, and D 
 made no objection to its being on the land. Held, the purchaser of 
 the building had not waived his right toit.(4) 
 
 27. Where one in possession of land, bona fide, as his own, has erected 
 buildings upon it ; he or his grantee may remove them, without incur- 
 ring any liability to the true owner of the land.(5) 
 
 28. There are other things connected with or attached to land, and 
 \hQreiox<i prima facie subject to the same ownership with it, which, by 
 special acts or agreements, may be,'in point of title, separated from the 
 land. 
 
 29. In England, mines of gold and silver, by the royal prerogative, 
 belong to the crown ; which may, in a grant of land, reserve all mines. 
 But this gives no right to the crown to enter in search of them, but 
 only, after they are opened, to restrain the tenant from working 
 them, work them itself, or license others to do it.(6)(&) The United 
 States, in the sale of the public lands, reserve all salt springs and lead 
 
 (1) Marcy v. Darling, 8 Pick. 283. 
 
 (2) Doty V. Gorham, 5 Pick. 487. 
 
 (3) Aldrich v. Parsons, 6 N. H. 555 ; 2 
 Fairf. 371; 8 Pick. 402; Stewards. Lombe, 
 1 Brod. & B. 506; Tapley v. Smith, 5 Shepl. 
 12. 
 
 (4) 2 Pairf. 371; Harris v. Gillingham, 6 
 N. H. 9; 5 Shepl. 12. 
 
 (5) Wiokliffe «. Clay, 1 Dana, 591. 
 
 (6) Lyddel ii. Weston, 2 Atk. 19; 2 Inst. 
 577-8. Plow. 310, 336. 
 
 (a) One claiming under a party, who has previously mortgaged such building as a chattel, 
 cannot assert a title to it against the mortgagee as real estate, nor dispute the mortgagor's 
 title. Smith u. Benson, 1 Hill, 176. 
 
 (6) The prerogative rests upon the ground, that the king is bound to defend the realm, and 
 to coin and furnish the currency necessary therefor, and for the uses of trade and com- 
 merce. It embraces no other classes of mines than those of gold and silver. Stones cut from 
 quarries are minerals within the meaning of the terms "coals or minerals" in an Act of 
 Parliament. Micklethwait v. Winter, 5 Eng. L. & Eq. R. 526. See Gibson v. Tyson, 5 
 "Watts, 34; Rossev. Wainman, 14 Mees and VV. 859. In the caseof mines (Plowd. 310, 336,) 
 it was held by a majority of judges, Plowden and others dissenting, that where gold or sil- 
 ver is mixed with other metals, the whole mine belongs to the crown. Otherwise, by stat- 
 utes, 1 Wm. & M. eh. 30, 5 ib. ch. 6 ; which, however, allow the crown to take the proceeds 
 of such mine, upon paying th'e owner therefor. 
 
 Where mines are reserved from a conveyance, the owner of them is still bound to leave 
 a r easonable support for the surface of the soil. Harris v. Riding, 5 Mees & W. 60. 
 
 So, when the surface of land belongs to one man, and the minerals to another, no evidence 
 of title appearing to regulate or qualify their rights, the latter cannot remove the minerals 
 without leaving support sufSeient to maintain the surface in its natural state. The owner 
 
CHAP. I.] REAL PROPERTY IN GENERAL. 9 
 
 mines. The state of New York reserves to itself all gold and silver 
 mines ; also, all mines of other metals on lands of those who are not 
 
 of the surface dose, while unincumbered by buildings, and in its natural state, is entitled to 
 have it supported by the subjacent mineral strata ; and if the surface subsides, and is injured 
 by the removal of these strata, although the operation of removal may not have been con- 
 ducted negligently nor contrary to the custom of the country, he may maintain an action 
 against the owner of the minerals for the damage sustained by the subsidence. Humphries 
 v.Brogden, 1 Eng. Law and Eq. Kep. 241. In Virginia, a statute (Code, 525) provides, that 
 coal mines shall not be opened within twenty-five feet of adjoining land, without consent. 
 
 A lease of alum mines gave the lessee the right to obtain alum from certain coal wastes. 
 A subsequent lease of the coal mines provided, that nothing thereby granted shall injure 
 the rights of the parties who held the alum mines. The alum existed in the coal wastes. 
 The coal lessees could not thoroughly work the coal without removing the pillars which 
 supported the roof; but this would render it impossible to reach the alum. Held, the coal 
 pillars could not be removed. Earl, &c. v. Hurlet, 8 Eng. L. & Eq. 13. 
 
 In a contract relating to mines, there is an implied reservation by the owner of a right to 
 enter and inspect them. Blakcsley v. Whieldon, 1 Hare, 116. See Micklethwait v. Winter, 
 
 5 Eng. Law & Eq. 526. 
 
 Where a mine reserved or granted, is encroached upon, the proprietor's remedy is trespass 
 not case. Harker v. Birkbeck, 3 Burr. 1556. 
 
 Where the owner of land brings an action for copper ore raised from under it, the pre 
 sumption of his title to the ore may be rebutted by proof of non-user on his part, and a use 
 by others. Eoweu Grenfel, Ry. & M. 396. 
 
 A mining concern, erected by a lease to several persons, who work it jointly, is qvMsi, a 
 partnership in trade, involving the usual partnership liability to creditors. Fereday u. 
 Wightwick, 1 Taml. 250. 
 
 If a license to dig minerals do^ not clearly give an exclusive right, Ihe grantor or his as- 
 signs may exercise the right in common with the grantee. Chetham v. Williamson, Eng. L. 
 
 6 Eq. 469 ; Huntington v. Mountjoy, 4 Leon. 147. 
 
 It has been held in Georgia, in the ease of the State v. Canatoo, (3 Kent, 378, n.,) that 
 a grant of lands by the government passes a perfect title to mines, unless expressly excep- 
 ted. As to the reservations of rente, in consideration of mines contained in lands granted by 
 royal charters to the several States; see 1 Green, Cruise 38, n. 3 How. 120. 
 
 Congress may authorize the president to lease lead mines in the State of Illinois. U. S. 
 V. Gratiot, 1 M'Lean, 454. 
 
 In trespasses by the United States, a permit to enter on the lands which contained lead 
 ore, may be admitted in evidence to show the nature and object of the entry. United States 
 V. Geer, 3 McLean, 571. 
 
 The following points have been decided in Maryland: 
 
 A lease granting the license, right, and privilege of guaging, getting out, working, and 
 carrying away granite stone, does not confer the right of carrying away rvJMe stone. Emery 
 V. Owings, 6 Gill, 191. 
 
 Gravel-stone is a known article of commerce, sold by the cubic foot, and is called dimen- 
 sion stone, while rubble stone is sold in the mass, or by the perch. lb. 
 
 On the 11th June, 1840, A leased to B, and B to C, a granite quarry, known by the 
 name of D, with the license of quarrying and getting away stone, for the term of six years 
 from 10th November following, and the lessees went into possession. On the 25th July, 
 1836, E and F, who had title, leased to G all their estate and interest, being two-third parts of 
 all that lot within the farm of A, called D, for five years, which, before action brought, 
 came to B or C by assignment, as to one-half The metes and bounds in both leases 
 were the same. In an action by A for the rent due November 1, 1841, under the lease of 
 June, 1840, it was held, that the lease of 1836 was a grant of the superficies of the soil, and 
 did not pass a right to quarry, as it was not opened at the date of that lease ; that this case 
 was not one of conflicting leases; the deed of 1836 being a lease of the surface of the 
 soil, that of 1840, a lease or license to quarry stone ; that, if a man hath land, in part of 
 which there is a mine open, and he leases the land, the lessee may dig the mine ; as the 
 mine is open, and he leases all the land, it shall be intended that his interest is as general 
 as his lease; and that a declaration in a lease, dated 1840, that a quarry ''had been re- 
 cently, or a short time ago possessed and worked by W," could not be understood as mean- 
 ing that the quarry was opened four years previously. lb. 
 
 The lessor of a coal mine, in Pennsylvania is not liable for injuries to a bouse on the sur- 
 face, occasioned by the working of the mine by his tenant. Offerman v. Starr, 2 Barr, 394. 
 
 The owner of a mine demised the right to mine, at a rent payable on each ton of coal taken 
 out, reserving the right to view and examine the mine, and to re-enter on non-payment, 
 neglect, &c. Held, that he was a landlord, and was not liable for an injury resulting from 
 the prosecution of the work by the tenant. lb. 
 
10 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. L 
 
 citizens of the United States ; also, all mines of other metals on lands 
 of citizens, if the ore contains less than two-thirds in value, of copper, 
 tin, iron or lead. But the owner of a gold or silver mine may enjoy its 
 produce for twenty-one years, if he give notice of the discovery.(l) 
 
 SO. A similar principle is often applicable to groiving trees, which, 
 ■though standing upon, and rooted in the soil, may be the subject of a 
 distinct ownership. But if the limbs of a tree overhang another man's 
 ground, they still belong to .the owner of the root. If the root extends 
 into the ground of a neighboring owner, whether he is a tenant in com- 
 mon of the tree with the planter, or whether the whole tree belongs to 
 the latter, is a point somewhat doubtful. In Connecticut, it has been 
 decided, that though both the roots and branches of a tree extend 
 to land of an adjoining owner, the whole tree, with all its fruit, belongs 
 to the owner of the land upon which it stands ;(2) but a tree, standing 
 directly upon the line between adjoining owners, belongs to both 
 alike ; and either may maintain trespass against the other for cutting 
 and destroying it.(3) 
 
 81. It is said, that a grant or devise of an interest in growing wood 
 is (that of) an interest in the soil itself But it is otherwise with a grant 
 or reservation of trees.{i){a) 
 
 32. Where A conveyed to B a lot of land in fee, and B, on the same 
 day, reconveyed to A, his heirs and assigns, all the trees and timber 
 standing and growing on said land, forever, with free liberty to cut and 
 carry away said trees and timber, at all times, at their pleasure forever : 
 Held, A retained an inheritance in the trees and timber, with an exclu- 
 sive interest in the soil, so far as it might be necessary for the support 
 and nourishment of the trees.(5) 
 
 83. It was anciently held that trees, like the chamber of a house, 
 could not be the subject of a freehold estate.(6) But it has since been 
 settled, that trees reserved from a conveyance for life are not personal 
 estate, but real, and will therefore pass, without being named, with a 
 subsequent grant of the reversion, notwithstanding such grant expressly 
 refers to the reversion of that which was previously leased. (7) But it 
 is said that a grant of trees passes them to the grantee as chattels, and 
 that he may maintain trespass for any injury. If no time is fixed for 
 their removal, the law implies a reasonable time.(8) 
 
 34. It has been held in New Hampshire, that a sale of growing trees, 
 to be taken within a certain time, is within the Statute of Frauds, and 
 must be in writing, though not necessarily by deed. So in Illinois, a 
 
 (1) 1 N. T. Rev. Stat. 281, 124; Walk. In- 
 tro. 43. See Raine v. Alderaon, 4 Ring. N. 
 '702; Grubb v. Guilford,;4 Watts, 223. 
 
 (2) 1 Swift, 104; Waterman v. Soper, 1 
 Lord Ray. 'Z3Y ; Masters v. Pollie, 2 Rolle's 
 Rep., 141; Holder v. Coates, 1 Moo. &M. 112; 
 Lyman tJ. Hale, 11 Conn. lil. See Bank v. 
 Crary, 1 Barb. 542 
 
 (3) Griffin v. Bixby, 12 N. H. 454. 
 
 (4) Wright V. Barrett, 13 Pick. 44 ; Liford's 
 
 Case, 11 Co. 50 ; See Com. Dig. Biens, G. 2 ; 
 See Nettleton v. Sikes, 8 Met. 34. 
 
 (5) Clap V. Draper, 4 Mass. 266 : Rehoboth 
 V. Hunt, 1 Pick. 224; Howard v. Lincoln, 1 
 Shepl. 122. 
 
 (6) Bro. Abr. Demand, 20. 
 
 (7) Liford's Case, 11 Co. 47. 
 
 (8) Stukely v. Butler, Hob. (Am. ed.) 310 ; 
 1 Shepl. 122 ; Sawyer v. Hammatt, 3 lb. 40. 
 
 (a) A conveyance of growing trees is not within the recording Act, and, though not recor- 
 ded, is valid against a subsequent purchase of the land without notice. Warren' w. Leland 2 
 Barb. 613. And whore land is so conveyed without any reservation of the growing trees 
 the owner of the trees may maintain replevin in the cepit against him. lb. 
 
CHAP. I] 
 
 REAL FEOPERTT IN GENERAL. 
 
 11 
 
 constable cannot, under an execution from a justice of the peace, enter 
 upon land and sell fruit-trees there standing and growing, they being 
 part and parcel of the land, and not goods and chattels. But iii Massa- 
 chusetts it is hold that sect. 1, c. 74 of the Eevised Statutes— the 
 Statute of Frauds — does not apply to an agreement for the sale of mul- 
 berry trees, growing in a nursery, and raised for sale and transplanting, 
 to be delivdred on the ground where they are growing, on payment of 
 the price ; as being an interest in or concerning lands, &c. In a later 
 case it is said, whether a sale of growing wood is a sale of real estate, 
 may depend on the terms of sale ; whether the wood is to stand any 
 time, to be sustained and nourished by the soil ; or whether there was, 
 or was meant to be, a written memorandum of the contract. And in a 
 still more recent case it was decided, that a contract for the sale of grow- 
 ing wood and timber, to be cut and removed by the purchasers, is not 
 within the Statute of Frauds. So a mortgage of growing wood and 
 timber, by a purchaser thereof, is a mortgage of personal property, to 
 take effect when the wood shall be severed, and well recorded in the 
 town-clerk's books. In case of a levy on the land, (after a valid sale 
 of timber,) subject to the vendor's right, and a subsequent conveyance 
 without such reservation ; the timber does not pass, though the sale of 
 it was neither recorded, nor known to the purchaser of the land.(l) 
 
 85. From what has been said, it may be seen that growing trees, 
 though they may be disannexed from the soil by some act of the owner, 
 are still, independent of any such act, a part of the soil, and owned ac- 
 cordingly. The same rule seems, in general, applicable to other vege- 
 table productions. Prima facie they belong to the soil, and pass by a con- 
 veyance thereof, though, it is said, not under & judicial sale ; but may 
 be separated from it by some special transfer.(a) 
 
 36. It is to be observed, however, that corn, a crop of potatoes, or 
 any other product of the soil, raised annually by labor and cultivation, 
 when ripe is personal estate, may in general be seized or sold on 
 
 (1) Putney v. Day, 6 N. H. 430 ; Olmstead 
 V. Niles, 7, 522 ; Adams «. Smith, 1 Bree. 221 ; 
 Wliitmarsh v. Walker, 1 Met. 313; Robinson 
 V. Green, 3 Met. 160-1 ; Claflin v. Carpenter, 
 4 Met. 580. See Bostwick v. Leaeli, 3 Day, 
 176. 
 
 A agreed with B, that he might cut the 
 trees on A's laud, peel thera, and take the 
 bark for his own use. Held, not within the 
 Statute of Frauds. Nettleton v. Sifces, 8 Met. 
 34. 
 
 In England, an agreement for the sale of 
 growing fruit is held to concern an interest in 
 land. Kodwell v. Phillips, 9 M. & W. 501. 
 
 So the sale of a crop of growing grass. 
 Crosby o. Wadsworth, 6 E. 602 ; Evans v. 
 Roberts, 5 B. & C. 829. And of growing hops 
 and turnips. Waddington v. Bristow, 2 Bos. 
 & P. 452 : Emmerson v. Heelis, 2 Taun. 38. 
 Otherwise with wood or timber, growing, and 
 to be cut and delivered. Smith v. Surman, 
 Bam. & C. 561. But see Teal v. Awty, 2 
 Brod. & B. 99. 
 
 In North Carolina, a grant of the vesture or 
 herbage passes a particular right in, and pos- 
 session of, the land, which will sustain tres- 
 pass. But a sale of frudue industriales is a 
 sale oi goods. Saunders v. McLin, 1 Ired. 672. 
 
 (a) "By contract, custom, or special rules of law.'' Calhoun v. Curtis, 4 Met. 415. See 
 Foot V. Colvin, 3 John. 222; Bank, &c. v. Wise, 3 Watts, 394; Com. Dig. Biens H. 3. 
 Growing fruit trees have been called, perhaps somewhat inaccurately, ^xiuras. Mitchell v. 
 Billingsley, 17 Ala. 391. 
 
 In connection with the ownership of trees, it may be stated, that bees, which take up their 
 abode in a tree, belong to the owner of the soil, if unreclaimed ; but, if reclaimed and iden- 
 tified, to their former owner. GofT v. Kilts, 15 Wend. 550. Merely finding a tree on 
 another's land, which contains a swarm of bees, and marking it, does not give the finder a 
 title to the bees. Gillet v. Mason, 7 John. 16. 
 
12 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 execution as such, and, upon the owner's death, passes to his execu- 
 tor.(l) 
 
 37. But, by express statutes, in Kentucky, a crop shall not be levied 
 upon while growing, excepting corn after the first of October. In Ala- 
 bama, not till gathered. In Michigan, there may be a levy, but no sale. 
 And the creditor retains a lien thirty days after the crop is ripe or sev- 
 ered. In Mississippi, an unripe crop is not subject to execution, nor 
 does the lien of a judgment attach to it. In Tennessee, a crop shall not 
 be seized before the 15th of November, except for rent, where the ten- 
 ant has absconded and left the country. In Kentucky and Georgia, 
 the growing crop will pass with the land, where the latter is sold on 
 execution.(2) 
 
 38. It has been held in England, that if a crop is mature — as for in- 
 stance, a crop of potatoes — the sale of it in the ground, to be gathered 
 immediately, is not within the Statute of Frauds ; that the ground is a 
 mere warehouse, till the crop can be removed. It would be otherwise, 
 if the potatoes were still growing.(3) It is remarked by Mr. Chief Jus- 
 tice Savage of New York, that the English cases on this subject seem 
 not quite consistent ; and, in the later decisions, the fact that the corn or 
 potatoes were still growing has been held to make no difference.(4) 
 
 39. If the owner of the land sell the crop upon it by a parol contract, 
 and afterwards convey the land to another purchaser, the crop does not 
 pass to the latter. But a parol reservation of such crop to the grantor 
 himself is void.(5)(a) 
 
 40. In this connection, may properly be considered the subject of 
 emblements. 
 
 41. Emblements — from the French word embleer, to sow — are the 
 crops growing upon land. The word, however, is generally used, in 
 law, to denote crops which are claimed by some person other than the 
 general owner of the land, as incident to a particular estate therein. 
 
 (1) Planters', &e. v. Walker, 3 Sm. & M. 
 409; Coombs v. Jordan, 3 Bland, 312; Cas- 
 sily V. Rhodes, 12 Ohio, 88; Penhallow v. 
 Dwight, 7 Mass. 34. (See Clay, 224; Brad- 
 shaw V. Ellis, 2 Dev. & B. 23 ; Ex parte Big- 
 nold, 2 Dea. & Ch. 398.) An aitocftmeniof such 
 property, as of any otlier chattel, requires ac- 
 tual possession. It must be severed and re- 
 tained by the officer. Heard v. Fairbanks, 5 
 Met. 511. 
 
 (2) 1 Ky. Rev. L. eST ; Alab. L. 319 ; Tenn. 
 Stat. 1833, ch. 20. See Craddock v. Riddles- 
 barger, 2 IDana, 206 ; Parham v. Thompson, 2 
 J. J. Mar. 159; Mich. St 1840, 224; Plant- 
 
 ers, &c. V. Walker, 3 Sm. & M. 409 ; Miss. St. 
 1804, 29 ; Thompson v. Craigmyle, 4 B. Monr. 
 392 ; Pitts V. Hendrix, 6 Geo. 452. 
 
 (3) Parker v. Stainland, 11 B. 362 ; War- 
 wick V. Bruce, 2 M. & S. 205 ; Evans v. Ro- 
 berts, 5 B. & C. 829. 
 
 (4) Austin V. Sawyer, 9 Conn. 42. See 
 Carrington v. Roots, 2 Mees. & W. 248 ; Jones 
 V. Flint, 2 Per. & Dav. 594; 10 Ad. & Ell. 
 V53 ; Northern v. State, 1 Carter, 133. 
 
 (5) Austin V. Sawyer, 9 Cow. 39. But see 
 Heermance v. Vernoy, 6 John. 6 ; Gibbons 
 V. Dillingham, 5 Eng. 9. 
 
 (o) Devise oflands in fee, with all the crops thereon, whether gathered or growing at the 
 testator's death. Held, this included not only the crops of the year in which he died, but 
 those of the preceding year, remaining on the land, and those brought there from other lands, 
 to be stored. Carnagy v. Woodcock, 2 Munf. 234. A deed of land will pass the grain 
 growing thereon, although the grantor subsequently takes charge of the crop and of the 
 fences enclosing it, without objection from the grantee. Wilkins i). Washbinder, 7 Watts, 
 378. If a lessor reserves the growing crop and afterwards conveys the land, not mention- 
 ing the crop, it belongs to the purchaser. Burnside v. Weightman, 9 Watts, 46. Lease 
 of land, reserving for rent a proportion of the crops. While these were growing, the 
 lessor conveyed the land without reservation. Held, the deed passed the rent, and the ten- 
 ant was bound to attorn ; but the grantor could not maintain trespass against the grantor, 
 for entering and taking the crops. Gibbons v. Dillingham, 5 Eng. 9. 
 
CHAP. I.] 
 
 REAL PROPERTY IN GENERAL. 
 
 13 
 
 42. Embhments include only such vegetables as yield an annual 
 profit, and are raised by annual expense and labor, or " great manurance 
 and industry" — such as grain ; but not trees, nor fruits, clover, grass, 
 &c., though annual, because they are spontaneous. And even though 
 grass be improved by labor, as by trenching or sowing hay seed, it is 
 not a subject of emblements.(a) Otherwise with hops, though growing 
 on ancient roots ; and the artificial grasses, as clover, saintfoin, &c.(l) 
 
 43. The doctrine of emblements is founded on the clearest equity 
 and the soundest policy, and ought to receive a liberal encourage- 
 ment.(2) 
 
 44. Where a tenant for life dies before harvest time, his executors 
 shall have the crops then growing, as a return for his labor and ex- 
 pense in tilling the ground ; and, if sold after his death, they shall have 
 the proceeds, deducting only the expenses of sale.(3) 
 
 45. Where the estate is terminated in any other way than by his 
 death, either by act of God or act of law, the tenant himself has the 
 emblements. But not if he terminates it by his own act.(4) 
 
 46. Thus, where one is tenant pour autre vie, and the cestui que vie 
 dies before harvest, the former shall have emblements. So if an estate 
 be made to husband and wife during coverture, (which is a lite-estate,) 
 and they are afterwards divorced causa prcecontr actus, he shall have 
 emblements ; because the divorce, although founded on the application 
 of a party, is itself the act of law.(6) But if a woman, tenant during 
 widowhood, marries again ; or if a tenant forfeits by breach of condi- 
 tion ; they have no emblements, because the estate is determined by 
 
 (1) Co. Litt. 55 b, and n. 2 ; Com. Dig. 
 JBiens G. 1 ; Latham v. Atwood, Cro. Car. 
 515 ; 1 Rolle Abr. 128; Grantham v.Bawley, 
 Hob. 132; Evans v. Inglehart, 6 Gill & J. 
 188; Kittredge v. "Woods, 3 N. H. 504; 2 
 Dana, 206 ; Ladd v. Abel, IS Conn. 613. 
 
 (2) Stewart v. Doughty, 9 John. 112. 
 
 (3) 1 Cruise, 80; Hunt a. Watkins, 1 
 Humph. 498. 
 
 (4) lb. Debow v. Colfax, 5 Hals. 128 ; 3 
 N. H. 504. 
 
 (a) Growing grass cannot be taken as chattels on execution, even though the defendant 
 turns out the grass to the sheriff. But there may be a legal •severance of trees or grass 
 from the land, without an actual severance ; as where the owner sells and conveys 
 them in writing, and where he conveys the lands, reserving the trees and grass. A 
 mortgage of such trees or grass will not work a severance until the mortgage becomes abso- 
 lute. Bank, &c. v. Crary, 1 Barb. 542. 
 
 "Where A demised to B his farm for 999 years, B, in consideration thereof, covenanting 
 to furnish A with "one half of all the produce of the farm;" and B cut, carried off and 
 sold wood and timber, in an action brouglit by A against B for one half of the avails of 
 such wood and timber, ?ield; the expression " yearly produce," as used in this covenant, did 
 not comprehend the wood and timber of the farm, but only such crops as are annually 
 gathered. Ladd u. Abel, 18 Conn. 513. 
 
 The right of emblements does not apply to a crop, which ordinarily does not repay the 
 labor of producing it within the year in which such labor is expended, as, for instance, a 
 second crop of clover, although the first crop, taken at the end of the term, did not repay 
 the expense of cultivation. Graves v. "Weld, 5 B. & Ad. 105. 
 
 (J) If a husband lease lands of the wife, and, during the term, she obtain a divorce a vin- 
 culo, the emblements belong to the tenant. Gould v. "Webster, 1 Tyl. 409. Where lands 
 are conveyed in trust for a husband and wife, during their joint lives and the life of the sur- 
 vivor, the crops growing at the husband's death, which were planted before the convey- 
 ance, survive to the wife. Otherwise with those planted by the husband. Haslett v. 
 Glenn, 1. Harr. and J. 11. 
 
 "Where a wife rented land, and made corn on it, by the labor of slaves which were 
 secured to her separate use ; held, the corn belonged to the wife, and was not subject to the 
 husband's debts. Toung v. Jones, 9 Humph. 551. 
 
14 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 their own act.(l) So, where a parson terminates his estate by his 
 voluntary resignation, he has no emblements.(a)(2) 
 
 47. The right to emblements being founded upon the supposition of 
 labor and expense incurred by the tenant, they are not allowed where 
 this reason is wanting.(3) 
 
 48. Thus if A sows corn, and then conveys the land to B, re- 
 mainder to C ; upon B's death before harvest, C takes the crop.(4) 
 
 49. So where the tenant dies before sowing, though after having 
 prepared the ground for seed, emblements are not allowed.(5) 
 
 50. Hence, an agreement to allow a tenant "for preparing the 
 ground for seed, and for any other extra labor," applies to the clearing, 
 manuring and plowing of the land, and does not interfere with his im- 
 plied right to emblements.(6) 
 
 51. The executor of a deceased joint tenant cannot claim emble- 
 ments, such tenant having had no exclusive title to the land. Nor can 
 one tenant in common claim them, who, without leave or objection 
 from the others, occupied the land exclusively, and sowed it; partition 
 having been made while the grain was growing. He is neither a 
 tenant for life nor at will, and acted with the knowledge that the land 
 was at any time subject to partition. (7) 
 
 52. At common law, a dowress was not entitled to emblements, the 
 land being often sown when she came into possession of it, after the 
 husband's death. But by Statute of Merton, 20 Hen. 3, ch. 2, she 
 may devise the growing corn ; and if she does not, it passes to her 
 executors.(8) In New Jersey, South CaroUna, North Carolina, Ehode 
 Island, Virginia, Kentucky, it is provided, that widows may bequeath 
 their crops.(&)(9) 
 
 53. Tenant for years is not, in general, entitled to emblements, 
 whether the lease is upon a pecuniary rent or upon shares ; because, 
 knowing the determination of his estate, it is his own folly to sow, 
 where he knows he cannot reap.(c) This being the reason of the rule, 
 it is not applicable, where such estate is terminated by an event pre- 
 viously uncertain. Thus, if the tenant for j^ears holds under a tenant 
 for life, and the estate terminates by the death of the latter, the former 
 
 (1) Co. Litt. 55, b.; Com. Dig. Biens G. 2. 
 Hawkins V. Skegg, 10 Humph. 31; Davis t". 
 Eyton, 7 Bingh. 154. 
 
 (2) Bulwer v. Bulwer, 2 B. & A. 410. 
 
 (3) Haslettv. Glen, 1 Har. & J. 11 ; Thomp- 
 son V. Thompson, 6 Munf. 518. 
 
 (4) Hob. 133. 
 
 (5) Gee v. Young, 1 Hay, 17. 
 
 (6) Stewart v. Doughty, 9 John, 112. 
 
 (7) Cro. Eliz. 61 ; Calhoun v. Curtis, 4 Met. 
 413. 
 
 (8) 1 Cruise, 130. 
 
 (9) Anth. Shep. 255, 564; N. C. Rev. St. 
 615; 1 Vir. Rev. C. 171 ; 1 Ky. Rev, L. 575. 
 
 (a) But if a parson, having sowed the parsonage land, sells the growing crop, and then 
 dissolves his connection with the church, and leaves the land before harvest; the purchaser 
 cannot maintain trover against one who carries away the crop,~ although the officers of the 
 church disclaim all title to it. Debow v. Colfax, 5 Halst. 128. 
 
 (6) In Pennsylvania, any tenant for life may bequeath them as personalty. Park & J. 
 467. If, before assignment of dower in certain land, the heirs sow such land ; after assign- 
 ment, but before acceptance of the commissioners' report, which, however, is subsequently 
 accepted, the widow may cut and carry away the crops. Parker v. Parker, 17 Pick. 236. 
 
 In Arkansas, the widow may bequeath her crop ; if she does not, it passes to her admin- 
 istrator. Rev. St. 342. 
 
 (c) Upon the same principle, where one occupies by a pre-emption right, and sows the 
 land, knowing that the crop cannot ripen before such right will terminate, a purchaser from 
 government wiU hold the crop. Rasor v Quails, 4 Blackf 288. 
 
CHAP. 1] 
 
 REAL PROPERTY IN GENERAL. 
 
 15 
 
 shall have emblements. So, also, where one holds for so many years, 
 if A live so long, and A dies before the end of the time ; the former 
 has emblements.(l) But where a woman, tenant during widowhood, 
 leases for years and marries, the lessee for years has no emblements. (2) 
 
 53 a. Where a father conveyed a farm to his son, but continued to 
 occupy it himself until his death, and worked it jointly with his son, 
 each contributing a cert^n number of negroes ; held, the corn and fod- 
 der growing thereon at the death of the father belonged to his estate, 
 and passed to his administrator ; the son being entitled to retain, if 
 anything, no more than his share of the crop.(3) 
 
 51. Where the tenant terminates the estate by his own act — as by 
 forfeiture — he has no emblements. So, where he surrenders his 
 lease. (4) 
 
 55. A lessor agreed to renew the lease, " if he did not want the farm 
 for his own use." Before its expiration, the tenant surrendered, having 
 previously sold the growing crop to a stranger. Held, the landlord was 
 entitled to the crop.(5) 
 
 55 a. A leased a farm to B at an advance rent, for a specified time, 
 giving the lessee the right to go upon the premises and harvest and 
 take away his crops, after the determination of the lease. B underlet 
 to various persons, some of whom were to pay a part of the crop as 
 rent ; and one of them raised a crop of oats, which were stacked on the 
 premises as the property of B, after he had surrendered the premises to 
 A. Daring the following spring, A threshed and sold the oats, and B 
 sued him therefor in trespass. Held, the action could be maintained ; 
 that A had no claim for a forfeiture ; and that his remedy against B 
 was on the covenants of the lease.(6) 
 
 56. In Pennsylvania, a tenant for years is by custom entitled to em- 
 blements, under the name of a way-growing crop.{a) But the custom is 
 limited to leases from spring to spring, where there is no crop in the 
 ground at the commencement of the lease. And where A leased to B, 
 for five years, three months' notice to be given in case of a sale during 
 the term, and no rent to be paid for the year, and there was a winter 
 crop in the ground at the time of leasing, and the tenant, after a sale 
 by the lessor, left in the fall; held, he was entitled to emblements at 
 common law, notwithstanding a knowledge or even direct notice of the 
 sale three months before leaving, the custom of a way -going crop not 
 being applicable to this case. (7) 
 
 (1) Co. Lit. 55 b, "Whitmarsh v. Cutting, 10 
 John. 361; Demi v. Bossier, 1 Penns. 224; 
 Davis «. Brocklebank, 9 N. H. IS. 
 
 (2) Oland's Case, 5 Rep. 116. 
 
 (3) McLaurin v. M'Cal), 3 Strobb. 21. 
 
 (4) Co. Lit. 55 b. 
 
 (5) Bain v. Clark, 1 John. 424. 
 
 (6) Van Valkeuburght). Peyton, 2 Gilm. 44. 
 
 (7) StultztJ. Dickey, 5 Bin. 289; Biggs v. 
 Brown, 2 Ser. i R. 14; Comforts. Duncan, I 
 Miles, 229. See Paviell v. Gaakoin, 8 Eng. L. 
 & Equ. 526. 
 
 (a) The same custom is said to prevail in New Jersey and Delaware ; applying, however, 
 iu all these States, to grain sown in the fall, and to be reaped at the next harvest. 1 U. S. 
 Digest, 697 ; Biggs v. Brown, 2 S. & R. 14; Van Doren v. Everitt, 2 South. 460 ; Temple- 
 man V. Biddle, 1 Barring. 522. If a lessor injure the way-going crop, even after the lease 
 has terminated, and the tenant quit possession, he is liable to an action of trespass. For- 
 sythe V. Price, 8 Watts, 282. This crop includes straw. Craig v. Dale, 1 W. & S. 509. Id- 
 dings V. Nagle, 2, 22. A like custom prevails, and is enforced by the courts, in some parts 
 of England, even notwithstanding a written contract, in which such custom is not referred to. 
 Higglesworth V. Dallison, Doug. 201; Seniors. Armitage, Halst. 197. But see Roberts «. 
 Barber, 1 Cr. & Mees. 208. See also, Boraston v. Green, 16 B. 71 ; Beaty v. Gibbons, ib. 116. 
 
16 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. L 
 
 57. If a lessor for years covenant and grant to the lessee, to carry- 
 away the corn which shall be growing at the end of the term ; this is 
 not a mere covenant, nor is it void as a grant infaturo of a thing not in 
 esse; but passes the property when it comes into being.(l) 
 
 58. The question of emblements, though usually arising between land- 
 lord and tenant, may also grow out of other relations known to the 
 law. Thus, where one is forcibly dispossessed of land ; after recovering 
 it by a judgment, he is entitled to the crops raised by the trespasser or 
 disseizor, though gathered, if still remaining on the premises. (2) 
 
 59. If one in possession of land, under a judgment recovered upon a 
 writ of entry, being sued in a writ of right, pending this suit sow the 
 land, and the demandant recover judgment, and obtain seizin and pos- 
 session before the crops are gathered ; the demandant is entitled to the 
 crops.(3) 
 
 59 a. Upon a sale on execution, the sheriff gave a deed to the pur- 
 chaser, while grain was growing on the land. Afterwards, a creditor 
 of the judgment-debtor levied on the grain an'd sold it, and the purcha- 
 ser brings an action against the tenant of the sheriff's grantee, for cut- 
 ting and removing the grain. Held, the grain passed with the land, 
 and the action could not be maintained. (4) 
 
 59 b. Where one leases land which is subject to a judgment against 
 him, and the land is afterwards sold, the purchaser will be entitled to 
 the growing crop, and not the tenant.(5) 
 
 ' 60. A mortgagee, not in possession, has no right to emblements. 
 When severed by the mortgagor, they are absolutely his without any 
 liability to account for them. (6) 
 
 61. Nor is the lessee of a mortgagor entitled, as against the mortga- 
 gee, to the crops on the land at the time of foreclosure and sale ; but he 
 is liable in trespass to the mortgagee for taking them, if the latter pur- 
 chase the land. (7) 
 
 61 a. The purchaser of mortgaged premises, sold pursuant to a statute 
 foreclosure in New York, entered, harvested, and carried away the 
 crop. In an action of trover against him, by one who had purchased 
 the crop before the foreclosure, on execution against the mortgagor ; 
 held, the defendant was entitled to the crop.(8) 
 
 62. The right to emblements is not a mere personal privilege, inca- 
 pable of transfer; but, in this respect, a crop, even while growing, and 
 unripe, seems to stand on the same footing with any other property. 
 
 63. Thus, a growing crop may, it seems, be sold by a tenant before 
 the termination of his estate, and the vendee will have the right to en- 
 ter and gather it, after such termination. 
 
 64. So an execution against the tenant may be levied upon the grow- 
 ing crop. And it was held in New York, that the officer might levy 
 the execution in December, making a declaration to that effect, and de- 
 lay to sell till the ensuing August, when the crop became ripe ; although 
 
 (1) Grantham v. Hawlej, Wms. Hobart, 286. 
 
 (2) Thomes v. Moody, 2 Fairf. 139. See 
 Tyson v. Hollingsworlh, 2 Bland, 334. 
 
 (3) King V. Fowler, 14 Pick. 238. 
 
 (4) Bear v. Bitzer, 16 Penn. 175. See 
 Groflfu. Levaw, ib. 119. 
 
 (5) Sallade v. .Tameg, 6 Barr, 144. 
 
 (6) Toby V. Reed, 9 Conn. 225. 
 
 (7) Lane v. King, 8 Wend. 584; Crewaw. 
 Pendleton, 1 Leigh, 297; 1 Bland, 76. 
 
 (8) Shepard v. Philbriok, 2 Denio, 174. 
 
CHAP. I] 
 
 EBAL PROPERTY IN GENERAL. 
 
 17 
 
 it might legally be sold at the former period. He took all the posses- 
 sion, that was practicable in the case.(l)(a) 
 
 65. The right to emblements involves the right of removing them 
 from the land ; and therefore the tenant is allowed a reasonable time 
 for this purpose, during which the reversioner or remainder-man cannot 
 lawfully enter and occupy.(2) 
 
 66. In several of the States, the subject of emblements is to some 'ex- 
 tent regulated by the statute law. 
 
 67. In Maryland, " the crop on the land of the deceased, by him or 
 her begun," is made assets in the hands of the executor, &c. So in 
 South Carolina(6) and Virginia. So in Illinois, the executor is empow- 
 ered to sell the growing crop.(3) 
 
 68. The same provision is made in New York, with regard to grow- 
 ing crops, and all produce raised annually by labor and cultivation, 
 except growing grass and fruit not gathered. (4) 
 
 69. In Virginia, South Carolina and Kentucky, as an incident to 
 right of emblements, the slaves of a person deceased, though held 
 by him only for life, shall be continued on the land from March 1st 
 to December 1st; and, in Virginia and Kentucky, as a compensation 
 for their services, the executor or administrator shall deliver to the re- 
 versioner or remainder-man three barrels of Indian corn for every slave. 
 In all the three States above named, a crop does not pass hs emble- 
 ments, if the tenant die between December 1st and the first of March 
 following, or if not gathered before the former period. In Ohio there 
 are no emblements, unless he die between March 1st and December 1st 
 following.(5)(c) 
 
 70. Sometimes, where substances in their nature movable are 
 thrown upon s man's land, they become his property, as part of the 
 land. 
 
 71. Thus, sea-weed, thrown upon the sea-shore, belongs to the owner 
 of the shore ; because it increases, not suddenly but gradually ; is useful 
 
 (1) Whipple V. Foot, 2 John. 418. 
 
 (2) Bevaus v. Briscoe, 4 Harr. & J. 139. 
 
 (3) Anth. Shep. 428, 489, 515 ; lUin. Rev. 
 L. 642. 
 
 (4) 2 N. T. Rev. St. 83. 
 
 (5) Anth. Shep. 489. 575, 653-4; Walk. 
 Intro. 217 ; Green v. Cartright, Wright, 788. 
 Sea Vir. Code, 573. 
 
 (a) In Ohio, where lands are valued for judicial sale, the annual crops are not included in 
 the estimate. Cassily v. Rhodes, 12 Ohio, 95. 
 
 (6) By a marriage settlement, the husband was to have the use and occupation of the 
 wife's land and the proceeds of the real and personal estate during their joint lives, and, in 
 case of her death, living the husband, leaving issue, the property to be divided, according 
 to law, between the husband and issue, the legal title to remain, in the mean time, in her 
 trustee. The wife died in February, leaving a daughter, her only issue, and the husband in 
 July of the same year, having devised and bequeathed to the daughter all the property of 
 which his wife was possessed at the time of the marriage, and directing that she should be 
 suitably maintained out of the proceeds. In the spring of that year, the husband planted 
 a crop with his own slaves and those of the trust estate. Held, under the statute of South 
 Carolina, (5 Cooper, 111, § 23,) the executor was entitled to the crop severed before the 
 last day of December of the year of the testator's death, charged with the maintenance 
 and education of the daughter, and the hire of her slaves. Gage v. Rogers, 1 Strobh. 
 Equ 370. 
 
 (c) This must be the meaning of the language, "if the tenant die between the first of 
 March and the last of December, they go to the personal representatives ; otherwise to the 
 real." See Shelton v. Shelton, 1 Wash. 53; Thompson v. Thompson, 6 Munf. 514. 
 
18 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 as manure and a protection to the bank; and is also some compensation 
 for the encroachments of the sea upon the land.(l) 
 
 72. The same is true with regard to wreck, as against all the world 
 but the former owner.(2) So, where wood and timber floats in the water 
 covering a man's land, he has the exclusive right to seize it, an^ retain 
 it till claimed by the owner in reasonable time.(3)(a) But the lessor of 
 a farm, lying upon the bank of a river, cannot bring replevin for drift- 
 wood taken from the river and piled up on the farm by the lessee, as 
 he has no property in such wood, unless there be some provision in the 
 lease giving him a right to it.(4:) 
 
 73. It has been held that dung in a heap is personal property ; but 
 when spread, becomes part of the land, because it cannot well be gath- 
 ered without gathering part of the soil also.(5) A late case in New 
 Hampshire decides that manure, made in the ordinary course on the 
 land, passes by a conveyance of the land, unless expressly reserved — 
 whether lying in a field, yard, in heaps at the windows, or under 
 cover.(6) 
 
 73 a. Qravel, unlawfully removed from a close, and sold, becomes 
 personal property, by the severance ; and trover lies in favor of the 
 owner of the close against the purchaser, who used the gravel for filling 
 up other land. (7) 
 
 74. In this connection, may properly be considered the subject of 
 fixtures{h') — one of sufficient extent and importance to be discussed, as 
 it has been with much ability, in a distinct elementary treatise, (c) and 
 upon which very numerous decisions and nice distinctions are to be 
 found in the books. 
 
 75. The law of fixtures relates to those cases, where a thing affixed 
 to land, and, until removed, constituting a part of the freehold, is taken 
 
 (1) Phillips V. Rhodes, 7 Met. 323; Bmans 
 V. Turnbull, 2 John, 313 ; 1 U. S. Dig. 141; 
 N. H. Rev. St. 237-8; Kenyon «. Nichols, 
 IR. I. 106; See 9 Coqq. 38. 
 
 (2) Barker v. Bates, 13 Pick. 255. 
 
 (3) Rogers v. Judel, 5 Term. 223. 
 
 (4) Dyer u. Haley, 29 Maine, 277. 
 
 (5) Tearworth v. Pierce, Alleyn, 31. See 
 Daniels v. Pond, 21 Pick. 367 ; infra. Estate 
 at Will. Law Reporter, Jan. 1854, 481; 
 Roberts v. Barber, 1 Or. & Mees. 208. 
 
 (6) Conner v. CofiSn, 2 Fost. 538. 
 
 (7) Riley v. Dalrymple, Mass. S. J. C. Mar. 
 1853 ; Law Rep. May, 1853, p. 41. 
 
 (o) In Massachusetts, the owner of timber, which floats from any water upon another's ad- 
 joining land, may remove it within eighteen months, paying all damages of removal. After 
 this period, it becomes the property of the latter. Rev. Stat. 389. In 'Wisooasin, one year. 
 Rev. St. 249. See N. H. Rev. St. 259. 
 
 The owner of land upon which property is stranded cannot appropriate it to his own use, 
 though he may castit back into the stream, after the owner has been notified and neglected 
 to remove it. Posters. Juniata, &c. 16 Penn. 393. The owner of the property may enter 
 on the land to remove it, but is not bound to do so, and incurs no liability for injury done by 
 it ; even, it seems, after notice to remove it, unless guilty of negligence in the management 
 of it. lb. 
 
 (6) There seemS' to be a prevailing inaccuracy or uncertainty in the application of this 
 term, similar to that which will hereafter be noticed in the use of the word waste. (See 
 Waste.) As the latter word sometimes signifies merely the destruction, and sometimes the 
 unlawful destruction, of things pertaining to the inheritance: so the word fixtv/re is indis- 
 criminately used, to denote merely something affixed to thefreehold, whether lawfully remova- 
 ble or not ; and something which, by the very force of the term, is always to remain affixed, 
 and can never be lawfully taken away by one not the owner of the freehold. Chancellor 
 Kent considers the proper definition of fixtures to be, " things fixed in a greater or less de- 
 gree to the realty." Comm. 2, 344, n. A recent definition is, " the right of severance of 
 chattels attached to the soil, and not part of the freehold." Horsfall v. Key, 17 L. J. Exch, 
 266. See Teaffn. Hewitt, 1 MoCook, 611. 
 
 (c) See Amos and Ferard, on the Law of Fixtures. 
 
CHAP. I.] 
 
 REAL PROPERTY IN aENERAL. 
 
 19 
 
 away by some party not the owner of the land, as a chattel belonging 
 to him. This class of cases, though analagous to those already con- 
 sidered, in which one man erects buildings upon the land of another by 
 special permission or contract, differs from the latter in two important 
 particulars. In the first place, in the case of fixtures, there is ordina- 
 rily no express permission or contract for their erection ;(1) and, in .the 
 second place, until removed, they are a part of the freehold; while, in the 
 other case, the thing attached to the land is from its first creation a mere 
 chattel, and no part of the freehold. The latter part of this distinction 
 seems to be opposed by some dicta,(2) which speak of fixtures as chattels 
 or personal property, and as being "deemed personalty for many other 
 purposes." 'Jhus, as will be seen, they are liable to betaken on execu- 
 tion as personal property. Mr. Amos,(3) however, is of opinion, that by 
 annexation they become a part of the freehold, and re-assume their 
 character of chattels, only upon removal. This seems to be clearly 
 laid down in the case of Lee v. Riclon.{^) It is there remarked, that 
 the stealing of such articles would not be felony. So, as will be seen 
 hereafter, a mortgagor may remain in possession of them, without ren- 
 dering the transfer fraudulent. So they are not distrainable till perma- 
 nently separated ; and it has been questioned whether replevin will lie 
 for them, even when separated from the land.(5)(a) 
 
 76. It is said that to constitute a fixture, that is, to give a chattel any- 
 thing of the character of real estate, so as to justiiy a question in re- 
 gard to it, there must be a complete annexation to the soil.{6) Thus, a 
 building upon blocks, rollers, stilts or pillars ; or a varnish-house upon 
 a wooden plate resting on brick work, the quarters being morticed into 
 the plate ; or a wooden barn, upon a brick and stone foundation ; or a 
 stove, in a house without fire-place or chimney, except from the cham- 
 ber floor, the pipe of which passes into the lower end of the chimney ; 
 or a post wind-mill, laid on cross traces not attached to the ground ; or 
 
 (1) "White V. Arndt, 1 "Whart. 95. 
 
 (2) 2 Browne, 285 ; Tan Ness v. Paoard, 2 
 Pet. 144; 3 Kent (5th ed.) 340, n. 
 
 (3) Amos, 9, 10, 814. See Horsfall v. Key, 
 2WeIa. H. & &, 178. 
 
 (4) 7 Taun. 190. 
 
 (5) Reynolds v. Sherler, 5 Cow. 323 ; Vansee 
 V. Russell, 2 M'C. 329 ; Powell v. Smith, 2 
 "Watts, 126. 
 
 (6) Amos, 5, 274, et seq. ; "Wansbrough v. 
 
 Maton, 4 Ad. & El. 884 ; Freeland v. South- 
 worth, 24"VTend. 191; Despatch, &o. v. Bel- 
 lamy, &c. 12 N. H. 205 ; Teaff v. Hewitt, 1 
 M'Cook, (Ohio,) 541. (This very recent case 
 contains a learned and elaborate examination 
 of the law of fixtures, in some of its most im- 
 portant aspects.) Regina v. Haslam, 6 Eag. L. 
 & Eq. 321 ; Tanderpoel v. Tan Allen, 10 Barb. 
 157 ; Lawrence v. Kemp, 1 Duer, 363 ; 2 Harr. 
 Dig. (Suppl.) 1686; "Woodt;. Hewett, lb. 688. 
 
 (a) But the tenant has an interest, not a meve power, as in case of a lease, without impeach- 
 ment of waste. (See Poole's case, infra. 66, n. 3 ; also, Davis v. Banks, 16 L. J. Exch. 213.) 
 A party cannot avail himself of his own wrong in interfering with fixtures, to deny that 
 they are part of the realty. Thus, if the landlord distrains them, and afterwards severs and 
 removes them for sale, and the tenant brings trover, the defendant cannot defend on the 
 ground that the plaintiff, by bringing this suit, has treated them as chattels, and therefore dis- 
 trainable. Daltonu "Whithem, 3 Gale & Dav. 260. See Clarke;. Holdford, 2 C. & K. 540. 
 A fixture, when lawfully severed, becomes personal property, and may be sued for in re- 
 plevin. Heaton v. Findlay, 12 Penn. 304; Haslaw v. Haslaw, 15 lb. 507. The owner of 
 land sold a fixture thereon to A, which was temporarily severed. He then sold the land 
 to B, with notice of the previous sale. The fixture was never delivered, and was soon re- 
 annexed, and continued to be used. At the time of sale of the fixture, there was a judg- 
 ment against the owner of the land, constituting a lien upon it, under which the land was 
 sold to the owner's grantee. Held, he thereby gained a title to the fixture, notwith- 
 standing his knowledge of the previous sale, and his admissions that the fixture belonged 
 to A. lb. 
 
20 
 
 REAL PEOPERTY IN GENERAL. 
 
 [CHAP. 1. 
 
 on a sliding fender, to prevent the escape of water from a mill-stream ; 
 or loose, movable machinery, used in prosecuting some business, and 
 fastened to the building by belts and bands, or by cleats tacked to the 
 floor, and movable without injury to the building ; or a door, which 
 may be lifted from its hinges ; is not a fixture, but a mere chattel. So, 
 gas fixtures and sitting stools, placed by a tenant in a shop or store, 
 though fastened. So, machinery erected for manufacturing purposes, 
 on timbers imbedded in the ground, or fastened to the timbers of a 
 building by bolts, screws, pins or cleats, if put up with a view to its 
 being removed without injury to the building, is not a fixture, passing 
 with a freehold on a sale of the latter.(l) So, a pump and pipe, bal- 
 ances and scales, and beer-pumps, are prima facie persojial property ; 
 and whether they are fixtures, depends, in New York, upon the point 
 whether they are annexed to the freehold within the meaning of the 
 statute. (Rev. Sts. 83.)(2) But sheds built upon posts, by a tenant, for 
 the purpose of making brick, are fixtures.(3) 
 
 77. Whether. an article is a fixture, is partly a question of fact and 
 partly of law. Every case must depend mainly on its own circumstan- 
 ces. (4) 
 
 78. Several general considerations are of importance, in settling 
 whether a thing annexed to the freehold can lawfully be removed. These 
 are, the nature of the thing, whether in itself a personal chattel or not ; 
 usage ; the comparative value of the land before and after the removal ; 
 the injury which would be caused by removal, in regard to which it is 
 said, "the principal thing shall not be destroyed by taking away the 
 accessary ;" the situation and business of the tenant ; but chiefly the pur- 
 pose and object of the erection, whether for trade, agriculture, ornament, 
 or general improvement of the estate.{5)(a) 
 
 79. It is the general rule of the common law, (5) that whatever is once 
 annexed to the freehold becomes a part of it, and therefore cannot be 
 removed by the party making the annexation, who is not the owner 
 of the land.(6) It will be seen, that the former part of this proposition is 
 chiefly important, as involving the consequence stated in the latter part. 
 For, if the owner of the land himself make annexations to it, so long as 
 he continues to be the owner, he has the absolute control, both of the 
 land and of what is affixed to it. In regard to him, therefore, it is of 
 
 (1) Parmer v. Chaufette, 5 Denio, 52'J. 
 
 (2) Hoveyw. Smith, 1 Barb. 372. 
 
 (3) Beckwith v. Boyoe, 9 Miss. 560. 
 
 (4) Steward v. Lombe, 1 Brod, k B. 510. 
 
 (5) Amos, 1 ; Vaa Ness v. Paoard, 2 Pet. 
 148 ; Lawton v. Lawton, 3 Atk. 15 ; Wether- 
 by V. Poster, 5 Term. 136 ; Trappes v. Harter, 
 
 3 Tyrwh. 603; Buokland v. Butterfield, 2 
 Brod. & B. 54 ; Davis v. Jones, 2 B. & A. 166 ; 
 Tea£f ». Hewitt, 1 MoCook, 511. 
 
 (6) 2 Pet. 144 ; Hubbard v. Bagshaw, 4 
 Sim. 338 ; Leland v. Gassett, 2 Washb. 403 ; 
 Buckley v. Buckley, 11 Barb. 43 ; English v. 
 Poote, 8 S. & M. 444. 
 
 (a) The rule, that objects must be actually and firmly affixed to the freehold, to become 
 realty, or otherwise, to be considered personalty, is far from constituting a criterion. Doors, 
 window-blinds and shutters, removable without damage, and even though, at the time of a 
 conveyance or attachment, actually detached, are, it seems, part of the house, and pass with 
 it. So, it seems, mirrors, wardrobes and other heavy furniture, though firmly screwed to 
 the walls, are chattels. Per Shaw, Ch. J., Winslow v. Merchants', &c. 4 Met. 314. In case 
 of a partition between tenants in common of a woolen factory, machinery, not affixed or fas- 
 tened to the land or building, has been held to be personal property. Walker v. Sherman, 
 20 Wend. 636. A mortgagor commenced a building, designed for a dwelling-house, and to 
 remain on the land ; also, a smaller one, upon posts fixed in the ground, intended to be oc- 
 cupied till completion of the former. Held, theae were fixtures. Butler v. Page, f Met. 40. 
 
 (6) Quicqnid plantaiw solo, solo cedit. 
 
CHAP. I.] 
 
 REAL PROPERTY IN GENERAL. 
 
 21 
 
 little practical consequence, whetlier the annexations become a part of 
 the freehold or not. In some of the States, however, the. statute law 
 has assumed to settle this particular question. Thus, in ConnecticutXl) 
 it is provided that the machinery in a cotton or woolen factory, 
 may be mortgaged, either with or without the building, as if it were 
 real estate. So, while it may be attached like real estate, it is sold on 
 execution as personal. But in Ehode Island,(2) the main water-wheels, 
 upright and horizontal shafts, drums, pullies and wheels secured to the 
 building, and necessary for operating the machinery, and all kettles set, 
 are declared to be real estate, while other parts are personal. (a) 
 
 80. By the ancient law, it seems, even a tenant had no right to re- 
 move things once attached to the freehold ; as, for instance, windows, 
 wainscot, benches, &c.(3) Poolers case(4) first definitively settled a dif- 
 ferent principle, in regard to erections for trade, although this excep- 
 tion is said to be almost as old as the rule itself. In a very ancient 
 case it is referred to by the phrase, pur occupier son occupations — " to 
 occupy his occupation. "(5) 
 
 81. The general distinction upon the subject is this : that where a 
 thing, is accessary to anything of a personal nature, such as trade, it is 
 a chattel ; but where a necessary accessary to the enjoyment of the in- 
 heritance, it is a part of the inheritance.(6) 
 
 82. In a leading case(7) upon this subject it is said, (though not, as 
 will be presently seen, with perfect accuracy,) that questions as to fix- 
 tures arise in three 'cases.(8) 1. Between' heir and executor. That is, 
 when the owner of real estate dies, the question is, whether things at- 
 tached to the land shall pass with or as a part of it, to the heir, or as per- 
 sonal property, to the executor. In this country, this branch of the 
 subject is comparatively of little consequence, because the personal and 
 real property of one deceased is ordinarily subject to precisely the same 
 appropriation, either for the benefit of creditors or the next of kin. (6) 
 
 (1) Conn. L. 6T-8. 
 
 (2) R. I. L. 205. 
 
 (3) Co. Lit. 53 a; "White v.Arndt, 1 Whart. 
 93 ; Amos, 22. 
 
 (4) 1 Salt 368. 
 
 (5) Tan Neas v. Pacard, 2 Pet. 144-5 ; 20 
 
 Hen. 7, 13 a & b. 
 
 (6) Huntt). Mullanpby, 1 Misso. 508 ; Olym- 
 pic, &c. 2 Browne, 285. 
 
 (7) Elwes V. Maw. 3 E. 38. 
 
 (8) 1 Wttart. 93. 
 
 (a) In Delaware, real fixtures, such as steam engines, &o., placed on the premises by the 
 owner, and attached to the freehold, as a fixed establishment, are a part of the freehold, 
 subject to real estate liens, and not liable to be seized as chattels. Rice v. Adams, 4 Har- 
 ring. 332. In Massachusetts and Michigan, for the purposes of taxation, real estate includes 
 all buildings and other things erected on, or affixed to lands. Mass. Rev. St. 75, Mieh. St. 
 1843, 60. By a statute in Massachusetts, all machinery used in manufacturing is taxed 
 like real estate, in the place where it is situated. Mass. St. 1837, 20-1. In Vermont, ma- 
 chinery in a woolen factory is held to be personal property, and, if mortgaged with or with- 
 out the realty, the mortgagee must take possession to acquire a title against creditors. Stur- 
 gis V. "Warren, 11 Term. 433. To convey that, which forms part of the realty, but by 
 severance may become a chattel, with effect against those not excepted in the statute, the 
 same formalities are necessary as in a conveyance of the land, unless a severance is first 
 made. Trull v. Puller, 28 Maine, 545. 
 
 (6) In Maryland, articles which can be removed without injury to the premises, are made 
 assets in the hands of the executor, &c. Anth. Shep. 428. In New York, things annexed 
 to the freehold or to any building, for the purpese of trade or manufacture, and not fixed 
 into the wall of a house, so as to bo essential to its support. 2 N. Y. Rev. St. 83. All the 
 erections connected with a mill or factory, carried by water-power, including the dams, 
 water-wheels and gearing, and machinery fastened to the ground or buildings, are prima, 
 facie part of the realty, and pass to the heirs. Buckley v. Buckley, 11 Barb. 43. So, they 
 belong to the remainder-man, after the death of tenant for life. lb. Aoc. Fisher v. Dixon, 1 
 CI. k Ein. 312. 
 
22 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 As between heir and executor, the law is strict in favor of the former, 
 but still allows erections /or trade to be removed. 2. Between the ex- 
 ecutor of a tenant for life, and the remainder-man or reversioner. Here 
 the law is liberal, in allowing the former to remove the tenant's 
 own erections.(a) 3. Between landlord and tenant. And here, in 
 modern times, the tenant is highly favored by the law, in regard to 
 the right of removing fixtures ;(&) particularly such as pertain to trade 
 and manufactures, which are said to be ma.t\,ers of a personal nature, and 
 the former of which has been called, in England, the pillar of the State. 
 The general modem rule is, that the tenant may remove anything 
 erected by him, which can be removed without injury to the prem- 
 ises, or putting them in a worse plight than they were in when he en- 
 tered. Whether this can be done is a question for the jury. If the 
 erection taken down is substituted for another, the latter must be re- 
 stored or replaced. (1) 
 
 83. As a general summary of the law of fixtures in reference to land- 
 lord and tenant, it is said, (2) that a tenant may remove; 1. Implements 
 of trade ;(b) as, for instance, furnaces, or the vats and coppers of a soap- 
 boiler ; or a kettle or boiler in a tannery, put up with brick and mor- 
 tar ; or stills set up in furnaces, for making whiskey ; or a hydraulic 
 press let into the ground, and walled up with solid masonry, and 
 ■wooden parts of it nailed to the building, the same being necessary to 
 the business for which the building is occupied.(c) 2. Machinery ; as a 
 steam engine or a pump, if removable without injury to the freehold ; or 
 a post windmill, or machinery for spinning and carding, though nailed 
 to the floor.(c?) 3. Buildings for trade ; in regard to these, if permanently 
 built, the right of removal seems questionable in England, but is well 
 established in this country. The question is not as to the size, form, or 
 mode of erection of a building ; but whether it is for trade. And it 
 matters not, though the trade be of an agricultural nature ; nor though 
 the building be in part constructed from the materials of an old one stand- 
 
 (1) 2 Kent, 280 ; Whiting v. Brastow, 4 
 Pick. 310 : Penton v. Robart, 2 East, 90 ; 6 
 John, 5 ; 2 Browne, 285 ; Gaffield v. Hap- 
 good, 17 Pick. 192; Winslow v. Merchants', 
 &c. 4 Met. 310 ; Coombs v. Jordan, 3 Bland, 
 311 ; 2 Washb. 403 ; Avery v. Cheslyn, 5 Nev. 
 & M. 373 ; Foley v. Addenbrooke, 13 Meea. & 
 ■W.,197. 
 
 (2) Amos, 274, eiseg.; Hunt v. MuUanphy, 
 
 1 Misso. 508 ; Burk v. Baxter, 3 ib. 207 ; 
 Grymes v. Boweren, 4 Moo. & P. 143 ; the 
 
 King V. London thorpe, 6 T. R. 377 ; 
 
 V. Otley, 1 Barn. & Ad. 161 ; Creesor v. 
 Stout, 17 John. 116 ; Tobias v. Prances, 3 
 Verm. 425 ; Taffe v. Warniek, 3 Blackf. Ill ; 
 Lemar v. Miles, 4 "Watts, 330 ; Cross v. 
 Marston, 2 Washb. 533 ; Finney v. Watkins, 
 13 Mis. 291. 
 
 (a) But a tenant hy the curtesy cannot remove permanent buildings, such as a two story brick 
 dwelling-house and a large barn, erected by him during the life of his wife and child. M'Cul- 
 lough V. Irvine, 1 Harr. (Pen.) 438. The grantee of a tenant by the curtesy has all therights 
 of a tenant for life; and, in respect to erections made by him for the purposes of trade, 
 the question is substantially between the tenant for life and remainder-man. Buckley «. 
 Buckley, 11 Barb. 43. 
 
 (6) The privilege in favor of trade applies only as between the landlord and tenant, not 
 in favor of third persons. Oves v. Oglesby, 7 Watts, 106. 
 
 (c) Otherwise with iron salt-pans, for boiling, in aalt-works, resting on brick-work. 
 Mansfield v. Blackburne, 6 Bing. N. C. 426. In this case, there was a lease of salt-springs, 
 the lessee to erect works and pay rent in proportion, and to leave the works in repair. Ib. 
 
 (d) Sheds erected upon posts, by a tenant, for the purpose of making brick, are fix- 
 tures, and, if not removed within the term, vest in the landlord. Beckwith v. Boyce, 9 
 Mis. 560. Spinning-machines, fixed by screws, some in the floor, some in lead, which was 
 melted and poured into holes made in stone, are not part of the freehold, but subject to dla- 
 tress. Hellawell v. Eastwood, 3 Harr. Dig. (Supple.) 684. 
 
CHAP. I.] 
 
 REAL PROPERTY IN GENERAL. 
 
 23 
 
 ingpn the land, provided it is a different and distinct erection, and not 
 merely the old one repaired or reconstructed.(l) Thus a tenant may re- 
 move a wooden dwelling-house, with a cellar of stone or brick, and a 
 brick chimney, erected by him for the business of a dairy-man, and the 
 residence of those engaged in it, and in part improved for carrying on his 
 trade of a carpenter.(2) An erection may be in part only for purpo- 
 ses of trade : as in the case of a cider-mill ; or where a grazier also fol- 
 lows the occupation of a butcher ; or a farmer uses his grain for distil- 
 ling ; or of machinery for working mines ; in all which, the erections, 
 though connected with trade, are used as means or instruiients of obtain- 
 ing the profits of the land. So in the case of a dairy-man's house, used 
 partly for trade, and partly as a habitation. In such instances, it is 
 suggested that the right of removal will depend upon the question, 
 what is the priinary business carried on.(a) 4. The tenant may remove 
 articles erected for ornament or domestic use — unless the removal will 
 cause great injury; such as hangings, glasses, chimney-pieces, blinds, 
 stoves,(6) coffee-mills, shelves, belJs, book-cases, cornices, fire-frames, 
 &c., and in general such things as a,re necessary to domestic comfort, 
 may be easily sevfjd, and will be equally useful in another dwelling. 
 Upon this point a distinction has been made between _/ixft<re5 and fixed 
 fu7-nitiire.{S) 
 
 84. Upon the principle of the third class of cases, it seems, gardeners, 
 nursery-men, &c., occupying as lessees, may remove trees and shrubs, 
 which they themselves have planted for the purpose of sale ; but not 
 where they are planted for any other purpose. Whether green-houses 
 erected by such occupants are removable, quai.{4:){c) 
 
 (1) 1 VSThart. 94 ; Beers v. St. John, 16' 
 Conn. 322. 
 
 (2) Van Ness v. Paeard, 2 Pet. 13T. 
 
 (3) Amos, 61-5; Avery v. Chesslyn, 5 
 Nev. & Man. 372 ; 2 Pet. 131 ; 17 Pick. 192 ; 
 Birch V. Dawson, 2 Adol. & El. 37 ; Tayl. L. 
 
 & T. 365; see also Longstaff v. Meagoe, 2 
 Ad. & Ell. 167. 
 
 (4) Panton v. Robart, 2 B. 91 ; Leo v. Ris- 
 don, 7 Taun. 191; Amos, 66 ; King v. Wil- 
 comb, 7 Barb. -263. See Adams v. Smith, 
 Bre. 221. 
 
 (a) "Where the tenant, being a tavern-keeper, erected a building which was used ior a 
 shed, stable, store-room and barn ; held, they might be removed, if it could be done with- 
 out injury to the land. Dubois v. Kelly, 10 Barb. 496. 
 
 (5) In Massachusetts, where a house was set off on execution, iron stoves, fixed to the 
 brick-work of the chimneys, were held to pass with them. Groddardu. Chase, 7 Mass. 432. 
 A question has been recently raised in England, whether a door-plate is a fixture. Lane v. 
 Dixon, 11 Jur. 89. 
 
 (c) A the lessee of land, permitted B to occupy the land as a nursery-garden. The ob- 
 ject of the garden was to cultivate trees, shrubs, plants, &c., for sale. B sold the trees, &c. 
 to C. The fruit-trees having been attached, held, C might maintain trespass de ion. aspor. 
 against the officer. The plaintiff had a right to remove the trees. He had the same title 
 as his vendor. Tiiey were articles of produce, reared to be sold, and must be considered as 
 personal property. Whether they could have been attached iu a suit against the owner of 
 the land, qucere. Miller v. Baker, 1 Met. 27. If one, having a temporary interest in land, 
 makes improvements, to more fully enjoy it while such temporary interest continues, he may 
 at any time, before hia right of enjoyment expires, remove such improvemeots, provided 
 such removal do not leave the inheritance in a worse condition than when the tenant took 
 possession. Thus where land is let for nurturing trees and plants, until they are fit to be 
 transplanted, without any specific limitation of time, the interest of the owner of the trees 
 in the land continues until that purpose is accomplished. King v. Wilcomb, 7 Barb. 263. 
 See Whitmarsh v. Walker, 1 Met. 313. 
 
 In ease of a green-house erected by a tenant, who has covenanted to yield up at the end 
 of his term all erections and improvements; removal of the sashes and frame- work, fixed to 
 the walls only by being laid on-them, imbedded in mortar, is a breach of covenant. "West 
 V. Blakeway, 3 Scott, N. R. 218, And this, notwithstanding a license during the term to 
 erect, and an agreement that the tenant might remove them. lb. 2 Man. & G. 729. See 
 Mansfield v. Blaokburne, 8 Scott, 720. 
 
24 
 
 REAL PROPERTY IN GENERAL. 
 
 [CHAP. I. 
 
 85. On the other hand, a tenant in husbandry cannot remove his own 
 erections for merely agricultural purposes, even though he leave the 
 premises precisely as he found them; as, for instance, a beast-house,' 
 carpenter-shop, or cart-house. Nor can a mere farmer, who is not a 
 professed nursery-man or gardener, carry away young fruit-trees raised 
 on the land, for the purpose of planting in his gardens or orchards. 
 
 86. Neither can a tenant plough up strawberry-beds in full bearing, 
 though he purchased them of a prior tenant, conformably to a general 
 usage.(a) Nor can he remove a border of box — the tenant not being a 
 gardener.(l) 
 
 87. It has been questioned, however, whether the strict rules of the 
 common law as to agricultural erections are to be considered as adopted 
 in this country, where so large a portion of leased property consists in 
 wild lands, which it is the interest of landlords to have cleared and 
 built upon. (2) 
 
 88. Where a tenant has the right of removing fixtures, he must, in 
 general, exercise it before quitting possession ; though not necessarily 
 before the end of the term ;(&) but the rule applies only to fixtures pro- 
 perly so called ; not to chattels which are not so connected with the 
 realty as to become a part of it ; (see sec. 76 ;) and if the estate is un- 
 certain in duration — as, for instance, an estate at will, or pour autre vie 
 — he shall have a reasonable time after its expiration. It has been held, 
 that for entering after the term expires, a tenant is liable only for a 
 trespass upon the land ; not to the articles removed. (3) Mr. Amos(4) 
 questions this principle, and limits the right of removing fixtures, after 
 the term expires, to the case where the tenant holds over. This he 
 supposes to be the point settled in Penton v. Rohart\{5) and that where 
 the tenant quits possession without removing a fixture, he is supposed 
 to made a dereliction of it to the landlord. The doctrine contended for 
 by Mr. Amos seems to be confirmed by late decisions in England. (6)(c) 
 
 (1) WathereU v. Howells, 1 Camp. 221 ; 
 Empson v. Soden, 4 Barn. & Ad. 655 ; Wynd- 
 ham V. "Way, 4 Taun. 316. 
 
 (2) 2 Pet. 145 ; Lawrence v. Kemp, 1 
 Duer, 363. 
 
 (3) Holmes v. Tremper, 20 John. 29 ; see 
 
 Heap 1J. Barton, 10 Eng. L. & Equ. 499; 
 Beokwith v. Boyce, 9 Miss. 560. 
 
 (4) p. 86, etseq. 
 
 (5) 2 E. 88. 
 
 (6) Hubbard v. Bagshaw, 4 Sim. 338 ; 
 Weeton v. "Woodcock, 1 Mees. & "W. 14. 
 
 (a) This case, however, was decided on the ground that the oiroumstanoea showed malice. 
 It was said, ttiat to take up strawberry-beds would not per se be actionable. 
 
 (J) On the other hand, if a tenant removes and sells fixtures during the term, not imme- 
 diately replacing them ; this is not per se a breach of a covenant to repair and uphold and 
 deliver up the premises, with all things affixed thereto. Doe v. Burnett, 3 Harr. Dig. (Suppl.) 
 684. 
 
 (c) Where a lease vras forfeited by bankruptcy of the tenant, and the lessor entered, but 
 the assignees retained possession, and, three weeks after such entry, removed certain fix- 
 tures erected for trade, held, such removal was unlawful. "Weeton v. "Woodcock, 1 Mees. & 
 "W. 14. And, in Pennsylvania, it has been recently settled, (see sec. 89,) that as between a 
 tenant for life and remainder-man, the removal must take place during the estate of the former. 
 But in New York, a tenant, making improvements, which, by parol license or agreement, he 
 has the right to remove, may remove tbem after his term expires, and while he remains in 
 possession. Dubois v. Kelly, 10 Barb. 496. 
 
 So, although the lessor have conveyed his estate, and the improvements were made after, 
 but without notice of such conveyance. lb. 
 
 So, where the lessor of a mill agreed that the tenant might make repairs, the expense to 
 come out of the rent, and put in fixtures, to be removed by him at the end of his term, or 
 paid for by the landlord ; and the landlord obtained an injunction against their removal 
 
CHAP. I] 
 
 REAL PROPERTY IN GENERAL. 
 
 25 
 
 89. A, tenant for life, leased for years toB, under an agreement, that 
 if the latter made certain erections, he should have the right to remove 
 them, or they should be taken by A, at a valuation. B erected a frame 
 stable and shops. A died before expiration of the lease, but B con- 
 tinued to occupy under, and pay rent to the* remainder-man, C. C 
 afterwards sold the premises. In an action for rent by C against B, B 
 defended, on the ground that he had not been allowed for his erections, 
 and that C had received the value of them in the sale. Held, B's right 
 of removing ceased on A's death, and C was not bound by the contract 
 between A and B.(l) 
 
 90. A fire-frame, fixed in a common fire-place, with brick laid in be- 
 tween its sides and the jambs, is a fixture ; and a tenant, who has placed 
 it there, cannot remove it after the expiration of his term and after 
 leaving the premises, though he may before.(2) 
 
 91. A landlord offered the house for sale at auction, reserving a fix- 
 ture placed in it by the tenant, but the house was not sold. At the 
 expiration of his lease, the tenant sold the fixture, and quit the house. 
 Held, the purchaser could not afterwards sever and remove the fix- 
 ture. (3) 
 
 92. If a lessee without qualification surrender his lease, though he 
 also take a new one from the same landlord ; he loses his right to re- 
 move a building erected by himself Otherwise, where he neglects to 
 remove under a verbal agreement to buy the fixtures.(4) 
 
 93. In addition to the three classes of cases, enumerated by Lord Bl- 
 lenborough in JSlwes v. Maw, in which the question of fixtures arises ; 
 there are others, perhaps of less importance, but often occurring in 
 practice, and referred to in the books. 
 
 94. Thus, while a tenant himself has the right of removing certain 
 things afiixed to the realty, his creditors may attempt to seize them, as 
 
 (1) "Whits V. Arndt, 1 "Whart. 91. 
 
 (2) Gaffield v. Hapgood, 11 Pick. 192. So 
 with a furnace. StoclsweU v. MaAs, 5 Shepl. 
 465. 
 
 (3) lb. 
 
 (4) Shepard v. Spaulding, 4 Met. 416 ; Pitz- 
 herbert v. Shaw, 1 H. BI. 258 ; Hallen v. Run- 
 der, 3 Tyr. 959. See Mitchell v. Speedley, 
 10 Barr, 198 ; Bratton v. ClawsoD, 2 Strobh. 
 478. 
 
 during the term ; held, they might be removed within reasonable time afterwards, tho\igh 
 the tenant was no longer in possession. Pinney v. Watkins, 13 Miss. 291. 
 
 The rule in the text has been held, as above stated, (sec. 88,) not to apply, where the dura- 
 tion of the tenant's interest is contingent; as where he holds for a life; in which case he 
 has a reasonable time for removail after its termination. Weeton v. Woodcock, 7 Meea. & W. 
 14. So, where land is let for the nurturing of trees and plants, till they are fit for trans- 
 planting, the tenant may cultivate them till they are thus prepared, and then, from time to 
 time, remove them. King v. Wilcock, 1 Barb. 263. 
 
 A lessor agreed with his lessee for years, to allow him, or any of his sub-lessees, the 
 value of improvements made by them on portions of the demised premises, or the privilege 
 of purchasing such portions at the appraised value, at the expiration of the term. The les- 
 sor, after portions had been sub-let, procured an assignment of the original lease to his son, 
 the lessor paying the consideration therefor. In a bill by one of the sub-lessees, against the 
 lessor, after the expiration of the term, to restrain a suit at law to recover possession, and also 
 for a specific performance, it was not stated whether or not the other sub-lessees had made 
 improvements, and the son of the lessor was not made a party. Held, that no relief could be 
 granted upon the complainant's bill, as framed. Oslrander v. Livingston, 3 Barb. Ch. 416. 
 
 In England, an out-going tenant is sometimes allowed, by custom, to retain possession of 
 the land on which his away going crops are sown, with the use of the barns and stables for 
 housing and carrying them away ; while the in-coming tenant has the privilege of entering, 
 during the old tenancy, for the purpose of ploughing and sowing. Boraston v. Green, 16 
 E. 1L See Beaty «. Qibbons, 16 B. 116. 
 
26 REAL PROPERTY IN aENBRAL. [CHAP. I. 
 
 chattels, on legal process.(l) And there seems no room to doubt, that 
 -whatever the tenant himself might remove, may also be thus taken by 
 creditors. Indeed, the question of a tenant's own rights is often raised 
 in this way ; and, therefore, the case of a creditor's claim upon fixtures 
 may perhaps, with sufficient accuracy, be classed under the third of 
 Lord Ellenborough's divisions. 
 
 95. Analogous to the case of a lessee, is that of one who occupies 
 the land of another person as his agent. And the latter seems to 
 stand on a less favorable footing, in regard to fixtures, than the 
 former. 
 
 96. Thus, the agent of a mill-owner, occupying by permission 
 and indulgence of the latter, who was his brother, inserted in the mill 
 his own mill-stones and irons. Held, they became the property of the 
 mill-owner, and were not liable to the creditors of the agent, though 
 the mill had been carried away by a flood, and these alone remained 
 on the premises, and were afterwards removed and offered for sale by 
 the agent. (2) 
 
 97. Another case of very frequent occurrence relating tp the law of 
 fixtures, is that of vendor and purchaser ;{a) where the owner of land 
 conveys it to another, and the question arises, what shall pass with and 
 as a part of the land. And here the law is no less strict in favor of the 
 purchaser, than it is in favor of the heir, as between him and the exec- 
 utor.(3) Things personal in their nature, but fitted and prepared to 
 be used with real estate, and essential to its beneficial enjoyment, pass 
 with the realty. Thus, the conveyance of a saw-miU{b) passes the mill- 
 chain, dogs and bars connected with it; that of a brewery, passes a 
 malt-mill attached to it ; that of a cotton-mill passes the waters, flood- 
 gates, &c., and also the machinery, whether afiixed or not. So kettles 
 for manufacturing ashes, though not set, have been held to pass with 
 the premises in which they were used. So fencing stuff, which has been 
 used for fences, though temporarily detached from the land, but without, 
 any intention of a permanent separation. So manure in a barn-yard, 
 
 (i) "Wetherby v. Foster, 5 Verm. 136. I patch, &o. v. Bellamy, &o., 12 N. H. 205 ; 
 
 (2) Goddard v. Bolster, 6 Grreenl. 427. Buckley v. Buckley, 11 Barb. 43 ; English v. 
 
 (3) Miller v. Plumb, 6 Cow. 665; Holmes Foots, 8 S. & M. 444; Petrie v. Dawson, 2 
 V. Tremper, 20 John. 30; 2 ■ffashb. 403; Des- ' Carr. & K. 138. 
 
 (a) The rule as to fixtures, between the owner and purchaser, at a sheriffs sale, is the 
 same as between vendor and purchaser at private sale. Farrar v. Chaffetete, 5 Denio, 527. 
 See Bratton v. Clawson, 2 Strobh. 478. 
 
 (6) It is to be observed, however, that this construction depended in part upon the use of 
 the word mill, as a term of description. The grant of a saw-mill or grist-mill, with its priv- 
 ileges and appurtenances, will pass the land under it, and that required for the use of the 
 mill ; also, the head of water necessary to its enjoyment. Maddox v. Goddard, 3 Shepl. 
 218; Rackley v. Sprague, 5 Shepl. 281. So also the right of flowing back upon other lands 
 of the grantor, as before the conveyance. lb. The grant of a "mill-site" passes all the 
 land covered by the mill. Crosby v. Bradbury, 2 Appl. 61. 
 
 Conveyance of a lot of land, with one rolling-mill establishment, buildings, apparatus, 
 steam engine, boilers, bellows, &o., attached to the establishment. Held, rolls passed as 
 part of the machinery, though temporarily detached. Voorhis v. Freeman,, 2 W. & Serg. 
 116; Pyle V. Pennock, lb. 390. 
 
 A clapboard machine and shingle machine, fastened into a saw-mill, to be there used, 
 are to be considered a part of the realty, and will pass to the creditor or purchaser by a 
 levy upon the real estate, or a sale thereof. Trull v. Fuller, 28 Maine, 545. 
 
 It is held, in a late case, that if a conveyance of a mill or manufactory use words com- 
 monly applied to machinery, it will pass with the mill; otherwise, if not. Teaff i). Hewitt, 
 1 M'Cook, 540. 
 
CHAP. I] 
 
 REAL PROPERTY IN GENERAL. 
 
 27 
 
 even thongli (it seems) lying in heaps. So a steam-engine, with fix- 
 tures, used to drive a bark-mill, and pounders for breaking hides in a 
 tannery, erected by the owner ; is part of the realty, and passes by a 
 conveyance thereof And there are many articles, absolutely necessary 
 to the use and enjoyment of the land, which will pass to a purchaser, 
 whether actually upon the land or not. Such are doors, windows, locks, 
 keys, mill-stones, &c. They are constructively annexed.{X) 
 
 98. Nor is it material, whether the erection is for trade or manufac- 
 tures, or merely agricultural. If the article in question is necessary for 
 carrying on the business meant to be followed, it passes to the purcha- 
 ser. Thus, a cotton-gin, attached to the gears in the gin-house upon a 
 cotton plantation, passes with the ]and.(2)(a) 
 
 99. But where the owner of land having a tanning-mill upon it sold 
 the land, with a parol reservation of the mill, and afterwards sold the 
 latter to another purchaser ; held, (it seems) that a mill-stone, affixed to 
 the mill with iron fastenings, did not pass with the land.(3)(6) 
 
 100. Where the land conveyed is public property, the grant will not 
 pass wood, which has been previously cut and corded by a person with- 
 out title ; but the latter may have an action against the purchaser for 
 taking it away.(4) 
 
 101. It has been formerly questioned, whether fixtures would pass 
 
 by, 1 Watts, 106 ; Harlan v. Harlan, 15 Penn. 
 507. ' 
 
 (2) Farris v. Walker, 1 Bai. 540. 
 
 (3) Heermanee v. Ternoy, 6 John. 5. See 
 9 Cow. 39. 
 
 (4) Jones V. Snelson, 3 Misso. 393. 
 
 (*) This case contains an inieresling exposition of the law of fixtures, as modified by the 
 numerous inventions and improvements of modern times, both for purposes of domestic con- 
 venience, and more particularly for carrying on the various branches of manufactures. 
 
 (1) Liford's case, 11 Co. 51; Leroyu. Piatt, 
 4 Paige, 77 ; Farrar v. Stackpole, 6 Greenl. 
 154*; Phillipson v. MuUanphy, 1 Misso. 620 ; 
 Goodrich v. Jones, 2 Hill, 142 ; Toorhis v. 
 Freeman, 2 W. & Serg. 119; Oves -o. Ogels- 
 
 (a) Where the owner of land erects a dye-house upon it, and sets up dye kettles therein, 
 firmly secured in brick-work, they become a part of the realty, and pass without express 
 words, by a deed of the land. Noble v. Bosworth, 19 Pick. 314. The floor of a bar-iron 
 mill, consisting of plates, kept down by their own weight, and removable without injury, 
 passes with the mill to an execution purchaser. Pyle v. Pennock, 2 W. & Serg. 390. 
 
 (6) Though the criterion of fixtures in a mansion or dwelling, be actual and permanent 
 fastening to the freehold, it is not such in case of a mill or manufactory. But machinery, 
 necessary to the existence of a mill, &e. , as such, is part of the freehold, though not fastened 
 to the floor or walls, as between vendor and purchaser, heir and executor, execution debtor 
 and creditor, or co-tenanta of the fee; but not between tenant and landlord or remainder- 
 man. Thus, a sheriff's sale and conveyance, under a judgment on mortgage, of a lot and 
 iron rolling-mill, " with the buildings, apparatus, steam engine, boilers and bellows attached 
 to the same," passes the entire sat of rolls with their duplicates, even though for a time de- 
 tached. So, these would pass by the mortgage, aa chattels, under the term apparatus. 
 Voorhis v. Freeman, Penn. Sept. T. 1841, Law. Eep. Mar. — 42, p. 452. 
 
 A cotton-gin, in its place, that is to say, connected with the running works in the gin- 
 bouse, is a fixture that passes to the purchaser of the house. Bratton v. Glawson, 2Strobh. 
 478. 
 
 Where an action of trespass, for carrying off a gin, was brought by a plaintiff, who had 
 purchased, at sheriff's sale, the land upon which stood the gin-house, with the gin attached 
 in the usual way, by a band, without proof of notice that the gin was excepted or severed 
 from the house; and where the defendant had purchased the gin as a movable, the former 
 owner, who was the defendant in the execution, having directed the sheriff to levy on the 
 gin separately, and given bond for its deUvery ; held, such direction and conduct, on the 
 part of the defendant in execution, was merely an inchoate arrangement, and did not 
 amount to a practical severance of the gin from the rest of the machinery, so as to make it 
 personal property, not passing with the house as a fixture. lb. 
 
28 
 
 REAL PROPBRTT IN GENERAL. 
 
 [CHAP. L 
 
 by a mortgage of the land, without being specially named.(l)(a) But 
 there seems to be now no reason to doubt that they do pass. Thus the 
 mortgagee may have a bill for an injunction against waste in their re- 
 moval.(2) And the mortgagor's possession is not deemed fraudulent, 
 as in case of mere chattels.(i) So, although an erection, which the 
 jury find to be not a fixture, is separately conveyed in a mortgage^ of 
 the land, the mortgagee need not take possession of it as a chattel to give 
 him title against creditors of the mortgagor.(3) So, as between mortga- 
 gor and mortgagee, fixtures put up on premises leased for years, pass by 
 a mortgage of the land. (4) 
 
 101 a. A steam-engine, erected in a permanent manner in a tan-yard, 
 to facilitate the process of tanning, and used there for such purposes for 
 two or three years, but which could be removed without injury to the 
 building with which it was connected by braces ; was held to be a fix- 
 ture, and to pass by a mortgage of the land.(5) 
 
 102. The tenant of a house, in which certain fixtures had been erected, 
 mortgaged it without mentioning them. He afterwards assigned 'the 
 premises and all his estate and effects to trustees, and, while the trustees 
 were in treaty for selling the fixtures, the mortgagee, his debt being 
 due, entered forcibly, and refused on demand to deliver them. Held, 
 trover did not lie against him.(6) 
 
 103. Of somewhat similar nature is the case of a mechanic^ claiming a 
 lien upon a building, which he has erected. Where such building was 
 a theatre ; held, the lien embraced the permanent stage, but not the 
 movable scenery and flying stages ; the former being a part of the 
 freehold, but the latter only necessary for theatrical exhibitions — a spe- 
 cies of trade. A mechanic's lien will embrace a steam engine used for 
 propelling a saw-mill.(7) 
 
 103 a. An engine house, partly of stone and partly of wood, with 
 stone foundations for a steam-engine, erected by a tenant for years for 
 the use of a coal-mine, he having the privilege of removing all fixtures 
 at the expiration of his term, is not the subject of a mechanic's lien. (8) 
 
 104r. As between mortgagor and mortgagee, a different question 
 arises in regard to fixtures, viz. ; whether either of them may remove 
 erections, which he himself has made upon the land. In Massachu- 
 setts, one holding land subject to redemption may, even after a decree 
 
 (1) Quincy, 1 Atk. ill. This case was 
 evidently decided on its own phraseology, 
 and not on any distinction between condi- 
 tional and absolute sales. 
 
 (2) Amos, 188, et seq. ; Union, &o. v. Em- 
 erson, 15 Mass. 159; Robinson v. Preswick, 
 3. Edw. 246. 
 
 (3) Steward v. Lombe, 1 Brod. & B. 510; 
 See Wheeler o. Montefiore, 1 Gale & Da v. 
 
 493 ; Hitohman v. "Walton, 4 Mees. & W. 409 ; 
 Buckley v. Buckley, 11 Barb. 43. 
 
 (4) Day v. Perkins, 2 Sandi; Oh. 359. 
 
 (5) Sparks v. State Bank, 7 Blackf. 469. 
 (6)Longataff v. Meagoe, 2 Ad. & Bl. 167. 
 
 (7) Olympic, &c., 2 Browne, 285; Morgan 
 V. Arthurs, 3 Watts, 140. 
 
 (8) White's Appeal, 10 Barr, 252. 
 
 (a) It has been held that gas-fixtures and sitting stools, placed by a tenant in a shop or 
 store, though fastened, are mere chattels, and may be mortgaged as such ; and in an action 
 by the landlord, against a subsequent tenant, for not delivering them, he may set up in de- 
 fence, the title of the mortgagee. Lawrence v. Kemp, 1 Duer, 286. 
 
 (6) Where a landlord distrained certain fixtures, and an action of trover was brought 
 against him; held, an allegation in the writ, describing them as goods and chattels, did not 
 estop the plaintiff to rely upon the fact of their being annexed to the realty, as making the 
 distress illegal. Dalton v. Whittem, 3 Ad. & Bl. N. S. 961. 
 
 Fixtures are not distrainable, because not capable of being restored or put back. Darby 
 V. Harris, 1 Ad. & El. N. S. 896. 
 
CHAP. I] 
 
 REAL PROPKRTT IN GENERAL. 
 
 29 
 
 to redeem, remove a barn and blacksmith's shop erected by him, and 
 so slightly affixed, that they may be removed with but little disturb- 
 ance of the soil. In the same State, it has been since held, that a ket- 
 tle, set by the owner of a freehold, who afterwards mortgages such 
 freehold, cannot be removed by him, or taken as his personal property, 
 but passes by the mortgage, though appurtenances are not expressly 
 named. And in a recent case, the same general principle has been 
 settled, with regard to additions to the freehold made by the mortga- 
 gor after the mortgage ; and the reason for the distinction between such 
 a case, and that of improvements made by a tenant, very clearly and 
 satisfactorily shown to consist in the fact, that both a mortgagor and a 
 tenant are presumed to make the improvements for their own benefit; 
 which object will be best effected by treating them in the former case 
 as part of the freehold, and in the latter as personal property, remova- 
 ble by the tenant. The further consideration was suggested, that one 
 of the most usual purposes of mortgaging real estate, is the raising of 
 money to be expended on its improvement.(l) 
 
 105. In New Hampshire, a mortgagor in possession is a trespasser, 
 if he remove a mill which he himself has built, or anything attached 
 to it. This decision proceeds upon the ground, that the mortgagor has 
 only to redeem, in order to have the benefit of the building ; and, if not 
 worth redeeming, he ought not to do anything to lessen the value of 
 the property.(2)(a) 
 
 106. In South Carolina a statute provides, that a tenant shall not 
 alter or remove buildings, without written permission from the land- 
 lord, under penalty of forfeiting the residue of the term. (3) 
 
 107. In England, shares in some corporations have been held to be 
 real estate ; as for instance in the New River water, in the navigation 
 of the river Avon, and in some navigable canals.(4) 
 
 108. So, in Connecticut, shares in a turnpike were held to be real 
 estate. But a subsequent statute has provided otherwise.(5)(5) 
 
 (1) Taylor v. Townaend, 8 Maas. 411 ; 15 
 Masa. 159 ; "Winslow v. Merohanta', &o., 4 
 Met. 306. 
 
 (2) Pettengill v. Evans, 5 N. H. 54. 
 
 (3) S. C. St. 1817, 37. 
 
 (4) 1 Cruise, 38; 2 Ves. 652. Chancellor 
 Kent aays, that in England, sharea in compa- 
 nies acting on land exclusively, aa railroad, 
 canal and turnpike companies, are held to 
 be real estate. 3 Comm. 310, n. 5th ed. 
 
 But see, aa to sharea in Water Worlcs, that 
 they are personal, Bradley v. Holdsworth, 3 
 M. & W. 422: Bligh v. Brent, 2 T. & Coll. 
 268. If A. & B. build a bridge across a river 
 between their respective lands, by authority 
 of the Legislature ; the bridge is real estate. 
 Meason, 4 Watts, 341. 
 
 (6) "Welles v. Cowles, 2 Conn, 567 ; Dutt. 
 46. See Price v. Price, 6 Dana, 107. 
 
 (a) If a mortgagor erects fixtures, he cannot remove them before payment of the debt. 
 And if the mortgagee removes them after the mortgagor's death, they do not belong to the 
 executor of the latter. Butler v. Page, 1 Met. 40. 
 
 (J) A testator bequeathed the interest and proceeds of the residue of hia property, "of 
 every description it might be at his death," to certain persons for their lives; and after the 
 decease of the survivor, he bequeathed the residue in equal moieties between the British 
 and Foreign Bible Society, and the Home Misaionary Society. Part of tlie testator's prop- 
 perty consisted of railway shares. On a bill filed by the treasurer of one of the charities, \ 
 it was held, without prejudice to fhe question whether the railwuy shares were or were not real 
 estate within the mortmain act, that the ultimate remainder-men were entitled to have the 
 railway shares sold, and the produce invested in consols. Thornton v. Ellis, 10 Eng. Law 
 and Eq. 85. 
 
 In Kentucky, shares in a railroad corporation have been held real estate, descending, as 
 
80 
 
 REAL PKOPEETT IN GENERAL. 
 
 [CHAP. L 
 
 ' 109. In Massachusette, shares in a corporation are personal property, 
 even though the corporation be instituted merely for the purpose of 
 holding real estate.(l) Shares in a railroad corporation are expressly 
 made personal estate. (2) And it has been decided in Khode Island, 
 that shares in a bridge corporation were personal property ; and also, 
 that when they belonged to a wife, and the husband died without doing 
 any act to reduce them to possession, they vested in the wife, not in 
 his administrator.(3) In North Carolina and Ohio, shares in corpora- 
 tions are personal estate.(4) And this is undoubtedly the general 
 principle of American law. 
 
 110. In equity, money directed or agreed to be laid out in land, is 
 regarded as land.' A court of equity, regarding the substance, and 
 not the mere forms and circumstances, of agreements and other instru- 
 ments, considers things directed or agreed to be done, as having been 
 actually performed, where nothing has intervened which ought to pre- 
 vent a performance ; provided the purposes for which the acts are to 
 be done are legal, and can be carried into effect. The true meaning of 
 this maxim is, that equity will treat the subject matter, as to collateral 
 consequences and incidents, in the same manner as if the final acts con- 
 templated by the parties had been executed exactly as they ought to 
 have been.(5) 
 
 111. Thus, where one demises and bequeaths all his real and personal 
 estate to trustees to be sold, and then bequeaths the proceeds to an alien ; 
 the interest bequeathed to the latter is personal estate, and he shall 
 hold it. So, where land is devised to a wife, but with orders that it 
 be turned into money, the husband takes the absolute title. So, land 
 held for trading purposes, is in equity treated as personal property.(6) 
 
 112. Where money is directed or agreed to be turned into land, or 
 the converse, if the cestui que trust has the whole beneficial interest, he 
 may, at any time before the conversion takes place, either by his acts 
 or declarations, or by application to a court, elect to take either the 
 
 (1) SuU. on L. T. 71 ; 4 Dane, 610 ; Rus- 
 sell V. Temple, 3 lb. 108. 
 
 (2) Mass. Rev. Sts. 343. 
 
 (3) Arnold v. Ruggles, S. J. 0. Sept. 1837. 
 
 (4) N. C. Rev. St. 121 ; "Walk. Intr. 211. 
 
 (5) 3 Wheat. 578 ; Hawley v. James, 5 
 Paige, 318; 1 Story on Bq. 79; See Coster 
 V. Clarke, 3 Edw. 428 ; Beardsley v. Knight, 
 10 Term. 185; Arnold i. Gilbert, 5 Barb. 
 190 ; Lindsay v. Pleasants, 4 Ired. Equ. 320. 
 
 (6) Craig v. Leslie, 3 Wheat, 563 ; Proctor 
 V. Penebee, 1 Ired. Equ. 143 ; Bligh v. Brent, 
 2 T. & Coll. 268; Thomas v. Wood, 1 Md. 
 Ch. 296. See Queen v. St. Margaret, &c., 2 
 Ad. & Ell. (N. S.) 559 ; Wood v. Keyes, 8 
 Paige, 365 ; Bogert v. Hertell, 4 Hill, 492 ; 
 
 Poster V. Hilliard, 1 Story R. 77 ; Bleight v. 
 Manufacturers &o., 10 Barr, 131; Johnson «. 
 Corbett, 11 Paige, 265 ; Swartwout v. Burr, 
 
 1 Barb. 495 ; Peter v. Beverly, 10 Pet. 533 ; 
 Gott V. Cook, 7 Paige, 534 ; Kane v. Gott, 
 24 Wend. 660 ; Rutherford v. Green, 2 Ired. 
 122; Reading v. Blaokwell, 1 Baldw. 166; 
 Tilghman, 5 Whart. 44 ; Amphlett v. Parke, 
 
 2 R. & My. 221 ; Dawes v. Haywood, 2 Dev. 
 &B. Equ. 313 ; Grievesonu. Kissopp, 2 Keen, 
 653 ; Haroourt v. Seymour, 5 Eng. L. & Eqa 
 203 ; White v. Smith, 8 lb. 77 ; Slocum v. 
 Slooum, 4 Edw. Ch. 613 ; Coyte, &c., 3 Eng. 
 L. & Equ. 224; Eawley -o. Adams, 7 Beav. 
 548. 
 
 such, to heirs, and subject to dower. Price v. Price, 6 Dana, 107. Otherwise in Ohio, Johns 
 V. Johns, 1 McCook, (Ohio,) 350. 
 
 In Maryland, where a statute provided, that the property of a corporation should be held 
 as real estate ; held, this applied only to the stockholders themselves, not as between them 
 and third persons: and, therefore, that the levy of an execution must be as upon personal 
 property. Cape Sable, &o., 3 Bland, 670. On the other hand, canal stock, though declared 
 to be personal property, is still real, and governed by the same law aa the land over which 
 the canal passes. Binney, 2 lb. 138. 
 
CHAP. I] 
 
 EEAL PROPERTY IN GENERAL. 
 
 81 
 
 land or the money. If he make no election, and die, as to his repre- 
 sentatives, the conversion shall be intended to have taken place. The 
 mere direction of a testator will not change the proceeds of land sold 
 into personalty. They will still remain mere equitable assets.(l) 
 
 113. Where by will land is appropriated to the payment of debts and 
 legacies, the heir or residuary legatee has a resulting trust in the land, 
 subject to the fulfilment of this object : and he may either restrain the 
 trustee from selling more than is required, or offer to pay the debts 
 and legacies ; and either a portion of the land or the whole, as the case 
 may be, will then be held as land, and not as money. Otherwise, where 
 the evident intent is, to give the character of personalty to the whole 
 proceeds. If the legatee of the money to be raised by a sale of land 
 elect to take the land instead, the law regards it as a new acquisition 
 by him, and it will descend from him as such, and not as inherited 
 property.(2) 
 
 114. In England it has been held, that the land shall be treated as 
 land, with reference to a residuary legatee, even though he have made 
 no election. But this doctrine is expressly overruled in this country. (3) 
 
 115. Where land of one deceased is sold by order of court for pay- 
 ment of debts, the surplus shall be distributed as real estate. So a re- 
 cognizance, given to husband and wife for her share in the estate of 
 one deceased, survives to her upon the husband's death — following the 
 nature of the land. So an annuity secured to a widow in lieu of dower 
 is treated as land, and as such passes to her second husband. But a 
 bond, given to one heir for his share of the land descended, is personal 
 property ;(a) and, if an order contained in a will for the sale of land is 
 conditional, it does not become personalty till actually sold. (4) 
 
 (1) 3 "Wheat. 563 ; State v. Nicols, 10 Gill 
 & J. 27 ; Clay v. Hart, 7 Dana, 6 ; See Hag- 
 gard V. Rout, 6 B. Mod. 247. 
 
 (2) 3 Wheat. 582-3-5 ; Simpson v. Zelao, 
 8 Watts, 247. 
 
 (3) lb. Roper v. EadcliEfe, 9 Mod. 167. 
 
 (4) Diller v Young, 2 Te. 261 ; Yoke v. 
 Barnet, 1 Binn. 364; Lode v. Hamilton, 2 
 S. and R. 493 ; Parke & J. 287. See Henry 
 V. M'Closkey, 9 Watts, 145; Parker v. Stuck- 
 ert, 2 Miles, 278 ; Wright v. Rose, 2 Sim. & 
 Stu. 323 ; Moses v. Murgatroyd, 1 John. 
 Cha. 130 ; Ch. 34, § 1, n. ; Burn v. Sim, 1 
 Whar. 252; Simpson v. Kelso, 8 Watts, 247 ; 
 Tilghman, 5 Wliar. 44 ; Reading v. Black- 
 well, 1 Bald. 166 ; Rinehart v. Harrison, lb. 
 177 ; Wharton t). Shaw, 3 W. and Serg 124 ; 
 
 Hannah v. Svvarner. lb. 223. Where land is 
 devised to a married woman, to be sold, the 
 husband will not be allowed to purchase it, 
 and thus acquire an interest as husband. 
 Samuel v. Samuel, 4 B. Monr. 256. Where 
 A. agreed with B. to sell land to B., but 
 died before giving a deed, the agreement 
 being then valid, but afterwards ceasing to 
 be so by the laches of B.; held, the next of 
 kin, not the heir of A., took the land. Curre 
 V. Bovvyer, 5 Beav. 6, n. Where one, having 
 made a devise of land, sells it, and a deed is 
 given after his death, the price belongs to 
 the executor, &o., though there is a lien on 
 the land therefor. Parrar v. Winterton, 5 
 Beav. J. See Simpson v. Ashworth, 6, 412 ; 
 Evans v. Salt, 6, 266. 
 
 (a) These several points have been decided in Pennsylvania. They seem hardly recon- 
 cilable. The first conforms to the Statute Law of Massachusetts. Rev. St. 457. See 
 Stover V. Com. 16 Penn. 387. 
 
 Where, upon partition in the orphans' court, the land is adjudged to apart of the heirs, 
 who give their recognizance, the conversion of the other heirs' share of the realty into per- 
 sonalty is complete, when the recognizance is given, and the land is adjudged to the accept- 
 ors. Ebbs V, The Commonwealth, 1 Jones, 374. 
 
 The following somewhat miscellaneous decisions may be cited to illustrate the several 
 principles stated in the text. 
 
 A testator devised his estate to his widow for life, and directed his executors, after her 
 decease, if the majority of hia children should agree, to sell the real estate, and out of the 
 proceeds to pay a debt, and a certain sum to each of his children, and to distribute the re- 
 
32 SEAL PROPERTY IN GENERAL. [CHAP. I. 
 
 116. The distinction between real and personal estate, though less 
 important in the United States than in England, where, by the common 
 
 sidue among his children three years thereafter. Held, the real estate was not con- 
 verted into personalty until a sale by consent on the death of the wife ; and that the share 
 of a married daughter, dying in the lifetime of the wife, descended to her children, and did 
 not pass to her administrator. Nagle's Appeal, 1 Harris, 260. 
 
 Husband and wife conveyed the equity of redemption in land belonging to the wife to .a 
 trustee, in trust to sell the same for their benefit. Held, a conversion of the land into per- 
 sonalty, so that the husband might dispose of it in the lifetime of the wife, and after her 
 death hold it absolutely and against her lieirs, although the land were not sold under the 
 trust. Siter v. M'Clanachan, 2 Gratt. 280. 
 
 The land thus being converted into personalty, the husband may make a valid mortgage 
 of it without having his wife join in the deed. lb. 
 
 Real estate, settled in trust for a wife for life, ftc, was sold by 'the husband under a 
 power of sale, and the proceeds invested in stocks, though required by the settlement to 
 be invested in land. The husband, wife, and surviving trustee, by a deed declared the 
 stock to be held on the trusts of the former deed. The husband died in the wife's life- 
 time, intestate. She made her will after his death, whereby she gave all her personal 
 e.state and effects " whatsoever and wheresoever, and of every kind soever, which she 
 should be possessed of or entitled to at the time of her death, in possession, remainder, 
 reversion, or expectancy," to her two daughters. The produce of the sale of the land 
 was never re-invested in land, pursuant to tbe trusts of the original settlement. Held,, the 
 stock was to be treated as real, and not personal estate ; that it did not pass by the will of 
 the wife, the words there used relating exclusively to personal estate ; and that it de- 
 scended to the heir at law. Gillies v. Longlands, 5 Eng. Law and Eq. Rep. 69. 
 
 "Where the land of a married woman was sold by order of a court of equity for partition ; 
 held, the husband was entitled to a life estate in the proceeds of the sale, in the same man- 
 ner as he would have had a life estate in the land, if it had remained unsold. Forbes v. 
 Smith, 5 Ired. Eq. 369. 
 
 Where the real estate of a married woman has been converted into personalty by opera- 
 tion of law, during her lifetime, it will be disposed of by the court, after her death, in the 
 same manner as if she had herself converted it into personal property previous to her death. 
 Graham v. Dickinson, 3 Barb. Ch. 169. 
 
 Conveyance of the estate of a feme covert, by her and her husband in trust, with a provi- 
 sion that, upon her death, the husband should have a life estate in the land, or, in lieu there- 
 of $2,500 out of the proceeds, if lie should prefer to sell. After the wife's death, the hus- 
 band let the land for a year, and afterwards elected to sell ; but, as the trustee was dead, a 
 new one was appointed by a friendly suit in chancery, and the land advertised for sale, but 
 the husband died before the day of sale. Held, the husband having elected to sell in lieu 
 of a life estate, such election was an equitable conversion of the land into money, on the 
 principle that that which ought to have been done should be considered as done, that the elec- 
 tion was not defeated by his death, and that the sum of $2,500 should be paid his executor, 
 deducting the rent reserved. Washington v. Abraham, 6 Gratt. 66. 
 
 A testator devised his lands to his executors to be sold, and gave a legacy of $2,000 to 
 his niece, to be paid to her out of the proceeds of the sale of his real estate. Held, the sur- 
 viving husband of the niece had the same title to demand this legacy bequeathed to his 
 wife, as if it had been payable out of the personal estate of the testator; and that it made 
 no difference whether the wife died before or after the sale actually took place. Thomas v. 
 Wood, 1 Maryland Cb. Decis. 296. 
 
 Where, for the purpose of making partition, a wife's land, was sold, and, after the sale, the 
 husband assigned the purchase-money, but, while it remained in the commissioners' hands, 
 the wife died ; held, the purchase-money was to be regarded as land, that the marital rights 
 had never attached, and that the assignee of the husband took only his share in the fund, 
 as distributee of his wife. Ex parte" Mobley, 2 Rich. Eq. 56. 
 
 A testator in Kentucky devised land to his widow during life or widowhood. By statute 
 and judicial proceedings there, she was empowered to sell the laud and invest the proceeds 
 in land in Missouri. Held, that the money received by- the sale was to be regarded as real 
 estate. Gates v. Hunter, 13 Mis. 511. 
 
 When the land of an infant is sold by a decree of a court of equity for a particular pur- 
 pose, any surplus of money, that remains after that purpose is accomplished, will be regard- 
 ed as real estate; and, upon the death of the infant, intestate, will go to his heirs at law, 
 and not to his next of kin. March v. Berrier, 6 Ired. Eq. 524. 
 
 The statute in New York, authorizing the sale of lands of infants, must be construed ac- 
 cording to the principles of the common law at the time of its passage, by which the pro- 
 ceeds of such sale retain the character of real estate, even after the infant attains his majori- 
 ty, in the absence of any act or intent on his part to change its character ; and where he 
 
CHAP. I.] EEAL PROPERTY IN GENERAL. 33 
 
 law, lands are not subject even to the payment of debts, except of a 
 certain kind, is, notwithstanding, in many points of view, of the high- 
 est consequence. Eeal estate in many of the States cannot be held by 
 aliens. Eeal estate only can be entailed, or is subject to curtesy and 
 dower. Different formalities are required for the conveyance and de- 
 vise of real and personal property. Lands and chattels are disposed of 
 differently by executors and administrators, and upon legal process. 
 And the distinction often decides the validity of uses, trusts and re- 
 mainders. The various tenures, incidents, liabilities and transfers of 
 real property are not, of course, to be properly treated of, in this mere 
 introductory view ; but will constitute the subjects of the subsequent 
 portions of the work. 
 
 died after attaining his majority, without manifesting such intent, as in case of his retaining 
 a bond and mortgage given for the purchase-moneys of his land sold during infancy, the mo- 
 neys received thereby were held to go to his heirs at law according to the statute of de- 
 scents. Foreman v. Foreman, J Barb. 215. See Sweezey v. Thayer, Duer, 286. 
 
 Where a lunatic, whose real estate had been sold by order of court, for his maintenance 
 and the paymeut of his debts, died intestate, and an unexpended balance of the fund from 
 such sale remained in the hands of his committee, it was held, that this balance was to be 
 regarded as land, for the purposes of distribution. lb. 
 
 Money paid into court by a railway company, for land taken under the lands clauses act, 
 from a person who was in a state of mental imbecility, and who continued in that state un- 
 til his death, but was not the subject of a commission of lunacy, was ordered after his death 
 not to be re-invested in, or considered as land, but to be paid to his executors. Flamank 
 ex parte, 3 Eng. Law and Eq. Rep. 243. 
 
 Equitable conversion takes place in case of an agreement to sell, although the option to 
 purchase within a certain tune rests solely with the purchaser. Kerr v. Day, 14 Penn. State 
 B. (2 Harris,) 112. 
 
 An interest in a contract for the purchase of land is real estate, and descends to the heirs 
 of the purchaser, and the purchaser's administrator, if he receive rent for such land, or money 
 for the sale of tlie intestate's interest therein, is accountable to the heirs for the amount so 
 received. GrifBth v. Beecher, 10 Barb. 432. 
 
 A devise of land to executors to sell for the payment of debts is a conversion of it, and 
 the proceeds are applicable to pecuniary legacies. Sharpley v. Forwood, 4 Harring. 336. 
 
 YOL. I. 
 
34 
 
 ESTATES IK LAND. ESTATE IN" FEB SIMPLE. 
 
 [OHAP. II. 
 
 CHAPTER 11. 
 
 ESTATES IN LAND. ESTATE IN FEB SIMPLE, 
 
 1. Estates, &c. — meaning of the terms. 
 
 5. Freehold. 
 
 8. Fee simple. 
 
 9. Feudal law and American tenures. 
 16. Seizin. 
 
 21. Entry. 
 
 26. Seizin of heira — continual claim. 
 
 31. Seizin in Zaroaad deed. 
 
 33. Disseizin. 
 
 45. Abeyance. 
 
 48. Freehold in futuro. 
 
 50. Rectors and parsons. 
 
 56. Incidents to a fee simple. 
 
 1. An estate in land, is the interest which the tenant has therein ; or 
 the condition or circumstance in which the owner stands with regard 
 to his property. It implies some kind of actual interest or ownership 
 — not a bare possibility, as in case of an heir apparent ; or a mere 
 power, as where one orders his executors to sell his land,(a) The 
 words estate, right, title and interest, express substantially the same idea, 
 more especially when used in a devise.{l) The land is one thing, says 
 Plowden, and the estate in the land is another thing ; for an estate in 
 the land, is a time in the land, or land jbp a iime.{2) 
 
 2. Estates may be considered with respect to their quantity and 
 their quality. Quantity is the extent of time or degree of interest ; as 
 in fee, for life, &c. Quality refers "to the nature, incidents and other 
 collateral qualifications of interest, as a condition, joint'tenancy,(3)(J) 
 &c. 
 
 3. Another classification of estates is, 1, as to the quantity of inter- 
 est ; 2, as to the time when it takes effect, whether immediate or 
 future ; 3, as to the number and relation of the owners.(4) 
 
 4. Any person holding an interest in land, for years, for life, or any 
 greater estate of freehold, in reversion or remainder, is an owner.{5){c) 
 
 (1) Newlcirk v. Newkirlc, 2 Oaines, 351 ; 
 1 Steph. Comm. 216 ; Jones v. Eoe, 3 T. R. 
 93 ; Knocker v. Bunbary, 8 Scott, 414 ; Doe 
 V. Tomkinson, 2 M. & S. I'lO ; Queen v. St. 
 Margaret, &c., 2 Ad. & Ell. N. S. 559 ; Doe 
 V. Shotter, 8 Ad. & EU. 905. 
 
 (2) Walsingham's Case, Plow. 555. 
 
 (3) Co. Lit. 345 a ; 1 Cruise, 39 ; 2 Bl. 
 Com. 103 ; 1 Prea. on Bat. 7 ; aee "Wise. 
 Rev. Sta. 313. 
 
 (4) lb. 
 
 (5) Ellis V. "Welch, 6 Haas. 251 ; Daven- 
 port V. Farrar, 1 Scam. 316. 
 
 (a) Trustees under a will being empowered " to grant and sell the whole or any part" of 
 the testator's " estate, real or personal, with full power to execute any deed or deeds el- 
 fectual in law to pass a complete title thereto;" held, the legal estate did not vest in the 
 trustees. Fay v. Fay, 1 Cush. 93. 
 
 As to the technical meaning of the words " propriety" and " liberties," when used in an- 
 cient colonial statutes, see Com. ■!). Alger, 1 Cush. 10, 71. 
 
 (6) It is said, that qualified and conditional fees dififer from fees simple only in qualit'tf. 
 "With respect to quantity, these estates stand on equal ground. Co. Lit. 18, a; 1 Steph. 
 Oomm. 224-5. 
 
 (c) A atatute provided a penalty for cutting timber, recoverable by the owner of the land. 
 Held, the owner in fee waa the party intended ; and a devisee for life, with a naked and 
 contingent power to dispose of the land, if necessary, for a special and limited purpose, 
 with remainder over, could not sue for the penalty. Jarrot v. Taughn, 2 Gilm. 132. A 
 contractor for the erection of a house, who has an equitable title to it, ia an owner under 
 the New York lien law of 1851. Belmont v. Smith, 1 Duer, 675. 
 
CHAP, n.] ESTATES IN LAND. ESTATE IN FEE SIMPLE. 
 
 35 
 
 5. With respect to the quantity of interest, the primary division of 
 estates is into freehold and less than freehold. 
 
 6. A freehold is defined to be an estate in lands or other real prop- 
 erty, held hy a free tenure, for the life of the tenant, or that of some 
 other person, or for some uncertain period. It was formerly charac- 
 terized, as an estate which could be created only by livery of seizin, or 
 as the possession of the soil by a freeman ; a freeman being one who 
 could go where he pleased.(l)(a) Neither of these definitions is appli- 
 cable to the United States. All claim to be freemen, and livery of 
 seizin is universally dispensed with, either by usage, or by the express 
 language or necessary implication of statutory provisions. A freehold 
 is now(6) well described, as any estate of inheritance or for life in real 
 property.(2) It seems quite superfluous to add immohility as another 
 quality of freeholds. Immobility is a property of land itself, but not 
 of an interest in land. 
 
 7. Freeholds are divided into estates of inheritance and estates not of 
 inheritance. These again are subdivided, as will be seen hereafter. 
 
 8. The highest estate in lands known to the American law is a fee 
 simple. A fee simple is a pure inheritance or absolute ownership, clear of 
 any qualification or condition ; or " a time in the land without end ;" 
 and upon the death of the proprietor gives a right of succession to all 
 his heirs. This application of the word fee, to express the quantity of 
 interest in land, and not the tenure by which it is held, is as old as Lit- 
 tleton and Plowden, and, although questioned by some later commenta- 
 tors, has been on the whole successfully vindicated.(3) 
 
 9. The learned ai; thorof a " Digestof tbe laws of England respecting real 
 property" prefixed, to the second edition of his valuable book, " a prelimi- 
 nary dissertation on Tenures;" rightly treating this portion of his labors 
 as rather an introduction to the work than a component portion of the 
 work itself. In entering upon a view of the American law of Eeal Pro- 
 perty, it can seVve no practical purpose to go into all the intricacies of 
 the Feudal Law. The early settlers of this country left that law behind 
 
 (1) Brit. c. 32 ; 7L,it. s. 59 ; 2 Bl. Com. 80 ; 
 Dalrymple on Feu'J. Prop. 11; 1 Cruise, 39 ; 
 "Wise. Key. Sta. 313. 
 
 (2) 4 Kent, 23-4. See 1 N. T. Rev. Sts. 
 Y22 
 
 (3) 2 Bl. Com. 81 ; Lit. s. 1 & n. 1 ; Plow. 
 555; Wise. Rev. Sts. 313. 
 
 (a) "A free ter/ement (freehold), is that which one holds to him and his heirs. So, also, 
 for his life only, "Or for an indeterminate period, without other certain limitation of time ; 
 as, until somethiing is done or not done ; as if it is said, I give to such an one, until I shall 
 provide for him. But freehold cannot be predicated of anything which one holds for a cer- 
 tain number of years, months, or days ; although for the term of a hundred years, which 
 exceeds the lives of men." Bracton, 207, a. 
 
 (6) A tenant fcir his own life, or for the life of another, is a freeholder, and may levy a 
 fine. Roseboom v. Van Vechten, 5 Denio, 414. 
 
 A person in t'he adverse, though wrongful possession of land, holding as owner, has a 
 tortious estate, Stnd is a freeholder de facto. Such tortious estate authorizes the levying of 
 a fine, which, af cer five years' non-claim, would bar the rights of the remainder-men and 
 strangers. lb. 
 
 Where a widow, seized of land dwante mduitaie, the remainder being in her children, 
 conveyed in fee, with full tjovenants, to one who entered and held the land, claiming to be 
 owner in fee, apid the defendant, having entered and held as owner under mesne convey- 
 ances from the te;rantee of the widow, levied a fine with proclamations while the New York 
 statute of fines, "was in force ; held the fine was valid, and barred the remainders, ^h 
 
 lb. 
 
36 ESTATES IN LAND. ESTATE IN PEE SIMPLE. [OHAP. II. 
 
 tliem;(a) or, if any relic of it survived till tlie revolution, all was then 
 swept away. The feudal law was a, political system, which never made 
 any part of American institutions. The policy and government of 
 some States, indeed, approached nearer to it than that of others. New 
 Hampshire, New York, Virginia, the Carolinas(J) and Georgia, admin- 
 istered by royal commissions ; and Pennsylvania, Maryland and Dela- 
 ware, by proprietary patent — were less decidedly anti-feudal, than Mas- 
 sachusetts, Ehode Island and Connecticut, with their free and well-de- 
 fined corporate charters. Still the feudal system, with all its cumbrous 
 machinery, such as it was when abolished in England by St. 12 Cha. 
 2, c. 24, was never transferred to the United States > in practice, and in 
 some instances, as in Massachusetts by a colonial act of 1641, was ex- 
 pressly abrogated ; and it has been truly said, that every real vestige of 
 enure is annihilated. (l)(c) 
 
 (1) 4 Kent 24; Jurist, No. 31, page 9T. 
 
 (a) "Our New England ancestors left behind them the whole feudal system of the other 
 continent." Webster, Speech in Convention, Speeches, 205. 
 
 (&) In North Carolina, before the Revolution, statutes were enacted "by his Excellency 
 the Palatine, and the rest of the true and absolute lords Proprietors of the Province of 
 Carolina, by and with the advice and consent of the rest of the members of the general as- 
 sembly." 
 
 (c) Chancellor Kent gives the following clear and precise accounts ot feuds. " These grants, 
 which were first called benefices, were, in their origin, for life, or perhaps only for a term 
 of years. The vassal had a right to use the land and take the profits, and he was bound to 
 render in return such feudal duties and services as belonged to a nilitary tenure. The pro- 
 perty of the soil remained in the lord from whom the grant was reljeived. The right to the 
 soil and to the profits of the soil, were regarded as separate and dktinct rights. This dis- 
 tinction continued when feuds became hereditary. The king, or loud, had the dominium di- 
 rectum, and the vassal, or feudatory, the dominium utile; and there) was a strong analogy 
 between lands held by feudal tenure, and lands held in trust ; for tlie trustee has the tech- 
 nical legal title, but the cestui que trust reaps the profits. The leaijing principle of feudal 
 tenures, in the original and genuine character of feuds, was the condition of rendering mili- 
 tary service. Prior to the introduction of the feudal system, lands were allodial, and held 
 in free and absolute ownership, in like manner as personal property was held. Allodial 
 land was not suddenly, but very gradually supplanted by the law of temure ; and some cen- 
 turies elapsed between the first rise of these feudal grants and tlieir geberal establishment." 
 Commentaries, vol. 3, pp. 494-5. He goes on to remark, that in England, from the earliest 
 periods, lands were held by feudal tenure alone, although this species of title was first fully 
 established by the Norman conquest. Tenures were either by knight service, consisting of 
 military services, or by socage, in which the services were generaWj predial or pacific. The 
 former class, though held the more honorable, were subject to divers biirdens and exactions 
 of a very oppressive character ; that otaids, or pecuniary payments, whanever the lord mar- 
 ried his daughter, made his son a knight, or was himself taken prisoner ;; reliefs, paid by an 
 heir of the tenant, upon succeeding to the inheritance ; wardship and marriage, the guard- 
 ianship and disposition in marriage of an infant heir; fine, upon any alidnation of the land; 
 and escheat, or a reverting of the land to the lord for the crime, or upon failure of heirs, of 
 the tenant. lb. pp. 501-3. I 
 
 Socage tenure denotes lands held by a fixed and determinate service. ( It is of feudal ex- 
 traction, and retains some of the leading properties of feuds. lb. 509. I It was the tenure 
 prescribed in all the early colonial charters or patents in this country, un'der the terms, " ac- 
 cording to the free tenure o.'' lands of East Greenwich, in the county of Kent, in England, 
 and not in capite or by knight's service." lb. 511, n.; 1 Story on the CoTnstitution. 
 
 ^ Upon this subject Chancellor Kent further remarks :— " The only feudlil fictions and ser- 
 vices which can be presumed to be retained in any part of the United Stl-vtes, consist of the 
 feudal principle, that the lands are held of some superior or lord, to whoti). the obligation ot 
 fealty, and to pay a determinate rent, are due. The act of New York i{.i 1187, provided, 
 that the socage lands were not to be deemed discharged of " any rents eel 'tain, or other ser- 
 vices incident or belonging to tenure in common socage due to the peoplie of this State, or 
 any mean lord, or other person, or the fealty or distresses incident thereunf to." The Revised 
 btatutes also provide, that "the abolition of tenures shall not take awayi or discharge any 
 rents or services certain, which at any time heretofore have been, or hereal fter may, be, ore- 
 
CHAP. II.] ESTATES IN LAND. ESTATE IN FEB SIMPLE. 37 
 
 10. In England, the king — Mmself not a tenant(l)— is held to be 
 the only original source of title to real estate. Theoretically, a similar 
 principle has been adopted in this country ; to wit, that individual 
 property in lands can be deduced only from the crown, the ante-revolu- 
 tionary, United States or State governments.(2)(a) By the law of na- 
 tions, the discovery of a new continent gave to the discovering nation 
 an exclusive right to acquire the soil from the native inhabitants ; and 
 individual citizens, no less than foreign governments, were precluded 
 from purchasing it, except through the intervention of the public au- 
 thority. Thus, in New York, it was held, that the court Avould not no- 
 tice claims to lands within the State, under grants from the French gov- 
 ernment in Canada before the treaty between Great Britain and France 
 in 1763 ; such claimsbeing at most merely equitable, and a foundation for 
 application to the government. It was subsequently decided, that such 
 French grants were mere nullities, affording no legal evidence of title ; 
 that any possession under them was wholly unavailing, being not ad- 
 
 (1) "Because he hath no superior but God I (2) 3 Kent, 30T-8. 
 Almighty." Co. Lit. 1 b. | 
 
 ated or reserved. The lord paramount of all socage land, was none other than the people 
 of the State, and to them and them only, the duty of fealty was to be rendered ; and the 
 quit-rents which were due to the king on all colonial grants, and to which the people suc- 
 ceeded at the Revolution, have been gradually diminished by commutation, under various 
 acts of the Legislature, and are now nearly, if not entirely, extinguished." 3 Kent, 509- 
 10. 
 
 " The continental jurists frequently considered homage and fealty as synonymous ; but this 
 was not so in the English law, and the incident of homage was expressly abolished in 
 New Tork by the act of l'!8'7, while the incident of fealty was expressly retained." lb. 
 510. " This Statute saved the services incident to tenure in common socage, and which it 
 presumed might be due, not only to the people of the State, but to any mean lord or private 
 person, and it saved the fealty and distresses incident thereunto. But this doctrine of the 
 feudal fealty was never practically applied, nor assumed to apply to any other superior than 
 the chief lord of the fee, or, in other words, the people of the State ; and then it resolved it- 
 self into the oath of allegiance, which every citizen, on a proper occasion, may be required 
 to take." lb. 611-12. 
 
 In New Tork, the people are the owners of all the lands within the state, which had not, 
 prior to, or have not since, the revolution, been granted to others ; and in their right ofsov- 
 ereignty they are deemed to possess the original and ultimate property in all the lands of 
 the state. People v. Livingston, 8 Barb. 253 ; v. Van Rensselaer, lb. 189. 
 
 Being the source of title, the people are presumed to be the owners of land not granted 
 by them, until the contrary appears. And in an action to recover the possession of premises, 
 brought in their name, it is sufBcient in the first instance, to entitle them to recover, to show 
 that such premises are vacant, uninclosed and unoccupied. lb. 
 
 By the American revolution the people succeeded, as owners, to all the lands within the 
 limits of the state, which had not prior thereto been legally granted, held, or possessed, by 
 persons or corporations, or in whom the title had not been legally vested. lb. 
 
 The absolute property, of all kinds, and all right and title to the same, which on the 9th of 
 July, me, vested in, or belonged to, thecrown of Great Britain, became from that date forever 
 vested in the people of the State, in their sovereign capacity. But with respect to lands which 
 prior to Oct. 1115, had been legally granted to individuals, by the crown, or to which the 
 title had been legally acquired by individuals in any other way, neither the revolution, nor 
 the change of the form of government, nor the declaration of the sovereignty of the people, 
 worked any change or forfeiture in the ownership of such property. lb. 
 
 In Massachusetts, Shaw, 0. J., says, (Com. v. Alger, 1 Gush. 66,) " it is not necessary to 
 trace tie powers of the colonial government further. They were then regarded, and have 
 ever since been acknowledged to be ample and sufBcient to grant and establish titles to land, 
 and to all territorial rights and privileges. To the grants and acts of the government, all 
 titles to real property in Massachussetts, with their incidents and qualifications, are to be 
 traced as their source." 
 
 (a) It is said, in a republic, a title to land derived from government, springs from the law, 
 M'Connell v. Wilcox, 1 Scam. 344. 
 
38 
 
 ESTATES IN LAND. , ESTATE IN FEE SIMPLE. 
 
 [CHAP. II. 
 
 verse to. any private right, but rather a controversy between the "two 
 governments, and therefore did not avoid the effect of a grant from 
 the provincial government after the conquest of Canada. A question 
 was long made in the same State, whether the constitutional prohibi- 
 tion of purchases from the Indians was applicable to purchases from 
 individuals, or only those from the nations or governments. It was 
 finally held to extend to the former, being introduced for the benefit 
 and protection of the Indians as well as the good of the State, and 
 therefore entitled to a benign and liberal interpretation.(l)(a) 
 
 11. In Delaware, a statute -declares the title to lands in that State to 
 
 (1) Jackson v. Ingraham, 4 John. 163 ; 
 V. Waters, 12, 365; Goodell «. Jack- 
 son, 20, 693 ; ace. De Armas v. Mayor, &o., 5 
 Mill. (Louis.) 132; Baltimore v. M'Kim, 3 
 Bland, 455. But see Mitchell v. U. S. 9 Pet. 
 748, 756, 757, that purchases made at Indian 
 treaties, under sanction of the IT. S., pass a 
 title wiihout any patent. See further. Brush 
 ». Ware, 15 Pet. 93; Fletcher v. Peck, 6 
 Cranch, 87 ; Johnson v. M'Intosh, 8 Wheat. 
 
 543 ; Cherokee, &c. v. Georgia, 5 Pet. 1 ; 
 State V. Foreman, 8 Terg. 256 ; Holland u. 
 Pack, Peck, 151 ; Blair v. Pathkiller, 2 Terg. 
 407 ; Clark v. Smith, 13 Pet. 195. In Ten- 
 nessee, State grants of land, to which the 
 Cherokee title has not been extinguished, are 
 adjudged void. Gillespie v. Cunningham, 2 
 Humph. 19. See Kennedy v. M'Cartney, 4 
 Port. 141. 
 
 (a) " In the colonies, both of Massachusetts and New Plymouth, early laws were passed, 
 prohibiting individuals from purchasing lands of the Indians; sometimes declaring such 
 conveyances void, and sometimes providing that they should inure to the use of the govern- 
 ment." Per Shaw, Ch. J., Clark v. WiUiams, 19 Pick. 500. Brown u. Wenham, 10 Met. 
 495. SeeMartin jj.Waddell, 16 Pet. 367. Conn. Sts. 1850, 37. Kellogg v. Smith, 7 Cush. 
 375; Stephens v. Westwood, 20 Ala. 275. 
 
 The title of the native Indiana to their lands is an absolute ownership : and the right of 
 pre-emption of lands in the western part of the State of New York, ceded to Massachusetts 
 by the convention of 1786, was simply a right to purchase the lands from the Indians when 
 they chose to sell them ; therefore the grantee of the pre-emptive right cannot maintain tro- 
 ver for saw logs cut on such lands by the Indians and sold to the defendants. Fellows v. 
 Lee, 5 Denio, 628. 
 
 The title to the lands of Indian reservations, in New York, is in the State or its grantees; 
 the use and possession alone belongs to the Indians, until they voluntarily relinquish it. 
 Strong V. Waterman, 11 Paige, 607. 
 
 Lands not under Indian government, but held by individual Indians as tenants in com- 
 mon, are subject to the jurisdiction of the State or territory in which they lie. [Per Olnet, 
 J.] Telford v. Barney, 1 Iowa, (Greene,) 575. 
 
 The laws and customs of the Choctaws were not abrogated, as to members of the tribe, 
 by the extension of the jurisdiction of the State of Alabama over their territory ; nor, 
 would be, except by positive enactment. Wall v. Williamson, 8 Ala. 48. 
 
 The first article of the treaty of 1814, with the Creek Indians, confers upon the chiefs and 
 warriors provided for, a qualified inheritable estate, which is determined by the sale of the 
 reservee, the cesser of occupation, and his removal from the State; and immediately upon 
 such abandonment of possession, the reservation becomes a part of the public domain, with- 
 out any positive assertion of right upon the part of the United States. Crommelin v. Min- 
 ter, 9 Ala. 594. 
 
 Though the title to a reservation under that article be vested in the United States by the 
 voluntary abandonment of the reserve, it is not subject to entry under the pre-emption laws 
 of Congress. lb. 
 
 Such article does not invest the chiefs, warriors, or other reservees, with an estate alien- 
 able at their pleasure. James ». Scott, 9 Ala. 579. 
 
 A person having possession of a tract of land, on which an Indian, the head of a family, 
 was located under the treaty with the Creek Indians, may have an interest that may be 
 levied on and sold, although five years have elapsed since the date of the treaty, and no 
 patent has issued to any one, and the president has not approved a sale of the land by the 
 reservee. Rains v. Ware, 10 Ala. 623. 
 
 In the absence of proof that a savage tribe of Indians have laws, or customs having the 
 force of law, regulating the descent of property, the presumption arises that the property of 
 a deceased person would belong to the first occupant. Brashear v. Williams, 10 Ala. 630. 
 
 After the extension of the laws of the State over a tribe, property in the possession of In- 
 dians is^nma/acicHable to the payment of their debts. lb. 
 
CHAP. IL] 
 
 ESTATES IN; LAND. ESTATE IN FEE SIMPLE. 
 
 39 
 
 be founded upon the cession made by the treaty of peace to the citi- 
 zens of the United States, by virtue of which the soil of the State be- 
 came the property of its citizens ; and proceeds to declare invalid all 
 grants by former proprietaries, but at the same time confirms them 
 " discharged from all rents, fines and services."(l) 
 
 12. But although American titles to real estate are originally derived 
 from the government, yet, after they have been acquired, the tenant in 
 fee is to all intents and purposes absolute owner. Principles undoubtedly 
 remain in American law which are of purely feudal origin, and probably 
 would not originally have made a part of any other than the feudal 
 system. The claim has been set up, that in Ohio, and the other States 
 formed out of the North "Western Territory, by reason of the great 
 ordinance of 1787, which constitutes the ground- work of their law, and 
 the absence of any express adoption or immemorial use of English 
 principles ; not one doctrine remains in force that can be deduced from 
 tenure, but real estate is owned by an absolute and allodiaUa) title. (2) 
 It may well be doubted, whether this is a distinguishing peculiarity of 
 the North Western States. In New York,(3) the legislature have for- 
 mally abolished feudal tenures, or more properly disclaimed their ex- 
 istence, and declared all lands to be allodial ; and this principle has 
 been incorporated in the constitution. (6) So the statute law of Connect- 
 icut,(4) after reciting, that whereas, by the establishment of the inde- 
 pendence of the United States, the citizens of this State became vested 
 with an allodial title to their lands, provides that every proprietor of 
 lands in fee simple has an absolute and direct property and dominion 
 therein, and that patents or grants from the general assembly of the 
 colony, according to the cha,rter of Cha. IL, are effectual in passing an 
 estate to the purchasers and their heirs forever. So in Maryland, 
 Pennsylvania, Michigan and Wisconsin, (5) lands are declared to be holden 
 by an allodial title.(c) In South Caralina, the statute of Cha. II., es- 
 tablishing the tenure of free and common socage, was early adopted by 
 statute with the great body of the common law.(6) 
 
 13. On the whole it may be safely said, that with regard to the whole 
 United States alike, the feudal system, as a law of tenures^ is abolished ; 
 and the remark of Chancellor Kent(7) is strictly true, that an estate in 
 
 (!) Del. Eev. L. 545 ; ace. 16 Pet. 367. 
 <2) Jurist, Jan. 1834, 94. 
 
 (3) 1 Rev. St. 718 4 Const. 1846, art. 1, 
 sects., 12, 13. 
 
 (4) Eev. L. 34S. 
 
 (5) Sarah, &o., 5 Rawle, 112-3 ; Matthews 
 
 V. "Ward, 10 Gill & J. 443 ; Mich. L. 393 ; 
 "Wise. Rev. Sta. 313. 
 
 (6) 1 Brev. Dig. 136. 
 
 (7) 4 Com. 3 ; Cornell v. Lamb, 2 Cow. 
 652. 
 
 (o) The term applied in the English law to such estates of the subject as are not holden 
 of any superior. 2 Bl. Com. 39, 47, 81 ; Co. Lit. lb; see 3 Kent, 497, n. 
 
 (6) By the Revised Statutes (719, sects. 8, 10), every citizen of the United States may 
 hold lands in the State, and take them by descent, devise or purchase, and every person 
 capable of holding lands, except idiots, persons of unsound mind, and infanta, seized of or en- 
 titled to any interest in lands may alien it, according to law. 
 
 (c) The charter to Wm. Penn was in free and common socage, with power to aliene, &o., 
 reserving services, rents, &c., to Mm,, not to the king. Hence the statute quia emptores was 
 never in force in Pennsylvania. IngersoU v. Sergeant, 1 Whart. 348. In Maryland, the 
 Lord Proprietor held in free and common socage, with the incident of feudal services. And 
 his grantees, before the revolution, held In like manner ; but by that event both_ tenure 
 and services were abolished, and the title became allodial. 10 Gill & J. 443. Quit rents, 
 doe any subject of a foreign prince, are abolished. Md. L. 1-68. 
 
40 ESTATES IN LAND. ESTATE IN FEE SIMPLE [CHAP. II. 
 
 free and pure allodium, and an estate in fee simple absolute, both mean 
 the most ample and perfect interest which can be owned in land.(a) 
 We need not spend time to show, that there is nothing feudal in the 
 principle, by which lands derived by patent from the government may 
 be forfeited for non-payment of taxes ;(1) nor is there much more of 
 the feudal character, or of limitation to absolute ownership, in the doc- 
 trine of escheat, by which, upon failure of heirs, the land of a tenant in 
 fee simple passes to the State or ifie people. With us, escheats take 
 effect, not upon principles of tenure, but by force of our statutes, to 
 avoid the uncertainty and confusion inseparable from the recognition 
 of a title, founded in priority of occupancy.(2)(J) Moreover, inasmuch 
 as lands and goods, upon failure of heirs, follow the same destination, 
 if escheat is an infallible symptom oi feudality, we must admit that every 
 merchant holds his stock in trade by a feudal tenure. 
 
 14. The absolute ownership of a tenant in fee simple is indeed sub- 
 ject to one other qualification, which may, in this connection, be briefly 
 noticed. This, however, is not an existing paramount title in the 
 government, but a mere power, to be exercised on the happening of a 
 future contingency. We refer to the power on the part of the govern- 
 ment, common to the United States and all other civilized nations, of 
 taking private property for public purposes, subject to the obligation 
 expressly imposed by the constitution of every State, of paying a fair 
 compensation therefor. This right is termed the right of eminent do- 
 main. It is exercised in a variety of instances, but for the most part 
 in the taking of private lands for highways, turnpikes, canals and rail- 
 roads. The subject will be noticed in a future portion of this work. 
 
 (1) Clay V. "White, 1 Mun. 170. 
 
 (2) Sarah Desilver, 5 Rawle, 112-3 ; 10 Gill. & J. 443. 
 
 (a) "When the early settlers of Massachusetts, holding their lands under the freest and 
 most liberal English tenure, that of tenants in fee simple in free and common socage, were 
 making provision for granting and taking titles to real estate for themselves and their pos- 
 terity, and when a certain valuable right and interest was annexed to and made part of 
 such grants of estate by the government, competent to impress such character upon it ; 
 they understood, both those who made and those who proceeded to take titles and settle the 
 country under such grants, that the grantees acquired a legal right and vested interest in 
 the soil, and not a mere permissive indulgence or gratuitous license, given without con- 
 sideration, and to be revoked and annulled at the pleasure of those who gave it." Per 
 Shaw, C. J., Com. v. Alger, 7 Cuah. •?!. 
 
 (6) In tjie foregoing remarks, I would by no means be understood to undervalue the im- 
 portance of studying the Feudal Law (so earnestly contended for by the learned author of 
 "a Course of Legal Study"), as matter of history, or as furnishing an eoiplanation of some 
 principles now in force. Let it be deeply inquired into, like the History of England, or the 
 Civil Law, by the ingenuous and philosophical student. I have merely wished to explain 
 why it is omitted as a constituent portion of American Law. ■ The observations already 
 made upon the subject may properly be closed by the following forcible remarks of Chan- 
 cellor Kent, showing conclusively tliat the American student is not to neglect the study of 
 the feudal law. "It is a singular fact — a sort of anomaly in the history of jurisprudence — 
 that the curious inventions, and subtle, profound, but solid distinctions, which guarded and 
 cherished the rights and remedies attached to real property, in the feudal ages, should 
 have been transported, and should for so long a time remain rooted in soils that never felt 
 the fabric of the feudal system ; whilst, on the other hand, the English parliamentary com- 
 missioners, in their report, proposed, and Parliament executed, a sweeping abolition of the 
 whole formidable catalogue of writs of right, writs of entry, writs of assize, and all the other 
 writs in real actions, with the single exception of writs of dower, and quare impedit." 
 4 Kent, 10-1, n. 
 
CHAP. II.] ESTATES IN LAND. ESTATE IN FEB SIMPLE. 41 
 
 15. In view of the foregoing considerations, it may safely be laid 
 down, tliat one who holds lands in fee simple is the absolute owner. 
 The methods of acquiring this title will be treated of hereafter. 
 
 16. An owner in fee simple, as well as of every other freehold estate, 
 is said to be seized ; while the owner of an estate less than freehold has 
 possession merely, and not seizin. Anciently, the possession of a feud 
 was called seizin, denoting the completion of the investiture by which 
 the tenant was admitted to the feud. Upon the introduction of the 
 feudal law into England, this word was only applied to the possession of 
 an estate oi freehold; in contra-distinction to that precarious kind of 
 possession by which tenants in villenage held their lands ; which was 
 considered to be the possession of their lords, in whom the freehold 
 continued. (a) 
 
 17. Seizin is of two kinds — seizin in deed, or as Lord Coke terms it, 
 "a natural seizin ;" and seizin in law, or "a civil seizin." The former 
 is actual possession of a freehold ; the latter a legal right to such posses- 
 sion. Formerly seizin in deed could be acquired only by an actual 
 occupation. In case of a purchase or conveyance, the ceremony of 
 livery of seizin was required to vest a title ; and, in case of descent, the 
 heir was not seized in deed, until he had by himself or another actually 
 entered on the land. 
 
 18. How far these principles are in force in the United States, will 
 be more particularly considered hereafter.(6) It is sufficient to say here, 
 that for most purposes an heir is considered as actually seized, without 
 entry, and that a conveyance, by deed, executed, acknowledged and re- 
 corded, or, in general, by a patent under the seal of the Commonwealth, 
 if there be no adverse possession, gives a seizin in deed, without entry. (l){c) 
 The recording of a deed is the legal equivalent for livery of seizin. (2) And 
 
 (1) Pidge V. Tyler, 4 Mass. 546 ; Knox v. 
 Jenks, T, 494; Goodwin v. Hubbard, 15, 
 214; Clay v. White, 1 Mun. 170. 
 
 (2) Barr v. Galloway, 1 McLean, 476; 
 Prop'rs. &o. V. Permit, 8 N. H. 512; 4 Mass. 
 546; Ward v. Fuller, 15 Pick. 185. 
 
 (a) A tenant in fee cannot maintain an action for the freehold, as distinct therefrom. So 
 with a tenant in tail. Webster v. Gilman, 1 Story R. 499. See Howe v. Wildes, 34 Maine, 
 566. If a tenant for life die, pending a suit for the land, the court may render judgment ; 
 and, if heirs succeed to the title, may issue execution in their favor. Wilson v. Hall, 13 
 Ired. 489. 
 
 (6) See Deed, Descent, Livery of Seizin. 
 
 (c) So, in Massachusetts, a devisee of vacant land may maintain a writ of entry therefor, 
 without an actual entry. Green v. Chelsea, 24 Pick, 71. 
 
 So the levy of an execution upon land of the debtor gives the creditor actual seizin. 
 Munroe v. Luke, 1 Met. 462 ; Blood v. Wood, lb. 534. But if an execution against A is 
 levied on land of B, B is not so far disseized, that he cannot bring trespass, without re-entry, 
 against the judgment creditor or those acting under him. Blood u. Wood, 1 Met. 528. 
 
 And a mixed possession of land, under a deed from one without title, does not convey a 
 seizin, as against ono claiming by virtue of a like possession. Magoun v. Lapham, 21 
 Pick. 135. 
 
 If the land of a debtor was attached upon the original writ, by the levy of his execution, 
 the creditor gains the same seizin as if the debtor had given him a deed at the time of 
 attachment. Bryant v: Tucker, 1 Appl. 383. Nason v. Grant, 8 Shepl. 160. By such 
 levy, the debtor becomes a tenant at will ; and, if he resists the creditor's entry, may be 
 treated as a disseizjr at his election. lb. To vest the title to real estate in the creditor 
 wlio levies an execution upon it, there must be a delivery of seizin to him, and, if he refuse 
 to receive seizin, the previous proceedings in making the levy will not operate to satisfy the 
 execution. Jackson v. Woodman, 29 Maine, 266. 
 
 The delivery of seizin must be shown by the return of the officer, and the declarations of 
 the creditor are not evidence upon the question of title. lb. 
 
42 
 
 ESTATES IN LAND. ESTATE IN FEE SIMPLE. [CHAP. IL 
 
 a deed duly acknowledged and recorded, is prima facie evidence of 
 seizin in the grantor and in the grantee. In Ohio, Massachusetts, and 
 Connecticut (and the law is the same, it seems, in Pennsylvania,) it is 
 said, seizin means nothing more than ownership. It is further remarked, 
 that there is no distinction between seizin in law and seizin in deed, 
 and, in Ohio, that entry probably is not necessary to complete the title 
 of an heir.{Y){a) 
 
 19. But where one gave a deed of wild land, having no title, although 
 the deed was acknowledged and recorded, and the grantee entered, but 
 exercised no open and exclusive ownership by fencing or otherwise ; 
 it was held, that these facts did not give an adverse seizin against the 
 will of the owner, the registration not being constructive notice to 
 him.(2) 
 
 20. In Kentucky, s, patent of lands by the Commonwealth gives only 
 a right of entry, not actual seizin.(3) 
 
 21. Entry, to give seizin, may be made by the owner, or by his 
 agent.(6) The entry must be made, not by consent, invitation or hos- 
 pitality of the occupant, as, for instance, to remove the goods of the 
 party entering; but with the intent to gain seizin — animo clainandi — 
 an* accompanied by some act or declaration showing such intent, and 
 challenging the right of the occupant. The intent is a question for the 
 jury. If the entry is such as would be a trespass in a mere stranger, 
 it is effectual ; otherwise, not. If there be no one residing on the land, 
 it is not necessary to seek thfe adverse occupant and give notice of the 
 claim under which entry is made. If made by an agent, it is the usual 
 and perhaps most prudent course, to give him a power of attorney under 
 seal. But a general agency is sufficient authority ; and if the principal 
 bring a suit founded on the entry, this ratification is sufficient, without 
 previous authority. (4) 
 
 22. And where an agent was empowered by the owners of certain 
 unoccupied land to " look up the land for them," and entered to sufvey 
 and take possession, without making any declaration of his intent ; held, 
 such declaration was unnecessary.(5) 
 
 23. If one disseized, having a right of entry, enter and give a deed 
 on the land, the deed is effectual to pass a title.(6) So if one disseized, 
 having the right of entry, enters peaceably, the land being vacant, and 
 takes possession under his title ; and the disseizor or others afterwards 
 break and enter the premises ; the disseizee may bring an action of 
 trespass against them.(7) 
 
 (1) "Walk. Intro. 324, 330 ; Bush v. Brad- 
 ley, 4 Day, 305-6; Cook v. Hammond, 4 
 Mass. 489. 
 
 (2) Bates v. Norcrosa, 14 Pick. 224. 
 
 (3) Speed V. Buford, 3 Bibb, 57. See Rogers 
 V. Moore, 9 B. Men. 40 1 ; Hinman v. Cevan- 
 way, 9 Barr, 40; Steadman v. Hilliard, 3 
 Eich. 101. 
 
 (4) Richards u.Folsom, 2 Pairf. lO; Steams, 
 
 45 ; Co. Lit. 245, b ; Plow. 92-3. In Eng- 
 land, an authority to deliver seizin must be 
 by deed. Co. Lit. 52. a; See Altemas v. 
 Campbell, 9 Watts, 28'; Holly v. Brown, 14 
 Conn. 255 ; Campbell v. Wallace, 12 N. H. 
 162 ; Cowan v. Wheeler, 31 Maine, 439. 
 
 (5) Tolman v. Emerson, 4 Pick. 160. 
 
 (6) Cakes «. Maroy, 10 Pick. 195. 
 (•7) Tyler v. Smith, 8 Met. 599. 
 
 (a) Seizin is possession, under an express or implied claim of freehold. Towle v. Ayer, 
 8 N. H. 57 ; Straw v. Jones, 9, 400. When used in statutes, it may have an enlarged signi- 
 fication, if necessary, to effect the intent. Matthews v. Ward, 10 Gill & J. 443. 
 
 (6) So an occupation for 20 years by an agent gives a good title. Goodwin v. Sawyer, 
 33 Maine, 641. 
 
CHAP, n.] ESTATES IN LAND. ESTATE IN i"BE SIMPLE. 
 
 43 
 
 24. Where one enters on land claiming no title, he gains no seizin 
 but by ousting the occupant, and not beyond his actual possession. 
 But if there is a claim and color of title, especially if clearly defined 
 in extent, entry on a part may give seizin of all to which the title ex- 
 tends, although the land be not enclosed, provided there is no adverse 
 possession.(l)(a) 
 
 24 a. The general principle applies, only where the quantity of the 
 land and the attendant circumstances, reasonably induce the belief, that 
 the land was bought and entered upon for the ordinary purposes of 
 cultivation and use ; but not where a person takes and maintains pos- 
 session of a few acres in an uncultivated township, for the mere pur- 
 pose of gaining a title to the township by possession, against the lawful 
 owners.(2) 
 
 24 h. Adverse possession, under a claim of right, extends to so much 
 of the land within another's survey, as is within known bounds, up to 
 
 (1) Ellicott V. Pear], 10 Pet. 414; 1 McL. 214; 
 Proprietors, &c. v. Springer, 4 Mass. 418; 
 Green v. Liter, 8 Cranch, 229 ; Bank, &o. v. 
 Smyers,2 Strobh.24; Barr v. Gratz, 4 "Wheat. 
 213; Shrieve V. Summers, 1 Dana, 239 ; Par- 
 rar v. Eastman, 1 Pairf. 191; Thompson v. 
 Milford, 7 "Watts, 442 ; Johnson v. Parlow, 13 
 Ired. 84; Heiser v. Eiehle, T Watts, 35 ; 
 Crowell V. Bebee, 10 Verm. 33 : Hubbard v. 
 Austin, 11, 129; Griffith v. Dioken, 2 B. Mon. 
 24; Shaokleford V. Smith, 5 Dana, 239; Wat- 
 kins «. Holman, 16 Pet. 25; Webb v. Sturt- 
 evant, 1 Scam. 183; Blackburn v. Baker, 7 
 
 Por. 284; Stearns v. Palmer, 10 Met. 32; 
 Osborne «. Ballew, 12 Ired. 373; Moor «. 
 Campbell, 15 N. H. 208; Waggoner v. Hast- 
 ings, 5 Barr. 300 ; Kite v. Brown, lb. 291 ; 
 Bailey u. Carleton, 12 N. H. 9; Doe d.'Mc- 
 Cleary, 2 Cart. 405 ; Noyes v. Dyer. 25 Maine, 
 468; Northrop v. Wright, 7 Hill, 476; 
 Putnam ». Pisher, 34 Maine, 172; Altemus 
 V. Long, 4 Barr, 254; Saxton v. Hunt, 1 
 Spencer, 487 ; Virg. Code, 560 ; Misso. Sts. 
 1847, 55. 
 (2) Chandler v. Spear, 22 Verm. 388. 
 
 (ffi) Lord Coke seems to limit the latter principle to the case, where an entry is made 
 merely to complete a seizin in law, like that of an heir ; and to regard it as inapplicable 
 where the entry is adverse, as by a disseizee, or a feoffor for condition broken. But he 
 elsewhere explains the distinction between a hare title, such as a condition, involving no in- 
 terest in, or right of action for the land, and the claim of a disseizee. Co. Lit. 15 a, 252 b. 
 
 Where a rightful owner enters upon part of the land, this will be sufficient for the whole, 
 although another person, having no color of title, enters upon the vacant portion. Hubbard 
 V. Austin, 11 Verm. 129. See Ralph v. Bayley, lb. 521. A statute of limitation gives 
 title not only to such part of the land as is enclosed and cultivated, but to all which is ad- 
 vantageously u,sed as a portion of the farm — as, for instance, woodland. Lawrence v. Hunter, 
 9 Watts, 64. So, to all the lands included in marked lines. Bell v. Hartley, 4 U. & S. 
 32. See M'Call v. Coover, lb. 151 ; M'Caffrey v. Pisher, lb. 181. Where two distinct 
 grants or deeds lap, and neither party is in possession of the lapped portion, the law gives 
 it to the owner of the better title. But, if one is in possession, he is the exclusive owner. 
 Williams «. Buchanan, llred. 535. SeeSmithn. Ingram, 7, 175. Incase of a demise of mines 
 and minerals upon a long tract of waste, working under a part gives legal possession of the 
 whole. Taylor v. Parry, 1 Man. & G. 604. 
 
 An entry upon a tract of land, under a survey bill or record, giving a definite and certain 
 extent to the land, and the occupation of part of the land, without evidence to limit or restrict 
 the possession, will give constructive possession of the whole tract surveyed. But this may 
 be restricted and controlled by evidence of the acts and declarations of the occupant. 
 Brown v. Edson, 22 Verm. 357. Where one enters upon wild lands, and marks out bound- 
 aries with the intention of taking possession, the possession embraces all within those 
 boundaries. Campbell v. Thomas, 9 B. Mon. 82. 
 
 A tenant put in possession by the grantee, without definite boundaries, will be held as 
 in possession of the whole tract. Ellicott v. Pearl, 1 MoL. 214. 
 
 The deed, contract or plat, under which possession is acquired, constitutes color of title, 
 and defines or shows the extent of the occupant's claim. Gray v. Bates, 3 Strobh. 498. 
 
 The rule, that one in actual possession of part of a tract will be deemed in possession 
 of the whole, does not apply as against the real owner, who is also in possession of a part. 
 To create an adverse possession as against such owner, there must be actual occupation. 
 Cottle V. Sydnor, 10 Mis. 763. 
 
44 
 
 ESTATES IN LAND. ESTATE IN FEB SIMPLE. [CHAP. IL 
 
 which a claim has been made, with such use as farmers make of their 
 farms, by one residing on a part bf the land claimed ; although his 
 house was not within the lines of the survey, and the land was not 
 enclosed.(l) 
 
 24 c. A party entered upon two tracts of wild land, cultivated a 
 very small portion of them in the midst of the woods, and h^eldthem 
 for seven years. Held, by his adverse possession, he gained a title to 
 the whole of the tracts included in his fictitious grants.(2) 
 
 24 d. The owner of a large tract of land made a parol gift of it to 
 his two sons, who, with him, during his life, for more than fifteen years, 
 occupied the land. The father had made a will conformably to this 
 gift, but afterwards made another one, not altering the devise to his 
 sons. After his death, the sons bring a joint action for the whole land. 
 Held, their adverse possession during the father's life included only the 
 parts enclosed by them, there being no deed or plat giving a colorable 
 title to the whole ; and that their joining in suit did not strengthen 
 their claim, they being mere co-trespassers.(3) 
 
 24 e. Where a patentee settles a tenant upon the land included in his 
 patent, without limiting' his possession, he has a constructive possession 
 of the whole. But, where a stranger settles upon patented land with- 
 out license from the patentee, an intention to occupy the whole may 
 be inferred, but is not a presumption of law.(4) 
 
 24/ A small improvement, made by a person on one of two quarter 
 sections of land, which were distant from each other a half of a mile, 
 is no authority for his setting up an adverse possession of the other 
 quarter section, though both were conveyed to him by the same 
 deed.(5) 
 
 24^. An entry on a lot of land by the owner, to survey it and put 
 up monuments of boundaries, gives him seiz;in, as against wrong-doers, 
 of all within the boundaries, though including more than his lot. (6) 
 
 24 A. Where one person is seized, entry by another, claiming under 
 a registered deed, upon a part thereof, does not constitute a disseizin of 
 the whole by election, unless the latter continues in possession of the 
 part entered upon. (7) 
 
 24 i. Where one, having the elder title to land, enters under his deed, 
 with intent to take possession to the boundaries of his deed, he is in 
 possession to that extent, though another person be in possession under 
 a junior title to the same land, but outside of the interference. (8) 
 
 24y. Where one goes into possession of land under a survey, and by 
 mistake occupies beyond the limits of the survey, the possession be- 
 yond the limits of the survey is not adverse, and, being continued 
 twenty years, will give him no right against the owner.(9) 
 
 24 k. When land is enclosed by a river, fence or road, and a disseizor 
 occupies it as near the boundary as is convenient, considering the 
 nature and situation of the land, and intends to occupy the whole lot ; 
 this may be an occupation of the whole, though there is a narrow strip 
 by such boundary not actually cultivated.(lO) 
 
 (1) Fitch V. Mann, 8 Barr, 503. 
 
 (2) Lenoir v. South, 10 Ired. 23T. 
 
 (3) Golson V. Hook, 4 Strobh. 23. 
 
 (4) WiokliEfe v. Eusor, 9 B. Mon. 253. 
 
 (5) Stephenson v. Doe, 8 Blackf. 508. 
 
 (6) Parker v. Brown, 15 N. H. 176. 
 
 (7) Robinson v. Brown. 32 Maine, 578. 
 
 (8) Grughler v. Wheeler, 12 B. Mon. 183. 
 
 (9) Hunter v. Chrisman, 6 B. Mon. 463. 
 
 (10) Allen V. Holton, 20 Pick. 458. See 
 Barker v. Salmon, 2 Met. 32. 
 
CHAP. 11.] ESTATES IN LAND. ESTATE IN EBE SIMPLE. 
 
 45 
 
 24 I. The tenant fenced in part of the demandant's land, in order to 
 protect a crop on his own, and cut a tree and some brushwood on this 
 part, but without intending to ckim or occupy, or exclude the demand- 
 ant from it. Held, the demandant might elect to consider himself dis- 
 seized.(l) 
 
 25. Eatry upon land must ensue or correspond with the party's ac- 
 tion for its recovery. Hence, one entry can never be sufficient, upon 
 lands lying in different counties, or wrongfully taken by different dissei- 
 zors, or let by one disseizor to different tenants ybr life; because in each 
 of these cases there must be several actions. On the other, hand, if the 
 lands are in one county, let by one disseizor to several tenants for years, 
 or taken by one disseizor at several times ; one entry in the name of the 
 whole may be sufficient, because one action would lie. So, where one 
 enters, without title, on a tract of land lying in two counties, in one of 
 those counties, and keeps possession of the same, claiming to hold the 
 whole tract; his possession extends only to the lines of the county in 
 which the entry was made.(2) An analogous 'distinction is established in 
 England as to livery of seizin. But it is said not to apply, where one 
 manor extends into two counties. This however is doubted. (3)(a) 
 
 26. Where an heir is deterred by bodily fear from entering upon the 
 lands descended to him, it will be sufficient to go as near as he can and 
 claim them ; which act shall be repeated once in a year (called in the 
 old law a year and a day), and is then called continual claim, and has 
 the effect of actual entry.(4) 
 
 27. If the land is in possession of a tenant for years, at the death of 
 the ancestor, the heir becomes seized in deed, without entry or even re- 
 ceipt of rent. So also where the heir is an infant, and the land is in 
 possession of his guardian. (5) 
 
 28. If the land is in possession of a tenant for life, the heir becomes 
 seized of the rent by receipt of an instalment ; but whether of the land 
 also, has been doubted.(6) 
 
 29. Where, after the ancestor's death, a stranger enters upon the 
 land, such entry is termed an abatement, and defeats the seizin in law 
 of the heir. But the latter may regain seizin by entry, unless the aba- 
 tor have died. seized, in which case the heir must in general resort to 
 an action to recover possession. (7) 
 
 30. In some cases, however, the entry of a party without title does 
 not defeat the seizin of the heir, but on the contrary gives him a seizin 
 in deed. This is where the entry may be supposed to be not adverse, 
 but amicable, and made to prevent the entry of strangers. As where 
 a mother, or, in England, a younger brother enters. And even the 
 
 (1) lb. 
 
 (2) Co. Lit. 252 b ; Roberts v. Long, 12 B. 
 Mon. 194. 
 
 (3) Lit. 61; Co. Lit. 50 a. n. 2. 
 
 (4) 1 Cruise, 42; Stearns. 18. By St. 3&4 
 ■Will. 4, u. 27, suoli claim is ineffectual to pre- 
 
 serve a title, without actual change of posses- 
 sion. 
 
 (5) Co. Lit. 15 a. 
 
 (6) lb. 
 
 (7) 1 Cruise, 42. 
 
 (a) Littleton places this rule upon the ground that the younger son claims by the same ti- 
 tle with the elder ; as heir to his father. It is abolished by St. 3 & 4 "Wm. 4, c. 27, s. 13. 
 
46 
 
 ESTATES IN LAND. ESTATE IN EEB SIMPLE. [CHAP. IL 
 
 death of a party so entering will not prevent an entry by the heir.(l)(a) 
 So, when land descends to several heirs, a part of whom enter thereup- 
 on, their entry is presumed to be according to their legal title, and en- 
 ures to the benefit of all, so that all are seized, unless those who enter 
 claim adversely and oust the other3.(2) 
 
 81. It may not be unimportant to notice the distinction between sei- 
 zin in law and by operation of law ; and between seizin in deed, and ly 
 deed or by purchase.{b) It has been seen that an heir, who claims by 
 operation of law, is seized only in law^ until actual entry. But there 
 are other cases, hereafter to be more particularly noticed, where a par- 
 ty, coming to an estate by operation of law, is seized in deed without 
 entry or any other formality. Thus a tenant by the curtesy, upon the 
 death of the wife, becomes fully seized by mere operation of law. So 
 in the case of dower, although the widow does not perfect her title un- 
 til an actual assignment is made, yet, when made, her title relates back 
 to the death of the husband ; she holds, not by the assignment, but by 
 law, and merely in continuation of the husband's estate. 
 
 32. The reason of these rules is obvious. Although neither husband 
 nor wife acquires a complete title till the death of the party from whom 
 such title is derived ; yet both acquire an initiate title before that event — 
 the one upon marriage and birth of issue, the other by marriage alone. 
 And the husband by his own possession, and the wife by her husband's 
 possession, may be regarded as actually seized during the marriage. 
 
 33. Intimately connected with the subject of seizin is that of disseizin; 
 of which it has been remarked(3) "there is scarcely a subject in the 
 English law so obscure." This observation of an English writer, de- 
 rives additional force from the various and conflicting decisions upon 
 the subject, to be found in the American cases. 
 
 34. Disseizin is defined as a wrongful putting out of him that is seized of 
 
 (1) Lit. 8. 396 ; Gilb. Ten. 28 ; Doei;. Keen, 
 7 T. R. 386; (See 3 Nev. k M. 331;) Bur- 
 rows V. Holt, 20 Conn. 459. 
 
 (2) Means v. Welles, 12 Met. 356. 
 
 (3) 1 Cruise, 43 ; Watson u. Gregg, 10 
 Watts, 289 ; Graffius v. Tottenham, 1 Watts 
 & S. 488. 
 
 (a) The owner of a farm died in 1778, leaving his widow and ten children in possession. 
 The tenant, one of bis sons, then seventeen years of age, carried on the farm, living there, 
 with the co-heirs, until 1793, when the rest of the heirs went away. His sisters having 
 married, he was left in possession of the farm, which he continued to manage until his death, 
 in 1822. It did not appear that he ever made any claim of title to the whole farm. Held; 
 he acquired no title by adverse possession. Campbell i). Campbell, 13 N. H. 483. 
 
 Where land is set off to two persons jointly, the possession of one, claiming the whole, is 
 not adverse to the other, within the statute of limitations. Brooks v. Towle, 14 N. H. 248. 
 So an entry by one cotenant gives seizip to all in the whole lands, according to their re- 
 spective titles. Thomas V. Hatch, 3 Sumn. 170. So if a disseizor, after five years' posses- 
 sion, give up to one tenant in common all the title of the latter to the land; the title of all 
 the tenants revests in them. Vaughan v. Bacon, 3 Shepl. 455 
 
 A judgment was recovered in the name, and with the knowledge and consent of A for 
 the benefit of B; execution issued, and land was thereupon set off to A, possession received 
 by B as his attorney, and the land was held and occupied by B, with the knowledge of A, for 
 over 20 years. Held, B did not gain a title by disseizin, sufficiently to sustain a writ of en- 
 try. Peabody v. Tarbell, 2 Cush. 226. 
 
 Upon a somewhat similar principle, a party in possession of land, holding under another 
 person, cannot render his possession adverse, except by an open and notorious act. If he 
 take a secret conveyance in fee of the land from one claiming to be owner, and keep it 
 secret, the character of his possession is not changed. Sharpe v Kelley, 5 Denio 431 
 
 (6) See 1 Steph. 367, n. .». . • 
 
CHAP. II.] ESTATES IN LAND. ESTATE IN VE% SIMPLE: 47 
 
 tte freehold ;(1) or it is, " where a man entereth into lands or tetiettients, 
 where his entry is not coiigeahle {i. e., by leave or- permission) and 
 ousteth him which hath the freehold."(2) 
 
 85. To constitute disseizin, it is held, that an entry must be at the 
 time under claim or color of title ;{a) otherwise it is a mere trespass. It 
 must be such as to raise the presumption of a deed. If made under 
 a deed, the character of the possession may be shown by the terms of 
 the deed. If these are indefinite, they will not control the extent of 
 actual occupancy. So entry by a party as purchaser under a judgment 
 is a disseizin. The intention guides the entry, and fixes its character. 
 Adverse possession must be continued, uninterrupted, notorious, and ex- 
 clusive ; and the burden of proof is on the party alleging it to be so. 
 To make a continuity in successive persons, there must be privity 
 of blood, contract or estate. As has been stated, disseizin may be 
 proved by a conveyance, though defective, and disproved by an 
 offer of purchase, or any act or declaration implying recognition of 
 another's title. Whether possession under an executory contract to 
 purchase can be deemed adverse, is a point left somewhat doubtful.(6) 
 
 (1) Taylor v. Horde, 1 Burr, 110 ; a very i But see 2 Prest. on Abstr. 279 ; Prescott v. 
 leading case upon this subject, the prominent Nevers, 4 Mass. 326 ; Towle v. Ayer, 8 N. H. 
 
 doctrine of which is, that, except in cases of 
 aotur"' forcible dispossession, it shall depend 
 upon the election of the owner, whether an 
 interference with his title shall constitute dis- 
 seizin. Ace. Jewitt V. "Ware, 3 Price, 635 ; 
 Blowder v. Baugh, Cro. Car. 302 ; G-oodright 
 V. Forester, 1 Taun. 578 ; Doe v. Lynes, 3 B. 
 & C. 388 ; Bonham v. Badgley, 2 Gilm. 622 ; 
 
 57. Whether every possession of the land of 
 another is not prima facie adverse, until the 
 contrary is proved — qucere. Conyers v. Kman, 
 4 Geo. 308. There cannot be two seizins of 
 the same land. Putnam, &c. v. Pisher, 34 
 Maine, 172. 
 
 (2) Lit. sec. 279. 
 
 (o) As under a grant, though void for irregularity, if the deed and entry are lona fide. 
 Moody V. Fleming, 4 Geo. 115; Macklot v. Dubrenil, 9 Miss, 477 ; Noyes v. Dyer, 25 Maine, 
 468. But a deed void on its face has been held insufficient. Simpson v. Downing, 23 
 Wend. 316. 
 
 If a person enters into possession of land under one title, and afterwards purchases in an 
 adverse claim, his subsequent possession will not be regarded as adverse to his former title, 
 but under both. So of those claiming under him. Pleak v. Chambers, 7 B. Mon. 565. 
 
 Where a party is in actual possession, and has a right to possession under a legal title 
 which is not adverse, but claims the possession under another title which is adverse, the 
 possession will not be deemed adverse. Nichols v. Eeynolds, 1 Angell, 30. 
 
 A sheriff's deed, without producing the judgment and execution under which the land 
 was sold, is sufficient to show the character of the grantee who claims under it, and renders 
 his possession adverse. Riggs v. Dooley, 7 B. Mon. 236. 
 
 And where the grantee in such deed went into possession, before he obtained the deed, 
 under a purchase from two of five heirs; held, the statute of limitations began to run against 
 the others from the time of notice of the adverse holding. lb. 
 
 (6) Thus in Massachusetts it has been held, that in case of an agreement to buy and sell, 
 no payment made or deed given, and an entry by the purchaser, he is presumed to enter by 
 consent, and holds as tenant at will. But if payment is made, and consent given for the 
 purchaser to enter and hold the land as his own, but the deed is delayed, accidentally or for 
 convenience, and with the agreement to give it without further consideration or condition, 
 and possession taken; this is a disseizin. Brown v. King, 5 Met. 173 ; ace. Fosgate v. Her- 
 kimer,&c.,12Barb.252; andseeSellersv.Haye.s,17 Ala. 749; Fainw.Garthright, 5 Geo. 6. So, 
 in South Carolina, he who goes into possession of land, under a contract to purchase, holds 
 the land adversely to the claims of all other persons, except him from whom he bought ; 
 and his possessions, both before and after he receives titles, may be coupled together, to 
 make up a statutory title. Bank, &o. v. Smyers, 2 Strobh. 24. Contined possession under 
 a license from the owner gives a title. Pope v. Henry, 24 Verm. 560. 
 
 On the other hand, if a vendor continue in possession after giving a deed, he is a tenant 
 at will, unless there be an explicit disclaimer of the relation. If he deny the title and resist 
 the claim of the vendee, the latter may at bis election sue bim as a disseizor. Burhanu v. 
 
48 
 
 ESTATES IN LAJ!TD. ESTATE IN FEB SIMPLE. [CHAP. H. 
 
 If a lessee pour autre vie hold over, under the false representation 
 that the cestui -que vie is living ; his possession is not adverse. But 
 where the husband of a woman, tenant for life, held the land for twenty 
 years from her decease ; held, he thereby acquired a good adverse title. 
 The general rule is, that when seizin is once proved, it is presumed to 
 continue till some adverse possession is shown, and prima facie evidence 
 of disseizin is not sufficient to change the burden of proof So a pos- 
 session originally adverse is presumed to continue so. A tenant oaxiuot 
 disseize his landlord, but at the election of the latter, unless he give 
 notice, or make some change in his mode of occupation, which may 
 put the landlord on his guard. His declaration to a stranger is no evi- 
 dence of, disseizin. (l)(a) 
 
 (1) Ripley v. Tale, 18 Term. 220 ; Rung 
 V. Siioneberger, 2 Watts, 23 ; Stillman v. 
 White, &o., "W". & M. 538 ; Corwin v. Corwin, 
 9 Barb. 219; Fosgate v. Herkimer, &o., lb. 
 287 ; Lane v. Gould, 10 Barb, 254 ; Mitchell 
 V. Lite, 8 Terg. 179; Swing v. Burnett, 11 
 Pet. 41 ; Avery v. Baum, Wright, 576 ; Kin- 
 sell V. Daggett, 2 Fairf. 309 ; Jackson v. John- 
 son, 5 Cow. 74 ; Tubb v. Williams, 7 Humph. 
 367 ; Jones v. Chiles, 2 Dana, 31 ; Miller v. 
 Lindsey, 1 McL. 33 ; Thomas v. Hatch, 3 
 Sumn. 170; Brower v. King, 5 Met. 173; 
 
 Alden v. Gilmore, 1 Shepl. 178 ; Crane v. 
 Marshall, 4 lb. 27 ; Stearns v. Godfrey lb. 158 ; 
 Dow V. Plummer, 5 lb. 14 ; King v. Axbridge, 
 4 Nev. & M. 477 ; Doe v. Gregory, lb. 308 ; 
 South, &o. V. Blakeslee, 13 Conn. 227 ; Wiok- 
 liEfe V. Euson, 9 B. Mon. 253 ; Long v. Mast, 
 11 Penns. 189; School, &c. v. Benson, 31 
 Maine, 38 ; Story v. Saunders, 8 Humpli. 663 ; 
 Stansbury v. Taggart, 3 McL. 457 ; Peirgon 
 V. Doe, 2 Carter, 123 ; Clason v. Rankin, 1 
 Duer, 337; Posgatet). Herkimer, &c., ,12 Barb. 
 352. Kji 
 
 TanZandt, 7 Barb. 91. Carver u. Ear], 1 Shepl. 216. See Millay v. Millay, 6 lb. 387. 
 Possession for over seven years in North Carolina, will not enable such vendor to maintain 
 a suit for the land, unless he show a subsequent colorable title, and occupation under it, 
 which he is not estopped from doing. Johnson v. Parlow, 13 Ired. 84. Where one enters, 
 claiming title under a parol gift, twenty years' possession gives him the absolute ownership. 
 Summer v. Stevens, 6 Met. 337. So where an execution defendant remains in possession 
 of the land sold, such possession is not necessarily permissive, nor is he estopped from set- 
 ting it up as adverse ; and, if continued twenty years, it gives him a good title. Chalfln v. 
 Malone, 9 B. Mon. 496. 
 
 If one enter upon land of tenants in common by license of one of them, and erect 
 and occupy a building thereon, he is presumed to hold under them, till the contrary is 
 proved. Buckman v. Buckman, 30 Maine, 494. 
 
 A corporation being in possession of land as tenants of the crown, a grant was made to 
 the corporation by the colonial governor, after which none of the rents in the lease were 
 paid, which before had been paid, but only the quit rents reserved in the'grant; and these 
 were finally discontinued, and long leases made by the corporation. Held, the corporation 
 were in possession, not as tenants, but grantees, of the crown ; and acquired a perfect and 
 absolute title after a possession of one hundred and forty years. Bogardus v. Trinity, &c., 
 4 Sandf Ch. 633. 
 
 In 1829, land was leased for twenty-one years to the defendant. He applied to the lessor 
 for leave to take in a piece of ground adjoining, but the lessor declined to permit it, stating 
 that other persons, purchasers of adjoining houses, had a right of way over the ground. 
 The defendant, notwithstanding, enclosed and for twenty years occupied it, without pay- 
 ment of rent or acknowledgment of title; held, the piece of ground was no part of the de- 
 niised premises for which rent was paid, and therefore an action by the lessor was barred 
 by St. 3 ft 4 Will. 4 o. 27. Palmer v. Byre, 6 Eng. L. & Bq. 355. 
 
 Where adverse possession for thirty years is admitted, it makes no difference that the 
 entry was first made through a mistake of boundaries. Melvin v. Proprietors, ftc, 5 Met. 
 15 ; ace. Otis v. Moulton, 2 Appl. 205. But see Proprietors, ftc. v. Day, 7 N. H. 457 ; Hale 
 V. Glidden. 10, 397. So one may claim title by disseizin, though he has previously relied 
 upon a deed which does not include the premises. lb. And see Greenlaw v. Greenlaw, 1 
 Shepl. 182. 
 
 Color of title may be defined to be a writing, upon its face professing to pass title, but which 
 does not do it, either from a want of title in the person making it or from the defective con- 
 veyance that is used ; a title that is imperfect, but not so obviously so that it would be 
 apparent to one not skilled in the law. Beverly v. Burke, 9 Geo. 440. 
 
 (a) Where one party protested agaidst the acts of the other, during the possession of the 
 latter, and consulted counsel in regard to them ; held, the possession was not adverse. 
 
CHAP. II.] ESTATES IN LAND. ESTATE IN FEE SIMPLE. 49 
 
 36. In Maine and Massachusetts, (1) every person in possession of land 
 and claiming a freehold, or claiming less than a freehold, if he has 
 turned or kept the owner out of possession, may be treated as a dis- 
 seizor. Neither force nor fraud is necessary to constitute a disseizin.(2) 
 But it has been held in New York,(a) that a disseizin which will cast a 
 descent, so as to toll entry, (that is preclude an entry, and require an 
 action by the true owner against an heir of the disseizor) must be a dis- 
 seizin in fact, expelling the true owner by force or some equivalent act ; 
 and in Pennsylvania, that adverse possession is not to be inferred, but 
 possession is presumed to be in subordination to the legal title. The 
 same doctrine is held in Kentucky.(3) 
 
 37. It has been held in Massachusetts, (4) that actual knowledge, on 
 the part of the owner of land, of an adverse occupation, is not neces- 
 sary to constitute disseizin. It is enough that there are acts in their 
 nature public and notorious, such as fencing or building on the land. 
 So, it has been held in the Supreme Court of the United States, 
 that no acts of improvement are necessary to have this effect, where 
 there has been an entry under claim and color of title, followed by a 
 possession for twenty-one years, and where the land is so situated as 
 not to admit of improvement.(i) 
 
 (1) Mass. Rev. Sta. 610-11 ; Me, lb. 610. 
 
 (2) Small V. Proctor, 15 Mass. 495 ; 8 N. 
 H. 51. 
 
 (3) Smith V. Burtis, 6 John. 197 ; Rung v. 
 Shoneherger, 2 Watts, 23 ; Robertson v. Ro- 
 
 bertson, 2 B. Mon. 238. 
 
 (4) Poignard v. Smith, 6 Pick. 172 ; Hap- 
 good 0. ]3urt, 4 Verm. 155 ; Alden v. Gil- 
 more, 1 Shepl. 178; Ewing v. Burnett, 11 
 Pet. 41. 
 
 StiUman v. White, cfec, 8 W. & M. 538. Where one enclosed with his own land, by mis- 
 take, land of an adjoining owner, claimed no title beyond the true line, and did not prevent 
 the other from occupying to that line; held, not a disseizin. Lincoln w. Edgecomb, 31 
 Maine, 345. 
 
 (a) In this State it is held, that an adverse possession of land, so as to vest the title, 
 where there is no deed or written instrument, can only be made out by showing a real, 
 substantial enclosure, an actual occupancy, which is definite, positive and notorious, or that 
 the premises have been usually cultivated or improved ; and such possession must be regu- 
 larly continued and accompanied throughout by a claim of title for twenty years. Lane 
 V. Gould, 10 Barb. 254. By the new Code of Procedure, (pp. 33-4) in case of adverse pos- 
 session, founded upon a writing or a judgment; possession and occupation mean, 1, that the 
 land is usually cultivated or improved ; 2, protected by a substantial enclosure ; 3, if not en- 
 closed, used for the supply of fuel or fencing timber, for purposes of husbandry, or the ordi- 
 nary use of tlie occupant. Where a known farm or single lot has been partly improved, 
 the part not cleared, or not enclosed, according to usage, is held to be occupied. Otherwise 
 where land is divided into separate lots. 
 
 In case of continued, actual occupation under claim of title, exclusive of any other right, 
 and not founded upon a writing or judgment, a title is gained only to the part actually oc- 
 cupied ; where it is, 1, protected by a substantial enclosure ; 2, usually cultivated or im- 
 proved. 
 
 The possession of a tenant is that of his landlord, till twenty years from termination of 
 the tenancy; if there were no lease, twenty years from the last payment of rent; though 
 the tenant has acquired another title or claimed to hold adversely. 
 
 (i) In Maine, to constitute a disseizin which would, at common law, defeat the deed 
 of the proprietor, there must be an occupancy of a part under a recorded deed, or such an 
 open and visible occupancy, that the proprietor may at once be presumed to know the ex- 
 tent of the claim and occupation. Foxcroft v. Barnes, 29 Maine, 128. 
 
 An occupation, according to statutes 1821, o. 62, and Rev. Sts. c. 147, does not constitute 
 such a disseizin, as will prevent the owner from conveying his land, although it might de- 
 feat a writ of entry brought by the owner for the possession, if it were continued for 
 twenty years. lb. 
 
 The question of adverse possession is not for the court, but exclusively for the jury. 
 Hobart v. Hanrick, 16 Ala. 581 ; Hatch v. Smith, 4 Barr, 109; Grafton v. Grafton, 8. S. 
 
 Vol. I. 4 
 
50 
 
 ESTATES IN LAND. ESTATE IN FEB SIMPLE. [CHAP. XL 
 
 88. It is said, that tiie fencing(a) or enclosing of land has no peculiar 
 efficacy in regard to seizin. It merely raises a presumption ; and other 
 acts, such as raising a crop, making improvements, or felling trees,(6) 
 do the same. So the erection of a fence on wild land, by felling trees 
 and lapping them together, or the Hazing of trees, will not warrant a 
 jury in presuming a grant, or that the owner of the land had notice 
 thereof, nor does it constitute a disseizin. So, cutting wood on wood- 
 land for use and sale, clearing land for cultivation, running lines, mark- 
 ing them by lopping trees, and a sale of part of the land, do not con- 
 stitute disseizin, though done with notice to the owner. So with the 
 payment of taxes, sumg trespassers, &c. On the other hand, a new 
 parol agreement between adjacent owners, upon a divisionalline, fol- 
 lowed by a corresponding possession of one party, is a disseizin of the 
 others.(l) 
 
 38 a. An entry upon land, in order to take possession of it under a 
 claim of title, and marking the lines by spotting the trees around it, is 
 a sufficient possession against one without title ; although, without 
 actual enclosure, not such an adverse possession against the owner as 
 to bar his right by the statute of limitations.(2) 
 
 88 h. Upon such possession, trespass will lie for an entry upon thei 
 land against a wrong-doer, or trover for carrying away timber, after it 
 has been cut upon the land.(8)(c) 
 
 38 c. A testator devised land, of which he obtained the right of 
 possession by a judgment recovered in a petition for partition, after 
 legal notice to parties interested. Held, he died seized of the land, 
 although others who claimed title, occasionally entered and cut wood 
 upon the land, after the judgment of partition. (4) 
 
 38 d. Clearing and cultivating new fields, turning out old ones, when 
 worn out, irnd cutting wood promiscuously, are held in North Carolina 
 to constitute sufifident proof of adverse possession. So, entering, ditch- 
 ing, and making woods in a cypress swamp, in order to procure shin- 
 gles, cutting trees and making shingles.(5) 
 
 38 e. In an action of trespass for cutting timber upon a lot contaiipiing 
 
 (1) Ellioott V. Pearl, 10 Pet.-'414: ; Bishop 
 u Lee, 3 Barr, 214; Slater i; Jepherson, 6 
 Cush. 129 ; Coburn v. HoUis, 3 Met. 125 ; 
 Ewing V. Burnet, 1 McL. 266; Boston, &c. 
 V. Sparhawk, 5 Met. 469 ; Hale v. Glidden, 
 10 N. H. 397 ; Urket v. Coryell, 5 W. & S, 
 60. See Stearns v. Palmpr, 10 Met, 32; 
 Pasley v. English, 5 G-ratt. 141; Moor v. 
 
 Campbell, 15 N. H. 208; Chandler n. 
 Walker, 1 Post. (N. H.) 282. 
 
 (2) Woods «. Banks, 14 N. H. 100. 
 
 (3) lb. 
 
 (4) Dasoonab v. Davis, 5 Met. 335. 
 
 (5) 'Wallace v. Maxwell, 10 Ired. 110; 
 Tread well v. Reddick, Ured. 56. 
 
 AM. 17. Hence, the presiding judge cannot properly charge the jury, that the plaintiff's 
 possession is "uninterrupted, continuous, notorious, sufBcient and adverse." But, the facts 
 being found by tlje jury, it is a question for the court. Macklet v. Gubreuil, 9 Mis. 477. 
 
 (a) Especially if extending beyond the true line by accident. Gilchrist v. McLaughlin, 7 
 Ired. 310. 
 
 (!)) Sometimes termed /MS'tiiw trespasses. Slice «. Derrick, 2 Pick. 127. A distinction is 
 made between acts of this description, and a possession which is continued so far as is prac- 
 ticable; as, in cHse of a stream not navigable, by keeping up fish-traps, making and re- 
 pairing dams, and catching fish every year through the fishing season. Treadwell v. 
 Pi,eddick, 1 Ired. 56; see Flanniken v. Lee. lb. 293. 
 
 |c) The defeiidnnt may sliow a liability to a third person, for the value of the property, 
 in mitigation of damages, though he has made no actual payment. "Woods v. Banks, 14 
 N, H. 101. 
 
CHAP, n.] 
 
 ESTATES IN LAND. ESTATE IN FEB SIMPLE. 
 
 51 
 
 250 acres, the plaintiff claimed title under a deed from the comptroller, 
 given upon a sale for taxes. At the date of the deed, there was a brush 
 fence between the lot and another lot adjoining, which was occupied 
 under a contract from the plaintiff. In consequence of a crook in the 
 fence, about two and a half rods of the lot in question were enclosed 
 with the lot adjoining, so occupied, and the occupant, and those who 
 had preceded him in the possession of that lot, had mowed grass upon 
 the two and a half rods, but without intention to occupy over the line 
 of the lot, or knowledge that they had done so. Held, the lot in ques- 
 tion was not actually occupied within the meaning of the statute (1 
 Eev. Sts. 412, sec. 83) of New York, so as to require notice to the occu- 
 pant, before the title could become absolute under the comptroller's 
 deed.(l) 
 
 38/ Though there is no written claim of title, where the manner of 
 occupying a part of the land clearly shows the extent of the claim, 
 every occasional entry will be an act of possession, and not a bare tres- 
 pass, which it would be in one making no claim of title ; and this is 
 constructive possession. (2) 
 
 38 g. If, in an action of ejectment, the defendant claim title by pos- 
 session, and it appear that the fence of his adjoining land was so con- 
 structed and so far extended towards the disputed land, as to give 
 notice to the public and to all concerned, that the defendant and his 
 grantors claimed to exercise exclusive dominion over the disputed land, 
 by extending their fence so as to include this land, whenever it should 
 be convenient to complete the enclosure, and that it was left open for 
 the time, for convenience of use, or because it was not then of sufficient 
 importance to be enclosed ; and this have been continued for fifteen 
 years ; it will be a sufficient possession to give title.(3) 
 
 39. Acts of improvement and ownership done by a mortgagor, will 
 not operate as a disseizin of the mortgagee.(4) 
 
 40. Mere enjoyment of an easement, being the exercise of a right, 
 cannot make a disseizin of the land. (5) Thus, to cover land with water, 
 gives no pedis possessio, showing adverse right. It is merely an easement, 
 not inconsistent with title in another.(6)(a) 
 
 41. Where one had driven piles into the ground, which was covered 
 by a mill-pond belonging to another, and had erected and maintained 
 buildings on the piles for sixty years, the water of the pond flowing 
 between the piles ; held, a disseizin of the owner of the mill-pond.(7) 
 
 (1) Smith V. Sanger, 4 Comst. 576. 
 
 (2) Buck V. Squiers, 23 Vt. 498. 
 
 (3) lb. 
 
 (4) Hunt V. Hunt, 14 Pick. 374; Penwick 
 
 V. Macey, 1 Dana, 279. 
 
 (5) Stetson v. Teazie, 2 Pairf. 408. 
 
 (6) Mims V. "Weathersbee, 2 Strobh. 184. 
 
 (7) Boston, &c. V. Bulfioch, 6 Mass. 229. 
 
 (a) Where an island, subject to overflow, and susceptible of use without being enclosed, 
 was used by the defendant for pasturage, whenever it was safe so to use it, for 20 years ; 
 held a sufSoient possession to bar any other claimant, but not withia the seven years' limi- 
 tation law of Kentucky, for want of actual settlement. "Wells v. Hynes, 9 B. Mon. 388. 
 
 "Where the legislature provided that improvements, whether wharfs, houses, or buildings, 
 made out of the water, should be the right, title and inheritance of the improvers forever, 
 and A held land bordering on the water, under a patent, and B erected and maintained a 
 fence, for thirty years and upwards, lOu a part of the low grounds adjacent to A'a land, 
 which was covered by the flow of the tide, and claimed below it ; held, A had no possession, 
 property or right in the land covered by the tide, until reclaimed from the water; that B 
 gained no possession by his said acts ; and that those acts gave A no right of action against 
 B, either in ejectment or trespass. Casey v. Inloes, 1 Gill. 430. 
 
52 
 
 ESTATES IN LAND. ESTATE IN FEE SIMPLE 
 
 [CHAP. II. 
 
 41 a. A disseizin of flats may be made by an appropriate occupation 
 thereof for that purpose, as by entering upon, and filling them up, or 
 by building a wharf, and using the flats adjoining for laying vessels at 
 the same. But passing with vessels over flats, and anchoring on them, 
 using them for the purpose of access to and egress from a wharf with 
 vessels, being a usage of common right, provided for in the Massachusetts 
 ordinance of 1641, is not inconsistent with the right of the proprietor to 
 a fee in such flats, and constitutes neither a disseizin nor a trespass.(l) 
 
 41 b. The tenant in a real action, who had acquired title to a wharf by 
 disseizin, had also exclusively occupied the flats at the end of the same, 
 to the distance of 80 feet, for the purpose of laying vessels, and had 
 used the flats in front of the wharf beyond the distance of 80 feet, for 
 the purpose of access to and egress from the wharf with vessels. Held, 
 the exclusive occupation to the distance of 80 feet was a disseizin of so 
 much, but the occupation beyond that distance was not a disseizin of 
 the residue, and the former did not extend to and create a disseizin of 
 the latter.(2) 
 
 41 c. If a person can acquire title to flats covered by water at high 
 tide only, by cutting " thatched grass" thereon for forty years, his 
 title will extend only to the time of his actual occupation by cutting 
 such grass.(3) 
 
 41 d. But if the title of a person to such "thatch islands," was ex- 
 tended to low water mark by force of the ordinance of 1641, c. 63, it 
 would not extend over flats adjoining the islands, except those lying 
 between them and low water mark.(4) 
 
 42. Where a dock, of which the owner of an adjoining wharf claimed 
 to be seized, was filled up by the town, and in this condition used with 
 the wharf as a highway, and afterwards the whole was 'paved by the 
 town, though it did not appear that the way had been legally laid out; 
 held, the acts of the town amounted to a disseizin of the dock, but, in 
 respect to the wharf, were so equivocal, as to present a question for the 
 jury as to the intention to disseize. (5) 
 
 42 a. Where a person entered upon land under a claim of title, and 
 removed iron ore therefrom, from time to time, to supply an adjoining 
 factory, but without any actual enclosure or residence thereupon ; held, 
 an actual possession by disseizin, for which the owner might sue in 
 trespass; but that he could not recover for injuries to the freehold, 
 subsequent to such entry and disseizin, till he had recovered pos- 
 session. (6) 
 
 43. A stranger without title took possession of land mortgaged, and 
 built on parts of it a blacksmith's shop and carpenter's shop ; and the 
 occupants of the former occasionally used parts of the lot adjacent to 
 their shop to spread their boards on, and the occupants of the latter 
 used other parts of the lot to run carriages on, and put. tires on wheels. 
 Held, the mortgagee was hereby disseized only of the part of the land 
 covered by the shops.(7) 
 
 44. It is intimated, that the law will require peculiarly strict proof 
 
 (1) Whesleru. Stone, 1 Cush. 313; Drake 
 V. Curtis, lb. 395. 
 
 (2) lb. 
 
 (3) Thornton v. Pos3, 26 Maine, 402. 
 
 (4) lb. 
 
 (5) Tyler v. Hammond, 11 Pick. 193. 
 
 (6) West V. Lanier, 9 Humpli. 762, 
 
 (1) Poignard v. Smith, 8 Pick. 272. See 
 Wickliffe v. Ensor, 9 B. Mon. 253. 
 
CHAP. II.] ESTATES IN LAND. ESTATE IN FEE SIMPLE. 
 
 53 
 
 to constitute a possession adverse, in a newly settled country. The 
 property acquired by settlers on public lands, more especially that class 
 termed squatters, is novel in its character, peculiar to the Western States, 
 not like that of a baillee or trustee, or that of mere wanton trespassers. 
 With the revolution, it became an object to rais;" a revenue from the 
 sale of vacant lands, without requiring any actual settlement or culti- 
 vation. Hence, it is a settled rule, that the possession of such lands 
 follows the title, and so continues until an adverse possession is clearly 
 made out.(l)(a) 
 
 45. There are some cases, where, for the time, an estate is so situated 
 that no person is seized of it in fee. Thus, if land be conveyed to A 
 for life, remainder to the right heirs of B, who is living ; during B's 
 life no one is seized in fee. The fee is said to be in abeyance ; a word 
 derived from the French bayer, to expect, and meaning in remembrance, 
 intendment and consideration of the law.(2) 
 
 46. An abeyance of the fee, however, is against the policy of the 
 law, on account of several inconveniences which attend it. Thus, the 
 occupant of the land may commit waste, and there is no one who can 
 maintain an action of waste against him. So the title, if attacked, can- 
 not be completely defended, unless the tenant can pray in aid a present 
 owner in fee. Nor will a writ of right lie against a mere tenant for 
 life.(3) Abeyance is unpropitious to proper care and vigilance in the 
 preservation of property, and to productive labor and improve- 
 ment.(4)(5) 
 
 47. Sometimes, also, even the freehold is in abeyance, not even an 
 estate for life being vested in any person. Bat the law rarely allows 
 this ; partly for the feudal reason, not in force in the United States, 
 that the lord could call only upon the tenant of the freehold for services, 
 and partly that a true owner disseized, can maintain an action only 
 against such tenant.(5) 
 
 48. For these reasons, by the common law, a freehold estate cannot 
 be conveyed to commence infuturo. But in the States of Connecticut, 
 
 (1) 4 Term. 155 ; Pite v. Doe, 1 Ind. R. 
 129 ; Jones v. Snelson, 3 Misso. 393 ; Jack- 
 son «. Sellick, 8 John. 270; Bell v. Pry, 5 
 Dana, 344. 
 
 (2) Co. Lit. 342 ; Bray Peerage, &o., 5 Bing, 
 N. 754; 8 Scott, 108. 
 
 (3) 1 Cruise, 45. 
 
 (4) Bucksport v. Spofford, 3 Pairf. 492. 
 
 (5) Withers v. Isam, Dyer, 71 a; Sheffield 
 V. Kateliffe, Hob. 338; 1 Cruise, 43; Terrett 
 V. Taylor, 9 Cranch, 47 ; Jewett v. Burroughs, 
 15 Mass. 464. See N. H. Rev. St. 282-3. 
 
 (a) With regard to lands belonging to the government, it is held, that though one who en- 
 ters upon such lands is a mere intruder, yet he may maintain a writ of right against any 
 third person. Thomas v. Hatch, 3 Sumn. 170. Upon a similar principle, if the State con- 
 vey laud occupied by a third person, he will have a claim for betterments, as in other cases, 
 against the grantee. Kinsman v. G-reene, 4 Shepl. 60. In New Hampshire, unauthorized 
 possession of public lands is subjected to a penalty, and confers no title. N. H. Bev. St. 
 417. So, in Alabama, possession will not give a title against the government. Wright v. 
 Swan, 6 Por. 84. In Wisconsin, a settler on the public land may maintain an action there- 
 for. His possession extends to the bounds of his claim, without enclosure, not exceeding 
 160 acres. The laud may be in two parcels. The claim must be marked out, so as to show 
 its extent, and the land occupied or improved to the value of $50. A neglect to occupy or 
 cultivate for 6 months, is an abandonment. Wis. Rev. St. 610. A purchaser of lauds, 
 knowing the claims and possession of the state, and taking subject to its rights, has no ad- 
 verse possession. Kingman v. Sparrow, 12 Barb, 201. 
 
 (b) The feudal reasons for this rule were, that the superior lord might know on whom to 
 call for military services, and any adverse claimant of the lands, against whom to bring his 
 praecipe for their recovery. See Dyer, 71a; Hob. 338. 
 
54 
 
 ESTATES IN LAND. ESTATE IN FEE SIMPLE. [CHAP. 11. 
 
 Virginia, Wisconsin, Indiana, New York and Ohio, this rule has W 
 abolished or greatly qualified.(l) So, in New Hampshire, a freehold m 
 futuro may be conveyed either by deed of bargain and sale, or covenant 
 to stand seized.(2) tinder the statutes of Vermont, in reference to con- 
 veyancing, a freehold estate may be created, in terms, to take effect in 
 future.(3) ^ 
 
 49. By act of law, however, the freehold may be m abeyance. Una 
 of the few instances of this is, where & parson or minister, seized of pa,r- 
 sonage lands in jure parochioi, dies ; in which case the freehold is in 
 abeyance till his successor is appointed.(4)(a) 
 
 50. Sectors and parsons are deemed so far to have a fee-simple that 
 they transmit the estate to their successors ; while, for the benefit of 
 those successors, they are restricted in their use of the land within the 
 powers of tenants for life. In England, however, a parson, with the 
 assent of the patron and ordinary, may grant a perpetual rent-charge 
 from the land.(o) In South Carolina, a statute provides, that a parson 
 may bequeath the crop standing on his glebe land.(6)(6) 
 
 51. In Massachusetts, as early as 1654, provision was made by a 
 colonial statute for parsonages. By a provincial statute of 28 Geo. 2, 
 c. 9, a congregational minister might convey with the assent of the 
 parish, and an episcopal minister with the assent of the vestry. The 
 same statute made protestant ministers sole cOrporations.(7) 
 
 52. While the fee is in abeyance, the parish is entitled to the 
 profits.(8) 
 
 53. A conveyance in fee by the pari.sh to the minister is void. _ _ , 
 
 54. A parish, for certain considerations, released and sold to the minis- 
 ter parsonage property. The minister, by his will, authorized his exe- 
 cutors to sell the lands, who accordingly sold ihem. Held, the above- 
 named release did not in any way enlarge the minister's estate, and 
 that it could not be coupled with the will and executors' sale, so as to 
 constitute a joint conveyance by minister and parish. (9) 
 
 55. So, in Maine, where a town with the assent of the minister voted 
 that he should have the use of one-half of the parsonage lands ; it was 
 held that the fee of the whole lands still remained in him.(10)(c) 
 
 (1) 4 Dane, 64« ; 1 N. Y. Eev. St. 124; 
 "Walk. Intro. 278, 286 ; Tir. Code, 500 ; Wise. 
 Rev. St. eh. 56, see. 24; Iiid. Eev. Sts. 232. 
 
 (2) Bell V. Scannon, 15 N. H. 381. 
 
 (3) Gorbam v. Daniels, 23 Tt. 600. 
 
 (4) Lit. see. 647. 
 
 (5) Co. Lit. 341 a & b ; Lit. 648. 
 
 (6) Antli. Sliep. 564. 
 
 (1) Jurist, July, 1836, p. 268. 
 
 (8) Weston v. Hunt, 2 Mass. 500 ; Browa 
 V. Porter, 10, 97. 
 
 (9) Austin V. Thomas, 14 Mass. 333. 
 
 (10) Bueksport v. Spofford, 3 Fairf. 487. 
 
 (a) So, wliere land is granted to pious uses before there is a grantee in being competent 
 to take it; the fee in the meantime is in abeyance. Pawlet u. Clarlc, 9 Oranoh. 293. So, 
 "where a charter is granted, and the corporation is to be brought into being by future acts 
 of the corporators; in the meantime, the franchises or property granted by the charter re- 
 main in abeyance. Dartmouth, &o. v. "Woodward, 4 "Wheat. 691. 
 
 (6) One holding the office of minister for life, or for years, is seized of a conditional free- 
 hold, and liable for waste. Cargill v. Sewall, 1 Appl. 288. So, he may maintain trespass, 
 and the suit may proceed after he ceases to hold his office. lb. 
 
 (c) A lease for 999 years, of parsonage land, by a parish having no minister, vests in the 
 lessees all rights of entry and possession belonging to the lessor, whether valid against a 
 successor in the ministry or not. Cheever v. Pearson, 16 Pick. 266. See Second, &o. i>. 
 Carpenter, 23 Pick. 131. 
 
CHAP. II.] ESTATES IN LAND. ESTATE IN EEE SIMPLE. 55 
 
 56. To every estate iu lands the law has annexed certain peculiar 
 incidents, rights and privileges, which appertain to it as of course, with- 
 out being expressly enumerated. In some instances, these indidents 
 are absolutely inseparable from the estate, while in others they may be 
 restricted or destroyed by express provisions and conditions. 
 
 56 a. A fee-simple being the absolute ownership, the law regards its 
 incidents as inseparable from the estate, and any restriction upon them 
 as repugnant, and therefore void.(a) Such are 'the rights of descent, of 
 curtesy and dower, belonging not to the owner himself, but to those 
 claiming under him. These will be considered hereafter. Such also 
 is the right, in the owner himself, of unlimited alienation, or of com- 
 mitting tvaste.{\) 
 
 57. A condition, iu a conveyance or devise in • fee-simple, against 
 alienation generally, is void. Hence the usual clause in conveyances 
 of the fee, " assigns forever," has no legal effect.(2) If used with the 
 word heirs, it is superfluous ; if without, it confers no new right.(6) 
 
 58. So, any condition or local custom against leasing the land is void. 
 But a condition against alienation to any particular person, or an 
 unlawful alienation, as in mortmain,{c) is valid. So, if A convey to B 
 one lot of land, on condition that B shall not alien another lot, of which 
 
 (1) Shep. Touch. 131 ; 1 Cruise, 46; Lit. I Craig v. "Watt, 1 "Watts, 498. 
 360. See Germond v. Jones, 2 Hill, 569 ; | (2) 2 Prest. Est. 3. 
 
 (a) "Witli regard to tlie incidents of estates, there seems to be little uniformity or consist- 
 ency in the law. While in some instances they are made subject to express limitations and 
 agreements, (according to the principle stated by Bracton, (lib. ii. c. 6), " modus et conventio 
 vincunt legem ;") in others, they are held to over-ride all stipulations against them. Good 
 reasons may be given, why the incidents of an estate in fee-simple should be held insepara- 
 ble from it. But the same principle is adopted in regard to estates tail. Thus, a condition 
 against the right to curtesy or dower in such estates, is void. So, an estate at will must be at 
 the will of both parties, though expressed otherwise. So, if land be given to A and Jtis heirs 
 for twenty-one years, it goes to his executors. But, on the other hand, though the right of 
 assigning or underletting is incident to an estate for years, it may be controlled by an ex- 
 press condition or covenant. So, although a conveyance to husband and wife ordinarily 
 makes them joint tenants, yet a grant to them to hold as tenant's in common makes them such. 
 Co. Lit. 181 b. So, a mortgage, though personal estate, will pass as real estate where such 
 appears to be the intent of a testator. 
 
 (b) A provision in a devise, that the land shall not be " subject or liable to conveyance or 
 attachment," is void. Blackstone, Ac. v. Davis, 21 Pick. 42. 
 
 Devise of real estate to the testator's wife for life, "the remainder of his estate, whether 
 real or personal, in possession or reversion, to his five children, to be equally divided to 
 and among them or their heirs respectively, always intending, &c., that none of his children 
 shall dispose of their part of the real estate iu reversion, before it is legally assigned to 
 them." Held, the children took a vested remainder in the real estate devised to the wife 
 for life, and the restriction upon their right of alienation was void. Hall v. Tufts, 18 Pick. 
 455. In Kentucky, it is held, that although a condition against alienation, in a deed, is 
 void, yet a bofid against it, accompanying the deed, is good, because the latter does not im- 
 pair the title in the hands of third persons, but merely gives a claim for damages against 
 the obligor. Turner v. Johnson, 7 Dana, 438. Bequest of money and leaseholds to afeme 
 sole, " for her own absolute use, without liberty to sell or assign for her life." Held, she 
 toolc an absolute title, but without the power of disposal. Baker v. Newton, 2 Beav. 112. 
 
 Devise to a, feme covert in fee for her separate use, with a prohibition of any transfer or 
 charge during her life or marriage. "She shall not sell, charge, &c.," "shall hold for her 
 own sole and separate use, benefit and disposal, have the sole management, independent of 
 her husband and his debts." Held, this restraint was effectual, and an equitable mortgage, 
 made with notice thereof, was void against her. Baggett v. Meaux, Coll. Cha. 138; Churoh- 
 iU V. Marks, ib. 441. 
 
 (c) A clause was anciently iu use, allowing alienation to all but religious men and Jews. 
 
56 
 
 QUALIFIED AND CONDITIONAL FEES 
 
 [CHAP. in. 
 
 B was previously seized ; this condition is valid. And it has been said 
 that a condition against alienation, generally, may be annexed to the 
 creation of a new rent-charge. But Lord Coke says " this is against 
 the height and purity of a fee-simple."(l) 
 
 CHAPTER III. 
 
 QUALIFIED AND CONDITIONAL FEES AND ESTATES TAIL. 
 
 1. Fees, qualified, conditional, &c. 
 3. Estates Tail — origin. 
 
 5. Description. 
 
 6. What may be entailed. 
 
 12. Eights and duties of tenant in tall. 
 
 18. Conveyance by tenant in tail. 
 
 25. Contracts of tenant in tail. 
 
 21. Entailment — how barred. 
 
 28. Estates tail in the United States. 
 
 1. Having treated of estates in fee-simple, we proceed to consider 
 other estates of inheritance of an inferior kind. These have been by 
 some writers included in one class, by others divided into fees qualified 
 and conditional, and by others into fees qualified, fees conditional, and fees 
 tail; but such minute distinctions of classification are of little conse- 
 quence. (2) 
 
 2. Where an estate limited to a person and his heirs has a qualifica- 
 tion annexed to it, by which it must determine whenever that qualifi- 
 cation is at an end ; it is a qualified or base fee. In other words, a 
 qualified, base or determinable fee, is an interest which may continue 
 forever, but is liable to be ended by some act or event, circumscribing 
 its continuance or extent. Thus, if land is granted to Alexander, king 
 of Scotland, and his heirs, kings of Scotland; or to A and his heirs, 
 tenants of the manor of Dale; if the heirs of Alexander, in the one case, 
 are not kings of Scotland, or, in the other, whenever the heirs of A 
 cease to be tenants of this manor, their estate terminates.(3) So, a 
 devise to trustees and their heirs, upon trust to pay the testator's debts 
 and legacies, and after payment thereof to his sister for life, &c. ; gives 
 a base fee to the trustees, determinable on payment of the debts and 
 legacies.(4) 
 
 8. To this class of fees or inheritances, belong conditional fees and 
 estates tail. A conditional fee is a. limitation of an estate to some par- 
 ticular heirs of a man, exclusive of others — as, for instance, to the heirs 
 of his body, or the male heirs of his hody. This kind of limitation, origi- 
 nally unknown to the common law, gradually at an early period came 
 
 (1) Co. Lit. 223 a, b; Dyer, 351 b; Lit. 
 361; M'Williams v. Nisby, 2 S. & R. 373. 
 See Hawley u. Northampton, 8 Mass. 37 ; 
 Turner -o. Johnson, 1 Dana, 438. 
 
 (2) 2 Bl. Com. 104-9; Co. Lit. 1 b; Plow. 
 241 ; 1 Prest. on Est. 420 ; 4 Kent, 5 ; Ed. 
 
 Seymour's ease, 10 Eep. 91 b. ; Plowd, 557. 
 
 (3) 1 Cruise, 51; 4 Kent, 9. See Keslin 
 11. Campbell, 15 Penns. 500; Woodroffe v. 
 Daniel, 15 L. J. N. S. 356. 
 
 (4j'Willington v. Willington, 1 Bl. R. 645. 
 See Doe v. Woodroffe, 10 Mees. & W. 608. 
 
CHAP. III.] AND ESTATES TAIL. 57 
 
 into extensive use.(a) It was construed by the judges to differ from a- 
 fee-simple only in the following points ; that its duration beyond the 
 life of the donee depended upon his having issue, and, when this con- 
 dition was falfilled, it became liable to alienation, forfeiture and incum- 
 brance, like an absolute estate. The owner might also alienate the 
 estate before the birth of issue, and, if issue were afterwards born, 
 neither the donor, nof the issue, when born, could reclaim it. When 
 the donee died without having had issue, or when his issue died without 
 issue, and not having alienated, the donor might re-enter as for breach 
 of condition. 
 
 4. From this form of limitation originated estates tail, so called after 
 an ancient German feud — "feudum taUiatum.'\b) These were estab- 
 lished by the statute Westminster 2, 13 Edw. L, entitled the statute 
 " de donis condiiionalibus." This act, in general, provides that the will 
 of a donor, manifestly expressed in the charter of his gift, shall be 
 observed, and forbids persons to whom the above-named estates are 
 conveyed, from barring their issue and the donor by alienation. Its 
 passage was procured by the nobility, with the object of perpetuating 
 estates in their families ; and, by virtue of it, if the donee die, leaving 
 issue, they shall take the estate ; but, if he die leaving no issue, or upon 
 any future failure of lineal heirs of the class to which the estate is limited, 
 it shall return back to the donor or his heirs. The effect of this statute 
 is, that whereas the estate was before a conditional fee, and the donor's 
 right of re-entry founded on breach or failure of condition ; an estate 
 tail is viewed as carved out of the inheritance, like any other particular 
 estate, and, upon its expiring by limitation, the donor or his heirs re- 
 enter like any other reversioners.(l) 
 
 5. An estate tail is defined(2) as an estate of inheritance, created by 
 the statute " de donis condiiionalibus,^' and descendible to some particular 
 heirs only of the person to whom it is granted. (c) It is of two kinds 
 — general and special; the former descendible to the heirs of the body 
 generally; the latter to some particular heirs of the body. In the 
 
 (1) See 1 Burr. 115; 2 Inst. 335; Plow. I (2) 1 Cruise,. 56; 2 Bl. Com. ; 4 Kent. 
 248. 
 
 {a) Bracton (lib. 2. oh. 6) thus describes it: — "Heirs may be restrained by the mode of 
 the gift, whereby all the heirs generally are not called to the succession; for the mode 
 gives law to the gift, and the mode is to be upheld against common right and against the 
 law, because mode and agreement control law. As if it be said, ' I give to such an one so 
 much land, with the appurtenances, in N., to have and to hold to him and his heirs, whom 
 he shall have begotten of his body and the wife married to him.' Or thus, 'I give to such 
 an one, and such a person his wife, or with such a person, my daughter, &c , to have and to 
 hold to him and his heirs, proceeding from the body of such wife or daughter, either 
 born or to be born ; in which case, since certain heirs are expressed in the gift, it will be 
 seen that the descent is only to these very common heirs, through the mode specified in 
 the gift; all his other heirs being wholly excluded from the succession, because the donor 
 has willed it." 
 
 (6) An ancient author (Du Cange) thus describes it. "A fee tail { feudum talliatum) ia 
 defined, in forensic language, as an inheritance limited to a particular certainty, or a feud 
 granted on certain condition^; aa, for example, to a person and his children to be born in 
 lawful marriage. Hence, if he to whom the feud was given die without children, the feud 
 returns to the donor; for to entail is to reduce to a kind pt certainty, or to limit an inherit- 
 ance to something certain." 
 
 (c) Inasmuch as these heirs must be heirs of the lody or lineal descendants, perhaps the 
 definition in the text might be rendered more strictly accurate, by specifying this necessary 
 element in the estate. 
 
58 
 
 QUALIFIED AND CONDITIOJTAL FEES 
 
 [CHAP. Ill 
 
 former case, the issue of the donor, male or female, by any marriage 
 may inherit. A special entailment may be made either to the issue 
 begotten upon a certain wife; or to issue male or issue female ;(a) and 
 no children can inherit who do not fall within these respective descrip- 
 tions.(6) Thus, in case of an estate in tail male, if the donee has a 
 daughter, she cannot inherit ;(1) nor can the son of such daughter 
 inherit, being obliged to claim through her. So, if lands be given to a 
 man and the heirs male of his body, remainder to him and the heirs 
 female of his body, and the donee has issue a son, who has issue a 
 daughter, who has issue a son ; this son cannot inherit either of the 
 estates; because he cannot deduce his descent wholly either through 
 the male or female line. So, under a devise to "the eldest male lineal 
 descendant," a person cannot take, who claims in part through a fe- 
 male.(2) 
 
 6. Not only lands may be entailed, but every species of incorporeal 
 property of a real nature — such as dignities, in England, estovers, com- 
 mons, or other proiits concerning, or annexed to, or granted out of 
 land. So, charters or muniments of title. (3)(c) 
 
 7. So, in equity, money directed or agreed to be laid out in the pur- 
 chase of land may be entailed.(4) 
 
 8. But inheritances merely personal, not real rights or interests, or 
 partaking of the realty — as, for instance, an annuity charging only the 
 person and not the lands of the grantor, — are not entailable, but the 
 subjects of a conditional fee at common law, and absolutely alienable 
 on the birth of issue. (5)(c?) 
 
 9. Thus, an annuity in fee-simple, granted by the crown out of the 
 four and a half per cent, duties, payable for imports and exports at 
 Barbadoes.(6) 
 
 10. So, an annuity granted by Parliament out of the revenues of the 
 post-office, redeemable upon payment of a sum of money, to be laid 
 out in land, is not entailable, notwithstanding the latter provision ; for 
 Chancery will not treat the annuity as land, merely upon a possibility 
 of such future redemption.(7) 
 
 11. The instance of an annuity seems to be the only one in which 
 even a conditional fee in a personal chattel can be created. In equity 
 estates ^owr autre vie, terms and chattels, though they may be limited 
 in strict settlement, cannot be entailed. Terms and chattels pass abso- 
 lutely by a limitation which would operate as an entailment of real 
 
 (1) 1 Roll. Abrid. 841, contra. See Co. Lit. 
 19 a. n. 4. 
 
 (2) Co. Lit. 25 b; Oddie o. Woodford, 3 
 My. & C. 584. By "male descendants," in a 
 will, are meant those who claim through 
 males alone. Bernal v. Bernal, 3 lb. 659. 
 
 (3) 1 Cruise, 68-9; Nevil's Case, 7 Rep. 
 
 33 ; Co. Lit. 20 a. 
 
 (4) Ibid. 
 
 (5) lb. ; Stafford v. Buckley, 2 Ves. 178 ; 
 Co. Litt. 20 a. 
 
 (6) Stafford v. Buckley, 2 Ves. lYO. 
 
 (7) Holdernesse v. Carmarthen, 1 Bro. E. 
 376. 
 
 (a) It has been questioned whether the law would sustain the latter form of limitation; 
 but, it seems, without reason. Co. Lit. 25 a. n. 1. 
 
 (6) Before the statute de donis, (upon what principle it isdifficult to understand,) although 
 the limitation was made to issue had by a certain wife, yet after the birth of such issue, the 
 land became descendible to any issue of the donee, whatever. Co. Lit. 19 a. n. 2. See 
 Doe V. Woodroffe, 10 Mees. & "W. 608. 
 
 (c) By the law of Scotland, a jewel or picture. 2 Bell, 2. 
 
 {d) King Chas. II. granted a perpetual annuity to A and his heirs, payable from coal 
 duties. Held, it passed to heirs, though personal property. Eadburn v. Jervis, 3 Beav. 450. 
 
CHAP. III.] 
 
 AND ESTATES TAIL. 
 
 59 
 
 estate.(l) In New York, the same restriction is imposed upon perpe- 
 tuities in chattels real, as in freehold estates.(2) 
 
 12. Tenant in tail, being owner of the inheritance, may commit waste. 
 But the power must be exercised during his life. Hence, if he sell 
 trees growing on the land, the vendee must cut them during the life 
 of the tenant in tail ; otherwise they descend with the land to his 
 heir.(3) 
 
 13. The grantee of a tenant in tail, and the grantee of such grantee, 
 may commit waste.('±) 
 
 14. Chancery will not interfere to restrain a tenant in tail from com- 
 mitting waste, although he is an infant in feeble health and not likely 
 to live to full age.(5) 
 
 15. The power of waste is so far an inseparable incident to an estate 
 tail, that a bond against it is repugnant and void, like a recognizance 
 not to suffer a common recovery ; and Chancery will order it to be 
 given up and cancelled. (6) 
 
 16. Tenant in tail is entitled to all deeds and muniments belonging 
 to the lands ; and Chancery will compel a delivery of them to him. (7) 
 
 17. He is not bound to pay off incumbrances. But, if he does, he 
 will be presumed to have done it in exoneration of the estate in fee- 
 simple, because he has the power of making it his own. Bat such 
 tenant, restrained as to alienation, though having powers of leasing and 
 jointuring, stands in this respect like a tenant for life.(8) 
 
 18. The statute de donis restrains the tenant in tail from alienating 
 his estate for a longer term than his own life. Where he grants away 
 his whole interest, according to some authorities, the grantee's estate is 
 for the life of the tenant in tail, the reversion being in abeyance; 
 while, according to others, it is a lase fee, descendible to the grantee's 
 heirs so long as the tenant in tail has heirs of his body, and subject to 
 dower. (9) 
 
 19. The prohibition against alienation, though not expressly ex- 
 tended to the issue, applies to them also by implication. The equal 
 mischief im^liQS the like law. {10) 
 
 20. Where tenant in tail conveys away his estate, the interest of the 
 grantee does not terminate ipso facto with the death of the former, but 
 is merely defeasible or subject to be avoided by the issue; because he 
 has the inheritance in him, and the statute de donis makes no altera- 
 tion as to him, but merely provides that the issue shall not be dis- 
 inherited.(ll) 
 
 (1) 2 Chit. Black. 89, n. ; 2 Story on 
 Equity, 252-3 ; Dorr v. Wainwright, 13 
 Piclc.330; Betty v. Moore, 1 Dana, 236; 
 Harkins v. Coalter, 2 Porter, 463 ; Co. Litt. 
 20 a, n. 5; Adams v. Cruft, 14 Pick. 25; 
 Kirch V. "Ward, 2 Sim. & Stu. 409 ; Ladd v. 
 Harney, 1 Post. N. H. 514. 
 
 (2) 1 N. y. Rev. St. 724. 
 
 (3) Perk. s. 58; Hales «. Petit, Plow. 259; 
 Liford's Case, 11 Rep. 50 a. 
 
 (4) 1 Cruise, 60; 3 Leon. 121. 
 
 (5) Glenorchy v. Bossville, Cas. Temp. 
 Talbot, 16. 
 
 (6) Jervis v. Brutoti, 2 Vern. 251. 
 
 (I) 1 Cruise, 61. 
 
 (8) Jones v. Morgan, 1 Bro. R. 206; 
 Ware v. Polhill, 11 Yes. 217 ; Shrewsliury v. 
 Shrewsbury, 1 Ves. 227; St. PauU. Dudley, 
 15 Ves. 173. 
 
 (9) Lit. s. 650; Walsingham's Case, Plow. 
 554-7 ; Seymor's Case, 10 Rep. 96 a. 
 
 (10) Regiua u. Pogossa, Plow. 13; Darby's 
 Case, T. Jones, 239. 
 
 (II) Machell v. Clert, 2 Ld. Ray. 779; 
 Whiting V. Whiting, 4 Conn. 179. 
 
60 
 
 QUALIFIED AND CONDITIONAX FEES 
 
 [CHAP. ni. 
 
 21. Bnt where something is granted out of an estate tail; as, for in- 
 stance, a rent; it becomes absolutely void at bis deatb.(l) 
 
 22. Where tenant in tail mortgages the land. Chancery will decree 
 him to make as perfect a title as he is capable of making, and to pay 
 the amount due in a certain time, or be foreclosed. (2) 
 
 23. Where tenant in tail covenants to stand seized to the use of 
 himself for life, remainder to another in fee ; the whole limitation is 
 void, and his former estate continues.(3) 
 
 24. But an estate created by him, which must or may commence in 
 his lifetime, is good. Thus, a remainder after a life estate will be valid, 
 till avoided by the issue. (4) 
 
 25. Although a different rule prevailed formerly, it is now settled 
 that the issue in tail is not bound by any contracts of his ancestor in 
 relation to the estate, either in law or equity, nor by a decree to bar 
 the entailment. Nor will equity aid in carrying into effect an incom- 
 plete alienation against him, as, for instance, a fine. But if he does 
 any act towards performance, equity will enforce the contract against 
 him.(5) 
 
 26. An estate tail does not, like estates for life and for years, merge 
 in the fee-simple, when the two become vested in the same person. If 
 it did, a tenant in tail might at any time destroy the entailment by 
 purchasing the reversion in fee. It was otherwise wiih conditional 
 fees before the statute de donis.{6){a) 
 
 27. In England, the mischiefs of entailment in rendering real pro- 
 perty unalienable became so severe, that constant attempts were made 
 in Parliament to procure a repeal of the statute "de donis" but for a 
 long time without success. Judicial construction, however, at length 
 supplied the place of express legislation. The courts held in the first 
 place, that the issue in tail, having assets, were bound by a warranty 
 of the ancestor; and afterwards, that both the issue and the reversioner 
 or remainder-man might be barred by & feigned recovery. And at length 
 two statutes of Hen. 7 and Hen. 8 declared a fine to be a bar of estates 
 tail. But by St 3 and 4 Wm. 4, c. 74, fine and recovery are abolished, 
 all warranties by tenants in tail are made void against the issue, and 
 the only mode of barring entailments is by an enrolled deed. (7) 
 
 28. In the United States, estates tail have in a great measure fallen 
 into disuse, and the law pertaining to them is therefore comparatively 
 unimportant. 
 
 29. The people of Massachusetts, at a very early period of the coun- 
 try, adopted the idea of entailment, even to the extent of giving an 
 estate limited to one and the heirs of his body, to the oldest son, in the 
 first instance, and to the other sons only on failure of his issue. But 
 
 (1) "Walter v. Bould, Bulst. 32. 
 
 (2) Sutton «. Stone, 2 Atk. 160 
 
 (3) Beddingfield's Case, Cro. Eliz. 895. 
 
 (4) Macliell v. Clerk, 2 Ld. Ray. '782; 
 Machell v. Clerk, 1 Mod. 21. 
 
 (5) Jenkins v. Keymes, 1 Lev. 237; "Whar- 
 ton V. "Wharton, 2 Yern. 3 ; Frank v. Main- 
 
 waring, 2 Beav. 115; Ross v. Ross, 2 Cha. 
 C. 171 ; Cavendish v. "Worsley, Hob. 203. 
 
 (6) 2 Rep. 61 a ; see "Woodroffe v. Daniel, 
 15 L. J. (N. S.) 356. 
 
 (7) Mildmay's Case, 6 Rep. 40 b. ; Rolls 
 of Pari. 142. 
 
 (a) But a life estate so far merges in an estate tail, that the tenant in tail cannot main- 
 tain an action for the freehold, as such. Webster v. Gilman, 1 Story R. 499. 
 
OHAP. III.] 
 
 AND ESTATES TAIL. 
 
 61 
 
 the use of the common recovery in barring entailments became so 
 universal, that, at the time of the revolution, there was rarely an 
 estate tail in the province. In Pennsylvania, estates tail were dis- 
 tinctly recognized in the charter of 1681 ; and in Virginia a law was 
 passed in 1705, to take away from the courts the power of defeating 
 them.(l) 
 
 80. In South Carolina, the statute de donis never was in force, but 
 the old doctrine prevails, of fees conditional at common law ; and it 
 has been held, that the lien of a judgment or decree against one thus 
 holding lands, after the birth of issue, bars the right of the issue to 
 take "performam dom."{2) 
 
 31. In yirginia,(a) Kentucky, (6) Tennessee, North Carolina, In- 
 diana,(c) Georgia, Mississippi, Alabama, Wisconsin and Michigan, en- 
 tailments are expressly abolished, or estates tail declared to be estates 
 in fee-simple. But, in Alabama and Mississippi, an estate may be 
 granted to a succession of donees in esse, and to the heirs of the body 
 of the remainder-man, and, in default of such heirs, to the right heirs 
 of the donor in fee-simple.(3) 
 
 32. In Illinois, Missouri and Arkansas, the donee in tail takes a life 
 estate, and his issue a fee-simple. (4) 
 
 33. In New Jersey,(c^) Ohio, Missouri, Illinois, Arkansas, and Con- 
 necticut, estates tail become estates in fee-simple, in the heirs of the 
 original owner. In Connecticut (and probably in the other States men- 
 
 (1) Hawley v. Nortbampton, 8 Mass. 3 ; 
 SulL on Land. T. 13 ; 4 Kent, 13, 14, n.; 
 Corbin v. Healy, 20 Pick. 514. 
 
 (2) 4 Griff. 852; Izard v. Izard, 1 Bai. 
 Equ. 228; see Pearse v. Killian, 1 McMuU. 
 231. The whole estate is held to be in the 
 tenant. The possibility of reverter is neither 
 inheritable nor devisable ; nor would one 
 interest merge in the other. 1 Hill's Cha. 
 276. A conveyance to one, " his heirs and 
 assigns forever, but should he die without 
 lawful issue of his body," then over, gives 
 the grantee a fee-simple absolute at common 
 law. Edwards v. Edwards, 2 Slrobh. Equ. 
 101. The words, "have loaned to A during 
 her natural life and after her death, hath 
 given unto the heirs of her body which shall 
 survive her, to be equally divided amongst 
 them," were held to create an estate tail un- 
 der tlie laws of South Carolina, in the per- 
 sonal property granted, so as to vest it abso- 
 lutely in the grantee, and by her marriage in 
 her husband, to whose administrator it be- 
 
 longed after their deaths, and not to her 
 heirs. Watts v. Clardy, 2 Florida, 369. A 
 testator, after the decease of his mother, gave 
 " the use" of the estate to A " for life," and, 
 after his decease, declared the same to be 
 vested in the male issue of the said A, and 
 in default of such, in the issue female surviv- 
 ing him, and if a general failure at the death 
 of A, then over. Held, the estate devised 
 was a fee conditional at common law ; that 
 the will gave A an estate for life, and at his 
 death to his issue male, in their default to 
 his issue female, the issue taking by way of 
 limitation, and that the limitations over, in 
 the event of his leaving no issue, were void 
 either as contingent remainders or executory 
 devises. Birst v. Davies, 4 Strobh. Equ. 37. 
 
 (3) N. C. Kev. Sts. 258 ; Ind. Rev. L. 209 ; 
 3 Griff. 441-4, 578, 666, 781 ; Mich. L. 293 ; 
 ZoUiooffer v. Zollicoffer, 4 Dev. & B. 441; 
 Wise. Rev. Sts. 313; Virg. Code, 500. 
 
 (4) Illin. Rev. L. 131; Ark. Rev. St. 139 ; 
 Misso. Sts. 119. 
 
 (a) The statute on the subject does not change into a fee a remainder in tail expectant 
 upon another estate tail. 2 Wash. 35-6. 
 
 (&) Where the ancestor takes either an estate in fee, defeasible upon his death, without 
 issue, or a fee-tail, (converted by law into a fee-simple,) his alienation bars his issue and heirs 
 who, in either case, cannot claim otherwise than by descent. Grimes v. Ballard, 8 B. Mon. 
 625; Deboe v. Lower, 8 B. Mon. 616. 
 
 (c) By the Revised Statutes of 1838, (p. 238,) one may be seized of an estate tail,ibut 
 after the second generation it becomes a fee-simple. 
 
 {d) The wife has dower, and the husband curtesy. Eev. C. 774-5. By statute, in New 
 Jersey, all estates tail at common law are changed into an estate for life in the first taker, 
 with remainder in the child or children of the first taker. Morehouse v. Cotheal, 1 New 
 Jersey, 480. 
 
62 QUALIFIED AND CONDITIONAL PEES. [CHAP. III. 
 
 tioned) he caiiDot alienate, and, if he leave no issue, the lands revert. 
 In Connecticut, the statute, which establishes the rule above stated, 
 seems to be merely an affirmation of previous decisions. It is there 
 held, that, if the tenant convey in fee, the grantee takes a base fee, 
 determinable on the tenant's death, by entry of the issue.(l) 
 
 84. In Vermont, the constitution provides, that the legislature shall 
 regulate entails in such manner as to prevent 'perpetuities. There is a 
 similar provision in the constitution of Texas. In Vermont, the same 
 rule is established by the Eevised Statutes as in Connecticut. (2) 
 
 35. In New York, an estate tail may still exist, for the benefit of a 
 remainder limited upon its determination.(3)(a) 
 
 36. In Pennsylvania,(6) Maryland, (c) Massachusetts, (c^) Maine and 
 
 (1) "Walk. 300 ; 1 Swift, 79 ; Hamilton v. 
 Hempsted, 3 Day, 332; Cliappel v. Brewster, 
 Kirb. 175; 4 Conn. 179; AUyn «., Mather, 9, 
 114; Misso. Rev. Sts. ch. 32, a. 5 ; lUin. Rev. 
 
 Sts. 131: Ark. Rev. Sts. 265. 
 
 (2) 4 Kent, 16; Verm. Rev. Sts. 310; 
 Tex. Const, art. 17. 
 
 (3) 1 N. T. Rev. Sts. 722. 
 
 (a) The statute of New Tork, of February 23, 1786, abolishing estates tail, and providing 
 that all persons, who then were, or who, but for that statute, would thereafter, by virtue of 
 any devise or eonveyance, become seized in fee-tail of any real estate, should iDe deemed to 
 be seized of the same in fee-simple, has been construed by the courts of New York to in- 
 clude estates tail in remainder, and their construction is followed by the courts of the 
 United States. Van Rensselaer v. Kearney, 11 How. U. S. 297. 
 
 A testator, by his will, made in 1805, devised the use and improvement of his farm to A 
 during his life, and after his death to B, the eldest son of A, and to the heirs of his body, 
 and their heirs and assigns forever ; bilt, in case B should have no such heirs, then to C, 
 the brother of B, and his heirs; held, B took a vested remainder in tail expectant ou the 
 termination of the life estate of A, which, by the statute abolishing entails, was converted 
 into a fee-simple, and that the limitation over to C was out off. Barlow v. Barlow, 2 
 Oomst. 386. 
 
 A, by a will which took effect in 1783, devised lands to trustees during the life of the 
 testator's grandson B., to preserve contingent remainders, in trust to permit the grandson 
 to receive the rents and profits during his life, and after his death to his first, and every 
 other son successively, in tail male. The first son of the grandson, who was born after the will 
 took effect, died in the lifetime of his father without issue. Held, the remainder which 
 vested in sucli son at his birth, was immediately converted into a remainder in fee-simple. 
 Tan Rensselaer v. Poucher, 5 Denio, 35. 
 
 "Where an estate tail in remainder was limited to the eldest sou of the first taker, to 
 whom an intermediate life estate was given, and became vested by the birth of a son prior 
 to the act of 1786, abolishing entails; held, by the operation of that act, the estate tail in 
 remainder was converted into a fee-simple in remainder, which, on the death of the re- 
 mainder-man without issue in 1809, and before the termination of the intermediate life 
 estate, descended to his father as his heir at law. "Wendell v. Crandall, 1 Comst. 491. 
 
 (6) An estate tail may be barred by a common recovery. So, in Delaware, by fine and 
 recovery. 4 Kent, 71 n.; Purd. 278; 4 Griff 1075. 
 
 "Whether an entail can be barred by deed of partition between tenants in common, see 
 Tiernan v. Roland, 15 Penn. 429. 
 
 A deed from a tenant in tail, purporting to bar the entail, but never recorded, as required 
 by law, and thus incompetent to bar the entail, was held, nevertheless, to be good to con- 
 vey the grantor's right of possession, and therefore admissible in evidence. George v. Mor- 
 gan, 4 Harris, 95 ; Worrall v. The Same, ib. 
 
 (c) In Maryland, it is said, docking estates tail by common recovery was abolished in 
 1782. By a statute of 1786, estates tail general, subsequently created, are abolished. But 
 this act does not apply to special entailment, which may be barred by deed or recovery, are 
 chargeable with debts only by mortgage, are not devisable, and descend only to issue. 4 
 Kent, 15-16 n. See Newton v. GriflBth, 1 Harr. and G. HI ; 3 H. and MoH 244- 1 Harr 
 J. 465. ■ ' 
 
 Where there was a devise of an estate in fee, with a limitation over, after a dying with- 
 out issue, it was formerly, in Maryland, converted into an estate tail, and the limitations 
 over operated by way of remainder ; but the act of descents now converts that estate tail into 
 an estatein fee. "Watkins v. Sears, 3 Gill. 492. 
 
 {d) Devise of one undivided half of certain land to Ain fee-simple, and the other half to 
 B in fee-tail general. Before the act of 1791, o. 60, the parties made partition by deed, 
 
CHAP. III.] 
 
 AND ESTATES TAIL. 
 
 63 
 
 Delaware, estates tail may be conveyed, and in Ehode Island and Vir- 
 ginia, conveyed or devised, so as to pass a fee-simple. In Massachu- 
 setts, Maine and Virginia, they are liable for debts, and a sale for 
 creditors passes a fee- simple. In Massachusetts, a remainder in tail is 
 not thus liable, but a tenant for life aud a remain der-naan in tail may 
 join in conveying the fee-simple. So in Maine.(l) 
 
 37. In Pennsylvania, the purchaser of an estate tail on execution may 
 bar the entailment, by suffering a recovery and vouching the tenant.(2) 
 
 38. In New Hampshire, Chancellor Kent says, entailments may still 
 be created, though in practice almost unknown. In this State, as in 
 Pennsylvania and Delaware, they may be barred by a common reco- 
 very. (3) By a recent act, they may also be barred by deed. (4) 
 
 39. In Pennsylvania, where the tenant in tail dies, the land descends 
 to his heir at common law.(5) In Virginia, if escheatable for defect of 
 blood, the estate descends according to the limitation. (6)(a) 
 
 (1) Mass.- Rev. St. 405-12-16-63 ; Purd. 
 Dig. 279; 1 Smith, St. 143-4; 1 Tir. Rev. 
 C. 158 ; 4 Grif. 1057 ; Riggs v. Sally, 3 Shepl. 
 408; Maine Rev. Sts. 372; Dela. Rev. Sts 
 271. 
 
 (2) Purd. 280. See Robb v. Ankeny, 4 
 Watts & S. 128. 
 
 (3) 4 Kent, 71, n. See Frost v. Cloutman, 
 N. H. 1. 
 
 (4) St. 1837, c. 340. 
 
 (5) Purd. Dig. 279 ; Jenks v. Backhouse, 
 Bin. 96. 
 
 (6) 1 Vir. Rev. C 159. 
 
 each releasing to the other, his heirs and assigns forever, that part which was set off to the 
 other. B conveyed his portion, with warranty, to C, who conveyed it to D, and D to E. 
 After B's death, his heir in tail brings an action against E to recover the land. Held, he 
 was entitled to recover one moiety of it. Buxton v. Uxbridge, 10 Met. 87. 
 
 A deed of s^n estate tail was made, purporting to be in consideration of a sum of 
 money, and of a lease of the land to the grantor for one year, at an apparently nominal 
 rent. Before the lease expired, the grantee made a declaration of trust, inter alia, to per- 
 mit the grantor to have possession for life ; and the grantor remained in possession from the 
 time of giving his deed. 'S.elA, prima facie, the deed was given upon valuable consideration 
 and hona fide, and therefore was pn'ma/acie sufficient to bar the entailment. Nightingale v. 
 Burrell, 15 Pick. 104. By St. 1851, 568, equitable estates tail may be barred in the same 
 manner as legal estates, by a conveyance in fee-simple ; and the grantee may demand and 
 enforce a conveyance to him of the outstanding legal title. 
 
 (a) By a late English Statute, 3 & 4 Wm. 4, ch. 74, tenant in tail may by deed, duly en- 
 rolled, ahenato in fee-simple or for any less estate; subject, however, to the rights of any 
 prior tenant, whose estate was created by the same settlement as the estate tail, unless 
 such tenant consent to the alienation. 1 Steph. Coram. 237. See further Riggs v. Sally, 
 15 Maine, 408 ; Egerton j).»Earl, kc, 7 Eng. L. & Equ. 170 ; Monypenny v. Dering, 8 Eng, L. 
 & Equ. 42. 
 
64 
 
 ESTATE FOR LIFE. 
 
 [CHAP. IV. 
 
 CHAPTER IV. 
 
 ESTATE FOR LIFE. 
 
 1. Definition. 
 
 2. How created. 
 
 3. Different forma of life estates. 
 6. Merger — estate pour autre vie. 
 8. Estovers. 
 
 12. Praying in aid. 
 
 13. Title deeds. 
 
 16. Paj'ment of incumbrances. 
 
 22. Transfer of estate. 
 
 23. Forfeiture. 
 
 40. Estate pour autre vie. 
 56. Termination of estate for life; pre- 
 sumption of death. 
 
 1. An estate for life is a freehold interest in lands, tlie duration of 
 ■which is confined to the life or lives of some particular person or per- 
 sons, or to the happening or not happening of some uncertain event.(l) 
 
 2. An estate for life may arise either from the act of parties or from 
 operation of law.(2) 
 
 3. A life estate may be created by act of parties, either by an ex- 
 press disposition for the life of the grantee or devisee, or of a third per- 
 son, or both, (a) or by a general disposition, specifying no limit,(&) which 
 in a deed cannot, in general, pass an inheritance for want of the word 
 heirs.(S){c) So an estate limited upon a contingency, as to a woman 
 during her widowhood, (cZ) or to a person quamdiu bene se gesserit, is a 
 life estate, in the hands of the original tenant, or, in the case of 
 widowhood, of her grantee, or a purchaser from the administrator of 
 such grantee ; though it may terminate sooner than the owner's life. If 
 given to a woman for her life or widowhood, she holds only during' 
 widowhood. The provision is a Iimitatio7i, not a condition. But, where 
 one devises to his wife for life, if she remain so long his widow, and, if 
 
 (1) 1 Cruise, 76. 
 
 (2) lb. 
 
 (3) lb. 11 ; Co. Lit. 42 a. 
 
 (a) Agreement by a lessor not under seal, that he would not turn out the tenant so long 
 as he paid rent. Held invalid, because constituting a life estate, which can be created only 
 by deed, Doe v. Brower, 8 B. 165. 
 
 (6) An estate may be so situated, that it may last either for the tenant's own life or for 
 that of another person, according to the happening or not happening of some uncertain 
 event. Thus, a husband, before the birth of issue, has an interest in the wife's lands for 
 her life ; liable, however, to be changed into an interest for his life, upon the birth of issue. 
 Lease to A "for the natural life of A and wife, the same being secured for the separate 
 use, for the maintenance of A and wife, and for no other use." After the death of A, the 
 wife may defend against an action of ejectment by the lessor. Towers v. Craig, 9 Humph. 
 467. 
 
 (c) A mere life estate may be created, though words of perpetuity be used in the limita- 
 tion. Thus, where there was a bequest of a leasehold, after hmitations for life, to A, bis 
 executors, administrators and assigns, during the term of his natural life; held, a life estate 
 in A. Morrall v. Sutton, 4 Beav. 478, 5, 100. 
 
 (d) Such limitation is valid, without limiting over the estate upon her marriage. Cop- 
 page V. Alexander, 2 B. Monr. 314. See Sims v. Aughtery, 4 Strobh. 103; Slocnm v. 
 Slocum, 21 Edw. Cha. 613. A testator provided in his will, " that the proceeds from the 
 sale of my real estate shall be loaned out and amply secured, so that my wife may get the 
 interest annually, as long as she shall remain my widow, for the support &f herself and my 
 daughter; and, if at anytime she should marry, then my whole property, principal and 
 interest, to go to my child." Held, the wife was entitled to the income on the whole estate 
 of the testator during widowhood. Dale v. Dale, 1 Harris, 446. A devise by a husband to his 
 wife, " during her natural life or widowhood," is valid ; and the estate is terminated by the 
 marriage of the widow. Walsh v. Matthews, 11 Mis. 131. 
 
CHAP. IT.] 
 
 ESTATE FOR LIFE. 
 
 65 
 
 shb marry, her husband to have no other privilege than that of living 
 on the place for her life, and no longer ; this gives the wife an estate 
 for her life, not subject to be incumbered by the husband. (1) So, a 
 conveyance, for so long a time as certain salt-works proposed to be 
 erected shall continue to be used, passes a life estate determinable by 
 the disuse of such works.(2) 
 
 4. A lease made by tenant in fee-simple ybr term of life, not mention- 
 ing whose life, shall be for the life of the lessee, — a deed being always 
 construed most strongly against the maker. But a lease in this form 
 by tenant in tail will be for the life of the lessor. So a lease without 
 special limitation by a tenant for life ; because this estate tfe may law- 
 fully make, while a conveyance for the lessee's life would be a wrong- 
 ful act.(3) 
 
 5. A, tenant for life, leases to B, on condition that if B die leaving 
 A,' the land shall revert to A. All the estate passes under the condi- 
 tion.(4) 
 
 5 a. A grant for the life of one not in existence is void ; but if for 
 the lives ^f three persons, one of whom has no existence, it is good for 
 the lives of the others.(5) 
 
 6. One holding an estate for the life of another, is called tenant jjowr 
 autre vie. An estate "^isiur autre vie" will merge in a remainder for a 
 man's own life — being an inferior interest to the latter, and the Ibwest 
 species of freehold. But, if lands are conveyed to a person for his own 
 life and that of A. and B, he has one freehold, determinable on his own 
 death and the deaths of A and B, and not two distinct estates ; and 
 there is no merger. Lord Coke remarks, that the books are very 
 plentiful with cases on this subject, " whereof you may disport your- 
 selves for a tinie."(6) 
 
 7. There are several incidents to an estate for life. 
 
 8. Tenant for life is entitled to estovers, estoveria rationabilia, or allow- 
 ance of necessary wood from the land.(7) 
 
 9. ^stover is derived from the French word estoffe — material. (a) The 
 corresponding Saxon word is botes.{8) 
 
 10. There are three kinds of estovers or botes : house-bote, which is 
 two-fold, estoverium ardendi et cedijicandi — of burning and building ; 
 plough-bote, "arandi" — of ploughing; .and hay-bote, "claudendi" — of en- 
 closing or fencing.(9) 
 
 11. Where a lessor covenants that the tenant for life shall have thorns 
 for hedges, by the assignment of the lessor's bailiff, the tenant may still 
 cut thorns without such assignment, having an implied right to do so. 
 
 (1) Pease v. Owens, 2 Hayw. 234 ; The 
 People V. Gillis, 24 Wend. 201; Brown v. 
 Brown, 8 N. H. 93 ; Craig v. Watt, 8 Watts, 
 498 ; Coppage v. Alexander, 2 B. Monr. 316 
 Kosaboom v. Van Veohten, 5 Denio, 414 
 Lloyd V. Lloyd, 10 Eng. L. & Equ. 139. 
 
 (2) Kurd V. Gushing, 7 Pick. 169. See 
 Cook V. Bisbee, 18 Pick. 52t. 
 
 (3) Co. Lit. 42, a, b; Jackson v. Van 
 Hoesen, 4 Cow. 325 ; Whittome v. Lamb, 12 
 
 Mees. & W. 813. 
 
 (4) Co. Lit. 42 a, n. 11. 
 
 (5) Doe V. Edwards, 1 Mees. & W. 533. 
 
 (6) Abbot, &o. V. Bokenham, Dyer, 10 b; 
 Bowles' case, 11 Hep. 83; 4 Kent, 26; Co. 
 Lit. 41 b. 
 
 (7) Co. Lit. 41 b. 
 
 (8) Spel. GloB. 
 
 (9) Co. Lit. 41 b ; Heydon's case, 13 Rep. 
 68. 
 
 (a) Hence, the English word siuff. 
 
 Vol. I. 
 
m 
 
 ESTATE FOR LIES. 
 
 [CHAP. IT. 
 
 Otherwise, if the tenant had covenanted that he would not cut without 
 assigument.(l) 
 
 11 a. A tenant for- life, of a farm of 165 acres, is not entitled to fire- 
 bote for the dwelling of a farmer or laborer, in addition to fire-bote for 
 the principal dwelling. A custom to that effect would be unreasonable 
 and invalid. (2) 
 
 12. In all real actions, tenant for life may pray in aid, or call for the 
 assistauce of, the owner in -fee to defend his title, because the former is 
 not generally supposed to have the evidences of title.(3) 
 
 IS. When and how far a tenant for life is entitled to possession of 
 the title-deeds, seems to be a point somewhat unsettled. In one case, it 
 was said to be a common practice for the Court of Chancery to take them 
 from him and deposit them in court. And the court will take care of 
 the deeds, where the tenant manifests an indifference on the subject, and 
 parted with the possession of theni. But on the other hand it has b'een 
 doubted, whether Chancery will interfere, either to take the deeds from 
 the tenant or restore them to him. It will refuse to give them to a re- 
 mainder-man, where there are intermediate remainders.(4)(a) 
 
 14. In an action at law to recover title deeds, the defence was, that 
 the defendant held under a cestui que trust, claiming by a written decla- 
 ration of trust. The plaintiff contended, that the court would not notice ' 
 a merely equitable title. Held, the court either could or could not notice 
 sucll title. If the latter, this was because such title was doubtful , and there-" 
 fore the plaintiff must go into equity to settle it. If the former, the de- 
 fendant was entitled to the deeds. In either case, the plaintiff must fail.(6) 
 
 15. It will be seen hereafter, (ch. 10,) that if a widow detains the. 
 charters of the estate, she thereby forfeits her dower, and that a jointress 
 will be compelled to deliver up title deeds, upon having her jointure 
 confirmed. (6) 
 
 16. Tenant for life is not bound to pay the principal of any sum 
 charged upon the inheritance. Hence, if he does pay it, he becomes 
 a creditor of the estate,(6) standing in place of the original creditor, 
 and being entitled to the charge for bis own benefit, unless he have in 
 some way indicated a contrary intent. But the smallest demonstration 
 is sufficient ; and he can claim no interest during his life. The old 
 rule required a tenant for life to bear one-third of the debt ; but this 
 
 (1) Dyer, 19 b. pi. 11, 5. Shelby, J., dis- 
 sented. Stukely v. Butler, Hob. 173. 
 
 (2) Sarles v. Sarles, 3 Sandf. Ch. 101. 
 
 (3) Booth on R. A. 60. See Sohier v. Wil- 
 liams, Curtis' R. 479. 
 
 (4) Ivie V. Ivie, 1 Atk. 431 ; PapilloQ v. 
 
 Voice, 2 P. "Wms. 477 ; Hicks u. Hicks, Dick. 
 650; Eord u Peering, 1 Tes. jun. 72. See, 
 as to title deeds, Dryden v. Frost, 3 My. & C. 
 670. 
 
 (5)_ Atlcinson v. Baker, 4 T. R. 229. 
 
 (6) See Detinue of Charters, Jointwe. 
 
 (a) Pn'ma/ara'e the tenant for life 13 entitled to them; and the remainder-raan can call 
 for them only to answer some specific purpose. Shaw v. Shaw, 12 Price, 163. In a late 
 case it has been held, that tlie owner of the inheritance is entitled to them, though there- 
 be an attendant term for 1,000 years. Austin v. Croome, 1 0. & Mar. 653. Where a lessee 
 has, for twenty years after the expiration of hia term, had possession of the lease, such pos- 
 session is deemed adverse, and Chancery will not interfere to have it delivered up. Dean, 
 &c. V. Dorrington, Holt Bq. 59. 
 
 (6) Held, in Kentucky, that he does not thereby become a creditor of those in remainder. 
 King V. Morris, 2 B. Monr. 104. Charges upon the estate, paid by such tenant, are prima 
 facie kept alive ; not merged iu the fee. Faulkner v. Daniel, 3 Hare, 217. 
 
CHAP, rv.] 
 
 ESTATE FOR LIFE. 
 
 67 
 
 principle has been pronounced absurd, making no allowance for the 
 different ages in different cases, and overruled.(l) ' 
 
 17. In case of a jointure, where the jointress and the issue claim 
 under one settlement, they shall contribute proportionally to the dis- 
 charge of a prior incumbrance.(2) 
 
 18. Tenant for life is bound to keep down the interest, or, if a dow- 
 ress, one-third of the interest, upon incumbrances, whether it accrued 
 before or since the commencement of his estate, and though it exhaust 
 the rents and profits.(a) If the incumbrancer neglect to collect the in- 
 terest from the tenant for life, the reversioner, &c., may file a bill to 
 charge the rents or have the estate sold. But, where the latter for a 
 series of years pays the interest, far exceeding the profits, it is prima 
 fade evidence that he meant to discharge the estate, especially if set- 
 tled ultimately on his family. (3)(J) 
 
 / 
 
 (1) Jones V. Morgan, 1 Bro. R. 205 ; Earl, 
 &c. V. Hobart, 3 Swanst. 199 ; White v. Whito, 
 4 Tes. 33 ; Hunt v. Watkins, 1 Humph. 498 ; 
 Wainright v. Hardisty, 2 Beav. 363 ; Bulwer 
 V. Astley, 1 Phil. 422. 
 
 (2) Carpenter v. Carpenter, 1 Tern. 440. 
 
 (3) Tracy v. Hereford, 2 Bro. R. 128 ; Pen- 
 rhyn v. Hughes, 5 Tes. 99; 4 Kent, li; 1 
 
 Bro. R. 220 ; Burges v. Mawbey, 1 Turn. & 
 R. 167; Hunt j;. Watkins, 1 Humph. 498; 
 Williams, 3 Bland, 245; Lindsey v. Stevens, 
 5 Dana, 108; Tucker «. Boswell, 5 Beav. 60t; 
 Glengall v. Barnard, lb. 245 ; Bull v. Birk- 
 beck, 2 T. & Coll. Cha. 447 ; Caulfield v. Ma- 
 guire, 2 Jones & Lat. 141. 
 
 (a) So, an annuity ia charged, first upon the life estate, then upon the inheritance. Caaon 
 V. Lawrence, 3 Edw. 48. So, an assessment will be apportioned upon the two estates. 
 XJairns v. Chabert, 3 lb. 312. And if a tenant for life neglect to pay the taxes upon the 
 estate, Chancery will appoint a receiver. Astreen v. Flanagan, 3 Edw. 279. The expense 
 of draining land was cliarged upon a fund absolutely belonging to an infant tenant for life, 
 and not upon the land. Stanhope v. Stanhope, 3 Beav. 547. 
 
 Tenant for life cannot charge the remainder-man for improvements made by the former. 
 Caldecott i;. Brown, 2 Hare, 344; Thurston ti. Dickenson, 2 Rich. Equ. 317. 
 
 Where a tenant for life has power to sell in fee, reserving a ground rent, be cannot bind 
 _ the remainder-man with special covenants, except in pursuance of his power. Naglee «. 
 IngersoU, 7 Barr. 185. But his .^g^eements are evidence of the boundaries and of the con- 
 ditions of the estate at the time of the grant. lb. • 
 
 Where a building is insured, in which there is a life estate, in case of a partial destruc- 
 tion of it, the insurance money is to be applied to repairs. Brough v. Higgins, 2 Gratt. 408. 
 The tenant for life is not entitled to receive the principal of the money paid for a loss, but 
 only the interest, deducting the premiums. Graham v. Roberts, 8 Ired. Equ. 99. 
 
 (b) In case of tenant for life, remainder in fee, of lands mortgaged, the parties contribute 
 to a discharge of the incumbrance, according to the relative value of their respective inter- 
 ests, calculated according to the value of the life estate by the common tables. Foster v. 
 Hilliard, 1 Story, 77. Real estate was devised to A for life, remainder to certain minors ia 
 fee. A, with consent of the guardians, sold the land, but die^ before receiving the whole 
 consideration, and the residue was received by his executors. Held, the rights of the par- 
 ties were fixed at the time of sale, and the executors and the remainder-men should divide 
 the proceeds according to the interests of A and the remainder-men at that time. 
 
 Also, that the interest of the tenant for life was to be determined, not by the time of his 
 death, but by the value of his life, as ascertained by the common tables at the time of sale. 
 Thus, although he died within four years from the sale, his interest was to be calculated for 
 about twenty years, that being the estimated duration of his life. lb. It is held, that there 
 is no general rule for estimating the relative value of a life estate and reversion ; but the 
 most convenient course is to sell the whole estate, and divide the proceeds. Atkins v. 
 Kron, 8 Ired. Equ. 1. See Williams, 3 Bland, 221 ; Bristed v. Wilkiiis, 3 Hare, 240. The 
 dividends of a sum of stock were ordered, upon petition, to be paid to A for her life, and, 
 after her decease, to B for her life; but an order for the transfer of the fund, after the death 
 of the survivor of them, was refused. Lowndes' Trust, in re, 6 Eng. Law and Eq. Rep. 60 ; 
 Staples, 9 ib. 186. A terre-tenant is not bound to go beyond the profits of the land, in 
 keeping down incumbrances. Jones v. Sherrard, 2 Dev. & B. Eq. 184. A tenant by the 
 curtesy must pay all the interest accruing during his estate, but not before. Ibid. 
 
ESTATE FOR LIFE. 
 
 [CHAP. IT. 
 
 19. The rule above stated applies only to mortgages and other charges 
 upon the inheritance. With regard to renewal leases, in England, and, 
 so far as they are known, in the United States, the charges of renewal 
 are shared by the tenant for life, in proportion to the benefit which he 
 derives from" it under the particular circumstances ; and this is referred 
 to a master to settle.(l) 
 
 20. In general, where tenant in tail pays off an incumbrance, it is 
 understood to be done in discharge of the estate, because he has the 
 power of making it his own. But such tenant, restrained as to aliena- 
 tion, thouoh having powers of leasmg and jointuring, stands in this 
 respect like a tenant for life.(2) 
 
 21. If a mortgagee, after a neglect by the tenant for life to pay the 
 interest, purchase the estate for life, and then, after the tenant's death, 
 bring a bill to foreclose ; he shall be charged in his account with all 
 the arrears which accrued before such purchase. He would have been 
 bound in this way had he taken possession as mortgagee.(3) 
 
 ^' 22. Tenant for life, unless expressly ^restrained, may transfer the 
 whole^or any part of his estate to a third person, in any way which 
 shall not injure or endanger the remainder ; or he may join with the 
 owner in fee in alienating the entire inheritance.(a) In New Jersey, 
 a statute provides that the assent of the next owner to a conveyance 
 by tenant for life shall appear of record.(4)(6) 
 
 23. It is one of the incidents of a tenancy for life, that for certain 
 acts done by the tenant the estate may be forfeited. We shall have 
 occasion, hereafter, to consider this subject in one point of view, under 
 the head of Waste (Ch. 18.) There is another ground of forfeiture, 
 which may properly be considered here. 
 
 24. At common law, where a tenant for life undertook to convey 
 by feoffment a larger estate than he himself owned, such interference 
 with another's title, operating to divest the remainder or reversion, was 
 punished by forfeiture of the estate for life to the remaintJer-man or 
 reversioner. This, however, was not the only ground of forfeiture ; for 
 where tenant for life of a rent levied a fine of such rent, although 
 nothing more passed thereby than his lawful estate, still a forfeiture 
 was incurred.(5) This principle, being founded in the feudal system, 
 according to which such a conveyance was a renunciation of the con- 
 nection between the lord and his vassal, (c) is for the most part obsolete 
 in American law. (6) It is said by one distinguished commentator, that 
 
 (1) 4 Kent, 75. See Reevea v. Creswick, 
 3 Y. & Coll. 715. 
 
 (2) Shrewsbury v. Same, 1 Ves. jun. 227. 
 
 (3) 5 Ves. 99. 
 
 (4) 1 Cruise, 81 ; 1 N. J. Rev. C. 348 ; 
 King V. Sharp, 6 Humph. 55. 
 
 (5) Gilb. Ten. 38-9. See Dehon v. Eed- 
 fern, Dudl. Equ. (S. C.) 115; Aoklands. Lut- 
 ley, 9 Ad. & Ell. 879. 
 
 (6) "Walk Intro. 277; 4 Kent, 83-4; 
 M'Corry v. King, 3 Humph. 267. 
 
 (a) It has been held that a proviso against alienation is void. Kochford v. Hackman, 
 10 Bng. L. & Equ. 64. 
 
 (6) In Maine, he may join with the remainder-man in tail, in passing a fee-simple. Me. 
 Rev. St. 372. The provision in Massachusetts Rev. Sts. c. 59, sec. 28, that no conveyance 
 of an estate in fee or for life, nor any lease for more than seven years, " shall be valid and 
 effectual against any other person than the grantor, his heirs, &c., unless it be made by deed 
 recorded," does not dispense with the necessity of a deed, in order to pass an estate for life, 
 even as against the grantor and his heirs. Stewart v. Clark, 13 Met. 79. 
 
 (c) Tenant for life is sometinaea called an impUed trustee. Joye v. Gunnels, 2 Rich. Equ. 
 259. 
 
CHAP. IV.] ESTATE FOR LIFE. 69 
 
 scarcely a direct decision upon the subject is to be found in our Ameri- 
 can books ; and another is of opinion, that, as the form and nature of 
 American conveyances is that of a grant, which passes nothing more 
 than the grantor is entitled to, the doctrine of forfeiture is not in force, 
 even independently of statute provisions, in the United States.(l) It 
 is remarked by the court in Massachusetts, that at common law, a bar- 
 gain and sale could not work a forfeiture or discontinuance ; to the 
 latter of which livery of seizin or something equivalent is essential. 
 But a bargain and sale, covenant to stand seized, or release, with a 
 general warranty annexed, may produce a discontinuance, where the 
 warranty descends upon him who hath a right to the lands.(2)(a) 
 
 25. It was held in Pennsylvania, as early as 1798, that a statute, 
 making the registry of a deed equivalent in effect to livery, did not give 
 to the recorded deed of a tenant by the curtesy, the operation of livery 
 in forfeiting the estate. The deed was a quit-claim in regard to the 
 covenants; but the words used were "grant, bargain, sell, aliens, re- 
 lease, enfeoff and confirm." So, in Maine, a deed of release and quit- 
 claim of the fee, is no forfeiture.(3)(5) 
 
 26. Whether the doctrine of forfeiture is still in force or not, it is in- 
 applicable where there is no change of possession attending the con- 
 veyance. Thus, if the tenant convey to A, even with general warranty, 
 immediately take back a conveyance from him by quit-claim deed, and 
 then mortgage to A, remaining all the time in possession ; this works 
 no forfeiture.(4) 
 
 27. Forfeiture seems to be unknown in Pennsylvania, Virginia, New 
 York, Connecticut and Massachusetts. 
 
 28. In Massachusetts, Michigan, Indiana, New Hampshire, Vermont 
 and New York, it is expressly abolished by statute. (5)(c) 
 
 29. In North Carolina, the Revised Statutes provide that a convey- 
 ance by a widow shall pass no more than her own lawful estate. 
 
 30. In .Tennessee, a deed of conveyance operates as a grant, not a 
 feoffment, and passes only the grantor's actual interest. So in Virginia. 
 In Kentucky, a deed, though with warranty, passes only the grantor's 
 estate. But, if he warrant for his heirs, they are barred to the value 
 
 (1) 5 Dane, 5, 11 ; 4 Kent, 106. | 84; 1 N. T. E. S. 739; Term. Rev. St. 310 ; 
 
 (2) Stevena v. Winship, 1 Pick. 321. 
 
 (3) M'Kee v. Pfont, 3 Ball. 486 ; Bell v. 
 Twilight, 34 Maine, 500. 
 
 (4) Stevens v. Winship, 1 Pick. 318. 
 
 (5) M'Kee i/. Pfont, 3 Dal. 486 ; 1 Swift, 
 
 N. H. Rev. St. 242-3 ; Mass. Rev. St. 405 ; 
 Mich. Rev. St. 258; 5 Dane, 511; Grout v. 
 Townsend, 2 Hill, 554; 11 Conn. 551; 3 
 Dana, 291. 
 
 (a) In a previous case, in the same State, the English doctrine of forfeiture was inciden- 
 tally recognized as in force. Grant v. Chase, 17 Mass. 446. 
 
 (b) " The obvious purpose of the provision (substituting a deed for a feoffment) was 
 to dispense with actual investiture, without imparting to its substitute the feudal and 
 almost inconceivable effect of displacing lawful estates, and turning them to a mere right." 
 " The object was, to give without the aid of feudal' ceremonies the legal seisin for lawful 
 purposes." Sarah, &c., 5 Rawle, 113. See Salmon v. Clagett, 3 Bland, 172; Dawson v. 
 Dawson, Rice, 243. 
 
 (c) So in Wisconsin. Rev. Sts. ch. 59, s. 4; Ind. Rev. Sts. 232. In New York, it has 
 been decided, that a conveyance in fee made by a tenant by the curtesy, though with cove- 
 nant, passes only his own interest, the extent of it being proved, and the form of the deed 
 such as passes only a rightful estate. Jackson v. Manoius, 2 Wend. 359. But in Maine, 
 such conveyance has been held to make a forfeiture. Ereuoh v. Rollins, 8 Shepl. 372. 
 Otherwise by statute. Rev. St. 372. 
 
70 
 
 ESTATE FOR LIFE. 
 
 [CHAP. IT. 
 
 of the land which descends to them. But in New Jersey, warranty of 
 tenant by the curtesy shall not bind his heirs, claiming under the 
 mother. In Delaware and Alabama, the warranty of a tenant for life 
 is void against the reversioner, &c.(l) 
 
 31., In^lSTew Jersey, if a dowress or tenant for life, being sole, dis- 
 continue or aliene, or suffer any recovery by c&vin, the alienation shall 
 be void, but the next owner may enter immediately, as if she were 
 dead. If she aliene with her husband, the forfeiture ceases with his 
 life. In Georgia, if a wife transfer her estate in fee for life, she forfeits 
 it.(2) 
 
 32. In Ohio, a neglect or refusal to pay the taxes upon land, causes 
 a forfeiture to the reversioner or remainder-man, though the tenant 
 was a mere trustee for minors. The reversioner, &c., may redeem 
 from the purchaser of the land, but the tenant for life cannot.(3) 
 
 33. In Kentucky, where the widow has an allowance in slaves in 
 the nature of dower, if she actually or permissively remove a slave 
 from the State, she forfeits her whole dower.(4) 
 
 34. The English law of forfeiture being modified or abrogated in 
 this country, as above menti(ftied, only a few of the most general prin- 
 ciples on the subject will be here stated. 
 
 35. If there be tenant for life,' remainder for life, and the tenant and 
 remainder-man join in a feoffment, it is a forfeiture of both their 
 estates. 
 
 36. If husband and wife, tenants for life, make a feoffment, it is a 
 forfeiture during coverture. So, where he is seized in her right, or 
 where he alone conveys. But the forfeiture ceases with his death. 
 
 37. By the English law, there are some other acts besides a con- 
 veyance, which, on the same principle, cause the forfeiture of an estate 
 for life. Thus, if tenant for life levies a fine, or suffers a common re- 
 covery, the reversioner, &c., not being a party, he forfeits his estate. 
 
 38. So, if being disseized he brings a writ, and therein claims the 
 fee. So, if being sued in a writ of right, he joins the mise on the 
 mere right, which is the privilege of the owner in fee. 
 
 39. So, if a stranger brings an action of waste against him, and he 
 pleads in bar " 7iul waste faite ;" this being an admission that the plain- 
 tiff is the party entitled to sue. Or, if he is defaulted or pleads covin- 
 ously in a real action against him.(5)(a) 
 
 40. An estate pour autre vie, though falling under the general title 
 of life estates, and regarded as real for many purposes, is a freehold in- 
 terest suh modn, partakes of the nature of personal property, and is 
 subject by law to peculiar modes of disposition. This estate has some- 
 times been called, though improperly, a descendible freehold. The heir 
 
 (1) 1 N. C. Eev. St. 615; Miller v. Miller, 
 Meigs, 484 ; Aik. 9 ; Smith v. Shackleford, 9 
 Dana, 475 ; Eobinson v. Miller, 1 B. Moii. 94; 
 1 Ky. St. 110: a N.J. Eev. C. 348; Dela. 
 Eev. Sts. 271; Tir. Code, 500. 
 
 (2) I K. J. Eev. C. 347-8; Hotchk, (Ga.) 436. 
 
 (3) Chase's Stat. 2, 1368-9; M'Millan v. 
 Robbing, 5 Ohio, 30. 
 
 (4) Anth. Shep. 649; King v. Mims, 7 
 Dana, 272. 
 
 (5) Co. Lit. 251 b. ; 1 Cruise, 82-3. 
 
 (a) In Kentucky, it is said, a tenant for life incurs no forfeiture, unless he claims the fee 
 by some proceeding of record. Eobinson v. Miller, 1 B. Monr. 91. See Eobinson v. Miller, 
 2 lb. 292. In a late English case it is held, that no forfeiture is incurred by a verbal re- 
 fusal to pay rent and claim of the fee. Doe v. Wells, 10 Ad. & El. 427. 
 
CHAP. IT.] 
 
 ESTATE FOR LIFE. 
 
 71 
 
 does not take hy descent, but, if at all, as special occupant. Lord Eldon 
 said he found it very difficult to determine under what phrase to de- 
 scribe this interest.(l) 
 
 41. At common law, where one was tenant for the life of another, 
 called the cestui que vie, and died, living the latter, any person who 
 first entered might hold the land, by right of occupancy, during the 
 cestui^s life; subject, of course, to the rent reserved, and other lia- 
 bilities of the former tenant, but not subject to his debts, for the heir 
 might plead " riens per descent,^' though, if it came to the executor or 
 administrator, it would be assets. So slight acts of occupancy would 
 create this title, that it has been thought necessary to decide, that 
 riding over the ground to hunt or hawk doth not make an occupant. 
 
 42. This doctrine led to some singular results, where the tenant for 
 life had leased the land. Thus A, tenant for the life of B, leases to 
 C for 51., and to D for 31. A dies, leaving, D in possession. C 
 shall receive from D the 3?., and D from C the 5?., becau,se D's term 
 is prevented from merging by the intermediate reversion of 'G, but D 
 has the freehold in reversion expectant on C's term, and the rent in- 
 cident to it.(2) 
 
 43. St. 29., Chas. 2, c. 8, s. 12, provided, that such estate might be 
 devised, and if not, that it should be assets by descent in the hands 
 of the heir, if he entered as special occupant ;(a) or, if he did not 
 enter, assets in the hands of the executor or administrator. A sub- 
 sequent statute, (14 Geo. 2, c. 20, s. 9,) provided for the distribution 
 of such estate as personal property, in default of any devise or special 
 occupancy. (6) 
 
 44. These statutes have been adopted or substantially re-enacted in 
 Maryland, (c) Virginia, Kentucky, North Carolina and Indiana. (3) 
 
 45. In Massachusetts and Vermont, such estate descends to the heirs, 
 unless devised. (4) 
 
 46. In New York, New Jersey, and Wisconsin, it is a chattel real 
 after the tenant's death, though freehold before, and in New York, 
 though limited to heirs.(5) 
 
 47. In Ohio there is no statutory provision on the subject ; but it is 
 said, the courts would never recognize so absurd a doctrine as to allow 
 
 (1) Doe V. Luxton, 6 T. R. 289 ; Brown v. 
 Elton, 3 P. Wms. 203; Ripley v. Water- 
 worth, 1 Tes. 437, 441. 
 
 (2) Co. Lit. 41 b. & n. ; Duke, &o. v. Kin- 
 ton, 2 Tern. 719; Doe v. Luxton, 6 T. R. 
 291. 
 
 (3) 4 Kent. 27-8; Anth. Shep. 428, 490, 
 
 655; 1 N. 0. feev. St. 278; Ind. Rev. St. 
 274 ; 1 Ky. Rev. L. 669 ; 1 Tir. R. C. 167. 
 
 (4) Mass. Rev. St. 413-6 ; Term, Rev. St. 
 292. 
 
 (5) 1 N. T. Rev. St. 722; 4 Kent; Wise. 
 Rev. Sts. 314. 
 
 (a) By a special occupant, is to be understood one who enters by virtue of a limitation in 
 the instrument which created the estate. (But see infra (55) that this is not the sole use of 
 the phrase.) 
 
 (6) A, the owner of land in fee-simple, conveyed to B, his heirs and assigns, to hold to 
 him and his assigns during the life of C. B died, leaving C his heir. Held, C should hold 
 for life, as special occupant, the words used in the habendum clause not operating to vest 
 the estate in B's executors. Doe v. Steele, 4 Ad. & El. 663. Demise to A, his heirs, &o., 
 for lives. A devises for tlie remainder of the term to B and his assigns, who dies intestate. 
 B.''a administrator taljes the property. Doe v. Lewis, 9 Mees & W. 662. 
 
 (c) Assets in the hands of the executor, &c., unless granted to the deceased and his heirs 
 only. Md. L. 1798, oh. 101 ; Dorsey Test. L. 88. In Arlsansas, this estate is excepted 
 from the Statute of Descents. Rev. St. 331. 
 
72 ESTATE FOE, LIFE. [CHAP. IV. 
 
 a stranger to take possession ; but this estate would pass eitlier to heirs 
 or executors, probably the latter.(l) 
 
 48. The English and American statutes seem to contemplate chiefly 
 the case where, in general terms, an estate is limited to one man for the 
 life of another. This estate, however, is often created with special lim- 
 itations ; in the construction of which there has been no little contra- 
 diction and confusion. 
 
 49. If an estate be limited to one and his heirs, or the heirs of his body, 
 for the life of another, no question can arise, because the heirs will 
 hold as special occupants, according to the terms of the grant.(2) 
 
 50. But a life estate is not entailable, not being an inheritance nor 
 subject to dower. 
 
 51. Therefore, in case of an attempted entailment, the heirs of the 
 body or a remainder-man will take, only in case the tenant has not 
 disposed of the land. He has power to grant it away absolutely, after 
 fulfilment of condition by the birth of issue. It was formerly held that 
 he could bar only the issue, not a remainder-man ; but the rule seems 
 to be now fully settled as- above stated. 
 
 52. It has been intimated that the tenant may even devise such es- 
 tate, so as to bar the heir. But this is doubted. (3) 
 
 53. It has been held, that where the estate is limited to executors, 
 administrators and assigns, it passes, after payment of debts, with the 
 personal estate, to residuary legatees.(4) 
 
 54. But if limited to " heirs, executors," &c., and not devised, the 
 heir takes as special occupant in preference to the executor.(5) 
 
 55. If a wife is tenant pour autre vie, the husband shall hold, after 
 her death, as special occupant.(6)(o) 
 
 56. An estate for life terminates of course upon the death of the 
 tenant.(i) But such death may sometimes be presumed from circum- 
 stances. The common law fixes no period after which this presump- 
 tion arises. But, by virtue of St. 19, Cha. 2, c. 6,(c) the principle of 
 
 (1) Walk. Intro. 275. 
 
 (2) 1 Cruise, 84 ; Anth. Shep. 428, (Mary- 
 land.) 
 
 (3) Low V. Burron, 3 P. Wms. 262 ; Doe 
 V. Luxton, 6 T. R. 292 ; Blake v. Blake, 3 P. 
 
 "Wms. 10, n. 1 ; 1 Rep. in Ireland, 294. 
 
 (4) Ripley v. Waterworth,* 1 Vea. 425. 
 
 (5) Atkiuson v. Baker, 4 T. R. 229. 
 
 (6) 2 Kent, 112. 
 
 * This ease contains the fullest exposition, to be found in the books, of an estate pow 
 autre vie at common law, and as affected by tbe statutes above named. It was here con- 
 tended, under the particular form of limitation, on the one hand, that tbe estate went to the 
 heir, not being validly disposed of by an unattested will ; and, on the other, that the execu- 
 tors took it in trust for the legatees. The court remarked, that they should sooner give it 
 to the executor for his own benefit, than to the heir. 
 
 (a) A husband entered on land as tenant pour autre vie of his wife, leased it, and died. 
 Held, the lessee and his tenant must attorn to the title under which the husband entered, 
 not to his heirs. Syme v. Sanders, 4 Strobh. 341. 
 
 (6) Hence, one entering upon land, under an agreement with the husband of a tenant for 
 life, and holding over after her death, is, with respect to the remainder-man, a mere tres- 
 passer. Williams v. Caaton, 1 Strobhart, 130. 
 
 (c) This act provides, that if the persons for whose lives estates are granted, shall go 
 abroad, and no sufficient proof be made that they are alive; in any actions for the lands by 
 the lessors or reversioners, the judge shall direct the jury to give their verdict, as if the 
 absent persons were dead. Holman v. Exton, Carth. 246; Stat. 6 Anne, ch, 18: 2 Cox, 
 373. In Arkansas, absence from the state ^«e years raises a presumption of death. If the 
 party return, he may recover the intermediate profits of the land. Ark. Rev. St. 321-2, 
 
CHAP. IV.] 
 
 ESTATE FOR LIFE. 
 
 73 
 
 which, though not the act itself, is generally adopted in this country, a 
 continued absenceybr seven years raises a presumption of death, which 
 authorizes the nest succeeding owner to enter upon the estate. But if 
 the tenant for life prove to be still living, he shall recover the land 
 with the intermediate rents and profits. Absence for a less period than 
 seven years does not raise a presumption of death. The absence is an 
 absence from the State or Commonwealth. Thus, the rule was applied 
 in a case where a husband emigrated from South Carolina to the west- 
 ern country.(l) 
 
 57. Where a husband, twelve years before, sailed for South America, 
 and neither he, nor any of the crew, nor the vessel, were ever heard of 
 afterwards, it was held, in analogy to the statutes relating to bigamy, 
 and to leases determinable on lives, that the death of the husband must 
 be presumed, and the wife treated as a, feme sole.{2) 
 
 58. The brother of A, a person deceased, left Oldenburg more than 
 thirty-five years ago. He went to Hamburg and shipped as a sailor 
 for Lisbon, and had never been heard of since. Held, the administra- 
 tor of A should distribute his property as if the brother were proved 
 to be dead.(3) 
 
 58 a. A father, seventy years old, and his daughter, thirty-three years 
 old, were on board a steamboat, lost at sea, and both perished, there 
 being nothing to show which survived the other. Held, they must be 
 presumed to have died at the same instant.(4) 
 
 58 b. Presumption of death does not arise from the fact, that a person 
 who, twenty-two years ago, was in "bad health," would, if nowliving, 
 be eighty years old ; even although, on recent inquiry, his name was 
 not known at the post office of a large city, (his former residence,) nor 
 inserted in its directory, there being no evidence of the sort or degree 
 of bad health, nor of inquiries having been made about him among 
 his friends, nor of his having ever left the place of his former resi- 
 dence.(5) 
 
 58 c. What is a reasonable search and inquiry for the person upon 
 whose life the continuance of a leasehold estate depends, is a mixed 
 question of law and fact, to be determined upon the particular circum- 
 stances of each case. Inquiry of the tenant may in some cases, it seems, 
 be sufiicient.(6) 
 
 58 d. In a suit in equity by certain heirs of a person, having an 
 equitable interest in an estate, against the executor of the person who 
 held the legal title, and who had, in his lifetime, conveyed the estate 
 to bona fide purchasers without notice, one of the heirs not having been 
 heard of for seventeen years, and being an infant when last heard of; 
 
 (1) Woods w.WoocIa, 2 Bay, 476; Spurr v. 
 Trimble, 1 Mar. 218 ; Salle v. Primm, 3 Misso. 
 529; Newman v. Jenkins, 10 Pick. 515; 
 Miller v. Beates, 3 S. & R. 490 ; Foraaith v. 
 Clark, 1 Post. (N. H.) 409; Taylor, 3 Harr. 
 Dig. (suppl.) 715. 
 
 (2) King V. Paddock, 18 John. 141. 
 
 (3) Loring V. Steineman, 1 Met. 204. 
 
 (4) Coy V. Leaoh, 8 MeK 371. 
 
 (5) Matter of Hall, Wallace, Jr. 85. 
 
 (6) Clarke v. Cummings, 5 Barb. 339. 
 
 536. In England, by a late act, (3 & 4 Wm. 4, oh. 74, s. 91,) after a certain absence of the 
 husband, the wife may be empowered, by order of court, to convey lands. But this can be 
 done only upon her affidavit that she has had no communication with him. Anne, Ac, 3 
 Man. & G. 132. In New Jersey, an heir or devisee may receive the same authority. St. 
 1848, 43. 
 
74 
 
 ESTATE TAIL AFTER POSSIBILITY OF ISSUE, &o. [CHAP. Y. 
 
 the share of such absent heir was divided among the other heirs, upon 
 their executing bonds, payable to the judge and his successors in office, 
 with condition to indemnify the executor against the claim of the ab- 
 sent heir.(l) 
 
 59. Under special circumstances, the death of a party may be pre- 
 sumed to have occurred, at some particular part of the time of seven 
 years, during which he was absent ; as where one sailed from Demerara 
 during the hurricane months. But in general no such presumption 
 arises, but the time must be affirmatively proved.(2) 
 
 CHAPTER V. 
 
 ESTATE TAIL AFTER POSSIBILITY OP ISSUE EXTINCT. 
 
 1. Life estates created by law. 
 
 2. Estate tail after possibility, &o. 
 
 I 
 
 3. Wben it arises. 
 
 8. Qualities of the estate. 
 
 1. Having treated of estates for life created by act of party ^ we are 
 now to consider those created by act of law. 
 
 2. Of these, the first in the English law, is called estate tail after pos- 
 sibility of issue extinct. This is of little consequence in the United 
 Slates, and will be very briefly noticed. 
 
 3. Where tenements are given to a man and his wife in special tail, 
 and one of them dies without issue, or where they have issue, who die 
 without issue, the surviving man or woman is tenant in tail after pos- 
 sibility of issue extinct, because he can no longer have issue capable of 
 inheriting the estate. 
 
 4'. So where tenements are given to a man, and to his heirs which he 
 shall beget on the body of his wife ; if she die without issue by him, 
 he is tenant in tail after, &c. 
 
 5. No one can have the above-described estate except a donee in 
 special tail, because both a tenant in tail general, and the issue of tenant 
 in tail special, may always, by legal possibility, during their life, have 
 issue capable of inheriting.(3) 
 
 6. This estate 'cannot arise without a moral impossibility, caused by 
 act of God, of having issue. Thus, a man and woman will remain 
 tenants in special tail, though they live to be more than a hundred years 
 old. So, if a man and woman, tenants in tail special, are divorced, 
 causa proecontractus or consangumitaiis, the separation not being by act 
 of God, they become mere joint tenants for life.(4) 
 
 7. This tenancy may exist in a remainder.(5) 
 
 8. In some particulars, the estate above described resembles an estate 
 tail ; in others, an ordinary estate for life. The tenant is a tenant for 
 life, but with many of the privileges of a tenant in tail ; or a tenant in 
 tail, but with many of the restrictions of a tenant for life. Thus, such 
 
 (1) Noi-man v. Cunningham, 5 Gratt. 63. 
 
 (2) SiUiek v. Booth,! Y. & Coll. Cha. lit ; 
 Spencer v. Roper, 13 Ired. 333. , 
 
 (3) Lit. ss. 32, 33, 34. 
 
 (4) 1 Inst. 28 a. 
 
 (5) Bowles' case, 11 Rep. 81 a. 
 
OHAP. VI.] 
 
 CURTESY. 
 
 75 
 
 tenant is dispunishable for waste, the law not divesting him of a power 
 which he once possessed. But whether he acquires a property in the 
 timber cut by him, seems to be a point somewhat unsettled. But, on 
 the other hand, by a feoffment, he forfeits his estate; and, if he acquire 
 
 the same land, his former in- 
 
 a fee, simple or qualified, by descent, in 
 terest is merged. 
 
 9. If tenant in tail after possibility, &c., grant over his estate, the 
 grantee* is a mere tenant for life, with none of the peculiar privileges 
 of the former.(l) 
 
 CHAPTER VI. 
 
 CURTESY. 
 
 1. Orio;in of the name. 
 
 2. Definition of the estate. 
 
 3. Curtesy in tlie United States. 
 
 4. Requisites. 
 
 5. Marriage. 
 
 6. Seizin. 
 
 13. Birth of issue. 
 
 20. Aliens. 
 
 22. Conditional fees, &c. 
 
 25. Money to be converted into land. 
 
 27. Land conrerted into money. 
 
 29. Wife must have the inheritance. 
 
 35. Wild lands. 
 
 36. Entry not necessary. 
 
 37. How barred. 
 
 43. Effect of contract upon curtesy. 
 
 1. The second estate for life, created by act of law, is a tenancy hy 
 the curtesy. This name has been variously accounted far, upon the 
 grounds that the estate is peculiar to England, that the tenant was en- 
 titled to attend upon the lord's court, and that it has no moral founda- 
 tion, la the time of Grlanville an estate existed, somewhat resembling 
 curtesy, being the interest of a husband in lands given with the wife 
 in marriagehood. The birth of issue gave him a life estate in the 
 lands.(a) From this interest, curtesy seems to have been derived. 
 By the custom of Normandy, the husband held only during his widow- 
 hood.{2) 
 
 2. Where a wife is seized of lands in fee-simple or fee tail general, 
 or as heir in tail special, and the husband and wife have issue born 
 alive, after the wife's death the husband shall hold the lands for his 
 life, and this estate is a tenancy by the curtesy.(3)(5) 
 
 8. Curtesy exists in most of the States as at common law, being 
 
 (1) 1 Cruise, 103-S, 14; 2 Chit. Black. 98 
 and n. 6. 
 
 (2) 1 Cruise, 106-7 ; 2 Black. Com. 100; 
 Glanville Tr. 193 ; Braoton, lib. 5, c. 30, s. 7 ; 
 
 Hale'a His. of C. L. 1, 219. 
 
 (3) Lit. 3. 35 ; Mass. Rev. Sta. 411,; Dela. 
 Rev. Sts. 277. 
 
 (o.) A tenant by the curtesy initiate, is said to have a life estate in his own right. Poster 
 V. Marshall, 34 Maine, 491. 
 
 (6) This estate has been termed custodiam hcereditatis uxoris. Co. Lit. 30 a, n. 5. It is 
 a legal estate, not a mere charge or incumbrance, and said to be rather a title by descent than 
 by purchase. Watson v. Watson, 13 Conn. 83. 
 
 It may be sold by the husband. Wells v. Thompson, 13 Ala. 793. His deed of bargain 
 and sale will pass only his title ; and the statute of limitations will not begin to run 
 against the heirs of the wife till hia death. Meramau v. Caldwell, 8 B. Mon. 82. 
 
76 
 
 CURTESY. 
 
 [CHAP. VI. 
 
 generally noticed in the statutes, if at all, merely by a recognition of 
 the common law rule. In a few of the States, the estate is abolished or 
 greatly modified. In Indiana it is abolished. In Georgia, it is pro- 
 vided, both that a husband shall be heir to his wife, and also that the 
 real estate of the wife shall, like her personal estate, vest absolutely 
 in the husband upon the marriage. Of course, curtesy is unknown. 
 In Indiana, the husband inherits to his wife. In South Carolina, the 
 husband takes the same interest in the wife's lands upon her death, 
 that she would take in his lands upon his death. In Vermont, it 
 seems, the husband formerly had curtesy in a fee-simple, only where 
 the issue had died under age and without children : but now, curtesy 
 is as at common law ; with the exception, that if the wife leaves issue by 
 a former husband, curtesy does not attach to such lands as descend to 
 them.(l)(a) 
 
 4. Four circumstances are necessary to the existence of this estate ; 
 viz., marriage, seizin of the wife, issue and death of the luife. And it is 
 wholly immaterial in what order these events occur, provided they all 
 at some time take place. Thus, if the wife is disseized after marriage 
 but before the birth of issue ; or if the lands come to her after the 
 death of the issue ; the husband still has curtesy.(2) 
 
 5. A void marriage gives no right to curtesy. It is otherwise with 
 a marriage merely voidable, and not actually avoided during the wife's 
 life — because it cannot be avoided afterwards.(3)(6) 
 
 . 6. It is the general rule, that the wife, or the husband in her right, 
 must have been seised of the lands. It is said, the husband is bound to 
 strengthen the title of the wife by possession, so as to protect the lands 
 against adverse claims. Of corporeal hereditaments there must be a 
 seizin in deed. Thus, if lands descend to a woman, who afterwards 
 marries and has issue, but dies before entry, the husband shall not 
 have curtesy. So, where persons claiming adverse title were in 
 possession. (4) 
 
 7. This rule has been changed in Connecticut, Pennsylvania and 
 Tennessee; and a right to seizin or potential seizin, merely, there being 
 no adverse possession, and whether such seizin were acquired by 
 
 (1) Prince's Dig. 225, 251; S. 0. Sta. l'?91 ; 
 1 Yt. L. 142; Me. Rev. Sts. 381 ; M'Corry «. 
 King, 3 Humph. 267 ; Term. L. 359 ; Verm. 
 Rev. Sts. 291. See Cuuningham v. Doe, 1 
 Cart. 94; Burnsides v. Wall, 9 B. Mou. 
 318. 
 
 (2) 1 Cruise, lOY; Co. lit. 30 a; Paine's 
 
 Case, 8 Rep. 35 b; Menville's Case, 13 Rep. 
 23'; Jackson v. Johnson, 5 Cow. 74. 
 
 (3) 1 Cruise, 107. 
 
 (4) Co. tit. 29 a ; Mercer v. Selden, 1 How. 
 37 ; Adair v. Lott, 3 Hill, 182 ; Orr v. HoUi- 
 days, 9 B. Mon. 59 ; Neely ».' Butler, 11 B. 
 Mon. 48. 
 
 (a) In Pennsylvania, it is said, the husband's curtesy, by statute in 1833, is good, though 
 there be no issue of the marriage. 4 Kent, 29 n. So in "Wisconsin. (Rev. Sts. 336.) 
 In the same State, if the wife leave issue by a former husband, who may inherit from her, 
 there shall be no curtesy. lb. 
 
 A statute (1838) provided, that on the death of a feme covert intestate, her husband 
 should have one-third of her estate in fee, and be tenant by the curtesy, as at common 
 law of the residue. Held, this statute did not change the common law right as to the 
 two-thirds ; and where no children have been bom alive of the wife, he takes no estate 
 therein. Cunningham v. Doe, 1 Smith, 34. 
 
 (6) See infra, eh. 8, Dower. 
 
CHAP. TI,] 
 
 . CURTESY. 
 
 77 
 
 descent, devise or conveyance, is there sufficient to give curtesy. (a) 
 And the rule has been held not applicable to wild lands,(6) whether 
 claimed by inheritance, deed or devise, of which the mere ownership 
 is, in general, equivalent to actual possession, unless they are held ad- 
 versely to the wife. Nor to incorporeal hereditaments, where no actual 
 seizin is possible. Thus, where a wife seized of a rent dies before 
 it falls due, the husband shall have curtesy. " Impotenlia excusat 
 legem."{l) 
 
 8. In New York, the husband of a woman who is either heir or 
 devisee, but has never entered, shall not have curtesy. It is said, the 
 requisition of actual seizin is limited to these two cases, and is not ap- 
 plicable where the wife claims under a deed ; which, by the statute of 
 uses, transfers actual seizin, without entry. So, if husband and 
 wife recover her lands by suit, this is a sufficient seizin for curtesy. 
 So, with a decree for partition. In Pennsylvania, the husband shall 
 not have curtesy, where the wife has a mere naked seizin as trustee 
 of the freehold, though she also holds a beneficial interest in the. 
 reversion. (2) 
 
 9. If the lands are leased for years when they descend upon the 
 wife, the possession of the lessee is equivalent to actual seizin of the 
 husband and wife, and he shall have curtesy, although she die before 
 receiving any rent, and although the rent before her death was greatly 
 in arrear. It might be otherwise, if the rent were paid to any other 
 claimant.(3) 
 
 10. A woman, before marriage, grants a term for seventy-five years, 
 
 (1) Guion V. Anderson, 8 Humph. 298 ; 
 Bu3h V. Bradley, 4 Day, 298 ; Jackson v. 
 Sellick, 8 John. 262 ; Davis v. Mason, 1 Pet. 
 503 ; Smoot v. lecatt, 1 Stew. 590 ; KHne v. 
 Bebee, 6 Conn. 494; Ellsworth v. Cook, 8 
 Paige, 643 ; Barr v. Galloway, 1 M'Lean, 
 576; Co. Lit. 28 a; "Wells i). Thompson, 13 
 
 Ala. 793. 
 
 (2) Jackson v. Johnson, 5 Cow. 74 ; lb. 98 ; 
 Adair v. Lott, 3 Hill, 82; Ellsworths;. Cook, 
 8 Paige, 643 ; Chew v. Commrs., &c., 5 Rawle, 
 160. 
 
 (3) De Gray v. Richardson, 3 Atk. 469; 
 Carter «. "Williams, 8 Ired. Equ. 177. 
 
 (o) On the grftund, in Connecticut, that in all other respects, in that State, ownership is 
 held equivalent to actual seizin. Thus, lands descend from, or may be devised by, the 
 owner, though not seized. So, he may maintain trespass. (Two justices dissented.) To 
 have curtesy, adverse possession must have existed through the wliole period of marriage. 
 Parker v. Carter, 4 Hare, 400. 
 
 (6) Johnson, J., remarks: " It would indeed be idle, to compel an heir or purchaser to. 
 find his way thirough pathless deserts into lands still overrun by the aborigines, in order to 
 break a twig, or turn a sod, or read a deed, before he could acquire a legal freehold. It 
 may be very safely asserted, that had a similar state of things existed in England when 
 the Conqueror introduced this tenure, the necessity of actual seizin would never have found 
 its way across the channel." 1 Pet 507. In Maine, curtesy is allowed in lands under 
 improvement. Revised Stat. 393. If the owner of wild and unoccupied land dies intes- 
 tate, the husband of one of the heirs is to bo regarded as in possession as tenant by the 
 curtesy, though he states that he never owned the premise.9, nor ever went through the 
 ceremony of putting his foot upon the land. Pierce v. "Wannett, 10 Ired. 446. In Ken- 
 tucky, there is no curtesy in wild land, where neither husband nor wife has had actual pos- 
 session, although he has paid the taxes ever since the marriage, and there has been no ad- 
 verse claim. Neely v. Butler, 10 B. Mon. 48. 
 
 A husband, in right of his wife, beeame a partner in the ownership of a cotton factory 
 and other mills, and the management of the business thereof, and received a proportionate 
 share of the profits from the time she became interested in them till after her death. Held 
 there was a sufficient seizin to give the husband curtesy. Buckley j). Buckley, 11 Barb. 43. 
 
 Possession of an immediate or remote vendee of the husband is sufficient to give him 
 curtesy. Vanarsdall v. Fauntleroy, 7 B. Mon. 401. 
 
78 
 
 CURTESY.. 
 
 [CHAP. VI 
 
 to a trustee, in trust for her use during coverture. The husband has 
 curtesy .(1) 
 
 11. So, where lands descend to a woman subject to a devise to exe- 
 cutors for payment of debts, and until the debts are paid ; although 
 the executors enter and the wife dies before the debts are paid, the hus- 
 band still shall have curtesy.(2) . 
 
 12. At common law, where lands come to a woman subject to a life 
 estate, she has no seizin, and therefore there shall be no curtesy. 
 Whether there shall be curtesy in the rent reserved, if any, seems 
 doubtful. In equity, reversions are subject to curtesy. (3)(a) 
 
 12 a. The same principle of estoppel, which precludes the tenant in an 
 action for dower from denying the seizin of the husband, {infra, ch. 8,) 
 •applies to tenant by the curtesy. 
 
 12 J. A feme soh claimed land under a location by the proprietors. 
 Having intermarried with A, he entered under the location, and after 
 her death retained possession as tenant by the curtesy. Her heirs con- 
 veyed to B, who brings an action of waste against A. Held, A was 
 estopped to allege a defective location. (4)(6) 
 
 13. Another reqnisite to curtesy, is thehirth of issue; after which, the 
 husband is called tenant by the curtesy initiate.{c) 
 
 14. The issue must be born alive. It was formerly held, that the only 
 admissible proof of this fact was its being heard to cry ;(c?) and that 
 this proof must come'from men, not from women. But other evidence 
 has been since held sufficient, even as early as the reign of Henry 8 ; 
 " for perad venture it may be born dumb."(5) 
 
 15. The issue must also be born during the mother's life. If she die 
 in childbirth, and the child be taken away by the Ccesarean operation, 
 at the death of the wife the husband has no title, the issue not being 
 born, but the estate descends to the child in the womb, and shall not 
 afterwards be divested from it in favor of the husband. Curtesy ought 
 to hegin by the birth of the issue, and he consummated by the death of 
 the wife. (6) 
 
 16. The issue must be such as can inherit the estate. Therefore, if 
 
 (1) Lowry v. Steele, 4 Ohio, 171. 
 
 (2) 1 Cruise, 108 (cites Guavara's case, 8 
 Rep. 96 a) ; Robertson v. Stevens, 1 Ired. 
 Equ. 247 ; M'Corry v. King, 3 Humpli. 267. 
 
 (3) Co. Lit. 29 a & n. 7 ; 1 Cruise, 108-9 ; 
 Gentry v. "Wagstaff, 3 Dev. 270; Stoddard v. 
 Gibbs, 1 Sumn. 263; Tayloe v. Gould, 10 
 Barb. 388 ; Mackey v. Proctor, 12 B. Mon. 
 
 433 ; Carter v. Williams, 8 Ired. Equ. 177. 
 
 (4) Morgan ii. Larned, 10 Met. 50. 
 
 (5) Co. Lit. 30 a, 67 a, 29 b & n. 5 ; Brae. 
 438 a ; Paine's case, 8 Kep. 34 b ; Dyer, 25 
 b ; Benl. Rep. 25 ; 2 Bl. Com. 101. 
 
 (6) Co. Lit. 28 b ; 8 Rep. 35 a ; Marsellis 
 V. Thalhimer, 2 Paige, 35. 
 
 (a) "Wiiere an intervening life estate is merely equitable, it is no bar to curtesy Adair v 
 Lott, 3 Hill, 182. 
 
 (6) A party may also be estopped, by his own acts, from claiming curtesy. Thus, where 
 a person petitioned a commis.siou, under the act of Congress of 1803, for a confirmation of 
 a British grant, and represented himself as " the only surviving heir and legal representa- 
 tive" of the grantee; such petitioner is estopped from claiming as tenant by the curtesy. 
 Montgomery v. Ives, 13 S. & il. 161. 
 
 (c) Anciently, this gave him the right to do homage, alone. Co. Lit. 30 a, 67' a. See 
 Mattocks V. Stearns, 9 Verm. 326 ; Oldham ti. Henderson, 5 Dana, 256. 
 
 {d) This is one of many instances of the extreme jealousy exhibited by the ancient law 
 to guard the rights of the heir. See 8 Rep. 34. Bracton says, though the child were called, 
 baptized and buried as a Christian, this would be insufficient to give curtesy. In Scotlaud, 
 it is said, the old rule still prevails. Dyer, 25 b, n. 2. 
 
CHAP. TI.] 
 
 CURTESY. 
 
 79 
 
 ♦lands are given to the wife and the heirs male of her body, and she haa 
 issue a daughter only, the husband shall not have curtesy. (1) 
 
 17. But a mere possibility of inheriting is sufficient. Thus, if a woman 
 has issue by a first husband, and afterwards issue by a second husband, 
 and both issue be dead ; inasmuch as the latter issue might by possi- 
 bility inherit, the second husband is tenant by the curtesy. (2) 
 
 18. The last-named requisite is of course intimately connected with 
 that of the wife's actual seizin, which has been before considered ; be- 
 cause, unless actually seized, her issue cannot inherit the estate from 
 her.(3) 
 
 19. The last requisite, is the death of the wife, by which the husband's 
 estate becomes consummate.{^){a) 
 
 20. By the English law, an alien cannot be tenant by the curtesy, 
 because this is an estate created by act of law, and the law never casts 
 an estate upon a person, which is liable to be immediately divested. 
 It will be seen hereafter, (see Dower Alien,) that in many of the 
 States the common law rule upon this subject has been abolished, and, 
 in some of them, where it still, for the most part, remains unchanged, a 
 special exception has been made in favor of dower. The particular 
 case of tenant by the curtesy seems to have been generally, if not wholly, 
 omitted in the statutory provisions. (6) 
 
 21. It has already been stated, generally, in what lands a hus- 
 band shall have curtesy. A few particular illustrations will here be 
 added. 
 
 22. Both conditional fees and estate tail are subject to curtesy, even 
 notwithstanding an express proviso or condition to the contrary. And, 
 in both cases, though the estate of the wife comes to an end by her 
 own death, and that of her issue, the husband shall still have his curtesy 
 as against the reversioner or remainder-man. This rule proceeds upon 
 the grounds, that the incident of curtesy is a privilege impliedly an- 
 nexed to the creation of the estate, and not derived merely from the 
 interest of the wife ; and that by the birth of issue the husband 
 gains an initiate title, which cannot afterwards be divested by act of 
 God.(5) 
 
 23. Devise to a woman in fee, with a devise over, if she die under 
 age, without issue. The woman marries, has issue which dies, and dies 
 
 (1) Co. Lit. 29 b ; 8 Rep. 35 b. 
 
 (2) 8 Rep. 34 b ; Pres. on Bat. 516. 
 
 (3) Co. LitHO a; 1 Cruise, 110. 
 
 (4) 1 Cruise, 110. 
 
 (5) 1 Cruise, 112 ; (Paine'? case, 8 Rep. 
 34;) Co. Lit. 30 a; See Paine ii. Paine, 11 B. 
 Mon. 138. 
 
 [a) See Presumption of Death, c. 4. 
 
 (b) In England, if an alien be made a denizen, and afterwards have issue, he may be 
 tenant by the curtesy in respect of such issue; though he would not be entitled on account, 
 of previous issue. la Massachusetts, if an alien makes the preliminary declaration of his 
 intention to be naturalized before the death of his wife, and completes his naturalization 
 after her death, he is not entitled to curtesy. Fosa v. Cri.sp, 20 Pick. 121. In Pennsylva- 
 nia, an alien can gain no title to real estate as tenant by the curtesy initiate. Reese v. 
 "Waters, 4 W. & Serg. 145. Where there were several plaintiffs in ejectment, one of whom 
 was a married woman, and her husband an alien ; hold, the action would lie. Doe v. Ro- 
 gers, 1 Carr. & K. 390. 
 
80 CURTEST. [CHAP. VI. 
 
 herself, under age. This is a contingent hmitation, not a conditiona]| 
 limitation, and the husband shall have curtesy.(l) 
 
 24. As a general rule, however, cessanie statu primitivo, cessat derivaii- 
 vm; and the case above mentioned is to be regarded as an exception from 
 this principle. With regard to curtesy as well as dower, if the primi- 
 tive estate terminates by force of a condition, iniStead of a limitation, the 
 derivative interest is also defeated. The distinction is, that by a con- 
 dition the old paramount title is re-assumed ; while a limitation merely 
 shifts the estate from one person to another.(2) In other words, where 
 the fee in its original creation is only to continue to a certain period, 
 the husband or wife shall have curtesy or dower after the expiration of 
 such period ; but where the estate is first given in fee or intail, and by 
 subsequent words made determinable upon a certain event, if that event 
 happen, the curtesy or dower ceases.(3) 
 
 25. In equity, there shall be curtesy in money directed or agreed to 
 be laid out in land. (a) 
 
 26. Devise of £300 to the testator's daughter A, to be laid out by 
 the executrix in land, and settled to the use of A and her children. 
 If she died without issue, the lands to be equally divided between her 
 brothers and sisters. The money not having- been applied as directed, 
 the plaintiff, being the husband of A, brings'a bill in equity, praying 
 that the land might be purchased and settled on him for life as tenant 
 by the curtesy, or the interest paid to him for life. Held, inasmuch as 
 A would have been tenant in tail of the land, the plaintiff, as tenant 
 by the curtesy, should have the interest for life.(4) 
 
 27. So, at law, where the land of one deceased is sold for payment of 
 debts, the husband of a devisee, who takes subject to such sale, shall 
 have curtesy in the proceeds. 
 
 28. A testator, whose personal estate was insufScient for payment of 
 debts, devises the residue of his estate after such payment to his daugh- 
 ters ; if the residue exceed $1,000 in value to each, the overplus to be 
 divided, &c. The estate, consisting of wild land, was sold, and bought 
 by the executor. The sale was declared voidable in the probate court 
 after the death of a married daughter, but her heirs afterwards elected 
 to affirm it. Held, the husband of such daughter, on releasing his title 
 to the land, should have a share of the proceeds, being the interest 
 already accrued, with the present value of what would accrue during 
 his life.(5)(^i) 
 
 28 a. There is no tenancy by the curtesy, in- an estate held in trust 
 for the benefit of a married woman, as, if she were a ferns sole, and so 
 that the same shall not be in the power, or subject to the debt, contract, 
 
 (1) Buokworth v. Thurkell, 3 B. & P. 652, 
 n. a.* See Moody v. King, 2 Bing. HI. 
 
 (2) 4 Kent, 32-3, and n. 
 
 (3) Co. Lit. 241, a, n. 170; Doe v. Hutton, 
 
 3 B. & P. 654. 
 
 (4) Sweetapple v. Bindon, 2 Tern. 536. 
 
 (5) Houghton V. Hapgood, 13 Pick. 154. 
 
 * It is said by Lord Alvanley, " this case occasioned some noise in the profession at the 
 time it -was decided." 3 B. & P. 653. 
 
 (a) See FoUett v. Tyrer, 14 Sim. 125. 
 
 (6) If the -wife's lands be sold in partition after her death, the husband, as tenant by the 
 curtesy, shall have the use of the proceeds for life, upon giving security for re-payment at 
 his death. Clapper v. Livergood, 6 Watts, 113. 
 
CHAP. YI.] 
 
 CURTESY. 
 
 81 
 
 or engagements of her husband, with the remainder to her heirs or 
 appointees.(l) So a husband, who has conveyed land to another in 
 trust for his wife, is not entitled, on her death, to a tenancy by the 
 curtesy in the trust estate.(2) 
 
 29. Only estates of inheritance are subject to curtesy, which is indeed 
 merely a continuation of the inheritance. It is said to come out of the 
 inheritance and not out of the freehold, and cannot exist unless, at the 
 very moment when the husband takes, the inheritance descends upon 
 the children, if living; nor where the estate is to be determined by 
 express limitation or condition upon the wife's death. (3) 
 
 80. Devise to A and her assigns for life. If she should marry, and 
 die leaving issue male, then to such issue and his heirs male forever. 
 A married, had issue, and died living her husband. Held, as A never 
 had an inheritance, the husband could not have curtesy, and this was 
 manifestly the intent of the testator.(4) 
 
 31. If the issue take as purchasers, the husband shall not have cur- 
 tesy, — as where there was a devise to the wife and her heirs ; but if she 
 died leaving issue, then to such issue and their heirs. So, in case of a 
 trust for the wife during her life, then to her children ; the husband 
 takes nothing.(5) 
 
 32. Devise to A and her heirs. If she died before her husband, he to 
 have £2,0 a year for life ; the remainder to go to the children. A dies 
 before her husband. Held, he should not have curtesy. (6) 
 
 38. A woman, tenant in tail, conveys by lease and release to trustees, 
 for the use of herself till marriage, remainder to her intended husband 
 for life, remainder to herself for life, remainder to the issue in tail. 
 Held, the husband could not claim after her death, either under the 
 settlement, because this interfered with the estate of the issue in tail, or 
 as tenant hj the curtesy, because upon the marriage he took an estate 
 for the life of the wife, and she had no inheritance in possession. (7) 
 
 84. Nor shall there be curtesy where the issue take as purchasers, 
 though the ultimate remainder or reversion in fee is in the wife. Thus, 
 in Boothhy v. Vernon, (supra, s. 30,) the wife was heir to the testator, and 
 therefore seized of the reversion in fee. 
 
 85. The question is not known to have been ever directly raised, 
 whether a husband shall have curtesy in wild lands. From what has 
 been said {supra, s. 7) as to seizin, there would seem to be no doubt 
 upon the point. In one case in Massachusetts,(8) curtesy was allowed 
 in such lands, though no question was made upon the subject. On 
 principle, the same considerations would seem applicable to curtesy and 
 dower. It will be seen that a husband, not tenant by the curtesy 
 initiate, has no right to clear wild lands of the wife during her life.(a) 
 
 86. Curtesy being an estate vested immediately by law in the hus- 
 band upon the wife's death, and he having bad an initiate title during 
 
 (1) stokes V. McKibbin, 1 Harris, 261 
 
 (2) Rigler v. Oloud, 2 Harris, 361. 
 
 (3) Sumner v. Partridge, 2 Atk. i1 ; $ooth- 
 by V. VernoD, 9 Mod. 151 ; Simmons v. Good- 
 ing, 5 Ired. Bq. 382 ; Janney v. Sprigg, 1 
 GiU. 197. 
 
 (4) Boothby v. Ternon, 9 Mod. 14T. 
 
 (5) Barker v. Barker, 2 Sim. 249 ; Green 
 V. Otter, 3 B. Monr. 105. 
 
 (6) Sumner v. Partridge, 2 Atk. 47. 
 
 (7) Doe V. Rivers, 7 T. R. 276. 
 
 (8) Houghton v. Hapgood, 13 Pick. 154. 
 
 (a) Jnfra, oh. 7, sec. 2 ; Babb v. Perley, 1 Greenl. 6. 
 
 Vol. I. 6 
 
82 
 
 CURTESY. 
 
 [CHAP. TI. 
 
 her life ; no entry is necessary to complete his ownership. When once 
 vested, the estate becomes liable for his debts, and cannot be divested 
 by his disclaimer. It may be taken on execution, and a voluntary 
 settlement of it upon a wife will be void against creditors.(l) 
 
 37. It will be seen hereafter, that a woman may be barred of dower 
 by other provisions for her benefit. But, it seems, no such principle is 
 adopted in regard to curtesy. 
 
 38. By marriage articles," a woman granted to her intended husband 
 the interest of her money and the rents of her estate in fee-simple for 
 her life, to maintain the house and educate their children until they 
 were of age or married. Held, the husband should have curtesy, as if 
 no such articles had been made, it being a mere executory contract as 
 to the manner in which the general funds should be applied, of which 
 their estates consisted. (2) 
 
 89. At common law, a husband does not lose his curtesy by leaving 
 his wife and living in adultery with another woman.(3) St. Westm. 
 2, c. 31, provides a forfeiture only in case of dower. Nor does he lose 
 curtesy by a divorce for adultery, which is only a mensa, &c. A divorce 
 a vinculo, granted upon the ground that the marriage was void, of 
 course destroys the right of curtesy. 
 
 40. In some of the United States, the principle above stated has 
 been changed by statute. 
 
 41. In Indiana, a husband loses curtesy by leaving his wife and 
 living in adultery. But a reconciliation restores his right to curtesy. 
 In Maryland, curtesy is lost by a conviction of bigamy. (3) 
 
 42. In treating of dower, and the circumstances which operate as a 
 bar thereof, some remarks will be made upon the distinctions between 
 the English and American law of divorce.{a) These are for the most 
 part equally applicable to curtesy. The general principle of American 
 law seems to be, that where a marriage is dissolved by divorce, all the 
 rights of the respective parties, growing out of such marriage, come to 
 an end ; and, of course, that the husband loses his right to curtesy. (6) 
 Such is the express provision of the statutes in North Carolina and 
 Peimsylvania, and such is stated to be the law in Connecticut.(4) This 
 principle is undoubtedly applicable in all the States, independently of 
 any statutory provision, in cases where a divorce is decreed for causes 
 
 (1) Steadtnat) v. Palling, 3 Atk. 423 ; Wat- 
 son i>. "Waison, 13 Conn. 83; Vanduzer v. 
 Vanduzer, 6 Paige, 366; Wiekes v. Clarke, 
 8, 161. 
 
 (2) Sidney v. Sidney, 3 P. Wms. 276; 
 
 Smoot V. Lecatt, 1 Stew. 590; Wells v. 
 Tliompson, 13 Ala. igs. 
 
 (3) Ind. Rev. L. 211 ; Md. L. 580. 
 
 (■i) 1 N. 0. Rev St. 241; Purd. 214; 1 
 Swift, 25. See Starr v. Pease, 8 Conn. 541 ; 
 Wheeler v. Hotchkiss, 10 lb. 22G. 
 
 (u) See Dower — Divorce. 
 
 (6) In Massachusetts it has been held, that a divorce a vinculo has the same effect upon 
 the title of tlie respective parties to the wife's lands, as a dissolution of the m -rriase by the 
 death of either. Barbers Root, 10 Mass. 260; ace. Mattocks. «. Stearns, 9 Verm. 326. 
 By Stat. 1789, ch. 65, sec. 5, upon divorce a mensa, for cruelty of the husband, if there 
 were no issue living at the time, the wife was restored to all her lands, &3. And this pro- 
 vision was held to include all lands of hers, owned before or acquired since the marriage, 
 though alienated by the husband ; unless she had done Something to divest her title. 
 Kriger v. Day, 2 Pick. 316. The husband cannot convey any greater interest in the real 
 estate of his wife than he possesses. And where his riglit to such estate was during cover- 
 ture, it is terminated by a divorce a vinculo, granted for his misconduct. Howey v. Goings, 
 13 la 95. 
 
CHAP. VI.] CURTESY. 83 
 
 which render the marriage void ab initio. Bat, inasmuch as divorces 
 are granted in this country for causes arising after marriage, a distinc- 
 tion is made in several of the States, as to the effect upon property, of 
 divorces granted for causes arising after marriage, and those granted 
 for causes arising before marriage, which render the marriage void. In 
 Maine and Ehode Island, if the divorce is granted for consanguinity, 
 affinity, or impotence, and in Rhode Island for idiocy or lunacy, all the 
 wife's real estate is restored to her. So if granted for the husband's 
 adultery, or, if there be no issue, for his cruelty, desertion, or neglect 
 to support her, in Maine ; in Rhode Island, for his gross misbehavior. 
 On the other hand, in case of divorce for her cruelty, in Maine, the 
 court may restore her lands ; while upon a divorce for her adultery, 
 or, in Rhode Island, her cruelty, desertion, or misbehavior, the hus- 
 band shall have curtesy, subject in Rhode Island to an allowance by 
 the court to the wife.(l) In New York, Illinois and Michigan, if the 
 divorce is for the husband's adultery, the wife's lands are restored to 
 her ; and in New York, Illinois and Massachusetts, if for her adultery, 
 he has curtesy, subject in Massachusetts to an allowance to the wife.(2) 
 In New Hampshire, the court may restore the wife's lauds upon 
 divorce. In Vermont, they are restored to her except in case of her 
 adultery, when the husband holds them for her life, and afterwards has 
 curtesy. (3) In Ohio, it is said the husband loses his curtesy by divorce 
 for his adultery, and also, it seems, for aggression on the part of the 
 wife ; though in the latter case he may hold the land during her life. (4) 
 In Delaware, in case of aggression by the husband, her real estate is 
 restored to her. In case of her aggression, it may be, in the discretion 
 of the court. In Indiana and Alabama, the disposal of property is at 
 the discretion of the court. But neither party shall be obliged to part 
 with real estate.(5) In Missouri, the guilty party loses all rights ac- 
 quired under the marriage. In Arkansas, if the wife obtain a divorce, 
 all property which came to the husband by marriage goes to her and 
 her heirs.(6) In Wisconsin, the wife's real estate is restored to her 
 upon divorce, except for her adultery. 
 
 43. The general rule of law upon this subject will be controlled by 
 any special contract inconsistent therewith. 
 
 44. Indenture between A, B, his wife, and a trustee, reciting that' 
 A had before marriage agreed that B's real estate should be " satis- 
 factorily secured to her sole and separate use," and, on the part of A 
 and P, conveying her real estate, upon the trusts, that the income 
 should be paid her during coverture, and if she should survive A, the 
 estate reconveyed to her ; but if he should survive her, the income to 
 be paid him for life, and at his death the estate conveyed to her heirs. 
 A and B were subsequently divorced for his adultery, which, by the 
 general rule of law, would have restored the real estate to her. Held, 
 
 (1) 1 Smith St. 42t-8-9 ; R. I. L. 369. 
 
 (2) 2 N. Y. Rev. St. 146; Masa. lb. 483. 
 See Kriger v. Day, 2 Pick. 316; Illin. Rev. 
 L. 238; Mich. L 140. 
 
 (3) N. H. L. 337 ; Verm. Rev. St 326-6. 
 
 (4) Wallc. Intr. 230, 328 ; Swan. 29. 
 
 (5) Tnd. Rev. L. 214; Alab. L. 256. 
 
 (6) Miaao. St. 226; Ark. Rev. St. 335; 
 Wiao. Rev. Sts. 396 ; Dela. Rev. Sts. 238. 
 
84 
 
 LIFE ESTATE OF HUSBAND, ETC. 
 
 [CHAP. Til. 
 
 this rule of law was controlled by the contract, qnd that 'A, if he 
 should survive B, would be entitled to the income for his life.(l)(a) 
 
 CHAPTER VII, 
 
 LIFE ESTATE OF THE HUSBAND IN LANDS OF THE WIFE. 
 
 1. Description of estate. 
 
 2. Description and incidents. 
 
 4. Statute law as to conveyance, Ac. 
 6. Liability to creditors. 
 1. Rents and profits. 
 
 8. Contract by husband. 
 
 9. Conveyances by husband and wife, and 
 statutory law relating thereto. 
 
 25. Separate trust estate of the wife. 
 
 1. It has already been remarked, that by marriage, seizin, and the 
 birth of issue, a husband becomes, during the life of the wife, tenant 
 by the curtesy initiate. Intimately connected with such incipient 
 title, is the estate which a husband has in his wife's lands, independ- 
 ently of the birth of issue. It has been remarked, that the case of a 
 tenant by the curtesy may be said to be a continuance of this relation 
 in that appropriate manner.(2) 
 
 2. Where a wife has an inheritance in lands, the husband has a 
 freehold interest jure uxoris, or the husband and wife are seized in her 
 right.(6) The husband's interest is a life estate, being of indeterminate 
 duration. It is a title to the rents and profits during coverture, which, 
 according to Lord Coke, he shall receive as " governor of the family." 
 The estate remains entire to the wife or her heirs, upon dissolution of 
 
 (1) Babcoek v. Smith, 22 Pick. 61. 
 
 (2) Barber v. Root, 10 Mass. 263. 
 
 (a) The heir of a mother cannot recover against one who entered under the father, whila 
 the latter is tenant by the curtesy. Grout v. Townsend, 2 Hill, 554. It has been held in 
 Kentucky, that where the husband is tenant by the curtesy initiate at the time of a divorce, 
 and thus forfeits his title to the wife's lands during her life, he haa no remaining right; 
 which the law will notice, although, after her death, his right might possibly revive. Old- 
 ham V. Henderson, 5 Dana, 256. Upon the termination of an estate by the curtesy, the heir 
 may bring ejectment. Foster v. Dugan, 8 Ohio, 87. 
 
 (6) "Tl)e husband, by marriage, acquires no right in the inheritance of the wife;-he is 
 only entitled to the possession and the pernancy of the profits during coverture." Per 
 Wilde, J., 2 Pick. 519. But, in a later case, the ,same judge remarks, that they are seized 
 in fee in her right. Melvin v. Proprietor.s, &c., 16 Pick. 165. It has been held, that where 
 a right of entry arises Irom an ouster of the wife's title, the demise may be laid either in the 
 husband's name alone, or in their joint names. Woodward v. Brown, 13 Pet, If Ingraham 
 V. Baldwin, 12 Barb. 9. 
 
 A declaration by husband and wife, that they are " well seized and possessed," is suffi- 
 cient. Kelsey v Hanmer, 18 Conn. 311. 
 
 Upon a mortgage to husband and wife, the consideration moving from him, and the con- 
 dition being to support them and the survivor of them for life, the husband may sue alone. 
 Blake v Freeman, 1 Shepl. 130. But, in general, they must join irf a suit for her land. 
 Bratton v. Mitchell, 7 Watts, 113; Atkinson v. Rittenhouse, 5 Barr. 103; a disseizin of the 
 inheritance of the wife being a disseizin of the entire joint estate. Guion v. Anderson, 8 
 Humph. 298. 
 
 The rents and profits of real estate, held in actual jiossession by a co-parcener with the 
 wife, belong aiisoluiely to the husband; and he may maintain an action for them without 
 joining the wife. Dold v. Geiger, 2 Gratt. 98. See Jones v. Sherrard, 2 Dev. & B. 184 ; 
 Dejarnatte v. AUen, 6 Gratt. 499; Riddick v. Walsh, 15 Mis. 619; Miss. Sts. 1846, 152. 
 
CHAP. VII.] IN- LANDS OP WIFE. 85 
 
 the marriage. Upon the wife's death, the husband becomes a tenant 
 at sufferance. Like other tenants for life, he is entitled to emblements. 
 He has no right to commit waste; which, although the Avife can main- 
 tam no action at law against him, yet a court of chancery will un- 
 doubtedly restrain by injunction. So, also, the wife may bring a bill 
 m equity by her next friend, to protect her property or secure a sup- 
 port from it. If the husband and wife join in a bill to recover her 
 property, he may release the suit. But the wife may institute a new 
 one, by her next friend, against the husband and the former defendant 
 jointly.(l)(a) 
 
 3. The husband's interest is assignable, and subject to be taken on 
 execution. (6) The land is liable to the wife's debts; the profits, to 
 those of the husband. With reference to the right of assignment, if he 
 
 (1) Polyblank v. Hawkins, Doug. 329 ; , son v. Cairns, 20 John. 301 ; Dewall v. 
 Co. Lit. 351 a; 2 Kent, 110; Barber ». Covenhoven, 5 Paige, 581 ; Jackson v. Leed, 
 Root, 10 Mass. 260 ; Co. Lit. 351 j Jack- | 19 "Wend. 339. 
 
 (o) The proceeds of the sale of a wife's real estate cannot properly be paid over, to either 
 her guardian or husband, without leave of court. Daniel v. Daniel, 2 Rich. Eq. 115. 
 
 (6) In North Carolina, a recent statute provides, that the husband cannot sell or lease 
 the wife's lands, without her consent, expressed upon private examination, as in case of 
 conveyances in which she joins. Also, that the land shall not be taken on execution 
 against him. N. C. Sts. 1848-9, 90. Similar acts have been passed in Virginia, Kenlacky, 
 Mississippi, Georgia, Vermont, Pennsylvania and Maryland. Verm. Sts. 1847, 26 ; 1850, 13 ; 
 Virg. Sts. 1853, 323; Ky. Sts. 1846, 43; Ga. Sts. 1849-50, 63; Penns. Sts. 1850, No. 342, 
 a. 20; Md. Sts. 1853, 323; Miss. Sts. 1846, 152. 
 
 The levy of an execution against a husband upon his wife's land, during his life, passes 
 his interest, though the return does not state whether he is entitled to curtesy. Litchfield 
 V. Cudworth, 15 Pick. 23. So, an extent upon all his interest, &c., in her land, passes all 
 his interest, however acquired, though the return does not describe the land as held in her 
 right. lb. In Massachusetts, a husband's interest in land of the wife may be levied on, 
 either by taking the rents and profits for a certain time, or the whole estate, at an appraisal 
 founded on the probable duration of his life. lb. But, where the amount of the execution 
 is less than the value of the estate, it seems, the former mode ol levy is the proper, it not 
 the only, legal one. lb. 
 
 An execution was extended upon land held by the debtor in right of his wife, as upon 
 an estate in fee-simple, but no entry was made, and husband and wife continued tO"occupy 
 till she died, leaving no children. Held, the proceeding was no disseizin of her, and her 
 heirs might maintain a writ of entry, declaring upon their own seizin, without an actual 
 entry. Larcom v. Cheever, 16 Pick. 260. 
 
 The husband having erected buildings during the wife's life ; held, neither he, after her 
 death, nor the creditor, could make a claim for hetterments, as against the heirs. Ih. See 
 Mattocks V. Stearns, 9 Verm. 326 ; Canby v. Porter, 12 Ohio, 79 ; McComike v. Sawyer, 12 
 N. H. 397. Where an execution against a tenant by the curtesy initiate is extended upon 
 his land, as if he owned the fee, the creditor acquires a freeliold for the life of the debtor. 
 Mechanics, &o, «. Williams, 17 Pick. 438. In Maryland, the husband's interest is not liable 
 . to his creditors, living the wife. Md. St. 1841-2, ch. 161. In Connecticut, during the life 
 of her or her issue. Conn, St. 1845, 36. Such interest passes to tlie sheriff under in- 
 solvency proeeedmgs; and a purchaser from the sheriff becomes a tenant for life, liable to 
 an action of waste by the husband and wife. Dejarnatte v. Allen, 2 Gratt. 499. 
 
 Where a husband has possession of hia wife's real estate, equity will not enjoin the sale 
 of his life estate, for the payment of meritorious judgments against him; nor make a provision 
 for her therefrom. Mitchell v. Sevier, 9 Humph. 146. 
 
 Where a debtor had a fee-simple in an undivided half of certain premises, and curtesy in 
 the remainder, and the creditor levied upon a portion of the prergises by metes and bounds, 
 treating it as an estate by the curtesy; held, the levy was void, and passed no title, as 
 against a creditor of the same debtor, who acquired title to the land by a subsequent valid 
 levy. Howe v. Blanden, 21 Verm. 315. 
 
 Where property is conveyed absolutely to a married woman, by a stranger, the statute of 
 frauds has no application, in a contest between the wife and the creditors of the husband ; 
 it ia therefore unimportant, whether the instrument is, or is not, recorded. Newman v. 
 James, 12 Ala. 29. 
 
86 
 
 LIFE ESTATE OF HUSBAND 
 
 [CHAP. Tir. 
 
 is tenant by the curtesy, or after the birth of issue, he may transfer 
 the estate for his own life ; otherwise, only for the joint lives of him- 
 self and the wife. It is said that he may even convey the entire 
 inheritance; that is, so as to vest in the purchaser a wrongful fee, 
 liable to be defeated by the entry or action of the wife after his 
 death.(l) 
 
 3 a. Where the wife was a tenant in common, and the husband and 
 the other tenant made partition, it was held, that the husband's release 
 destroyed her tenancy in common, at least during the husband's life.(2) 
 But the law will not permit a husband to hold, or to put in the possession 
 of another, to be held adversely, any property placed in his possession 
 belonging to his wife, during her coverture ;((5) and possession of the 
 lands of a wife, under authority of her husband, is not adverse to the 
 right of the wife, or her heirs, but consistent with it.(4) 
 
 4. In Kentucky and Wisconsin, it is provided, that a wife, after the 
 husband's death, may enter and sue for her lands lost by his default. 
 Also, that in case of suit against them, which the husband will not de- 
 fend, she may make defence at any time before judgment, and that no 
 conveyance or other act of the husband shall affect the title of her or 
 her heirs, or others having title by her death. In Kentucky and Vir- 
 ginia, if her land is lost by a judgment against him by default, she 
 may, in a suit against the tenant, put him to proof of his title.(5) 
 
 5. In New Jersey, a statute provides for an entry by the wife, her 
 heirs, or other owner of the estate, notwithstanding any feoffment, fine, 
 &c., by the husband. (6) In Connecticut, the husband's separate convey- 
 ance of the wife's inheritance is ipso facto void. In Ohio and South 
 Carolina, it will pass his estate, and, in Ohio, may, as an agreement, 
 bind him to procure her conveyance, or make compensation. (a) The 
 statute of limitation does not run against the wife till the husband's 
 death.(7) 
 
 6. An assignee of the husband's estate, by levy of an execution, is 
 liable to an action of trespass by husband and wife for waste. The 
 husband's ability to commit waste without subjecting himself to an ac- 
 tion, is a mere power, or exemption from suit, resulting from the con- 
 jugal relation ; not a right, nor transferable. The effect of a levy on 
 the husband's interest, is the same as that of a conveyance by him, 
 which would pass the freehold, leaving the reversion in fee in the wife. 
 The husband's joining in the suit is merely made necessary by the 
 general rule of pleading. (8) 
 
 (1) See Larcom v. Cheever, 16 Pick. 260 ; 
 2 Kent. 112; Bldrido-e v. Preble, 34 Maine, 
 148; Coffin v. Morrill, ib. 352; WC\a.\m v. 
 Gregg, 2 Marsh. 45*7 ; Evans v. Kingsberrv, 
 2 Rand. 120; 1 Prest. Abstr. 334, 435, 436; 
 Oldham v. Henderson, 5 Dana, 256. 
 
 (2) Trask v. Patterson, 29 Maine, 499. 
 
 (3) Meraman v. Caldwell, 8 B. Mon. 32. 
 
 (4) Tanarsdall v. Pauntleroy, 7 B. Mon. 401. 
 
 (5) 1 Ky. Rev. L. 581-2; 1 Virg. Rev. 0. 
 ni; Wis. Rev. Sts. 584. 
 
 (6) N. J. Rev. C. 263. 
 
 C?) Anth. Shep. 160 ; Brown v. Spand, 4 
 Con. S. C. 12 ; Newoomb v. Smith, Wright, 
 208; Reynolds i;. Clark, ib. 656 ; Williams «. 
 Pope, ib. 406. 
 
 (8) Babb v. Perley, 1 areenl. 6. 
 
 (a) It seems, at common law, alienation by the husband of the wife's land was a discon- 
 tinuance. But this rule was changed by St. Hen. 8, ch. 28. (See Detheridge v. Woodruff, 
 3 Mon. 245.) This statute is part of the common law of Massachusetts. Bruce v. Wood, 1 
 Met. 542. 
 
CHAP. TIL] 
 
 IN LANDS OF "WIFE. 
 
 87 
 
 7. The rents and profits of the wife's lands belong absolutely to the 
 husband, and, upon his death, do not pass to the wife. 
 
 8. On the other hand, no contract of his binds her, if she survive 
 him. Thus, a purchaser from him of trees on the land cannot cut 
 them after his death. (1) 
 
 8 a. A feme covert was entitled to real estate for her separate use, 
 and her husband entered into a contract for the sale of the property. 
 Before the contract was completed, the wife died, having devised the 
 estate to her husband. Held, on a claim filed by the husband surviving 
 to enforce ihe contract, that a decree to that effect could not be made 
 in the absence of the wife's heir.(2)(a) 
 
 8 b. A testator left a legacy to a married woman, to be invested 
 by his executors in real estate, which should be conveyed to her for 
 her sole and separate use, and to her heirs and assigns forever, but not 
 be liable for the debts of her husband. Land was purchased and con- 
 veyed to the wife accordingly, but, the legacy proving less than the 
 purchase-money, the husband- and wife jointly made up the balance. 
 The estate was afterwards sold on a judgment against the husband. 
 Held, the purchaser was entitled to hold it only until he was paid the 
 portion of the purchase-money advanced by the husband and wife.(3) 
 
 8 c. A judgment creditor has no lien on the wife's real estate for 
 money laid out on it in repairs by the husband. (4) So the estate held in 
 trust for a married woman, or the interest and income thereof, cannot 
 be charged with an order, drawn by her husband, for repairs done 
 upon other real estate of the wife, not included in the trust deed. (5) 
 
 8 d. When lands of the wife have been sold by an agent, the 
 money received therefor, in his hands, belongs to the husband, 
 and, after his death, may be received by his administrator. The 
 widow cannot recover such money from the agent, either in law or 
 equity.(6) 
 
 8 e. A husband, after the death of his wife, may maintain an action 
 to recover for use' and occupation of the wife's real estate, by the per- 
 mission of the plaintiff and his wife during coverture'.(7) 
 
 9. It will be seen hereafter, that the deed of a married woman is 
 in general void. But, by statute 3 & 4 Wm. 4, ch. 74, a wife may 
 convey, with the husband's consent, and with a private acknowledg- 
 ment, and it is the settled rule in all the States, founded in most of 
 them upon express statutes, that the joint deed of husband and wife 
 will pass the whole estate of both. Unless the husband join, the deed 
 is void. Parol evidence of his assent is inadmissible. (8)(i) 
 
 (1) Clapp t). Stoughton, 10 Pick. 463; 
 Plow. 219. 
 
 (2) Harris v. Mott, 7 Eng. L. & Equ. 245. 
 
 (3) Liohty v. Hager, 1 Harr. 565. 
 
 (4) lb. 
 
 (5) L'Amoureux i;. Van Rensselaer, 1 Barb. 
 Oh. 34. 
 
 (6) Crosby v. Otis, 32 Maine, 256. 
 
 (7) Jones v. Patterson, 11 Barb. 572. 
 
 (8) Watts V. Wadelle, 1 M'L. 203 ; Tay- 
 lor, 3 Harr. Dig. (Suppl.) 715; Trimmer v. 
 Heagg, 4, 484 ; Scott v. Purcell, 7 Blackf. 
 66. See Ward v. Amory, Curtis, 419 ; Ky. 
 Sts. 1846, 43. 
 
 (a) But a deed by the husband alone passes his own interest, though made without the 
 wife's knowledge or assent. Rangeley v. Spring, 8 Shepl. 130. 
 
 An alieti husband may join with his wife in the conveyance of her real estate. Kottmau 
 V. Ayer, 1 Strobh. 552. 
 
 (J) A conveyance by husband and wife to a third person, for the purpose of haying the land 
 
LIFE ESTATE OP HUSBAND 
 
 [CHAP. VII. 
 
 10. In some of tlie States, where such conveyance is authorized by- 
 express statutes, it seems that, prior to the enactment of such statutes, 
 the practice had become a common one. But the court in South Caro- 
 lina said, they would not sustain a vulgar error in direct opposition to 
 the law of the land.(l) In that State, however, an act was passed, to 
 give effect to prior deeds of this nature. 
 
 11. In nearly all the States, except those of New England,(a) and in 
 Ehode Island, to render such deed effectual, the wife must undergo an 
 examination, for the purpose of ascertaining whether she acts voluntari- 
 ly, or by undue influence of the husband. It is essential that the ex- 
 amination be made apart from the husband, except in Georgia, where 
 this requisition seems to be omitted. (2)(&) 
 
 12. In Virginia, it has been held that the private examination or 
 something equivalent is necessary to pass merely equitable rights.(3) 
 
 13. In Illinois, if the examining magistrate does not personally know 
 the woman, her identity must be proved by one witness. In the same 
 State, she is capable of conveying, if over eighteen years of age. In 
 Missouri, the identity is to be proved by two witnesses. 
 
 14. It has beeh sometimes held, that the wife's conveyance may be 
 effectual, although some statutory requisitions merely formal are not 
 com.plied with. Thus in Ohio, where the magistrate's certificate stated 
 only the substance of the transaction, this was held sufiELcient. And a 
 statute of Pennsylvania declares valid all deeds made prior to Septem- 
 ber 1, 1836, thouffh the certificate be defective. A similar statute 
 exists in South Caro]ina.(4)(c) 
 
 14 a. Acknowledgment, that the wife executed the deed, without' 
 "fear, threat or compulsion of her husband," but not saying " freely." 
 There was no evidence of force or compulsion. Held sufficient.(5) 
 
 (1) 4 Con. S. C. 15 ; Bool v. Mix, 11 Wend. 
 119; aillstt V. Stanley, 1 Hill, 121. 
 
 (2) 1 Tir. Rev. L. 158 ; 1 ST. 0. R. S. 22'i ; 
 Mich. L. 158; Anth. Shep. 55, 234, 281, 389, 
 539, 548, 593 ; Prince's Dig. 160 ; Alab. L. 
 93 ; Whiting v. Stevens, 4 Conn. 44 ; Ind. 
 Rev. L. 271; 1 Ind. R. 319; Illin. Rey. L. 
 133-4; Misso. St. 122; 1 Ky. Rev. L. 440; 
 
 Dela. St. 1829, 89; 4 Griff. 156, 660; Elliott 
 V. PiersoU, 1 M'Lean, 13 ; Howell v. Ash- 
 more, 2 N. J. 261. 
 
 (3) Countzu. Geiger, 1 Call, 167; see Bryan 
 V. Stump, &o., 8 Gratt., 241. 
 
 (4) Walk. Intr. 326 ; Purd. Dig. 205 ; Beek- 
 with V. Lamb, 13 Ired. 400. 
 
 (5) Meriam v. Harsen, 2 Edw. Ch. 70. 
 
 conveyed to the husband, and thus transferring it to him, will be sustained, where no fraud 
 has been practiced upon the wife. Shepperson v. Shepperson, 2 Gratt. 501. 
 
 The separate deed of a married woman to a third person has been held good consideration 
 for a note to her, in the absence of fraud or mistake. Sanbord v. French, 2 Fost. (N. 
 H.) 246. 
 
 (a) In Indiana, no peculiar acknowledgment is required. Rev. Sts. 232. 
 
 (6) The acknowledgment of the deed of a married woman is held absolutely necessary to 
 its validity, even between the parties ; while, in other cases, it is necessary only in refer- 
 ence to third persons, claiming adversely to the grantee. Hepburn v. Dubois, 12 Pet. 345. 
 It is not sufficient, that the husband, after signing himself, by her direction, and in her pre- 
 sence, signs her name, though both afterwards acknowledge the deed. Linsleo o. Brown, 
 13 Conn. 192. In Delaware it is provided by Statute, (Rev. Sts. 269,) that the private ex- 
 amination of the wife shall be effectual, though the deed is not recorded. 
 
 (c) In New York it is an ancient usage for femes covert to convey their lands. But ac- 
 knowledgment has always been held necessary. Hence, such conveyance made in New 
 Jersey, in 1760, without acknowledgment, was held void. Constantino v. Van Winkle, 2 
 Hill, 240. It has been held in Ohio, that a )aw, giving effect to the deed of a feme covert, 
 •which was invalid at the time of its execution, is unconstitutional and void. Good v. 
 Zercher, 12 Ohio, 364. In New Hampshire, where a husband is under guardianship, the- 
 ■wife may validly join with the guardian in a deed. Eev. Sts. 29'J. 
 
CHAP. TIL] 
 
 IN LANDS OF WIFE. 
 
 15. But substantial deviations from the form prescribed will render 
 the deed invalid. Thus, where a statute requires the wife to renounce 
 her right to lands, in the manner required in a case of dower, and to 
 renounce all her estate, interest and inheritance ; a renunciation of all 
 her interest and estate, and also all her right and claim, of dower, will not 
 pass her land. (a) So, in case of a conveyance by a husband, in his own 
 name, of his wife's land, she merely signing and sealing the deed " in 
 token of her relinquishment of all her right in the bargained premises ;" 
 held, her interest did not pass, and, after his death, she might maintain 
 a writ of entry for the land, on her own seizin. And no amendment 
 will be allowed in the defective acknowledgment of a wife, upon parol 
 evidence. So, it must appear hy the certificate, that the acknowledg- 
 ment was legal. (1) 
 
 15 a. Deed by husband and wife of her land. The acknowledgment 
 was as follows: " Then the above-named Ansel! Churchill, (meaning the 
 grantor,)personally. appearing, acknowledged the above written instru- 
 ment to be his voluntary act and deed, and the said Lillis (wife) being 
 examined separately and apart from her husband, also acknowledged 
 the same before me," &c. ; signed by the justice. Held, only the life 
 estate of the husband passed.(l) 
 
 15 h. It has been held in Pennsylvania, that the act of 1770, re- 
 quires both husband and wife to join in a conveyance of real estate, to 
 which she was entitled in fee. Its directions are imperative. Such a 
 deed, executed by her alone, is void, and parol evidence that she exe- 
 cuted the deed with the assent, and by the direction of her husband, is 
 inadmissible.(2) But a conveyance of the wife's land by deed, in which 
 she and her husband join, passes her title, though not to a purchaser 
 for a valuable consideration. (8) 
 
 16. In conformity with the principles above stated, a usage or stat- 
 ute, authorizing a married woman to convey her land, being a departure 
 from the common law, will be strictly limited to an actual transfer of 
 the property. Thus, a mere agreement by her to convey, though made 
 for valuable consideration, and with consent of the husband, is void, 
 even in Chancery. (&) So, in general, she is not bound, nor her heirs, 
 
 (1) Churchill v. Monroe, 1 R. I. 209 ; 
 Brown v. Spare), 4 Con. S. C. 12; Bruce i). 
 "Wood, 1 Met. 542; Elliott v. Piersoll, 1 
 M'L. 13 ; Raymond v. Holden, 2 Gush. 264 ; 
 MoDaniel «. Priest, 12 Miss. 544; James !). 
 
 Pisk, 9 S. & M. 144 ; Jordan v. Corey, 2 Cart. 
 385 ; El wood v. Klook, 13 Barb. 50. 
 
 (2) Trimmer v, Heaggy, 4 Harr. 484. 
 
 (3) Goundie «. Nortliampton, 4c., 7 Barr, 
 233. 
 
 (a) The converse of the same rule applies to a release of dower. A, a widow administra- 
 trix, in conjunction with B, her co-administrator, executed a deed, pursuant to and reciting 
 a contract by her deceased husband, and the decree of the court upon it ordering the con- 
 veyance. The deed purported to convey all the estate of the husband in his lifetime, and 
 of them the said A and B, since his decease, and she signed and sealed the same without 
 adding a description of iier office. Held, her dower did not pass. Shurts v. Thomas, 8 
 Barr, 359. 
 
 (6) So, also, mere knowledge of, or verbal assent to the husband's deed, will not bind her. 
 So, she is not bound by apovjer of attorney to convey. Sumner^;. Conant, 10 Verm. 9. 
 
 A husband and wife cannot be restrained, by injunction, from bringing ejectment for land 
 belonging to the wife, on the ground that she, when an infant, gave a bond of conveyance, 
 with security, for the land, conditioned to convey when she became of age. Brawner v. 
 Franklin, 4 Gill, 463. 
 
 • But where a female Infant gave such bond, and the purchase-money was paid to her 
 husband, after bis marriage ; held, he could be restrained, by injunction, from recovering 
 the land at law, during his lifetime. lb. 
 
90 
 
 LIFE ESTATE OF HUSBAXD 
 
 [CHAP. VII. 
 
 by the covenants in the deed, though expressed in her name as well as 
 the husband's, or by estoppel. A statute of Delaware provides, that 
 the wife shall be bound by no warranty, except a special warranty 
 against herself, her heirs, and those claiming under her ; and a statute 
 of Kentucky, that the wife's deed shall not pass her estate, but " shall be 
 as effectual for every other purpose, as if she were unmarried. "(l)(a) 
 
 17. But though an agreement by the wife to convey cannot be en- 
 forced, an agreement by the husband, though merely parol, and made 
 directly with the wife, in consideration of her conveying her land, will 
 be enforced even against his heirs. 
 
 18. A husband agreed, in consideration of such conveyance, to pur- 
 chase and build on other lands, and convey them to the wife. He did 
 buy and build upon the land, but died without conveying. The hus- 
 band was very poor at the time of marriage, but the property agreed 
 to be conveyed to the wife greatly exceeded in value the land which 
 the wife parted with. The agreement was enforced against the heirs.(2) 
 
 19. On the other hand, where it was verbally agreed between hus- 
 band and wife, that he should purchase land in her name, build a house 
 upon it, and be reimbursed the expense from the sale of other land 
 belonging to her ; and the husband fulfilled his part of the contract, 
 but the wife died before a conveyance of her land ; it was decreed in 
 Chancery, that the guardian of her infant heirs should convey with 
 the husband, and the proceeds of sale be applied according to the 
 contract.(3) 
 
 20. A statute requiring private examination of the wife, does not 
 apply to a conveyance made by an executrix under a devise to sell, 
 
 (1) "Wadleigh v Glines, 6 N. H. IT; Do- 
 minick V. Michael, 4 Sandf 374 ; Dela. St. 
 1829, 89 ; Whitbeck v. Cook, 15 John. 483 ; 
 1 Ky. Rev. L. 440 ; Coloord v. Swan, 7 
 Mass. 291; Dut. Dig. 15; lUin. Rev. L. 
 134; Misso. St. 122; Butler v. Buckingham, 
 5 Day, 492 ; Watrous v. Chalker, 7 Conn. 
 228 ; Ex parte Themes, 3 Greenl. 50 ; Lane 
 
 V. McKeen, 3 Shepl. 304 ; Rangeley v. Spring, 
 8. 130; Aldridge v. Burlison, 3 BlackC 201; 
 Term. Rev. St. 311; Horsey v. Horsey, 4 
 Harring. 517 ; Den v. Demarest, 1 N. J, 525. 
 
 (2) Gosden v. Tucker, 6 Mun. 1. 
 
 (3) Livingston v. Livingston, 2 John. Ch. 
 537. 
 
 But if husband and wife make a deed, ineffectual against her, ilnder which the grantee 
 enters and occupies; and after her death her heir brings a suit for the land; the grantee 
 is estopped to deny his title. Drane v. Gregory, 3 B. Mon. 619. 
 
 Thoui;h in general an estoppel must be mutual; yet, where a conveyance was made by 
 husband and wife, and possession taken under their deed, of land claimed by the wife, 
 though the deed be ineffectual, from defect in the acknowledgment, to pass the title of the 
 wife, the grantees are estopped to assert an outstanding title in a third person, in a con- 
 test with the heirs of the wife, after the death of the husband. Gill v. Fauntleroy, 8 B. 
 Mon. 177. So, on the other hand, such deed is binding upon all except the wife and those 
 claiming under her. Lewis v. Cook, 13 Ired. 193. 
 
 (a) In New York, the wife is estopped from denying any essential fact, admitted in the 
 deed. So, all who claim under her. Constantino ti. Van Winkle, 2 Hill, 240. In Michigan, 
 she is not bound by the covenants. Rev. St. 258. In Maine, neither by covenants nor 
 estoppel. Rev. St. 372. In Ohio, whether she is bound by the covenants, qu. Hill i'. 
 "West, 8 Ohio, 222. It has been held in Massachusetts, that she is estopped by covenant 
 of warranty to deny her title at the time of conveyance. Nash v. SpoBbrd, 10 Met. 192. 
 See Raymond v. Holden, 2 Gush, 2G4. 
 
 Where a husband conveyed his wife's land, she not legally executing the deed, and 
 took a conveyance of other land in exchange, the wife not objecting, and declaring her- 
 self pleased with the exchange ; her heirs are not estopped in equity to claim the land, it* 
 not appearing that she was acquainted with her title, and there being no evidence of fraud 
 on her part. McClure v. Douthitt, 6 Barr, 414. 
 
CHAP. TIL] 
 
 IN LANDS OF "WIPE. 
 
 91 
 
 nor need the husband join in the deed. Such statute does not apply 
 to a deed of the wife's separate trust property. (1) 
 
 21. Where the husband and wife join in conveying her land, a note 
 for the price, given to her alone, survives to her upon the death of the 
 husband.(2) 
 
 22. Husband and wife may join in a mortgage of the wife's land, as 
 well as an absolute deed. But the wife's interest shall be thereby in- 
 cumbered, only to the amount of the mortgage debt. Hence, if the 
 husband's right of redemption be taken by his creditors and sold, the 
 wife may redeem the land by paying the mortgage debt only, without 
 the additional sum for which the equity was purchased. (3) 
 
 23. Where such mortgage is made for the husband's debt, the wife, 
 though not personally bound, is a mere surety, and the mortgage will 
 be discharged by any such new credit given to the principal, as would 
 discbarge a common surety. (4) 
 
 24., Where a feme covert purchases real estate, and for a part of the 
 consideration gives back a mortgage, in which the husband does not 
 join ; upon a bill for foreclosure, the mortgage shall constitute an equi- 
 table lien upon the land, as against one who purchased with notice of, 
 and expressly subject to, the mortgage.(5) 
 
 24 a. Where a wife owned a dower interest in four-sixths of certain 
 real estate, of which her former husband died seized, and owned in fee 
 the remaining two-sixths, and the husband and wife united in a sale, 
 and out of the proceeds of such sale the sum of $3,000 was paid, with- 
 out the husband's assent, upon a mortgage which incumbered the wife's 
 separate estate ; held, the husband had a claim upon such separate 
 estate to that extent. But another sum of $2,000, out of such proceeds, 
 appearing to have been paid upon the same mortgage, with the hus- 
 band's unqualified assent ; held, such payment was a valid appropria- 
 tion of that sum to the wife's separate use, and, in respect to it, the hus- 
 band had no claim upon the separate estate.(6) 
 
 25. It will be seen, (a) that where an estate is limited to the separate 
 
 (!) Tyree v. Williams, 3 Bibb, 368; Brun- 
 dige V. Poor, 2 Gill & J. 1. 
 
 (2) Dean v. Richmond, 5 Pick. 461. 
 (3j Peabody v. Patten, 2 Pick. 517. 
 
 (4) Galin v. Niemcewicz, 11 Wend. 312. 
 
 (5) Hatch V. Morris, 3 Edw. 313. 
 
 (6) Martin v. Martin, 1 Comst. 473. 
 
 (a) See ch. 22, Trmt. A deed to a wife and her heirs, does not of itself vest in her a 
 separate estate, in the technical sense. Hall v. Sayre, 10 B. Mon. 46. 
 
 In New York, since the act of April 7, 1848, for the more effectual protection of the pro- 
 perty of married women, the husband during coverture has no interest in the wife's lands 
 which he can use or transfer, or which his creditors can reach. Upon the death of the wife 
 after issue born, leaving her husband, it descends to her heirs, charged with his rights as 
 tenant by the curtesy ; and, if there has been no issue, the estate becomes perfect and abso- 
 lute in her heirs. Hurd v. Cass, 9 Barb. 366. A similar act exists in Pennsylvania. Sta. 
 1848, No. 372, p. 536. 
 
 A wife's separate estate' is an equitable estate merely, and where the legal title is vested 
 in some other person for her benefit, to tlie exclusion of her husband. Albany v. Bay, 4 
 Comst. 9. 
 
 The legal estate which a wife has in reversion in lands, where the husband has disposed 
 of his life estate as tenant by the curtesy, is not a separate estate. lb. 
 
 In South Carolina, a court of equity will not sustain the sale by a feme covert of her sepa- 
 rate estate, although there is no restriction on such sale in the deed of settlement, unless it 
 were the voluntary act of the wife, and under such circumstances that the co rt, on her 
 examination, if applied to, would have ordered it. Calhoun v. Calhoun, 2 Strobh. Eq. 231. 
 
92 
 
 LIFE ESTATE OF HUSBAND, ETC. 
 
 [CHAP. YII. 
 
 use of a married woman, the husband shall not be entitled to curtesy 
 in such estate. Upon the same principle, an estate thus limited shall 
 be owned, in equity, by the wife alone, to all intents and purposes as 
 if she were a/cme sole, subject to her disposition, and entirely free from 
 the control of the husband. No actual conveyance to trustees for her 
 separate use is necessary, but a mere ante-nuptial agreement between 
 husband and wife will have the same effect. Under these circumstan- 
 ces, the wife may convey the estate even to the husband, provided no 
 undue influence be used on his part ; and it has been settled in New 
 York, though against the opinion of the Chancellor,' that her convey- 
 ance "will be valid without the assent of the trustees, unless such assent 
 were expressly required in the instrument by which the trust was 
 created. (1) This subject will be more fully considered hereafter.(a) 
 
 (1) Jacques v. Trustees, &c., 17 John. 548 ; 
 Bradish v. Gribbs, 3 John.Cha. 540: See also 
 Demarest v. Wyncoop, 3 lb. 144 ; Smith v. 
 Paythress, 2 Elori. 92 ; Cruger v. Cruger, 5 
 Barb. 225; Ladd v. Ladd, 8 How. U. S. 10; 
 Strong V. Skinner, 4 Barb. 546; Wright v. 
 Miller, lb. 600 ; "Watson v. Bonney, 2 SandE 
 405 ; Cherry v. Clements, 10 Humph, 552 ; 
 
 Boarraan v. Groves, 23 Miss. 230 ; Martin v. 
 Martin, 1 Comst. 473 ; Clarke o. Windham, 
 12 Ala. 798; Ja.sper v. Howard, lb. 652; 
 Moore v. Jones, 13, 296 ; Goodman v. Good- 
 man, 8 Ired. Equ. 313; Hatton v. Weir, 19 
 Ala. 127; Cuthbert v. Wolfe, lb. 373; Bar- 
 roa V. Barron, 24\Verm. 375. 
 
 A court of equity has no power either to make or confirm the sale otskfeme coiiert' s aepsr 
 rate estate, which, by the deed creating it, is expressly prohibited from being sold. lb. 
 
 A married woman who has a separate estate cannot charge or dispose of it, unless in pur- 
 suance of a power of appointment expressly given. The mode prescribed must be strictly 
 pursued ; and no alienation or charge is valid, unless she has been examined by the 
 court lb. 
 
 {a) See Conveyance, Devise, Powers. The separate estate of a feme covert in the hands of 
 trustees, is in equity chargeable with debts contracted for the benefit of the estate. So, 
 this estate is chargeable where a portion of it has been converted into other property, ac- 
 cording to the provisions of the trust deed, and a debt is contracted for the benefit of such 
 substituted property. Dyett v. K A. Coal Co., 20 Wend. 570. So the separate estate of a 
 feme covert is bound for any debt contracted by her. But she is not personally liable. Nor, 
 where the property is held in trust for her and her children, can she bind their interest. 
 American, &c. v. Dyett, 7 Paige, 9 ; Gardner v. Gardner, lb. 112. 
 
 The separate estate of a married woman is not liable at common law for her debts con- 
 tracted before marriage ; and the only ground on which it can be reached in equity, is that 
 of appointment ; that is, some act of hers, after marriage, indicating an intention to charge 
 the property. Vanderheyden v. Mallory, 1 Comst. 452. 
 
 A. feme covert, in disposing of her separate estate, is strictly limited by the terms of the 
 instrument under which she claims. Wallace v. Coston, 9 Watts, 137. In New Hampshire, 
 if a fen e covert is entitled to hold lands in her own right, and to her separate use, she may 
 dispose of them, and they shall descend, as if she were sole. Rev. St. 296. So, the wife of 
 one not a citizen, residing in the State six months successively, may acquire and hold lands, 
 lb. In Maine, by a recent statute, a feme covert may hold property in her own right, but 
 cannot take it from the husband. The property belonging to her before, continues hers 
 after marriage, not subject to his debts. She may, however, release the control of it to him, 
 so long as it may be for their mutual benefit. Sts. 1844, 104-5. The statute is prospective 
 merely, and the interest which a husband had acquired in the real estate of his wife, by a 
 marriage prior to that act, is not affected by it. Mctellan v. Nelson, 27 Maine, 129 ; Eld- 
 ridge V. Preble, 34 lb. 148. 
 
CHAP. Till.] DOWER. NATURE, ETC. 93 
 
 CHAPTER VIII. 
 
 DOWER. NATURE AND REQUISITES OF DOWER. 
 
 31. Elopement, &c. 
 38. Seizin of husband. 
 42. Reversions and remainders. 
 50. Dos de dote. 
 61. Instantaneous seizin. 
 66. Whether husband's seizin may be de- 
 nied. 
 
 68. Death of the husband. 
 
 69. Presumption of death. , 
 
 1. Definition of dower. 
 2-11. Dower in the United States. 
 10. Origin and history of dower. 
 12. Dower favored. 
 
 17. Requisites of dower. 
 
 18. Marriage. 
 
 19. Void and voidable marriage. 
 
 22. Marriage — how proved. 
 
 23. Marriage and divorce in England. 
 26. Marriage and divorce in U. States. 
 
 1. The third estate for life, created by act of law, is Dower. Dower 
 is a technical term, and applicable only to real propert3'.(l)(a) The com- 
 mon law description of this estate is as follows. When a man is seized 
 during coverture of ,an inheritance in lands and tenements, which by 
 possibility any issue of his wife might inherit,(6) such wife shall hold 
 after his death one-third part of these lands and tenements for her natU' 
 ral life,(c) as an estate in dower. In pursuing this subject, it will be 
 seen that the foregoing definition is inapplicable in many of the United 
 States. (cZ) 
 
 2. In several of them, as will appear under the title of Descent, the 
 widow in certain cases inherits the estate of her husband. (e) 
 
 (1) Braokett v. Leighton, 1 Greenl. 285. See Caillanet v. Bernard, 7 S. & M. 316. 
 
 (a) A testator, by his will, left his property, real and personal, in the possession of hia 
 ■wife during her widowhood, for the education and maintenance of his children, but, in the 
 event of her marriage, he provided that she should "have her dower under the law, the 
 balance to remain in common stock for the children." Held, the manifest intent of the tes- 
 tator, in case liis widow married again, was, that she should have such portion of his real 
 and personal estate, as the law entitled her to have, where the husband dies intestate, and 
 that the word "^wer" should be so construed. Paine v. Gupton, 11 Humph. 402. 
 
 Dower arises by operation of law, not iy contract Lawrence v. Miller, 1 Sandf. 516. The 
 statute of frauds has therefore no application to dower. Davis v. Tingle, 8 B. Mon. 539. In 
 Iowa, by statute, a husband has dower like a widow. Iowa Code, ch. 83, sec. 142. 
 
 (i) A petition for dower, alleging that the husband died seized of land, and that his es- 
 tate was one of inheritance, sufficiently shows the character of the husband's title, as being 
 a freehold of inheritance. Leeoraptei). Wash, 9 Mis. 551. 
 
 (c) Tlie estate ceases on her death, and a sale then made of her interest passes nothing. 
 Holmes v. M'Gee, 12 Sm. & M. 411. 
 
 (d) Spangler t;. Stanler, 1 Md Ch. 36. The common law definition is applied in Dela- 
 ware to all cases arising subsequent to the year 1816. Dela. Rev. Sts. 290. See Ileimer- 
 shits V. Bernhard,- 1 Harr. 518 ; Riddiek v. Walsh, 15 Mis. 519. The common law descrip- 
 tion of dower has been recently rendered obsolete, even in England. By St. 3 & 4 Wm. 4, 
 c. 105, dower is allowed in equitaVjle inheritances and mere rights of entry without seizin. 
 On the other hand, there is no dower in land conveyed by the husband, or devised, or ex- 
 empted from dower by will ; and it is subject to all incumbrances, debts and partial dispo- 
 sitions made by the husband. A devise of land to the widow is a bar of dower; but not 
 a bequest of personal property', unless so expressed. In England, anciently, by virtue of 
 local and peculiar customs, the right of dower was often varied from the common law rule. 
 Thus, by the custom of Gavelkind, the widow had half of all the lands held by that tenure; 
 forfeitable by a second marriage, or the birth of a bastard child. In some boroughs, the 
 wife had for her dower all the tenements that were her husband's Dower ad ostium ecdesice, 
 was where a man, coming to the church door to be married, endowed his wife of so much of 
 his land. Dower ex assensu patris was the same, except that the land bestowed was the prop- 
 erty of the husband's father, and given with his consent. The two last named kinds of 
 dower did not bind the wife, but she might still waive them and claim dower at common 
 law. Co. Lit. 33 b; Robin. Gavelk. 159; Lit. 166, 39; Brae. lib. 2, c. 39. 
 
 (e) In several States recent statutes have made provision for securing homesteads to the 
 
94 
 
 DOWER. NATURE AND 
 
 [CHAP. VIII. 
 
 3. In Pennsylvania(a) and Indiana,(l) if an intestate leave a widow, 
 and no lawful issue, the former shall have one-half of the real estate, 
 including the mansion-house; or, in Pennsylvania, the rents and pro- 
 fits thereof, if a division is improper, for her life in Pennsylvania, but, 
 it seems, absoliitely in Indiana, in lieu of dower. 
 
 4. In Massachusetts, she takes for life, if there are no issue. In Del- 
 aware, if there is no child, or lawful issue of a child, the widow takes 
 one-half of the land for life. If no kindred, she takes the whole. So 
 in Wisconsin, for life, if no issue. In New Hampshire, where there is 
 no lineal descendant, and no provision by will or waiver thereof, and 
 the husband dies testate, she receives, in addition to dower, one-third 
 of what remains after payment of debts. If intestate, one-half. If in 
 either case she so elect, she may take, including her dower, what re- 
 mains after payment of debts, &c., not exceeding what the husband re- 
 ceived from her or in her right. These provisions do not apply, in 
 case of an ante-nuptial settlement.(2) 
 
 5. In South Carolina, Illinois,(Z)) Missouri,(c) Georgia,(c?) she has the 
 same right as in Delaware, (it seems, in fee,) for want of lineal descend- 
 ants, in lieu of dower.(3) 
 
 6. In .South Carolina, if an intestate leave no father, mother, brother 
 or sister of the whole blood, or their children, or brother or sister of 
 
 (1) Purd. Dig. 402; Anth. Sliep. 300, 303 ; 
 Ind. Rev. L. 208 ; Parke & J. 284. 
 
 (2) Dela. St. 1829, 316; 1843, 489; Rev. 
 
 Sts. 278; N. H. Rev. St. 329-30; Wise. Rev. 
 Sts. 338 ; Mass. Sts. 1854, 72. 
 
 (3) Aiitli. Shep. 586; Illin. Rev. L. 625; 
 Misso. St. 228; Anth. Shep. 608. 
 
 Vfidows of the owners. Thus, in Vermont, a homestead passes to the owner's widow and 
 children, and it cannot be conveyed or mortgaged, except to secure the purchase-money, 
 but by joint deed of husband and wife. Verm. St. 1849, 15. Similar statutes exist in 
 New Jersey, (St. 1852, 222-4.) Massachusetts, (St. 1851, 844.) Wisconsin, (St. 1853.) 
 New Hampshire, (St. 1851, 474.) Michigan, (Sts. 1850, 135; 1848, 124.) Ohio, (Sta. 1850, 
 29.) Iowa, (Rev. Sts., ch. 81, sec. 1245.) In Pennsylvania, the widoi^or children may 
 retain $300 in real or personal estate subject only to a lien for the purchase-money. Pen. 
 St. 1851, 613. So she, may retain any property which the law exempts from execution. 
 St. 1846, 47 7. 
 
 (a) In Pennsylvania, the widow shall have the real or personal estate, not exceeding $300. 
 Sts. 1851, 613. In Indiana, dower is abolished. Rev. Sts. 232. 
 
 (!)) The widow takes one-half of the real, and all the personal estate, belonging to the 
 husband at his death, subject to debts, and also her dower. Summers v. Babb, 13 Illin. 
 483; Tyson v Postlethwaite, lb. 727. 
 
 (c) The word used is descendant. In this State a statute provides, that when a husband 
 dies, leaving a child by a former marriage, and a second wife, but no child by her, the 
 •widow may elect to take the personal e.state brought to her husband by her marriage, in 
 lieu of dower. Held, where she so elects, such estate is still liable for debts, before the real 
 estate. Chinn v. Stout, 10 Mis. 709. 
 
 In the same State, a statute gives dower in leaseholds. And the assignment of dower, 
 in leasehold estates, is governed by the same rules which prevail in estates of inheritance. 
 Rankin v. Oliphant, 9 Mis. 239, 
 
 Where a husband dies seized of a leasehold estate, which is sold by his administrator, in 
 an action by his widow against the purchasers, for her dower, she will be entitled to dam- 
 ages Irom the death of her husband; and where improvements are placed upon the land 
 by the purchasers, tliey are to be taken into consideration in assessing damages after the 
 time when they are placed upon the land. lb. 
 
 In such case, no demand is necessary to entitle her to damages, and the purchaser cannot 
 therefore plead tout temp prist. lb. 
 
 (d) In this State, the same code of laws (Prince, 233,) contains these provisions, and also 
 another, making the wife sole heir to her husband, where he leaves no issue. (lb. 253.) It 
 is difScult to see how both rules can be in force. 
 
CHAP. VIII.] REQUISITES OF DOWER. ' 95 
 
 the half blood, or lineal ancestor, the widow shall have two-thirds of 
 the real estate, in lieu of dower.(l) 
 
 7. In Georgia, where there are children, the widow may, at her elec- 
 tion, have dower, or an equal share of both real and personal estate 
 (subject to debts. )(2)(a) 
 
 8. In Missouri, if the husband leave a child or descendant by an- 
 other marriage, the widow may take, in lieu of dower, the personal 
 property that came to him by her marriage, subject to debts. If the 
 husband leave no child or descendant, she may take her dower at com- 
 mon law free from debts, or the personal property above named, sub- 
 ject to them. But her election must be written, acknowledged and 
 filed within six months from the granting of administration. Dower in 
 personalty can be had only in property belonging to the husband at 
 his deaih.{S) 
 
 8 a. In Arkansas, a widow is entitled to dower in lands, slaves, and 
 other personal property ; to one-third of the personal property abso- 
 lutely; to one-third of the proceeds thereof, in case the administrator 
 sells it without allotting her dower; to dower in the increase of slaves, 
 accruing between the death of her husband and the time of the allot- 
 ment of her dower ; also, to one-third of the rents of land and hire of 
 slaves ; and she may hold the mansion and farm attached, free of rent, 
 until her dower is assigned. In Alabama, a wife having a separate 
 estate takes only so much for dower as will give her in the whole a 
 child's portion. (4) 
 
 9. Where the statute law provides a substitute for the right of dow- 
 er, it is not to be regarded as creating a new interest, but as declaratory 
 or in affirmance of the common law. (5) 
 
 10. It is said, that the idea of dower is derived from the Germans, 
 and was familiar to the Saxons when they became established in Eng- 
 land. Dower then consisted of one moiety of the husband's property, 
 held for life, and liable to forfeiture upon breach of chastity, or a second 
 marriage. Afterwards, by the charter of Hen. 1, the condition of for- 
 feiture was dispensed with, except where there was issue. In the reign 
 of Hen. 2, a wife was endowed hy her husband at the time of marriage 
 of one-third of the lands which he then held. By the charter of 1217 
 and 1224, dower was established as one-third part of all lands held by 
 the husband during his life, unless a smaller portion had been assigned 
 at the church door.{6){b) 
 
 11. The only kind of dower known in practice' in this country is 
 that estate, which, according to the above definition, (sec. 1,) the law 
 confers upon a wife after her husband's death ; or dower at common 
 
 'law. The statute laws of Vermont, Connecticut, New Hampshire, 
 Michigan and Maine, refer to provisions made for the wife before mar- 
 riage, under the name of dower, undoubtedly intending thereby a 
 jointure, which will be considered hereafter.(7) 
 
 (1) Anth. Shep. 587-9. 
 
 (2) Anth. Shep. 607. 
 
 (3) Misso. St. 228; McLaughlin v. Mc- 
 Laughlin, Bennett, (Mis.) 242. 
 
 (4) Menifee v. Menifee, 3 Eng. 9; Ala. Sts. 
 
 (5) Brown v. Adams, 2 Whart. 192. 
 
 (6) 1 Cruise, 118. See 2 Bl. Com. 102; 
 Doe V. Gwinnell, 1 Ad. & El. N. S. 682. 
 
 (7) Mass. Kev. St. 409; Iowa Sts. 1852, 
 97; Anth. Shep. 21, 100; Mich. L. 30; 1 
 Smith's St. 158; McMahan v. Kimball, 3 
 Blackf. 6. 
 
 (a) See ante, p. 94. 
 
 (6) Dower ad ostium eccksite, and dower ex assensu patris, are both expressly abolished 
 by Stat. 3 & 4 Wm. 4, ch. 105, see. 13 ; 1 Steph. Comm. 253. 
 
96 
 
 DOWER. NATURE AND 
 
 [CHAP. viir. 
 
 12. "While, as has been already remarked, (eh. 6, s. 1,) curtesy is an 
 estate of mere positive institution, dower is held to have a strong moral 
 as well as legal foundation. The wife, by marriage, loses most of her 
 rights of property, and would in general be wholly destitute after the 
 -husband's death, were not some provision made for her from his real 
 
 estate. It is said, moreover, that in ancient times the personal estates 
 of the richest were very inconsiderable, and the husband could not 
 give his wife anything during his life, or after his death, both trusts 
 and devises being then unknown. (1) 
 
 13. For these reasons, a dowress is in the care of the law and a 
 favorite of the law.(2) Magna Oharta{3) provides, that a widow shall 
 forthwith, and without any difftculty, have her marriage and her in- 
 heritance ; nor shall she give anything for her dower or her marriage, 
 or her inheritance, which her husband and she held at the day of his 
 death. At common law, a dowress enjoyed the privilege of exemption 
 from tolls and taxes.(4)(a) It is said, there be three things ftivored in 
 law — life, liberty and dower ;(5) that dower is a legal, an equitable and 
 a moral right, favored in a high degree by law, and next to life and 
 liberty held sacred. (6) 
 
 14. As a mark of peculiar favor to the tenant in dower, although 
 damages were not generally allowed in real actions, they were given 
 to her. Particular relief was also provided for her quarantine (a term 
 hereafter 'to be explained. See chap. 11.) By the statute of Jilerton, 
 (20 Hen. 3, c. 1,) deforcers of dower were to be in mercy, or fined at 
 the pleasure of the king. Where to a suit for dower the defendant 
 pleaded a false plea, the widow recovered damages from the husband's 
 death, though she had been always in receipt of one-half the profits ; 
 and the rules of pleading are construed liberally in her favor.(7) 
 
 15. The celebrated Ordinance for government of the North West 
 Territory expressly secures the right of dower. 
 
 16. It is said, however, that the object of dower is not to enrich the 
 widow, to the detriment of creditors and impoverishment of the rest of 
 a man's family, but to give an equal third part in value, for the suste- 
 nance of the wife and the nurture and education of younger children. 
 Nor does the law give her any preference over heirs and devisees.(8) 
 
 17. There are three circumstances necessary to give a title to dower : 
 viz., marriage, seizin, and death of the husband. 
 
 18. The marriage must be had between parties legally capable of 
 contracting it, and' duly celebrated. " Ubi nullum matrimonium, ibi 
 nullum dos.{9){b) 
 
 (1) Banks v. Sutton, 2 P. "Wma. 102 ; 
 Curtis V. Curtis, 2 Bro. Ch. 620-30-34; 
 Moody V Kins, 2 Bing. 451-2 ; Co. Lit. 30 
 b, n. 8 ; see Ga. St. 1845, 80. 
 
 (2) 1 Story on Eq. 583 ; Lasher v. Lasher, 
 13 Barb. 106. 
 
 (3) Magn. Char. see. 8 ; 6 Conn. 462. 
 
 (4) 2 Bl. Com. 138. 
 
 (5) Co. Lit. 124 b. 
 
 (6) Kennedy v. Nedrow, 1 Dal. 41*7. 
 
 (7) Curtis V. Curtis, 2 Bro. Cha. 620 ; Co. 
 Lit. 32 b, 33 a; Smith v. Paysenger, 4 Con. 
 S. C. 59; McDonald v. Aten, 1 MoCook 
 (Ohio,) 293. 
 
 (8) Hey ward v. Cuthbert, 2 Con. S. C. 628; 
 1 J. J. Mar. 637. 
 
 (9J Co. Lit. 33 a; 1 Cruise, 121. 
 
 (a) In Tennessee, (Stat. 1835-6, p. 58,) land held in dower is expressly made taxable. 
 (6) Long continued cohabitation and general reputation are prima facie evidence of the 
 marriage. Young v. Poster, 14 N. H. 114 ; see Conert v. Hertzog, 4 Barr. 145. 
 
 So, long cohabitation, continued until the death of the alleged husband, the woman's 
 
 o / 
 
CHAP. VIII.] REQUISITES OF DOWER. 97 
 
 19. A marriage may be either void or voidable ; and the considera- 
 tion, whether it is the one or the other, will materially affect the 
 widow's claim of dower. In general, if the marriage were void, there 
 shall be no dower. Thus, the second wife of a man who has a former 
 wife living has no dower, though the first wife dies before the husband.(a) 
 
 20. But, although the marriage were contracted before the age of 
 consent, which at common law is fourteen in men and twelve iu 
 women, (6) and therefore voidable by either party — according to the 
 maxim ^'consensus, non concuhitus facit matrimonium ;"■ — ^yet, if at the 
 death of the husband the wife have passed the age of nine years, she 
 shall have her dower. The marriage is accounted " legitimum matri- 
 monium quoad doiem," though for other purposes only ^''sponsalia de 
 futuiv." And, if at the time of marriage the wife is under nine years 
 
 of age, and before she reaches that age the husband parts with the 
 land ; she shall still have dower, if she live till nine.(l) 
 
 21. A voidable marriage can be avoided only during the life of the 
 parties, and by divorce. Hence, if in case of such marriage the husband 
 die before any divorce is obtained, his widow shall have dower.(2) 
 
 22. In England, the fict of marriage is ordinarily tried, not by jury, 
 but by a certificate of the bishop, the sentence of the Ecclesiastical 
 Court being held conclusive upon this question. Under special cir- 
 cumstances, however, this mode of trial is not adopted ; and, in the 
 United States, this fact, like others, is tried by jury.(3) 
 
 2;!. The English law, on the subject of marriage and divorce, is 
 materially different from that which generally prevails in the United 
 States. In England, there are said to be two classes of disabilities or 
 impediments to marriage — civil and canonical. Of the former class, 
 are prior marriage, want of age, moral ability or will ; and probably 
 a neglect of the particular mode of celebration prescribed by law. Of 
 the latter, are consanguinity, affinity and corporeal infirmity. Civil 
 disabilities render the contract void ab initio, without divorce ; canoni- 
 cal disabilities render it only voidable by divorce. 
 
 (1) Dyer, 369 a, 368 b; Co. Lit. 33 a, n. I (3) Robins v. Crutchley, 2 Wil. 122; 
 10; Hijrgins v. Breen, 9 Mis. 497 ; Donnelly IldertOQ v. Ilderton, 2 H. Bl. 156 ; 4 Dane, 
 V. Donnelly, 8 B. Mon. 113. 673. 
 
 (%j Co. Lit. 33 b. I 
 
 being received and treated as liis wife, and tlieir bringing up and educating a family of 
 children as their own. Carter w. Parker, 28 Maine. 509. The presumption arising from 
 cohabitation may be rebutted, by evidence of a permanent separation witliout apparent 
 cause, and another mar.'-iage of one party. .Weatherford v. Weatlierford, 20 Ala. 543. Even 
 reputation has been held sufficient proolol marriage. Trimble v. Trimble, 2 Carter, 76. 
 
 An administrator's deed warranted the title, "excepting only the widow's right of ilower." 
 Held, the purchaser was not estopped to deny the marriage of the intestate, nor tho legiti- 
 macy of his children, in a suit by them for the land. Stevenson v. McReary, 12 S. & M. 9. 
 
 (a) A man, having a wife in Maryland, left her and married afjain in Kentucky. Subse- 
 quently his first wife died, and he continued to live and cohabit with the Kentucky wife for 
 Beyeral years, and recognize her as such until his death. Held, the court would presume 
 a marriage in fact after the death of the Maryland wife, and give dower to the last wife. 
 Donnelly v. Donnelly, 8 B. Mon. 113. 
 
 Where a man who has a wife living fraudulently marries another woman, who believes 
 herself to be liis lawful wife, obtains her property and earnings, and invests in lands more 
 than the value of her dower, if she had been entitled thereto; his heirs cannot in eqiiitj 
 deprive her of the dower estate after it has been allotted to her. lb, 
 
 (b) In Arkansas, a marriage is void if tlie husband is under seventeen, or the wife under 
 fourteen years of age. Ark. Key. St. 535. ' 
 
 Vol. I 7 
 
98 DOWER. NATURE AND [CHAP. VIU. 
 
 21. In England, a divorce a vinculo matrimonii is granted only for 
 causes which existed at the time of marriage, or canonical disabilities. 
 Hence, the marriage being avoided as originally unlawful, dower is as 
 effectually barred, as^ if the marriage had been absolutely void. 
 
 25. Adultery^ being a cause arising after marriage, is there a ground 
 for divorce a mensa et thoro. Contrary to some ancient opinions, this 
 has been settled not to be a bar of dower, being merely a separation of 
 the parlies, and not a dissolution of the marriage. The same is true of 
 a divorce a mensa for any other cause than adultery. (1) 
 
 26. In the United States, the statute law often allows a divorce, for 
 causes which in England render the marriage void ah initio. Thus, in 
 New Hampshire, ISlew Jersey, Ohio, Indiana, Illinois, Missouri and 
 Alabama, on account of a prior maniage. Whether such provisions 
 have the effect to convert void into voidable marriages, so that dower 
 will not be barred without divorce, may perhaps be a questionable 
 point. In Pennsylvania, on the other hand, a marriage within the pro- 
 hibited degrees, which is a canonical disability, is declared void to all 
 intents and purposes.{a) So in New Hampshire. But still it is to be 
 dissolved by divorce, and, after the death of either party, its validity can- 
 not be disputed. In the same State — Pennsylvania — where there is a 
 divorce and separation, or decree that the marriage is null and voidj 
 all the duties, rights and claims, accruing to either party in pursuance 
 of the marriage, shall cease. In this sweeping clause, dower is of 
 course included. In New Jersey, Alabama and Mississippi, a marriage 
 contracted while a former husband or wife is living, is declared to be 
 "invalid iiom the beginning, and absolutely void," but is still dis- 
 solved by divorce. In Arkansas, New York and Massachusetts, a pro- 
 cess is provided for declaring void a marriage which was void at its 
 inception, by a decree of nullity ; though, in Massachusetts, such decree 
 is declared to be unnecessary. In Kentucky, the same process is ap- 
 plied to a marriage within the prohibited degrees. In Vermont, con- 
 sanguinity or a prior marriage renders the marriage absolutely void. A 
 process is provided for annulling a doubtful marriage, for non-age, 
 idiocy, &c., force or fraud, or impotency. In Delaware, a marriage 
 may be annulled, iu case of unlawful consanguinity or affinity, where 
 one of the parties is white, and the other a negro or mulatto ; in case of 
 a former husband or wife living; or of insanity. In Maine, where 
 one of the parties was insane, the marriage is void, and may be so 
 decreed. (2) 
 
 • (1) Rolle Abr. Dower, 13; Co. Lit. 33 b; 
 Ladv Stowell's ca?e, Godb. 145; Dame, &c. 
 V. Weeks, Nov, 108. 
 
 (2) Walk. 229; lud. Rev. L. 213; IU. 
 
 Rev. L. 232-3 ; Misso. St. 225 ; N. H. L. 
 336 ; Alab. L. 252 ; 1 N. J. L. 667 ; Purd. 
 213; Verm. Rev. St. 322; Dela. Rev. St. 
 238 ; Keyea v. Keyes, 34 Maine, 553. 
 
 (a) Tn North Carolina, vfhere the parties are nearer than first cousins. N. C. St. 1842, 
 142. In Wisconsin, in case of consanguinity, &c., or a former marriage, the marriage is 
 per se void. Rev. Sts. 393. It may be declared null from the time of such declaration, for 
 want of age or understanding, force or fraud, if there have been no subsequent voluntary 
 cohabitation. lb. In case of infancy or insanity, cohabitation after the impediment is re- 
 moved renders the marriage valid. In the former case, the other party cannot avoid the 
 marriage; nor in the latter, if he had knowledge of the insanity. lb. 394. In New, Hamp- 
 shire, the marriage of one incapable of contracting is void. True v. Ramsey, 1 Fost. 52. 
 
CHAP. VIII.] REQUISITES OF DOWER. 99 
 
 27. It may be laid down as the general rule of American law, that 
 divorce a vinculo bars dower.(a) 
 
 28. But this rule is not universally adopted. 
 
 29. In New York,(6) Connecticut, Ohio, Michigan, it seems, and 
 Illinois,(l) dower is not barred by divorce for the fault of the husband ; 
 
 (1) N. T. Rev. St. 741: Illiii. Rev, L. 238: Mich. L. 138; Dela. St. 1832, U9: Swan, 
 291 1 Ark. Rev. St. 337. 
 
 (a) The grouuda of divorce are various in the different States. The plan of the present 
 worlc does not require a complete statement of the law upon this subject; and therefore 
 some later statutes may have escaped notice. The universal tendency is, however, to ex- 
 tend and not restrict the grounds of divorce ; and it may bo assumed, tijat the causes stated 
 are still recognized, whatever additional ones may have been sanctioned by recent 
 legislation. 
 
 In Maine, by recent statutes, (1847, 8 ; 1849, 104,) a divorce a vinculo may be granted in 
 all cases, if tliere be no collusion, where the court think it reasonable and proper, con- 
 ducive to domestic harmony, and consistent with the peace and morality of society. In 
 Yirijniia-, the cause was formerly in the discretion of the Legislature, which alone granted 
 divorces. But, by a late act, the causes specified are natural and incurable impotency at 
 the time of marriage; bigamy; or any cause for which the marriage would be annulled by 
 the ecclesiastical law. In South Carolina, it is said, divorces are never granted. In North 
 Carolina, for any "just and reasonable cause." So. formerly, in Indiana. But, by a late 
 act, for drunkenness, neglect to provide for the wife, or any crime punishable by hard labor 
 in the penitentiary. The statute of Indiana, relating to dower in case of divorce, does not 
 give dower in land alienated by the husband before its enactment. Oomly v. Strader, 
 ISmitli, 75; M'Caffertyt;. M'Cafiferty, 8 Blackf. 218. In Georgia, legal grounds, and adultery. 
 In New Hampshire, Ohio, Illinois, Missouri, Arkansas, former marriage, desertion, (so in 
 Rhode Island, R. I. L. 1851, 796,) adultery, impotence, cruelty, drunkenness. In Ten- 
 nesee, the four first-named causes. In Pennsylvania, New Hampshire, Mississippi and 
 Alabama, the five first-named causes; in Alabama, abandonment by husband or wife for 
 three years, or by the husband for any period, in connection with adultery. But, in Ala- 
 bama, no divorce is granted, in case of adultery by both parties; and a divorce must be 
 sanctioned by two-thirds of the Legislature. In Delaware, adultery of the wife, or impo- 
 tence. In Massachusetts, impotence, desertion for five years, adultery; the party guilty of 
 which cannot marry again. In Kentucky, adultery, desertion, cruelty. In Kentucky, 
 Massachusetts and New Hampshire, forming connection with certain religionists, inconsistent 
 with the marriage rights. In Connecticut, adultery, absence and fraudulent contract, mean- 
 ing some cause wliicli makes the marriage void ah initio. In Ohio, New Hampshire and 
 Massachusetts, imprisonment. In Vermont, adultery, imprisonment three years, intolera- 
 ble severity, three years' desertion, seven years' absence, and a neglect to support the wife. 
 In Ohio, fraudulent contract, gross neglect of duty. In Missouri and Kentucky, conviction 
 of crime. In Arkansas, infamous crime. In Alabama and Mississippi, consanguinity. In 
 Michigan and New York, (it seems,) adultery only. In Tennessee, pregnancy with a child 
 of color at the time of marriage. In Alabama, pregnancy, without notice to the husband, 
 at the time of marriage. In Tennessee, the wife of one adjudged insane, becomes a feme 
 sole, but cannot marry again. In Pennsylvania, lunacy of the wife is ground of divorce, 
 on application of her friends. In New Hampshire, treatment endangering health or reason. 
 In the same State, the cause must continue to exist, except in case of adultery. In Mary- 
 land, a divorce is granted for impotency at the marriage, any cause which makes the mar- 
 riage void ab initio, adultery, abandonment for five years. Alab. L. 252-5 ; Clay, 169, 70, 
 71.72; 4 Griff. 671 ; Walk. 230, 326, 228 ; Swan, 291 ; 4 Kent, 63 ; Mass. Rev. St. 480, 
 484; St. 1841, 189; 1850, 336. See St. 1843, 264; Brett v. Brett, 5 Met. 233; 2 N. Y. 
 Rev. St. 140; Conn. St. 162; Dutt. 8; Ind. Rev. L. 213; Rev. St. 242 ; St. 1836, 69; 1 
 N. C. Rev. St. 239; 3 Griff. 363, 446, 4, 865, 799 ; Purd. 212 ; Ponn. St. 1843, 235; Illin. 
 Rev. L. 233; Misao. St. 226; N. H. L. 336; Rev. St. 293; N. U. St. 1849,0. 740; Dela. 
 Rev. Sts. 238 ; 1 Ky. Rev. L. 122-4; 2, 1157 ; Mich. L. 138 ; Mich. St. 1843, 7; Tenn. St. 
 1835-6, 166; 1839-40, 90; 4 Shepl. 479; Me. St. 1844, 105; Md. L. 1841-2, ch. 262; 
 Miss. L. 1840, 125; Verm. Rev. St. 324. In Iowa, a divorce granted by the territorial 
 legislature, if it does not appear to have been for causes over which the district courts had 
 jurisdiction, is good ; and is a bar to dower in the same manner as if granted by the court. 
 LevinsD Sleator, 2 Greene, 604. In Wisconsin, imprisonment for lifepersc dissolves the mar- 
 riage. Grounds of divorce are adultery, impotence, imprisonment for three years, desertion, 
 cruelty, intoxication of the wife, drunkenness, neglect to support, conduct rendering a resi- 
 dence with the husband unsafe or improper. Wise. Rev. Sts. 394-5. 
 (6) But see Wait v. Wait, 4 Barb. 192. 
 
100 DOWEE. NATURE AND [CHAP. Till. 
 
 but it is barred, as also in Arkansas and Delaware, by a divorce for 
 the wife's own fault, or, in Illinois, on the ground that the marriage 
 was originally void.(a) Ordinarily, the distinction made in favor of 
 the wife, where the divorce is granted for the fault of the husband, is, 
 that a provision is made for her, distinct from dower, either under that 
 name or in some other mode. But dower, as such, is barred. In Mas- 
 sachusetts,(l) where a man and woman are divorced for the cause of 
 adultery committed by him, or on account of his being sentenced to 
 confinement to hard labor, the wife has her dower. In Maine, where 
 the divorce is for the husband's fault.(J) So in Connecticut, unless 
 some part of the husband's estate has been assigned to her. In Ken- 
 tucky '(by the Eevised Laws) and Alabama, neither party can, by 
 divorce, be divested of a title to real estate ; but, in Kentucky, by a 
 late statute, a divorce for the husband's fault gives the wife the same 
 rights as if he were dead. In Wisconsin, where a divorce is had for 
 imprisonment or adultery by the husband, the wife has dower. In 
 New Hampshire, where the wife of one not a citizen, by residence in 
 the State, gains the right of acquiring and holding real estate, and is 
 divorced ; sh ■ retains such property, unless it appear from other evi- 
 dence than the divorce, that she was guilty of misconduct.(2)^ 
 
 80. In Connecticut, a sum in gross paid to the wife upon divorce, is 
 called doicer. 
 
 31. Although, in England, a divorce for adultery does not bar dower, 
 yet, by statute, Westminster II. c. 34, if a wife willingly leaves her 
 husband and continues with an adulterer, she shall be barred of her 
 dower, if she be convicted thereupon, (c) except her husband willingly, 
 and without coercion ol the church, reconcile her and suffer her to dwell 
 with him.((^) Tlie burden of proof is upon the party making this de- 
 fence to a suit for dower.(3) 
 
 (1) Mass. Rev. St. 483, 617. See Smith 
 V. Smitl), 13 Mass. 231. 
 
 (2) 1 Ky. Rev L. 124; Ky. St. 1836-1, 
 324; Alab. L. 256; N. H. Rev. St. 29G; Me. 
 lb. 608 ; Conn. St. 188 ; Wis. Rev. St. 397. 
 
 (3) Co. Litt. 32 b ; Cochrane V. Libby, 5 
 
 Sliepl. 39. Where 'the wife married again 
 williin three years after the husband'^ leaving 
 home, but after it Wiis reputed in the family 
 tliat he was dead; held, not suflicient proof 
 of adultery to bar dower. lb. 
 
 (a) In Oliio, in case of ugyression by the wife, dower is barred in lands owned at or after 
 the filing of the petitimi. Swan. 291. In [mliana, tliere sliall be a fair division of prop- 
 erty, but no title lo land sliall be divested. Except in case of adultery by the wife, ille- 
 gality in the marriage, or allowiince ot alimony expressly in lieu of dower; dower is not 
 barred. Rev. St 244. Where, belinre the statute of 18-13, the buabaiid conveyed away liis 
 land, and a divorce was decreed for misconduct; held, tlie wife should not have dower. 
 Comlj' V. Slrader, 1 Cart. 134. Where in a case of cruelty alimony was allowed upon 
 divorce in lieu of dower; held, dower should be decreed. Russell v. Russell. lb. 510. 
 There is no dower in case of divnrce for the misconduct of both parties. Cunningham v. 
 Cunningham, 2 Cart. 233. In Michigan, upon a divorce for adultery of the husband, the 
 wife has dower. Rev. St. 340. 
 
 (t) A husband sold land in 1823, in which his wife did not release her dower. In 1842, 
 the wife obtained a divorce on the ground of desertion, under the statute of 1828, which 
 provides, that a wife obtaining a divorce for that cause .shall have dower as if her husband 
 was dead. Held, she was not entitled to dower in the land sold ; as the statute could not, 
 constitutionally, have a retrospecti ve effect. Given «. Marr, 27 Maine, 212. 
 
 (c) Jn England, tlie ei'cle.siaatical court alone has jurisdiction of adultery. Perhaps, 
 therefore, conviction may there be requisite lo bar dower. But in the United States the fact 
 must be tried colliterally, if at all, in the suit for dower. 
 
 (d) All wliich (says Lord Coke) is comprehended shortly in two hexameters. 
 
 Sponte virum mulier fiigiens, et adultera facta, 
 Dote sua canat, nisi sponsi spoQte retracts. 
 See Lecomptea. Wash, 9 Mis. 551. 
 
CHAP. VIII.] 
 
 REQUISITES OF DOWER. 
 
 101 
 
 32. The same consequence follows, though the wife were originally 
 taken away against her will, if she afterwards willingly remain with 
 the adulterer. So if she be with him criminally, without remaining ; 
 or once remain with him, and he then detain her against her will ; or 
 if he turn her away. So, if with her husband's consent she goes away 
 with another man, who afterward has criminal connection with her; or 
 if she refuses to accompany her husband, on account of objections from 
 her parents, and reports of his marriage to another woman ; or refuses 
 to return to him, having been driven away by cruelty. It is sufficient 
 that she is in an open state of. adultery, whether she live in the same 
 house with, or be formally married to, the -adulterer or not. And it 
 has been held immaterial with whom the adultery is committed, 
 or whether it be before or after she leaves. But merely living in 
 adultery, without elopement, which means a freedom from the husband^s 
 control, is no bar of dower. The circumstances of the elopement are 
 immaterial. (1) 
 
 33. A man by deed granted his wife to another,(a) with whom she 
 eloped and lived adulterouslj^, and after her first husband's death inter- 
 married. Held, the deed was void as a grant or a license; that no 
 averment was admissible, " quod non fait adulterium,^'' and that the wife 
 was barred of dower, notwithstanding a purgation of adultery in the 
 ecclesiastical court. But where the friends of a husband removed him 
 from his wife, published that he was dead, and persuaded her to marry 
 another, and release all her rights under the first marriage ; held, she 
 did not leave her husband sponte, and therefore was not barred of her 
 dower. (2) 
 
 34. In Connecticut, a woman has dower if living with her husband 
 at his death, or absent by his consent or default, or inevitable accident. 
 And where the husband was a naturalized foreigner, and his wife had 
 always lived abroad, she was barred of her dower upon the principle 
 above stated. In Maryland, conviction of bigamy bars dower.(3) 
 
 35. In England, the reconciliation, which will avoid the effect of 
 elopement, must be, not by coercion of the church, (a proceeding un- 
 known to our laws,) but voluntary on the part of the husband. And 
 the better opinion seems to be, that cohabitation subsequent to the elope- 
 ment — as, for instance, the parties sleeping together at several times 
 and places, although they do not permanently occupy the same house — 
 is sufficient proof of reconciliation. (4) 
 
 36. Reconciliation has a retrospective effect upon the rights of the 
 wife. Thus, if the husband purchase and aliene lands during the 
 elopement, she shall still have her dower therein. (5) 
 
 37. The old English statute upon this subject has been generally 
 adopted in this country, and in the states of Virginia, North Carolina, 
 Delaware, New Jersey, Illinois, Missouri(ft) and Indiana, expressly or 
 
 (1) Hetherington v. Graham, 6 Bing. 135 ; 
 Stegall V. Stegall, 2 Brock. 256 ; Bell v. Neely, 
 1 Bui. 312; Cogswell u. Tibbotts, 3 N. H. 41 ; 
 "Walters v Jordan, 13 Ired, 361. 
 
 (2) Co. Lit. 32 a, n. 10 ; Green v. Harvey, 
 1 Rolle's Abr. 680. 
 
 (3) But. 53 ; Sistare v. Siatare, 2 Root, 468 ; 
 Md. L, 579. 
 
 (4) Hawortli v. Herbert, Dyer, 106. 
 
 (5) Co, Lit. 33 a, n. 8. 
 
 (o) " CoTioossio mirabilis et inaudita." — Coke. 
 
 (6) The English statute was never in force in this State, until the act of 1825. 
 V. Wash, 9 Mis. 551. 
 
 Lecompte 
 
102 DOWER. ITATXTRE AND [CHAP. VIII. 
 
 substantially re-enacted. But, in New York, by the Eevised Statutes, 
 there must be a divorce for misconduct, or a conviction of adultery, 
 upon a bill in Chancery by the husband, to bar dower.(l)(a) 
 
 38. To give a title to dower, either at law or in equity, the hus- 
 band must have been seized of the lands.(6) 
 
 39. But a seizin in law is sufficient; upon the ground that the husband 
 alone has power to obtain actual possession during coverture, and there- 
 fore a different rule would enable him at pleasure to debar his wife 
 from her dower.(2) 
 
 40. Conveyance, by an absolute deed, but with a verbal agreement 
 to reconvey, upon repayment of certain money loaned. The grantee 
 never entered, nor claimed possession. Held, his wife was entitled to 
 dower, a seizin in law being sufficient for that purpose.(3) 
 
 41. So, where an heir dies before entry upon the land descended to 
 him, or where a stranger enters by abatement; the widow of the heir 
 shall still have dower. But if the heir married after the abatement, 
 and died without talking possession ; his widow shall not have dower. 
 
 (1) Stearns, 310; 1 Swift, 86;' 4 Dane, 
 672-6: 4 Kent, 52; 1 Virg. Rev. C. 171; 
 Code, 474; 1 N. J. R. C. 400 ;* 1 K C. Rev. 
 St. 615; Ind. Rev. L. 211; 111. do. 238; Misso. 
 St. 229;* Dela. St. 1829, 165; Rev. St. 291; 
 
 Poy V. ¥oj, 13 Ired. 90 ; Walters v. Jordan, 
 ib. 361. 
 
 (2) Co. Lit. 31 a; Perk. 366; Dennis v. 
 Dennis, 7 Blackf. 572. 
 
 (3) Atwood V. Atwood, 22 Pick. 283. 
 
 * In tbis statute the old term " raviaher" is used. 
 
 (a) So, also, though before 1830, when the Revised Code was enacted, the wife long lived 
 in open adultery, separate from the husband; although, if he had died prior to 1830, she 
 would have been barred of dower under the act of 1787. Reynolds v. Reynolds, 24 Wend. 
 193. So, where the parties were married in 1810, the wife immediately deserted her hus- 
 band, and ever afterwards lived in adultery; and the husband died since the Revised Stat- 
 utes took eifect. Cooper v. Whitney, 3 Hill, 95. In Ohio, a divorce in another State, for 
 wilful abandonment of the wife by the husband does not bar dower in lands lying in Ohio. 
 Mansfield v. M'Intyre, 1 Wile. 27. In Alabama, a husband and wifo having separated, the 
 husband went to another state, married again, and had children. The woman also became 
 mother of illegitimate children. Forty years after the first marriage, the husband conveyed 
 in trust for the second wife and children. Upon his death, the fir.st wife applies for dower. 
 Held, it should not be allowed. Ford v. Ford, 4 Ala. N. S. 142. 
 
 (6) The phrase beneficial seizin is sometimes used. Oldham v. Sale, 1 B. Monr. 77. See 
 Northcut f. Whipp, 12. B. Mon. 65. The owner of the inheritance in land is "possessed" 
 of it for the purpose of dower and curtesy. Woir v. Tate, 4 Ired. Eq. 264 
 
 Where a deed bad been delivered to the husband, but abstracted from him before regis- 
 tration ; held, there could be no dower at law, but the widow must resort to a court of 
 equity. Tyson v. Harrington; 6 Ired. Bqu. 329; aoc. Thomas v. Thomas, 10 Ired. 123. In 
 a declaration in dower, it is unnecessary to aver the possession of the husband. But, by the 
 general rules of pleading, it is necessary to show his seizin, which may be done by implica- 
 tion from the form of the declaration. Foxworth v. White, 5 Strobh. 113. In Tennessee, 
 the widow is not dowable of lands which her deceased husband had conveyed by mortgage, 
 for he did not die seized and possessed of them. Mclver v. Cherry, 8 Humph. 713. On a 
 petition for dower, although the widow will not be held to strict proof of title in the hus- 
 band, to make out a prima facie right, yet, upon a plea of non seizin, she must either show 
 title in the husband, actual possession, or that the defendant holds under the husband. 
 Gentry v. Woodson, 10 Mis. 224. 
 
 It has been lield, that, although the husband were not seized during coverture, yet, if ho 
 had conveyed the land with an agreement, that the rights of those claiming under him after 
 his death should be saved ; his widow shall have dower. Thus, a grantor gave an abso- 
 lute deed of real estate, and took from the grantee, at the same time, an acknowledgment 
 that he held the land charged with the settlement of the just debts of the grantor. Held, 
 the widow of the grantor, who had intermarried with him siuoe the deed, was entitled to 
 dower. Doe v. Bernard, 9 S. & M. 319. 
 
CHAP. Till.] 
 
 REQUISITES OF DOWER. 
 
 103 
 
 because during the coverture he had no seizin in law.(l) So the widow 
 of an heir has no right of dower, in land sold by the executor under a 
 power in the will of the ancestor.(2) 
 
 42. So, "where the husband had only a remainder or reversion ex- 
 pectant upon a freehold, tfiere shall be no dower.(3)(a) 
 
 43. If a man leases for life, reserving rent to him and bis heirs, and 
 then marries and dies, his widow shall be endowed neither of the rever- 
 sion nor the rent ; because he had no seizin of the former, and only a 
 particular estate, not an inheritance, in the latter. The same role ap- 
 plies, where the particular estate terminates during coverture, either by 
 limitation or forfeiture, but the husband does not actually enter. But 
 if the life estate cease for a time, though afterwards re-instated, the 
 widow of the reversioner has dower, on account of the temporary seizin. 
 Thus, if a lessee for life surrender to the reversioner on condition, and 
 enter for condition broken, the widow of the latter shall be endowed. (4) 
 
 44. A conveys to B in fee, and B, at the same time, reconveys to 
 A and his wife, for their lives and that of the survivor. B conveys 
 to C, subject to his deed to A. A and his wife and C joiotly* occupy 
 the land. A flies, then C, then A's wife. C's wife remains on the 
 land, and dower is assigned her; C's administrator having previously 
 sold the land under a license from court to D, E, a purchaser from 
 D, brings suit for the land against the widow, and recovers.(5) 
 
 45. It has been held in Pennsylvania, that there is no dower in a 
 remainder expectant upon a life estate, which the husband has aliened 
 before his death. Whether without such alienation there would be, 
 
 46. But where the lease is for years and not for life, the widow is 
 entitled to a third of the reversioo, and a third of the rent, if any. 
 And this, notwithstanding a release from the wife to the lessee ; which 
 amounts only to a confirmation of the lessee's title. If no rent is re- 
 served, her judgment for a third of the reversion will be with a cessai 
 executio during the term ; or dower will be assigned, with a proviso 
 that the tenant for years shall not be disturbed. (7)(6) 
 
 47. Devise to executors for payment of debts, then to the testator's 
 son in tail. The son marries and dies before the debts are paid. Held, 
 as the estate of the executors was on\y a chattel interest, the son had 
 
 (1) Lit. 448; Perk. 371; lb. 367; Dun- 
 ham V. Osborne, 1 Paige, 635 ; Slierwood v. 
 Yanderburgh, 2 Hill, 303. 
 
 (2) "Weir V. Tate, 4 Ired. Eq. 264. 
 
 (3) Blow V. Maynard, 2 Leigh. 30; Robi- 
 8on V. Codman, 1 Sumner, 130 ; Eldredge v. 
 Forestal, 7 Mass. 253 ; Dunham v. Osborne, 
 1 Paige. 634; Otis t). Parshley, ION. H. 403; 
 Arnold v. Arnold, 8 B. Mon. 202 ; Weir v. 
 
 Tate, 4 Ired. E^. 264; Green v. Putnam, 1 
 Barb. 500. 
 
 (4) Co. Lit. 32 a; Perk. sec. 366, etseq. ; 
 Co. Lit. 131 a, n. 4. 
 
 (5) Eisk V. Eastman, 5 jST. H. 240. 
 
 (6) Shoemaker v. Walker, 2 S. & R. 554. 
 
 (7) Go. Lit. 32 b ; Wheatley v. Best, Cro. 
 El. 564; Williams v. Cox, 3 Ed. 178 ; Weir 
 V. Tate, 4 Ired. Kqu. 264. 
 
 (a) But when land is conveyed, reserving an estate therein during the lives of the grantor 
 and his wife, the wife not being party to the deed; the estate descends, upon the decease 
 of the husband, to his personal representatives, and the wife is entitled to dower therein. 
 (Jorham v. Daniels, 23 Vt. 600. 
 
 (J) Where a rent is reserved, the judgment for dower will be general, but the execution 
 special ; and the sheriff shall not oust the tenant, but merely enter and demand seizin for 
 the widow. 
 
104 
 
 DOWER. NATURE AND 
 
 [CHAP. "vin. 
 
 a seizin, whicli entitled his widow to dower after payment of the 
 debts.(l) 
 
 48. By a Massachusetts colony law of 1641, the wife was allowed 
 dower of a reversion or remainder. But this has been construed to 
 mean, a reversion, &c., upon an estate less than freehold. (2) A statute 
 of Maine provides for dower in estates in possession, remainder and 
 reversion. In Connecticut, it is said, a reversion after a freehold is 
 subject to dower.(3) 
 
 49. To entitle the widow to dower, the husband must have had the 
 freehold and inheritance in him simul et semel. Thus, if A have an 
 estate for life, remainder to B for life, remainder to A in fee, and A 
 die, living B, A's widow shall not be endowed. The same rule has 
 been adopted, though the intervening estate is a mere possibility. Thus, 
 where A is a tenant for life, remainder' to B and his heJrs for A's life, 
 remainder to the heirs male of A's body, A's wife shall not have 
 dower. And the prevailing modern doctrine is, that the interposition 
 of a mere contingent estate between the husband's particular estate and 
 his inheritance — notwithstanding a union sub modo — is sufiicient to de- 
 prive the wife of her dower. Thus, where an estate is limited to A 
 and B for their lives, and after their deaths to the heirs of B, the 
 wife of B shall not have dower. The learning upon this subject is 
 said to be abstruse and unprolitable.(4) 
 
 50. Upon the principle above stated is founded the rule, that a widow 
 is not dowable of lands assigned to another woman in dower — "cfos de 
 dote peti rion debet." When dower is assigned, the assignment relates 
 back to the owner's death, and the heir is regarded as never having 
 been seized of this portion of the land. Thus, it is no bar to a suit for 
 dower, that the widow of an earlier owner has recovered her dower in 
 the same land; although the plaintiff may recover only one-third of 
 the remaining two-thirds, subject to a contingent right of dower in the 
 other third, when the former right of dower ceases.(5) 
 
 51. A grandfather dies seized of land, from which his widow is en- 
 dowed. Then the father dies, leaving a widow. The widow of the 
 father shall have dower only in two-thirds of the land, the other third 
 being in the father's hands a reversion expectant upon a freehold, viz., 
 the (lower of the grandfather's widow.(6) 
 
 52. But in New York it has been held, that in such case the heir's 
 widow shall have dower, in the land assigned to the widow of the an- 
 cestor, after the death of the latter.(7)(a) 
 
 53. If the grandfather conveyed to the father before his death, the 
 
 (1) 8 Bep. 96 a ; Hitchina v. Hitoliins, 2 
 Vern. 404. 
 
 (2) 4 Dane, 654. 
 
 (3) 1 Smith's St. 170; Reeve Dom. R, 57. 
 
 (4) Moore v. Esty, 5 N. H. 492 ; Dun- 
 comb V. Dunoomb, 3 Lev. 437 ; 4 Kent, 
 40, n. 
 
 (5) 4 Dane, 664; 'Windham v. Portland, 4 
 Mass. 388; Manning v. Laboree, 33 Maine, 
 343. But see oh. 12. 
 
 (6) Co. Lit. 31 a, b; Reynoldaj). Reynolds, 
 5 Paige, 161 ; SaCford v. Safford, 7 Paige, 259. 
 
 (7) Bear v. Snyder, 11 Wend. 592. 
 
 (o) It would seem, that in making this decision, the court overlooked tlie distinction (laid 
 down in the books which tliey cite, and noticed in aeos. 51, 53) between the case where the 
 son holds by purchcuse, and that in which he holds by descent. The point really decided is, 
 that the heir is seized of the reversion expectant upon the widow's dower, which is a depart- 
 ure trom the common law rule. The decision seems directly contradictory to 5 Paige, 161. 
 (Supra, D. 6.) 
 
CHAP. VIII.] 
 
 REQUISITES OP DOWER. 
 
 105 
 
 widow of the father would have dower in the whole, subject to the 
 dower of the grandfather's widow ; because, before the death of the 
 latter, the father was actually seized.(l) 
 
 5-i. Judge Eeeve supposes a case, where, upon this principle, the 
 widoM's of the grantor and of four successive purchasers,' respectively, 
 claim dower in the same land. (2) 
 
 55. The same principle applies, where the land has been sold on 
 execution. A owns land, which is sold on execution against him to 
 B. B dies, and then A. B's widow has dower in the land, subject 
 to the dower of A's widow. (3) 
 
 56. The above-stated rule is not applicable, unless dower has been 
 actually assigned to the first widow. (4) 
 
 57. it is said that the widow of a devisee may recover dower in the 
 whole land devised, the widow of the testator having never made any 
 claim. (o)(a) 
 
 58. Upon the question, whether a release by the widow first entitled 
 gives the other dower in the whole land ; where two widows were enti- 
 tled to dower in the same land, and the one having the prior right recov- 
 ered judgment for her dower, but, without having it set off, conveyed 
 it to the tenant ; in a suit by the other widow for her dower, held, she 
 could claim it in only two-thirds of the land. But to an action of 
 dower, a prior right of dower, which has been released to the tenant 
 without being enforced, has been held no defence. (6)(&) 
 
 59. It is said, that if the widow of a grantee sue the grantee's heir 
 for her dower in the whole land, pending a suit against him by the 
 widow of the grantor for her dower ; the former suit shall await the 
 judgment in the latter.(7)(c) 
 
 60. It has been said, that an instantaneous seizin is sufficient to give 
 dower ; and a case is mentioned, where a father and son were hanged 
 in one cart, and, as the son appeared to survive the father by strug- 
 gling the longest, the son's widow was endowed.(8) 
 
 61. A purchaser of land mortgaged it on the same day to creditors 
 of the vendor. Held, his wife should have d()wer.(9) 
 
 62. But there is an instantaneous seizin of another description, which 
 will not entitle the widow to dower. This is where the same act, which 
 gives the husband an estate, also passes it out of him, or where he is a 
 
 (1) Co. Lit. 31 a, b ; Geer v. Hamblin, 1 
 Greenl. 54, n. 
 
 (2) 'Reeve's Dom. Bel 58. 
 
 (3) Dunliam v. Oshorn, 1 Paige, 635. 
 
 (4) Elwood «. Klook, 13 Barb. 50. 
 
 (5) 1 Cruise, 153; Hilcliiiis v. Hilohins, 2 
 Vern. 4 03. 
 
 (6) LeaviUu. Lamprey, 13 Pick. 382. (But 
 
 see infra, 63.) Atwood u. Atwood, 22 Pick. 
 283 ; Elwood v. Klock, 13 Barb. 50. 
 
 (7) Lit 54. 
 
 (8) 2 Bl. Com. 132 ; Broufihton v. Randal], 
 Cro. Eliz. 502 ; Stanwood v. Dunning, 2 
 Shepl. 290. 
 
 (9) McClure v. Harris, 12 B. Mon. 261. 
 
 (a) Mr. Cruise thus states the law. But the oase (2 Vern. 403) which he cites, was one 
 where the title of tlie former widow was_ disputed on the ground of a devise to her in satis- 
 faction of dower. 
 
 (I) Devi.se to the testator's wife of he- thirds of the land occupied by him, and of the 
 ■whole tract to his son, who occupied with him. Held, the son took the whole, subject to 
 her dower; and, if not assigned in the son's life, his widow should have dower in the whole. 
 Robinson v. Miller, 2 B. Monr. 287. 
 
 (c) But Lord Coke says, "this shaft came never out of Littleton's quiver of choice ar- 
 rowes " 
 
106 
 
 DOWEE. NATURE AND 
 
 [CHAP. vni. 
 
 mere instrument to pass the estate. Thus, where land is conveyed to 
 A to the use of B, A has but an instantaneous seizin, and his widow 
 shall not have dower. So, where A conveys to B, and B at the same 
 time mortgages back to A, or according to a previous agreement mort- 
 gages to C ; the widow of B shall have dower only in the equity of 
 redemption. Otherwise, where the reconveyance is subsequent in 
 time to the original deed ; or where the mortgage, made with the 
 deed, having never been recorded, is surrendered to the mortgagor, 
 who gives a new note and mortgage, in which the wife does not join.(l) 
 
 62 a. A had given his note to B, for a tract ot land. By agreement, 
 B conveyed the land to 0, who, therefor at the same time, conveyed a 
 farm to A, and A at the same time gave a mortgage of the farm to B, 
 as security for said note. Held, the instantaneous seizin of A did not 
 entitle his wife to dower.(2) 
 
 62 &. And where the conveyance and mortgage are acknowledged 
 and recorded at the same time, although the mortgage is not made to 
 the vendor, it will be presumed to have been executed for the purchase- 
 money, at the same time with the conveyance. Such case is not within 
 the statute of New York, (1 Eev. Sis. 74U,) declaring that a widow shall 
 be dowable of lands mortgaged by the husband before marriage, as 
 against all persons except the mortgagee and those holding under 
 him.(3) 
 
 63. So, where it was a condition of a sale of land to the husband, 
 that he should give back a mortgage of the land to secure the price, 
 and a deed was made, the day after the conveyance, and signed by the 
 wife, but she refused privately to acknowledge it ; held, she could not 
 have dower. But where a vendor of land, having a lien for the price, 
 brings a suit for it, recovers judgment, and sells the land upon execu- 
 tion ; the lien is extinguished, and the widow of the first vendee shall 
 have dower against the execution purchaser.(4)(a) 
 
 64. In Virginia, where the husband, receiving a deed of land, gave 
 a deed of trust to secure the price, and the land was afterwards sold to 
 raise the price, it was left a doubtful point whether the widow should 
 have dower.(5) 
 
 65. Where a man before marriage makes a conveyance of lands, 
 which is never acknowledged or legally recorded, his widow shall not 
 have dower.(6) But where the defendant was a purchaser under a 
 judgment entered on the same day with the marriage; but there was 
 no evidence which, in fact, was first, the marriage or the entry of the 
 judgment ; the plaintiff recovered her dower.(7) 
 
 65 a. In an action of dower, proof of the conveyance of the premises 
 to the husband, by deed of warranty, and of his conveying the same to 
 
 (1) Co. Lit. 31b; 1 JSr. Y. R. S. HO ; Ark. 
 Rev. St. 337 ; Holbrook v. Finney, 4 Mass. 
 566 ; Clfirk v. Muriroe, 14, 351 ; 1 Bay, 312 ; 
 2 M'Cord, 54 ; Aneots v. Catherick, Cro. Jao. 
 615; StanwooiJ v. Dunning;, 14 Maine, 290; 
 McCauley v. Grimes, 2 Gill & J. 318 ; BvUiam 
 V. Moore, 4 Leigh, 30 ; Mayburry v. Brien, 
 15 Pet. 21 ; Sherwood v. Vandeahurgh, 2 Hill, 
 30 ; Eobbs v. Harney, 4 Shepl. 80 ; iSuUard v. 
 
 Bowers, 10 N". H. 500 ; Nottingham u. Calvert, 
 1 Smith, 399. 
 
 (2) Gammon v. Freeman, 31 Maine, 243. 
 
 (3) Cunningham v. Knight, 1 Barb. 399. 
 
 (4) Bogue V. Rutledge, 1 Bay, 312; Mo- 
 Arthur ». Porter, 1 Ohio, 102. 
 
 (6) Moore v. Gilliam, 5 Munf. 346. 
 
 (6) Blood V. Blood, 23 Pick. 80. 
 
 (7) Ingram v. Morris, 4 Harring. 111. 
 
 (a) Burnet, J., dissented. 
 
OHAP. VIII] 
 
 REQUISITES OF DOWER. 
 
 107 
 
 another person during the coverture, prima facie is sufBctent to prove 
 the seizin of the husband,(l) more especially with the additional proof 
 oijMssession by the husband and his grantee. (2)(a) 
 
 66. It has been laid down, that where a widow demands dower from 
 one claiming under her husband, he cannot dispute the husband's 
 seizin. (3)(6) But this rule has been criticised, and the cases which 
 have been supposed to establish it examined, by the court in New 
 Hampshire and elsewhere; and the conclusion is, that, although there 
 may be cases, where the tenant is technically and absolutely estopped 
 to deny the seizin of the husband, under whom he claims ; yet, in gene- 
 ral, the husband's conveyance is only prima facie evidence of such a 
 seizin as entitles the widow to dower, and the defendant may contest 
 this point. Thus, the tenant may defend, upon the ground that the 
 husband had only a remainder after a freehold, (4) or a leasehold 
 interest, though he conveyed in fee. 
 
 67. It seems, the demandant in the suit for dower need only prove 
 that the husband was the reputed and ostensible owner; the tenant 
 must then show a better title. Thus, A took possession of vacant land 
 
 (1) Carter t;. Parker, 28 Maine, 509. 
 
 (2) Wall V. Hill, 7 Dana, 174. 
 
 (3) Bancroft v. White, 1 Gaines, 185: see 
 Elliott V Stuart, 3 Sliepl. 160 ; 2 Hill, 302 ; 
 Stevenson v. MoReary, 12 S. & M. 9 ; Finn 
 V. Sleiglit, 8 Barb. 401. 
 
 (4) Moore ii. Esty, 5 N. H. 492 ; Otis v. 
 Parsliley, 10, 403 ; aco. Sparrow v. Kin^jnaau, 
 1 Comst. 242 ; Kingman ti. Sparrow, 12 Barb. 
 201; Gamnnon «. Freeman, 31 Maine, 243. 
 See Bell v. Twilight, 2 Foster, (N. H.,) 500 ; 
 Critteiiden v. Woodruff, 6 Eng. 82. 
 
 (a) The demandant cannot rely, except as secondary evidence, upon recitals in the deed, 
 under which the defendant claims, acknowledging her right to dower. Jewell v. Harring- 
 ton, 19 Wend. 471. « 
 
 111 an action of dower, the husband's seizin is established by proof of a deed to him ; of a 
 deed from him with covenants of general warranty; and of a similar deed from his grantee 
 to the tenant, though his deed was executed, soon after a judgment in his favor upon a 
 writ of entry on his own seizin, and before he had paid to the tenant in that action the 
 amount assessed by the jury for betterments; provided the value of the betterments was 
 actually paid within the time prescribed by statute. Tlie covenants of warranty estop the 
 tenant from denying the husband's seizin. Thorndike v. Spear, 31 Maine, 91. 
 
 (6) Thus, wliere two grantors conveyed land by deed of warranty, viflthout any designation 
 of the manner in which it was held by them, one died, and his widow brought her action of 
 dower, claiming to be endowed of one-half of the premises ; held, the grantee was estopped 
 by his deed, from showing that the living grantor was seized in severalty of a much greater 
 proportion, and the deceased of a much less proportion, than an undivided moiety. Stimp- 
 son V. Tliomaston Bank, 28 Maine, 259. 
 
 So, in a suit for dower against one who entered under a deed from the husband's grantee, 
 the defendant has been held estopped to deny the husband's title, or to aver, that, after the 
 purchase of the land, an action being brought against him by the true owner, be bought a 
 true and permanent title. Browne v. Potter, 17 Wend. 164; see Norwoofl v. Marrow, 4 
 Dev. & B. 442. So, one is estopped who holds under a deed from the widow, as executrix 
 of the husband, conveying the land subject to dower. Smith v. Ingalls, 1 Shepl 284. So, 
 where the husbaud was in possession, and an execution levied upon the land, under which 
 the tenant claims title; this is sufScient proof of seizin in the husband. Cochrane v. Libby, 
 5 Shepl. 39; see Osterhout v. Shoemaker, 3 Hill, 513. 
 
 Where, to a suit for dower, the defence is set up, tliat the defendant was not seized, and 
 the plaintiff prevails; this judgment is conclusive in her favor, upon a subsequent bill la 
 equity for mesne profits. Tellman v. Bowen, 8 Gill. & J. 383. But dower will not be 
 allowed against a purchaser from the husband upon a doubtful right. Alsberry v. Hawkins, 
 9 Dana, 181 ; see Davis v. Logan, ib. 186. 
 
 Upon a similar principle to that above stated, aooeptanco of dower estops a widow from 
 disputing her husband's title. Perry v. Calhoun, 8 Humph. 551. So, where the widow 
 remains in possession of the land, she is estopped to deny the husband's title; even though 
 she surrenders to one claiming under an execution prior to the husband's deed, and than 
 resumes possession under him. Grady v. Baily, 13 Ired. 221. 
 
108 
 
 DOWER. NATURE, ETC., OF DOWER. 
 
 [CHAP. Till. 
 
 owned by the State, made improvements, and occupied fifteen years. 
 The State granted the land to B, son of A, after A's death, reserving 
 to the wife of A a life estate, in the same manner she would have been 
 entitled to dower, if A had died seized in his own right. The wife of 
 A brings an action for her dower. Held, A's possession was evidence 
 of seizin, and threw the burden of disproving it upon B ; that A was 
 seized against everybody but the State, as a mortgagor is seized 
 against all but the mortgagee; and that B had nothing to set up 
 against the claim of dower except his grant, which expressly saved 
 the right of dower. Judgment for the p]aintiff.(l) 
 
 68. The last circumstance requisite' to dower, is the death of the hus- 
 band. This renders absolute and consummate, an interest before contin- 
 gent, inchoate and imtiate.{2) Whether it must be a natural death, 
 seems to have been an unsettled point. In England, the prevailing 
 opinion is, that a mere cm7 death is insufficient. Mr. Dane remarks, 
 that this question is not known ever to have been started in this 
 country, or the existence of any such thing as a civil death contended 
 for ; although Quakers and others have been banished, and many 
 criminals are imprisoned for life : but that in New York it has been 
 decided that they are dead in law. In South Carolina, a husband ban- 
 ished has been held civiliter inortuus.{A){a) 
 
 69. A natural death, however, may be presumed from circumstances, 
 or proved, prima facie, byreputation in the family, and, in such case, 
 the widow unquestionably has the same right to dower, as if the death 
 of the husband were positively proved. The English statute (19 Cha. 
 2, c. 6) provides merely for the taking effect of remainders and rever- 
 sions, expectant upon life estates. But the principle of the statute has 
 been extended to most other cases; more especially to those, where 
 the title to land is concerned, and the property would therefore remain 
 unimpaired, if the party should prove to be alive. Thus, where a hus- 
 band had been more than seven years absent from the State, and it 
 was reported that he was drowned ; held, a second marriage by his 
 wife was valid, and entitled her to dower or a distributive share from 
 the second husband's estate.(4) 
 
 70. A and B cohabited as man and wife. They separated in 1781, 
 and in 1783 B, the wife, removed from the State, and was never after- 
 wards heard of. In 1781 A married again, lived with his second wife 
 thirty-eight years, and died leaving children by her. Held, though 
 the second marriage was void at its inception, yet a valid subsequent 
 
 (1) Smith t). Paysenger, 4 Con. S. 0. 62; 
 Knight V. Mains, 3 Fairf. 41 ; Eeid v. Steven- 
 80D, 3 Rich. 66. ' 
 
 (2) Moore v. City, &c., 4 Sandf. 456; Eid- 
 diek V. Walsh, 15 Mia. 519. 
 
 (3) 3 Mas. 368 ; Sutliff v. Forney, 1 Cow. 
 89; Co. Lit. 33 b, 132 b. ; Jenk. Cent. Ca. 
 
 4 ; 1 Cruise, 124; 4 Dane, 0,11. See Gregory 
 V. Paul, 15 Mass. 33; Wright v. Wriglit, 2 
 Desaus. 244. 
 
 (4) Woods !). Woods, 2 Bay, 416; Coch- 
 rane V. Libby, 5 Shepl. 39. See Millem. 
 Bates, 3 S. and R. 490. 
 
 (a) Under the Kentucky statute of 1802, the wife of one convicted of felony is not entitled 
 to dower, as in case of his decease. Wooldridge v. Lucas, 1 B. Mon. 49. 
 
 The estate is not forfeited, but the wife's right to alimony, and the right of the children 
 to support, and of the creditors, are recognized; and the right of the offender, after his re- 
 lease Irom imprisonment, to what has not been disposed of for either of these purposes, is 
 complete. Nor does his estate descend to his heirs, but remains in the convict, lb. 
 
CHAP. IX.] 
 
 DOWER. WHAT PERSONS ENDOWED, ETC. 
 
 109 
 
 marringe migbt be presumed, from the cohabitation and good charac- 
 ter of the parties, and the wife was allowed dower.(l)(a) 
 
 71. A party claiming under the heirs of the husband cannot deny 
 his death. (2) 
 
 CHAPTER IX. 
 
 DOWER. WHAT PERSONS MAY BE ENDOWED, AND IN WHAT THINGS. 
 
 1. Aliens. 
 
 7. Dower — in wliat tilings. 
 
 8. Tilings incorporeal. 
 
 9. Mines and quarries. 
 
 12. Wild lands. 
 
 13. State of cultivation — what. 
 
 14. Improvement or depreciation by heir 
 
 or purcliaser. 
 21. Increa.se or diminution of value from 
 
 extrinsic causes. 
 23. Land appropriated to public use. 
 
 25. Mill and fishery. 
 
 26. Annuities. 
 
 27. Lands held by improvement, &o. 
 
 28. Lands contracted for. 
 
 31. Slaves. 
 
 32. Estates tail, Ac. 
 
 35. Estates pour autre vie. 
 
 36 Estates for years. 
 
 37. Uses, &c. 
 
 38. Wrongful estates. 
 
 1. With respect to the persons who may take an estate in dower, 
 the only personal disability seems to be that of a?/e?)s. At common 
 law, an alien cannot hold real estate, acquired in any mode : and cannot 
 even take it by act of law. An alien woman therefore cannot be en- 
 dowed. A statute of Hen. 5 made an exception in favor of aliens 
 married to Englishmen under a license of the king. And if naturalized, 
 an alien, in general, shall have dower in all the lauds of which the 
 husband was seized during coverture.(3) Decided otherwise in New 
 Yor'k (4) 
 
 2. The rights and powers of aliens, as to real estate, will be con- 
 sidered hereafter.(6) In those States where they are authorized to hold 
 lands, of course they are entitled to dower. But in some of the other 
 States, a special exception from the common law rule has been made 
 in favor of alien women and the widows of aliens. 
 
 3. In Massachusetts, Connecticut, Maine, Arkansas, Wisconsin, Indi- 
 ana, Michigan, (5) alien women are dowable; except, in Massachusetts 
 
 (1) Jackson v. Claw, 18 John. 346. 
 
 (2) Hitchcock v. Carpenter, 9 John 344. 
 
 (3) 1 Cruise, 125; 2 Chit. Black. 103, n. 
 23 ; Buchanan v. Deshon, l.Harr. & G. 280; 
 Alsberry V. Hawkins, 9 Dana, 177. 
 
 (4) Priest V. Cummings, 16 Wend. 617. 
 
 (5) Mass. Rev. St. 411; Conn. Sts. 1848, 
 47; Me. lb. 392 ; Mich. lb. 265; Ark. Jb. 
 337; Wise. lb. 335; Ind. lb., Descent, see. 43. 
 
 (a) In Vermont, where a husband has absconded, his wife may obtain authority to dis- 
 pose of real estate. 
 
 (J) See Alien. The common law rule is recognized in Kentucky. Thus, where a woman 
 emigrated with her husband to Texas, where he died, and she returned upon a visit; held, 
 she had expatriated herself, and was not entitled to dower. 9 Dana, 177. 
 
 The domicil of the husband does not affect the right of dower. Thus, the wife of one 
 domiciled in Georgia may claim dower, in all lands in South Oaroliua of wtiioh he was seized 
 at any time during coverture. Lamar v. Scott, 3 Strobh. 562. 
 
 In Wisconsin, a widow out of the State may claim dower. Eev. Sta. 335. 
 
110 
 
 DOWER. WHAT PERSONS MAT BE 
 
 [CHAP. IX. 
 
 and Maine, of land conveyed or levied on before February 23, 1813. 
 They are dowable, also, in New Jersey, and, if residents, in Mary- 
 land.(I) 
 
 4. In Maine, the alien widow of a citizen is said to be dowable, 
 without the exception above stated. (2) 
 
 5. In New York, tlie widows of aliens, who at their death were 
 capable of holding lands, if such widows are inhabitants of the State, 
 shall have dower.(3)(a) 
 
 6. In New York, the alien widow of a citizen, who was an inhabi- 
 tant oi the State when the act of 1802 was passed, enabling aliens to 
 hold lands, is entitled to dower.(4)(&) 
 
 7. With respect to the things in which dower shall he had, the first and 
 most comprehensive rule, is that which has been already stated in giving 
 the definition of dower; viz., that the widow shall be endowed of all 
 lands and tenements, in which her husband had an estate of inheritance 
 at any time during coverture, and of which any issue, that she might 
 have had, might, by possibility, have been heir.(5) The last clause of 
 this definition, in consequence of the peculiarities of American law as 
 to entailments, seems to be, in this country, obsolete and superfluous. 
 It is accordingly omitted in American statutes, which define dower, 
 where any suclr exist. 
 
 8. Dower shall be had not only in lands themselves, but also in all 
 incorporeal hereditaments that savor of the realty, (c) because it is incident 
 to the estates to which they are appendant. It is said, that in the 
 United States, dower is principally confined to houses, lands and 
 mills.(6) 
 
 9. There shall be dower in mines or quarries, if they have been 
 opened before the husband's death ; otherwise, not.{d) But it matters 
 not whether they have been wrought by the husband or by his lessee, 
 or whether he owned the land itself, or merely the whole stratum of 
 the mine or quarry, upon the land of another.(7) 
 
 (\) Buchanan v. Deshon, 1 Harr. & G. 289; 
 4 Kent. 36. 
 
 (2) 1 Smith's St. 170. Whether now in 
 force, qu. 
 
 (3) 1 N. T. Rev. St. '7 40. (See Mick v. 
 Mick, 10 Wend. 3'59.) 
 
 (4) Priest V. Cummings, 16 Wend. 617. 
 
 (5) 2 Chit. PI. 104; Brewer «. Van Ars- 
 daie, 6 Dana, 204 
 
 (6) 1 Cruise, 127; 4 Kent, 40; Buokeridge 
 V. Ingram, 2 Ves jun. 664 ; 4 Dane, 670. 
 
 (7) Stoughton V. Leigh, 1 Taun. 402. (See 
 The King v. Dunsford, 2 Adol. & El. 568-93; 
 Coates V. Cheever. 1 Cow. 460-80;) Quar- 
 rington v. Artliur, 10 M. & W. 335. 
 
 (a) In the same State, an ^lien feme covert may be naturaUzed ; but her naturahzation 
 has not, under the general act of Congress, a retro-aciive operation, so as to entitle her to 
 lands of wliich her husband was seized during coverture, and whicii he had obtained before 
 her naturalization. Priest «. Cummings, 20 Wend. 338. Nor can an alien widow haye 
 dower, though at the tiiue of the marriage the husband was an alien, and held the land 
 under the enabling act of 1825. Connolly v. Smith, 21 Wend, 59. By a late act, the 
 widow of an alien has dower, whether herself an alien or not. St. 1845, 94; Currini). Finn, 
 3 Denio, 220. 
 
 (6) III Kentucky, a widow, who was an alien at th'e husband's death, has no dower. 
 Alsberry v. Hawkins, 9 Dana, 177. In Alabama, where the widow of one, who conveyed 
 his la!:d while a nonresident, claims dower in such land, lying in the St.ate, the claim will 
 be barred, unless made within twelve months from his death. Clay, 174. The wife of an 
 ahen, though herself an American citizen, is not dowable of his lands. Congregational 
 Church V. Morris!, 8 Ala 182. 
 
 (c) Not in railroad shares. Johns v. Johns, 1 McCook, (Ohio,) 350. 
 
 (d) Because to open tliem would be waste. If in any State, according to the established 
 law, it would not be wnste, it would seem to follow that dower should be allowed in a mine, 
 though unopened. (See infra, 12, as to wild lauds.) 
 
CHAP. IX] ENDOWED, AND IN "WHAT THINGS. Ill 
 
 10. A husband died seized of a tract of land of four acres, consisting 
 of a slate quarry mostly below, but partly above, the surface of the 
 ground. One quarter of an acre of the quarry had been dng over, and 
 the practice was, to take a section often or twelve feet square on the 
 top, go down to a certain depth, and then recommence on the top. 
 Held, the whole quarry must be regarded as opened, and therefore 
 subject to do\ver.(i) 
 
 11. Tenant in dower of coal lands may take coal to any extent 
 from a mine already opened, or sink new shafts into the same veins 
 of coal, or dig into a new seam through one already opened above 
 it.(2)(a) 
 
 12. The peculiar situation of the land in this country, as being to a 
 very great extent wild and uncleared, has given rise to a questTon of 
 dower, which seems unknown to the English law, viz., whether a widow 
 shall have dower in wild lands. This question seems to be involved 
 in another, viz. : whether, if endowed of such lands, the widow could 
 clear them, without committing waste. The latter question will be 
 noticed hereafter, in connection with the subject of waste. (See ch. 18, 
 sec. 10.) It is sufficient to say here, that the former has been differently 
 settled in different States. In Massachusetts, Maine and New Hamp- 
 shire, there shall be no dower in wild lands, because the clearing of 
 them would be waste, and forfeit the estate. And there shall be no 
 dower in such lands, whether the husband died seized of them, or 
 whether they were conveyed by him, and subsequently cleared by the 
 purchaser. But the reason of the rule furnishes an exception to it. A 
 widow shall be endowed of a wood lot or other land-s contiguous to 
 and used with a farm or dwelling-house, as for fuel, /encing, repairs, 
 pasturing, &c., though not cleared; because she would be entitled to 
 estovers, for the use of the house or cultivated land assigned to her, and 
 at the same time could not lawfully take them as incident thereto, 
 without a special assignment.(3)(6) But it has been said in New 
 
 (1) Billings V. Taylor, 10 Pick. 460. 
 
 (2) Crouch V. Puryear, 1 Rand. 258. 
 
 (3) Conner v. Siieperd, 15 Mass. 164; 
 
 Webb V. Townsend, 1 Pick. 21 ; White v. 
 Willis, 1, 143; Mass. Rev. St. 460 ; N. H. L. 
 190; Rev. St. 329; Me. Rev. St. 391. 
 
 (a) In North Carolina it has been held, that the widow has no autliority to make turpen- 
 tine, UTiless done by the husband. But in the ordinary mode of making it, she may use 
 trees hoxed or tended lor turpentine in his lifetime, and may also box new ones, as the others 
 become unfit for use, not increasing the amount beyond that obtained at the time when 
 dower was aifsigned. Carr u. Carr, 4 Dev. & B 179. Where commissioners divided an 
 estate into eight parts, and assigned a tliird of each division to the widow, and one lot con- 
 sisted chiefly of wood and the others of arable lands; held, the widow was not bound to 
 use each parcel, as if the husband had left only the lot to which it belonged; but might 
 take from the wood lot fuel and timber for the use of tlio cultivated lands. Childs v. Smith, 
 1 Md. Ch. 4S3. 
 
 (J) Where the husband, during coverture, was seized of a five-acre lot, " partially im- 
 proved." and "partly covered with bushes and unfenced," at the time of his conveyance 
 thereof; held, the widow was entitled to dower in the whole lot. Stevens v. Owen, 25 
 Maine, 94. Dower cannot be claimed in land covered with growing wood and timber, 
 though used by the liusband m raising wood, &c., for profit, unless it be assigned in con- 
 nection with buildings or cultivated land. And if it is, the widow can cut only enough to 
 supply the dower estate, in the way of actual use and consumption, or in connection with 
 the proper occupation and enjoyment of such estate. White v Culler, 17 Pick. 248. After 
 the assignment of dower in a dwelling-house and the land connected with it, it being partly 
 woodland, the whole having been oeeupied by the husband as one farm, the widow leased 
 the dower estate, removed from the land, and boarded in another family, where she was 
 supplied with food. The house, having become untenantable, was takeu dowu by consent 
 
112 
 
 DOWER. WHAT PERSONS MAT BE 
 
 [CHAP. IX. 
 
 Hampshire, that perhaps the widow might, without waste, cut ordinary 
 fuel. In Rhode Island dower is allowed in woodland. In Michigan 
 and Ohio, in wild lands. Commissioners estimate the annual growth, 
 and assign one-third thereof, either by the number of cords or quantity 
 of land.(L) In tho.se states where either statutes or judicial decisions 
 authorize a tenant in dower to cut trees and timber, it would seem to 
 be necessarily implied, whether so expressly declared or not, that a 
 widow is dowable of wild lands. 
 
 13. A state of cultivation is the converse to a state of nature, and exists 
 where lands have been wrought with a view to a crop, till they are 
 abandoned for every purpose of agriculture, and designedly permitted 
 to revert to a condition like the original one. It is not material, in 
 regard to the question of dower, whether the lands have yielded an 
 income or not. At common law, the income or annual value had no 
 bearing upon the title to dower; and although a statute, after allowing 
 to the widow one-third of the husband's lands, adds that she shall have 
 so much as will yield one-third of the income which he derived from 
 them, this is not to be regarded as any limitation of the right, but only 
 as a secondary guide to the sheriff in making the assignment. So, 
 dower shall be assigned in land, which, when owned by the husband 
 during coverture, was wood and pasture, situated a mile from the 
 homestead, and divided from it by land of strangers, but used by him 
 as a pasture appurtenant to the homestead; though subsequently it 
 has become wholly woodland. But not in woodland, which the hus- 
 band sold from the homestead, retaining till his death, as part of the 
 farm, an abundant supply of wood for fuel, fencing and repairs.(2) 
 
 14. Intimately connected with the subject just considered, is the 
 question of a widow's right to dower in improvements, made upon the 
 land since the husband was in- possession of it. These may be made 
 either by the heir, after the husband's death and before assignment of 
 dower, or by one who purchased the land from the husband ii;i his 
 lifetime. 
 
 15. Where improvements are made by the heir; the widow shall be 
 allowed the benefit of them. (a) The reason is said to be, that it is the 
 folly of the heir not to assign dower before making the improvements. 
 Another reason is, that, as will be seen hereafter, the assignment of 
 dower relates back to the death of the husband, the heir is regarded as 
 never having been seized of this portion of the lands ;(i) and, upon 
 
 (1) 2N". H. 56; R. I. St. 1S40, 2022; 
 Campbell, 2 Dougl. 141; Allen v. MoCoy, 6 
 Obio, 4,18. 
 
 (2) Johnson u. Perley, 2 N. H. 56; (but 
 
 see 15 Mass. 16Y;) Shattuok v. Gragg, 33 
 Pick. 8S; Kuhn v. Kaler, 2 Shepl. 409; 
 Mosher v. Moaber, 3, 371. \ 
 
 of all parties. Held, neither the widow nor lessee could out wood for fuel ; and if they did, 
 tlie reversioner might take it. lb. A tenant in dower cannot out wood for fuel, unless the 
 house was on the land at the time when dower was assigned. Puller v. Wason, 7 N. H. 
 341. And she can use it only in such house. If otherwise, she is guilty of waste. lb. 
 
 (a) Otlierwise, it seems, in Wisconsin. Rev. Sts. 336. 
 
 (6) This is the English doctrine. It seems to be somewhat shaken in the United States. 
 {See Descent.) Also, eh. 12, sec. 33. It is said, the claim of dower, in reference to those 
 wliose title originates concurrently with that of the widow, is governed by the lnw in force 
 at the death of the husband. But, as against parties having specific rights in the property 
 prior to the husband's death, by tlie law in force when such rights were acquired. Kennerly 
 V. Missouri, &c., 11 Mis. 204. 
 
CHAP. IX] 
 
 ENDOWED, AND IN "WHAT THINGS. 
 
 118 
 
 general principles, the improvements belong to the owner of the soil. 
 Judge Story regards the latter as the true reason of the rule.(a) In a 
 late case it has been held, that in a suit against the heir, the widow- 
 shall have dower according to the increased value, independently of 
 his labor and expenditures.(i) 
 
 16. On the other hand, it is said, that if the value of the land is im- 
 paired in the hands of the heir, dower shall still be assigned according 
 to the value at the time of assignment. Whether such depreciation 
 may not be taken into account, in estimating the damages awarded to 
 the widow, qucere.(2) 
 
 17. Where improvements have been made by one who purchased 
 the land frorm the husband without any release of dower, it is the gene- 
 ral rule, that dower shall be estimated according to the value of the 
 land at the time of transfer, whether the improvements be made before 
 or after the husband's death, with or without notice of the widow's 
 right of dower. So, where an old building is torn down by the pur- 
 chaser and replaced by a new one, the widow is not entitled to dower 
 in the latter. She must seek compensation in a court of equity. The 
 reason of the rule is said to be, that such purchaser, in a suit upon the 
 husband's warranty, could recover only the value of the land without 
 the improvements. Chancellor Kent remarks, that this reason has 
 been ably criticised and questioned in this country,(6) but the rule itself 
 is founded in justice and sound policy. (3) 
 
 18. In Maryland, where the husband has aliened the land, if a compensa- 
 
 (1) Powell V. M. & B. Manuf. Co., 3 Mas. 
 Sit I Gore v. Brazier, 3 Masa. 544 ; Hum- 
 phrey V. Phinney, 2 John. 484 ; Taylor v. 
 Broderick, 1 Dana, 347; Thompson v. Mor- 
 row, 5 S. & a 289 ; Ayer v. Spring, 10 Mass. 
 80; Co. Lit. 32 a, and'n. 8; Russell v. Gee, 
 2 Const. S. C 254; Wilson v. Oatman, 2 
 Blackf. 223; Tod i;. Baylor, 4 Leigh. 498; 
 Mahoney v. Young, 3 Dana, 688; Woolridge 
 V. Wilkina, 3 How. Miss. 360 ; Lawson v. 
 Morton, 6 Dana, 471; Manning u. Laboree, 
 33 Maine, 343. 
 
 (2) Co. Litt. 32 a; 3 Mas. 368. 
 
 (3) 3 Mas. 370; 10 Wend. 480; Waters 
 V. Goooh, 6 J. J. Mar. 591 ; 4 Kent, 65 ; 
 Hobbs V. Harney, 4 Shepl. 80 ; Beavers v. 
 Smith, 11 Ala. 20. In a late case in Eng- 
 land, dower by custom was allowed in im- 
 provements made by a purchaser. Lord 
 Denman goes into a learned and extended 
 discussion of the subject. Doe ii. Gwinnell, 1 
 Ad. & El. (N. S) 682 ; Summers v. Babb, 13 
 Illin. 483; Barney v. Frownar, 9 Ala. 901; 
 Wise. Rev. Sts. 333-4. 
 
 (o) Land was assigned for dower by commissioners of the Probate Court, with the assent 
 of the heir and widow, and the report of the commissioners was subsequently accepted. 
 Held, after the assignment, the widow might enter, and cut and carry away the growing 
 crops jown by the heir previous to the assignment, though such entry was made before 
 acceptance of the report. Parkers. Parker, 17 Pick. 236. 
 
 (6) Particularly by Judge Story (in 3 Mas. 369-70,) and Ch. J. Tilghman (in 5 S. & R. 
 289.) For, supposing the husband conveyed without warranty, the widow (it seems) would 
 still have no dower in improvements. The former learned judge also criticises another rea- 
 son which has been sometimes assigned, namely, that the husband was not t?ie owner of 
 the improvements, and dower is allowed only in what the husband owned. For the same 
 reason would prevent dower in improvements made by the heir, which is always allowed. 
 The rule may have originated in the policy of promoting the prosperity of tlie country by- 
 encouraging improvements in agriculture and building; and in an anxiety to promote alien- 
 ations and subinfeudations, and thus to disentangle inheritances from some of their numer- 
 ous burdens. 
 
 A purchaser at a Chancery sale, supposing his title good, made improvements for man- 
 ufacturing purposes. A widow afterwards filed a bill for dower, and her right was estab- 
 lished. Decreed, that she should receive an annual sum in lieu of dower, equivalent to 
 her interest without the improvements. Lewis v. James, 8 Humph. 537. It seems, the sum 
 ascertained to be due to a widow, for her proportion of back rents collected by her husband's 
 grantee, is not properly chargeable as a lien on the estate, Johnson v. Elliott, 12 Ala. 112. 
 
 Vol. I. 8 
 
114 
 
 DOWER. WHAT PERSONS MAT BE 
 
 [CHAP IX. 
 
 tion in money is made to the widow for her dower, the value of the land 
 at the husband's death is the criterion, unless the increased value has 
 arisen from the labor and money of the purchaser.(l) In Pennsylva- 
 nia and Ohio,(2) dower is sJid to be estimated according to the value 
 of the land at the time of application for dower, without the improve- 
 ments. In New Hampshire a statute provides, that where the husband 
 has parted with his title to the land, the widow shall be endowed of so 
 much as will yield one-third of the income derived from it at the 
 time of alienation.(3) The same rule is adopted in Maine.(4) 
 
 19. Where the husband conveyed the land by way of mortgage, but 
 remained in possession and improved, and the mortgage was afterwards 
 foreclosed ; the dower shall be of the improved value, because the 
 alienation is regarded by the law as made at the time of foreclosure.(5) 
 So, if the husband, having mortgaged, make improvements, and then 
 convey the land, the widow shall have dower of the value at the time 
 of the latter conveyance. But where the husband merely gave a bond 
 for the land, and a deed was given after his death ; held, the deed 
 had relation to the bond, and dower should not be allowed in improve- 
 ments made by the purchaser .(6) 
 
 20. If a purchaser from the husband, instead of making improve- 
 ments, impair the value of the property, by neglect or waste, as by tear- 
 ing down buildings, it is held that the wife has no remedy against him, 
 her title being merely initiate at that time.(7) 
 
 21. Where, since the conveyance made by the husband, the land has 
 risen in value from extrinsic causes, such as the increase of com- 
 merce or population in the neighborhood, it seems to be an unsettled 
 point, whether the widow shall be endowed of the original or the in- 
 creased value. The former standard has been approved in New York 
 and Virginia, and the latter in Massachusetts, Maine, Pennsylvania, 
 Kentucky, (it seems,) Illinois, Maryland and Ohio.(8) Judge Story 
 suggests a distinction, between the case where an erection upon a part 
 of the land itself increases the value of the remainder, and an increase 
 of value arising from causes unconnected with such erection ;- and also 
 between erections which in themselves raise the value of the land, and 
 those which increase it by the business carried on and the capital em- 
 ployed in them, such as manufactories. His conclusion is, that dower 
 is to be allowed according to the value of the land at the time of as- 
 signment, excluding all the increased value from the improvements ac- 
 tually made upon the premises by the alienee ; leaving to the dowress 
 the full benefit of any increase of value, arising from circumstances 
 unconnected with those improvemeuts.(9) On the other hand, the 
 court in New York hold, that both at common law and by a fair con- . 
 
 (1) Bowie V. Berry, 1 Md. Ch. 452. 
 
 (2) Thompson v. Morrow, 5 S. & R. 289; 
 Purd. Dig. 221, n. ; Walk. Intro. 32t ; Dun- 
 sett] V. Bank, &c., 6 Giaio, 77; Shirtzw. Shirtz, 
 5 Watts, 256. 
 
 (3) N. H. L. 1829, p. 510. 
 
 (4) Carter v. Parker, 28 Maine, 509. 
 
 (5) Hale v. James, 6 John. Cha. 258. 
 
 (6) 3 Mi-as. 459 ; Wilson v. Oatman, 2 
 Blackf. 224. 
 
 (7) 3 Mas. 867; M'Clanahan v. Porter, 10 
 Mis. 746. 
 
 (8) 4 Kent. 66-7 ; Thompson v. Morrow, 
 5 S. &B. 289; B Mass. 375; Dorchester v. 
 Coventry, 11 John. 510 ; Walker v Schuy- 
 ler, 10 Wend. 480 ; Tod v. Baylor, 4 Leigh, 
 498 ; Dunseth v. Bank, &o., 6 Ohio, 76 ; Mo- 
 sher V. Mosher, 3 Bhepl. 371; Summers v. 
 Babb, 13 Illin. 483 ; Bowie v. Berry, 1 Md. 
 Ch. 452 ; see Barney v. Prownar, 9 Ala. 901. 
 
 (9) 3 Mas. 375. 
 
CHAP. IX.] 
 
 ENDOWED, AND IN WHAT THINGS. 
 
 115 
 
 struction of the statutes of the State, the widow shall have her dower 
 according to the value at the time of alienation, whether it has since in- 
 creased or diminished. (1) 
 
 22. In Virginia, it has been held, that the widow cannot claim one- 
 third of the proceeds of land sold by the husband. (2) 
 
 23. In England, Magna Charta provides that a widow shall not be 
 dovvable of a castle or fortress.{3) No case probably has occurred, or 
 will occur, in this country, for the application of this particular rule. 
 But an analagous principle has been adopted, in one instance, in Ohio. 
 
 24. Several owners of land in Cincinnati, of whom A was one, mu- 
 tually agreed to appropriate their land«to public use for a street and a 
 market-house. The city council carried the appropriation into effect 
 by erecting the house ; but A never conveyed the land on which it 
 stood. Held, A's widow could not have dower in the market-house, 
 for the same reason that in England a woman was not dowable in a 
 castle : it could yield nothing to her support by a direct participation 
 in the possession, without such an interference with the public right to 
 control the whole subject, as to render its enjoyment inconvenient and 
 unsafe, if not impossible.('i) 
 
 25. There shall be dower from the profits of a mill or fishery, but 
 not the right of using for hydraulic purposes part of the surplus waters 
 of the Erie Canal, under a grant from the commissioners.(5) 
 
 26. In Virginia, dower is allowed upon annuities as well as rents, 
 charged upon or issuing out of real estate.(6) 
 
 27. In Pennsylvania, in lands held by improvement or warrant and 
 survey, but not in those held by warrant merely.(7)(a) 
 
 28. In Illinois and Virginia, in lands merely contracted for, where 
 the title may be completed, although, in Virginia, the contract were 
 parol. So, in Virginia, in l^ndiS possessed by the husband. In Alaba- 
 ma, in lands contracted and paid for. In Kentucky, in lands contracted' 
 for by bond. But only where the husband holds the contract at his 
 death; not where he has assigned it.(8) In Maryland, a statute of 
 1818 gave dower in equitable estates. Held, not applicable to lands 
 of which the husband held leases, with covenants to convey in fee, 
 when requested; such leases not operating by way of lease and release, 
 but passing a legal title.(9) Nor is dower allowed in an equitable es- 
 tate which the husband disposes of in his lifetime.(lO) Nor an equity of 
 redemption, where the mortgage was made previous to the statu te.(ll) 
 In Tennessee, where the legal title is vested as security for the pur- 
 chase-money, the widow of the equitable owner cannot have dower. 
 
 (1) 11 John. 510 ; Shaw v. White, 13, 
 179 ; Hale v. James, 6 John. Cha. 258. 
 
 (2) Fitzhujjh V. Foote, 8 Call, 13. 
 
 (3) 1 Cruise, 129. 
 
 (4) G-wynne t. Cincinnati, 1 Ohio, 459. 
 
 (5) Co. Lit. 32 a; Kingman v. Sparrow, 
 12 Barb. 201. 
 
 (6) Anth. Shep. 471. 
 
 (7) Purd. Dig. 221. 
 
 (8) Illin. Rev. L. 627 ; Rowton v. Rowton, 
 1 Hen. & M. 91 ; Dean v. Mitchell, 4 J. J. 
 Mar, 451 ; Stephens v. Smith, lb. 66 ; Ham- 
 ilton V. Hughes, 6 lb. 582; Lewis v. Moor- 
 man, 7 Port. 522; Virg. Code, 474. 
 
 (9) Spangler u. Stanler, 1 Md. Ch. 36. 
 
 (10) Bowie V. Berry, 1 Md. Gh. 452. 
 
 (11) Hopkins v. Frey, 2 Gill. 359. 
 
 (a) Where the husband had purchased from a reserve of Indian lands under the Creek 
 treaty, with the approbation of the President, held, his wife should have dower. Parks «. 
 Brooks, 16 Ala. 529. 
 
116 
 
 DOWER. WHAT PBRSONiS MAT BE 
 
 [CHAP. IX. 
 
 without payment of this sum ; but she may require a sale for this pur- 
 pose, and have dower in a third of the surplus.(l) 
 
 29. In Kentucky it is held, that, as there cannot be two cotenipo- 
 rary rights of dower in the same land, the widow of an obligor is not 
 entitled to dower. Bat if, instead of requiring specific performance, 
 the obligee sues and recovers damages for a breach of the bond, after 
 the obligor's death, the widow of the latter is restored to her dow- 
 er.(2)(a) 
 
 30. Jn Ohio, dower shall be bad in all lands in which the husband 
 was interested by bond, article, lease, or other evidence of claim. So, 
 in land which he purchased without deed, paying a part of the price, 
 and afterwards making improvements. But only in such estates of this 
 description, as the liusband owned at his death. (3) He must have had 
 a legal estate during the coverture, or an equitable interest at his 
 death.(4) 
 
 81. In Virginia, Kentucky, Arkansas(6") and Missouri, dower is ex- 
 pressly allowed in slaves. But, in the three first States the right is 
 confined to such slaves as were in possession of the husband at his 
 death. (5) And, in Kentucky, it has been held, that there shall be no 
 dower in slaves emancipated by the will of the husband, even though 
 the widow renounce the provisions of the will in her favor.(6) 
 
 32. It has been seen, that in general all estates of inheritance are sub- 
 ject to dower. Thus there is dower in base or qualified fees. So also in 
 estates tail.{7) And liability to dower has even been mentioned as the 
 distinguishing criterion of an estate tail (8) With respect to qualified 
 and conditional fees, substantially the same remarks will apply to cur- 
 tesy and to dower.(c) (See ch. 6, s. 24.) 
 
 (1) Thompson v. Cooliran, 1 Humph. 72. 
 
 (2) Dean v. Mitchell,., 4 J. J. Mar. 451. 
 
 (3) 2Cliase Sts. 1314; Smiley v. Wright, 
 2 Ohio, 507; Derush V. Brown, 8. 412. 
 
 (4) Miller v. Wilson, 15 Ohio, 108; Rands 
 V. Kendall, 15 Ohio, 671. 
 
 (5)' Anlh. Shep. 483, 648; Smiley v. Smi- 
 ley, 1 Da. a, 94; Misso. St. 1836, 61; 1840-1, 
 
 71; Ark. Rev. St. 339. See Sanders v. 
 Sanders, 12 B. Mon. 40. 
 
 (6) Lee v. Lee, 1 Dana, 48 ; Brewer v. Tan 
 Arsdale, 6, 204 ; Graham v. Sam, 7 B. Mon. 
 403. 
 
 (7) 1 Cruise, 127; Buckeridge v. Ingram, 
 2 Ves. jun. 664 ; 4 Kent, 40. 
 
 (8) Low V. Burrow, 3 P. Wms. 263. 
 
 (a) Upon a sale of land, part of the price was paid, a note given for the balance, and a 
 bond to convey upon full payment. The vendee took possession and died; the vendor 
 brought a bill for sale of the land, and it was sold, the vendor having previously married 
 and died. Held, the widow of the vendor was not entitled to dower. Kintner v. McRea, 
 2 Cart. 453, 
 
 (b) In this Slate, if there are no children, the widow is endowed with half the land and 
 half the slaves of which the husband died seized, and half the personal estate, absolutely, 
 in her own right. Ark. Rev. St.s. 339. Removal of slaves from the State is a forfeiture of 
 dower. lb. 34 2. See Cook v. Cook, 7 Eng 381. 
 
 (c) One having possession under a pre-emption right has no higher estate than a tenant 
 for years, and not one sufg'ect to dower. Davenport v. Farrar, 1 Scam. 316. 
 
 By section 4 of the act concerning conveyance.^, (Rev. Code, 1825,) in Missouri, the convey- 
 ance of an estate to one and the heirs of her body, vested in her a Jife estate, remainder in 
 fee in her heirs, not subject to dower or curtesy. Burris v. Page, 12 Mis. 358. 
 
 A widow is dowable of a ee-simple, determinable by executory devise on her husband'si 
 dying without i,ssue living at the time of his death. Evans v. Evans, 9 Barr. 190. 
 
 A, for a consideration paid by B, conveyed land to C in trust for the use of B, hia heira 
 and assigns for ever, arid to pernjit the said B to have and possess the same, Ac, and in 
 trust to convey the same to such person, 4,c,, as the said B shall, &c., direct and appoint. 
 Held, B took, under the .statute of uses, at least .a qualified or delermihahle fee, and, in the 
 absence of any appointment, hia widow was entitled to dower. • Peay v. Peay, 2 Rich. Equ. 
 409. 
 
CHAP. IX] 
 
 ENDOWED, AND IN WHAT THINGS. 
 
 117 
 
 33. Devise to A and his heirs forever, (charged with an annuity,) 
 and, if A should have no issue, upon his death, to the heir at law, sub- 
 ject to legacies to be given by A to the younger branches of the family. 
 A dies without issue. A's widow has aower.(l) 
 
 31. In the case of an estate tail, it has been seen that curtesy does 
 not cease, with a determination of the estate, from or in connection 
 with which it arises.(2) But there are several instances where such 
 determination puts an end to the curtesy of the husband and to the 
 dower of the wife : 1. Where there is an eviction by paramount title ; 
 2. An entry for breach of condition ; 3. Where a qnalified or base fee 
 terminates by its own limitation ; 4. "^here a ft-e terminates by the 
 happening of an event on which it is made determinable. Or, in gen- 
 eral, the estate is terminated, b}' every subsisting claim or incumbrance 
 in law or equity, existing before the inception of the title, and which 
 would have defeated the husband's seizin. (3) It has been said, that the 
 reason why estates tail are subject to dower, is, because they may in 
 certain ways be enlarged into estates in fee-simple. But this has lately 
 been declared an erroneous opinion ; since dower was allowed both in 
 conditional fees when first introduced, and also in estates tail after the 
 statute de donis, and before the introduction of the common recovery 
 for the purpose of barring them. In case of escheat for want of heirs, 
 the widow still has dower.(-±) 
 
 35. An estate ^owr autre vie \s not subject to dower. Thus, where 
 one purchases the life estate of a tenant by the curtesy initiate, sold 
 upon execution, the widow of such purchaser has no dower.(6) 
 
 36. In Massachusetts, estates for years, where the term was limited 
 for a hundred 3'ears or more, and fifty years remain unexpired, are 
 subject to dower, the dowress paying one-third of the rent, if any.(6) 
 In Missouri, there is dower in leaseholds for more than twenty years. 
 In Maryland, a lease for ninety-nine years, renewable forever, is not 
 subject to dower.(7) 
 
 37. The subject of dower in uses and trusts, equities of redemption, 
 and equitable estates generally, (a) rents, commons, joint tenancies, &&, 
 will be considered hereafter, under those respective titles. 
 
 38. There shall be no dower in a wrongful estate. Thus, where a man 
 has a title to land, and a right of action to assert it, but no right of entry, 
 and he enters and dies ; although his heir is remitted to the rightful es- 
 tate, the widow shall not have dower.(8) 
 
 39. But the wife of a disseizor shall have dower, till the disseizin be 
 defeated. (9) So, the widow of a man, against whom judgment existed 
 at the time of the marriage, is entitled to dower, in the land of which 
 he was seized during coverture, subject to the judgments.(lO) 
 
 40. An ancient English statute (Westminster 2, c. 4) provides, that 
 
 (1) Moody V. King, 2 Bingh. iil. 
 
 (2) Ch.6. 
 
 (3) Co. Lit. 241 a ; Edward Seymor'a case, 
 10 Rep. 97 b; 4 Dane, &%1; 4 Kent, 49; 
 Davenport v. Farrar, 1 Scam. 316. 
 
 (4) 2 Bing. 452 ; 4 Kent, 48. 
 
 (5) Gillis V. Brown, 6 Cow. 388. 
 
 (6) Mass. Rev. St. 411. 
 (1) Misso. St. 228; Spangler i). Stanler, 1 
 Md. Oh. 36 
 
 (8) 1 Cruise, 1 28. 
 
 (9) 4.Dane, 668. 
 
 (10) Robbing v. Robbins, 8 Blackf. 1T4. 
 
 (a) See Coster v. Clarke, 3 Edw. 47 ; Lyon v. Lyon, 8 Ired. Equ. 201. 
 
118 
 
 DOWER. HO"W BARRED. 
 
 [CHAP. X. 
 
 where the husband gave up his land to an adverse claimant coUusively, 
 by default, the wife may claim dower and compel the tenant to prove 
 his title. Similar acts have been passed in New York, Missouri, Ohio 
 and Kentucky. (1) 
 
 CHAPTEE X. 
 
 DOWER. HOW BARRED. 
 
 1. Inchoate right. 
 
 2. Crime of husband. 
 
 3. Detinue of charters. 
 
 5. Transfer by the husband. 
 
 8. Exchange of lands. 
 
 9. Equitable and implied bars of dower. 
 
 12. Partition. 
 
 13. Deed of wife, in England. 
 
 14. Pine, &c. " " 
 
 15. Deed of husband alone, and sale of land 
 
 for debts. 
 29. Deed of husband and wife. 
 
 44. Wife's release can operate only as 
 
 such. 
 
 45. Devise or legacy, when a bar. 
 
 53. When an implied bar, in law or 
 
 equity. 
 64. Legacy to widow, how regarded. 
 
 66. Apportionment of legacy. 
 
 67. Disposal of legacy, when renounced. 
 
 68. American law as to devises in bar of 
 
 dower. 
 '71. Election between a devise and dower. 
 
 75. Time of election. 
 
 76. Mode of election. 
 
 1. The inchoate right of a wife to dower attaches at the instant 
 of the marriage. Such right, however, may be barred or defeated by 
 several circumstances, some of which have already been incidentally 
 noticed,(a) but which will now be considered more at length. 
 
 2. Anciently, in England, an attainder of treason or felony against 
 the husband was a bar of dower. The principle was variously modi- 
 fied by the successive statutes of 1 Edw. 6, c. 12, 5 and 6 Edw. 6, c. 
 11. In the United States, forfeiture of estates for crime is, for the 
 most part, abolished. And where lands have been confiscated by ex- 
 press legislation for adherence to the public enemy, dower has still 
 been allowed. In New Jersey it is expressly provided by statute, 
 that the right of dower shall not be aifected by the crime of the 
 husband.(2)(6) 
 
 3. Another circumstance, which by the English law bars or defeats 
 dower, is detinue of charters ; by which is meant, a detention or keep- 
 ing back, by the widow, of the charters or title deeds of the estate 
 from the heir. This circumstance is of rare occurrence in the United 
 States, and it is not known that any case upon the subject is to be found . 
 in the American Reports.(B) 
 
 (1) 1 N. T. Rev. St. 742 ; Misso. St. 228 ; l Sewall v. Lee, 9 Mass. 363 ; Wells v. Martin, 
 Walk. Intro. 325 ; 1 Ky. Rev. L. 581. 2 Bay, 20 ; IN. J. Rev. C. 263. 
 
 (2) Palmer v. Horton, 1 John. Gas. 27 ; I (3) Stearns, 310. 
 
 (a) See Adultery, Divorce, Elopement. 
 
 (b) In England, at common law, a woman loses dower by being attainted of treason or 
 felony. But, if pardoned, her right revives, though the husband have aliened in the mean 
 time. Co. Lit. 83 a; 13 Rep. 23. 
 
CHAP. X.] 
 
 DOWER. HOW BARBED. 
 
 119 
 
 4. The charters must relate to the lands in which dower is claimed, 
 and the tenant by his plea must show the certainty of the charters, so 
 that an issue may be joined. A stranger cannot set up this defence, 
 even though the charters were conveyed to him by the husband. He 
 "who pleads detinue of charters, ought to plead that he has been al- 
 ways ready, and yet is, to render dower, if the demandant would deliver 
 them.(l) ' 
 
 5. Inasmuch as a widow is dowable of all lands, &c., of which the hus- 
 band was seized during covet-ture, it follows of course, that no transfer, by 
 the husband, of land once acquired and owned after the marriage, will 
 bar or defeat the wife's dower. Nor will even the release and extin- 
 guishment of a rtnt, in which she is dowable, bar her right to dower 
 therein. So a second husband cannot convey his wife's dower in the 
 first husband's estate.(2)(a) 
 
 6. Where a husband conveys away his land on the very day of his 
 marriage, the law, favoring dower, will intend the marriage to have 
 preceded the conveyance, and the widow shall Lave dower. Bat where 
 a man before marriage makes a conveyance of lands, which is never 
 acknowledged or legally recorded, his widow shall not have dow- 
 er.(3)(6) 
 
 7. The principle above stated, although undoubtedly in force in this 
 country as a rule of the common law, has been recognized and affirmed 
 in many of the States by express statute. In Indiana, it is provided 
 that the wife shall not be barred of her dower, by any decree, €xecution{c) 
 
 (1) Ann Bedingfield's case, 9 Rep. I'Z b ; 
 Brickhead v. The Archbiahop, &c.. Hob. 199 ; 
 4 Dane, 666. 
 
 (2j 4 Kent, 50; Abergavenney'a case, 6 
 
 Co. 79; Haydon v. Ewing, 1 B. Monr. 114; 
 Manse V. Buchanan, 1 Md. Ch. 202. 
 
 (3) Stewart v. Stewart, 3 J. J. Mar. 48 ; 
 Blood V. Blood, 23 Pick. 80. 
 
 (a) So dower is allowed, notwithstanding an agreement to convey by the husband, exe- 
 cuted under a decree of court after his death. Riddlesberger v. Mentner, 7 Watts, 141 ; 
 Covert V. Hertzogg, 4Barr, 145. In New Hampshire, (Corap. Sts. 419,) the husband of an 
 insane woman may obtain authority from the court to release her dower in land conveyed 
 by him. So in Virginia, (Virg. Code, 537.) 
 
 (6) So, where a statute provided, that a deed in trust should not be valid against creditors 
 aai purchasers, unless proved and registered; held, such deed barred dower, though not 
 proved, &c., till after the husband's death — the widow being neither a creditor nor purchaser. 
 Norwood V. Marrow, 4 Dev. & B. 442. A conveys to B, who enters upon the land, and re- 
 conveys to A, neither deed being recorded. A then conveys to C, who has no knowledge 
 of B's having ever owned the land. Held, the widow of B could not claim dower against C. 
 Emerson v. Harris, 6 Met. 475. If the husband makes a voidable deed, but never avoids 
 it, dower is barred; otherwise, if the deed is void. 4 Dev. & B. 442. Thus, if made for 
 usurious consideration, the widow is entitled to dower, without waiting for the heirs to 
 avoid the deed. lb. A widow is not entitled to dower in lands, conveyed away by her hus- 
 band before marriage, although such conveyance was fraudulent and void as against his 
 creditors. Whithed v. Mallory, 4 Gush. 138. See Rijhards v. Richards, 11 Humph. 429 ; 
 Cook V. Cook, 7 Eng. 381. 
 
 The owner of land before his marriage made a fraudulent conveyance thereof The 
 grantee conveyed to a third person for the consideration of love and affection, after wliicli 
 the grantor married. A creditor of the grantor subsequently levied his execution on the 
 land 80 conveyed, and the appraisers made a deduction from the value on account of the 
 possible right of dower therein of the wife of the judgment debtor. In a writ of entry by 
 the creditor against the second granlee to recover the laud levied on ; held, the wife had 
 no right of dower therein ; and that the tenant might avoid the levy, on the ground that by 
 reason of such deduction too great an amount of land had been taken on the execution. lb. 
 But if a husband convey land without consideration, or to one as heir, in order to defeat 
 dower, equity will compel an account with the widow, for one-third of the property. 
 Jennys. Jenny, 24 Verm. 324. 
 
 (c) So in Alabama. Nance v. Hooper, 11 Ala. 554. 
 
120 
 
 DOWER. HOW BAERED. 
 
 [CHAP. X 
 
 or mortgage, to which she is not a party.(a) In Mis.souri, the laches, 
 default, covin and crime of the husband are also guarded against. 
 Similar provisions are made in New York, Ohio and Arkansas. In 
 Tennessee, it has been decided, that the title of a widow is paramount 
 to the rights of creditors, claiming after the husband's death (1) 
 
 8. There is one instance in the English law, where a transfer by the 
 husband alone will operate as a bar of dower. This is the case of an ex- 
 change of lands. (See Exchange.) In such case, the widow must elect 
 to be endowed either of those given or those taken in exchange— she 
 cannot have dower in both. (2) The form of conveyance known to the 
 English law, technically, as an exchange, is but little if at all practiced 
 in the United States. But Mr. Dane lays down the principle above 
 stated as a rule of American law. It has been recognized in Kentucky 
 and New York. But in the latter State it is held, that the word ex- 
 change, as used in the Kevised Statutes, in exclusion of the wife from 
 dower in lands exchanged, requires a mutual grant of equal interests in 
 the respective parcels of land, the one in consideration of the other. 
 The transfer of an estate, under a lease in perpetuity, in 75 acres for 11 
 acres and $700 in other property, will not constitute a legal exchange; 
 and, where two defective conveyances are proved, two valid convey- 
 ances will not be presumed, to perfect a legal exchange. So, in New 
 Hampshire, where an exchange consists in merely giving land for land, 
 by deeds in common form, without the use of the word exchange, the 
 English rule does not apply. In Arkansas and Wisconsin, where one 
 exchanges lands, his widow must take dower in those received by him, 
 unless, in one year from his death, she brings a suit for dower in the 
 lands parted with.(3) 
 
 9. In equity, a mere agreement by the husband to convey the land, 
 or a verbal sale or gift of it, if made before marriage and enforced or 
 executed after, bars the widow of her dower. The husband is regard- 
 ed as never having been seized during coverture. So, although he was 
 an infant at the time of the contract, but conveys after coming of agS, 
 and after marriage.(4) And it is said to have been held in Ohio, (prob- 
 ably in equity, upon the principle of an equitable estoppel,) that where 
 a widow was present at a sale of the land by the administrator, having 
 previously agreed to it, and not dissenting at the time, and the land 
 was sold free fi'om dower, and brought a larger price in consequence; 
 
 ■ she was barred of her dower, though the purchaser knew of her 
 claim. (5) In Virginia, both of the principles above stated have been 
 suggested, as doubtful and unsettled points; although, in a case rela- 
 
 (l)lDd. Rev. St. 238-9; Misso. St. 228; 
 Combs V. Youngf, 4 Yerg. 218; Ark. Rev. 
 St. 358; 1 N. Y. Rev. St. 742; 2 Chase, 
 1315. See Reed v. Campbell, 1 Meigs, 388; 
 London ti. London, 1 Humph. 1; Frost v. 
 Etheridge, 1 Badg. & Dev. 30; Norwood j;. 
 Marrow, 3 Bat. 442. See Infra, 16. 
 
 (2) Co. Lit. 31 b. 
 
 (3) 4 Dane, 668 ; Stevens v. Smith, 4 J. J. 
 
 Mar. 64; 1 N. Y. Rev. Stg. 740; "Wilcox tf. 
 Randall, 7 Barb, 633 ; Cass v. Thompson, 1 
 N. H. 65; Wise. Rev. Sts. 333. 
 
 (4) Greene w. G-reene, 1 Ham. 538; Oldham 
 V. yale, 1 B. Mon. 77 ; Gaines v. Gaines, 9, 
 295. 
 
 (5) Walk. Intro. 326; Smile.v v. Wright, 2 
 Ohio, 509. See Lawrence v. Brown, 1 Seld. 
 394. 
 
 (a) As dower is allowed in that State in all lands of which the husband was, seized 
 during coverture, the enumeration of these three modes of charge or transfer of course 
 does not enable the husband to bar dower in any other way — as, for instance, by an abso- 
 lute deed. 
 
CHAP. X.] 
 
 DOWKR. HOW BARRED. 
 
 121 
 
 ting to the former, the husband had receited the price of the land or a 
 part of it, and the wife had notice of the contract before marriage ; and 
 in the case relating to the latter, the sale of the land was made to an 
 innocent purchaser.(l) 
 
 9 a. Where the guardian of minors, with the concurrence of the 
 widow, who had a right of dower, obtained an order for the sale of their 
 land, and she was present at the sale, acquiescing therein, and received 
 a part of the purchase-money in commutation of dower; held, she could 
 not afterwards claim dower.(2) 
 
 9 b. So, where a widow administers on the estate of her deceased 
 husband, sells real estate unier order of court, and conveys it with 
 covenants of warranty; she will be thereby estopped to claim dower.(3) 
 
 9 c. Two infants intermarried, and before their majority a decree for 
 alimony was rendered, giving the wife certain property, which she took 
 and enjoyed. After their majority, they were divorced a vinculo, and 
 the wife afterward married twice, and she and her second husband 
 brought an action for dower against a purchaser of land sold under 
 execution against her first husband, in which she had not released her 
 dowt-r. Held, as she received and enjoyed the property during her in- 
 fancy and since her majority, she was not entitled to any dower.(4) 
 
 9 d. A Jeme covert, after a sale of land by her husband, accepted 
 from the purchaser two slaves, in lieu of dower, and retained them, 
 without claim of dower, seven or eight years after the death of her 
 husband. Held, although the agreement made by her while covert 
 was voidable, yet her long acquiescence might be construed into a re- 
 newal of it; and where, after having recovered her dower in proceed^ 
 ings at law, she brought a bill for arrears of dower, the court refused 
 her application.(5) 
 
 9 e. A widow applied for dower in an estate, which the husband had 
 given bond to convey, and the administrator conveyed, under direction 
 of the Probate Court, paying to the widow her distributive share of the 
 proceeds. Held, the court could not notice the fact of such pay- 
 ment.(6) 
 
 9/ A widow entitled to dower, married again, and the real estate 
 in wliich she was dowable, was sold by the administrator of her first 
 husband, for the payment of his debts, she not joining in the deed. 
 The purchaser conveyed the same to the second husband, who sub» 
 sequently mortgaged, and then sold it, with covenants of general 
 warranty, the wife not joining in either of the deeds. Held, by the 
 covenants of the husband, he and his wife were estopped from claiming 
 dower in the estate of the first husband, during the existence of their 
 intermarriage. (7) 
 
 9 g. Upon a petition for dower, to which a plea was put in, and an 
 order made for sale by the guardian ; the widow was in court, assent- 
 ing to the proceedings, received part of the price for her dower and 
 attended the sale, the commissioner giving notice that a clear title 
 Would be conveyed, she claiming no dower. Held, a bar.(8) 
 
 (1) Braxton v. Lee, 4 Hen. & M. 316 \ 
 Heth V. Cocke, 1 Rand. 344. 
 
 (2) Kllis V. DiHdy, 1 Smith, 354. 
 
 (3) Maoree v. Mellon, 23 Mias. 585. 
 
 (4) Bourne v. Simpson, 9 B. Mon. 454. 
 
 (5) Bullock V. Griffin, 1 Strobh. Eq. 10. 
 (61 Wyatt V Brown, 8 S. & M. 365. 
 
 (7) Potter V. Potter, 1 Aug. 43. 
 
 (8) Ellis V. Diddy, 1 Cart. 561. 
 
122 
 
 DOWER. HOW BAKEED. 
 
 [CHAP. X 
 
 9 h. Where an execution was levied upon land, and, after the right 
 of redemption had expired, the land was sold for more than the amount 
 of the debt, and the balance paid over by the creditor to the debtor's 
 wife and children; held, she was still entitled to dower therein.(l) 
 
 9 i. Nor is a widow barred of dower in land aliened by the 
 husband, by accepting a share of his estate under the statute of distri- 
 butions.(2) 
 
 9 j. So, it is no bar of dower, that the widow has disposed of per- 
 sonal property of the husband, of greater value than the dower.(3) 
 
 10. The mere acceptance of a conveyance of the land in which a 
 widow is entitled to dower, which impliedly disclaims such title, will 
 not operate as a bar of dower. Thus, where A the widow, and B the 
 daughter, of the deceased, held the land undivided, and, upon B's mar- 
 riage, she and her husband conveyed the land in settlement to trustees, 
 of whom A was one, describing the land as B's property ; held, no bar 
 of A's right of dower.(4) 
 
 11. Nor will a widow be barred of her dower, by attempting to 
 claim under a deed of the husband, which is avoided as fraudulent. 
 Thus, where a husband conveyed fraudulently to the use of himself 
 and his children, and contingently to the use of his wife, who did not 
 sign the deed, and after the husband's death a creditor successfully 
 sought to avoid the deed, the wife claiming under it ; held, she should 
 still have dower.(5) 
 
 12. It will be seen hereafter, that where the husband is a tenant in 
 common, the right of dower is subject to the incident of paetition. 
 (See ch. 12, s. 12 ; ch. 54, s. 34) 
 
 13. At common law, the deed of a married woman is ipso facto 
 void.(6) 
 
 14. In England, however, a widow may bar herself of dower, by 
 joining with her husband in a fine or recovery, but not by joining him 
 in a mere deed. But various devices have been there resorted to, 
 chiefly by way of complicated limitations, to effect this object. These 
 are not practised, because, as will be seen, not necessary, in the United 
 States. (7)(a) 
 
 15. In the States of Vermont, Connecticut, Ohio,(6) Tennessee,(c) 
 North Carolina and Georgia, a widow shall be endowed of those lauds 
 only of which the husband dies seized.(8) Hence, if a man purchase 
 
 (1) O'Brien v. Elliot, 3 Shepl. 125. 
 
 (2) Leihaweaver v, Stoever, 1 M. 
 160. 
 
 (3) Carathers v. Wilson, 1 Sm. & M. 
 
 (4) Wilcox V. Hubard, i Mun. 346. 
 
 (5) Blow V. Maynard, 2 Leigh, 30. 
 
 & S. 
 
 527. 
 
 (6) 3 Mas. 351. 
 
 (7) 1 Cruise, 139 ; 4 Kent, 50. 
 
 (8) Reeve, 40-1 ; 4 Kent, 41-2 ; 1 N. 0. 
 Rev. St. 613 ; Prince's Dig. 249 ; Term. 
 Rev. St. 289. 
 
 (a) By St. 3 & 4 Wm. 4, ch. 105, dower may be barred by any transfer of the land made 
 by the husband, whether in the way of conveyance or devise ; and is subject to all debts 
 and incumbrances. So, also, it may be defeated by a simple declaration to that effect, con- 
 tained in the conveyance to him, or the instrument of transfer byh\m. And a devise of any 
 part of the land, which is subject to dower, for the wife's benefit, bars the right, unless the 
 contrary is expressly declared. Otherwise with a devise of other land, or of personalty. 
 The act does not apply to women who were married previous to January 1, 1834. 
 
 (6) But see eh. 24, sec. 15. 
 
 (c) But not where the purchaser knows that the husband's intent in giving the deed is to 
 bar dower. Brewer v. Connell, 11 Humph. 500. 
 
CHAP. X.J 
 
 DOWEE. HO"W BARRED. 
 
 123 
 
 lands, own them during coverture, but afterwards part with them ; he 
 thereby debars the widow's dower in those lands by his own separate 
 act, and without any consent on her part. In Virginia, the husband 
 of an insane woman may obtain license to convey free of dower ; re- 
 serving a portion of the price to her.(l) 
 
 16. In Pennsylvania, Missouri and Tennessee, dower is barred by a 
 sale of the lands under a mortgage or judicial process. But in Ten- 
 nessee a widow is dowable of lands of her husband which are levied 
 on before his death, but not sold. In Pennsylvania, the rule above 
 stated seems to be founded upon no express provision, but upon a 
 mere construction of the statutes on this subject. In the same State, 
 where the husband, being insolvent, conveys to trustees for payment 
 of debts, his widow shall have dower, and also one-third of the 
 rents and profits, till creditors compel a sale of the land for debts, 
 though by such sale her dower will be lessened. It has been more re- 
 cently held, that a sale for payment of debts does not debar the widow of 
 a deceased alienor of her dower.(2) Nor an assignment in insolvency 
 under a compulsory process, and a conveyance by the husband's trus- 
 tee.(3) But a sale of land under a testamentary power, for the pay- 
 ment of debts, discharges the land from dower.(4) 
 
 17. Where a vendee agreed to apply part of the purchase-money in sat- 
 isfaction of all judgments and liens against the vendor, and he became 
 the purchaser at a theriff's sale under one of those judgments after the 
 vendor's death ; held, this did not divest the widow's dower, for he was 
 bound to extinguish the debt for which the land was sold. (5) 
 
 18. A widow's thirds, as appraised under proceedings in the or- 
 phan's court, and left a charge on the land, are not divested by a sale 
 of the land, under a decree of the orphan's court, as the property of 
 the party who took it at the appraised value.(6) 
 
 19. In North Carolina a statute provides, that any fraudulent con- 
 veyance by the husband shall not bar dower. In the same State the 
 widow has dower in lands sold after the husband's death, under a fi. 
 
 fa. tested and levied before.(7) 
 
 20. In Yirginia, dower is barred by a honafidea2i\e to satisfy a prior 
 incumbrance, in creating which the wife joined. In Kentucky, dower 
 is subordinate to a creditor's lien. (8) In Georgia, a conveyance by an 
 officer bars dower, as if made by the husband. (9) In Indiana, dower 
 cannot be affected by an execution sale. If a Tnechardc^s lien accrue 
 after the employer's marriage, and the employer die after the accruing 
 of the lien, the right of dower of the employer's widow will be para- 
 mount to the lien So, in Illinois, dower cannot be affected by a me- 
 chanic's lien, and the widow should not be made a party to the pro- 
 ceedings to enforce it, if she has no other interest in the premises.(lO) 
 
 (1) Tir. Code, SST. 
 
 (2) Keller v. Michael, 2 Yea. 300; Kneider 
 V. Znieder, 1 Miles, 220 ; Liehaweaver v. 
 Stoever, 1 W. & S. 160; Helfrich v. Ober- 
 meyer, 15 Penn. 113; Rutherford v. Reed, 6 
 Humph. 423. 
 
 (3) Eberlei). Fisher, 13 Penn. 526. 
 
 (4) Mitchell v. Mitchell, 8 Barr, 126. 
 (6) Shurtz V. Thomas, 8 Barr, 359. 
 
 (6) Tandeveru. Baker, 13 Penn. 121. 
 
 (7) N. Car. Rev. Sts, 613 ; Prost v. Ether- 
 idge, 1 Dev. 30. 
 
 (8) M'Clure v. Harris, 12 B. Mon. 261. 
 
 (9) Georgia Sts. 1842, p. 75. 
 
 (10) McMahanw. Kimball, 3 Blaokf. 6; Pi- 
 fer V. Ward, 8 lb. 252 ; Shaeffer v. Weed, 3 
 ailm. 511. 
 
124 
 
 DOWBE. HOW BARRED. 
 
 [CHAP. X. 
 
 In Alabama and Arkansas, dower is allowed from an insolvent es- 
 tate.(l) 
 
 21. In Maryland, upon a creditor's suit, the real estate of the debtor 
 may be sold, subject to dower.(2) 
 
 22. Where the land of which a husband died seized is sold by a 
 court of equity, free from the claim of dower, for the payment of 
 debts, by reason of the insufficiency of the personal estate to pay them, 
 and his widow is a party to such proceeding, she will be barred of her 
 right of dower so long as the decree remains unreversed.(3) 
 
 23. In New York, a widow cannot claim dower in the surplus arising 
 from a sale in foreclosure, where the husband was living at the time of 
 making the decree, and when the sale took place.(4:) 
 
 24. The statutes of New York, relating to the sale of the real estate 
 of deceased persons, under a surrogate's order, for the payment of debts, 
 do not authorize the sale of a widow's estate in dower, where dower 
 has been actually assigned to her. [Jewett, C. J., and Bronson, J., 
 and HOYT, J., disseuting.](5) 
 
 26. A municipal corporation was authorized by statute to take lands 
 for the public use, making compensation in the manner prescribed to the 
 respective owners and persons, entitled to or interested in the same, 
 whereupon the corporation was to become seized in fee-simple. Com- 
 pensation for a portion of the lands, whereof A was seized in fee, was 
 awarded and paid to him, without notice of the inchoate right of dower 
 of his wife, or award made to her therefor. Held, her interest, for the 
 purpose of compensation under the act, was not to be considered as dis- 
 tinct from that of her husband, so as to require a separate estimation, 
 and that he was, for that purpose, to be deemed the entire owner of the 
 estate ; and hence she was not entitled to dower. The right of dower, 
 being an incident to the marriage relation, was merely inchoate during 
 the lifetime of the husband, constituting no vested or certain interest, 
 and before his death any regulation of it might be made by the legis- 
 lature, though operating to divest dower. The general doctrine was 
 laid down that the power of the state to take private property for public 
 uses results from its right of eminent domain, which is only restricted by 
 the constitutional provision, that just compensation shall be made to 
 the owner. In cases of this character, the husband is justly considered 
 the entire owner, and the award is properly made to him. And on 
 payment to him of the full value of the property, the title vests in the 
 public, discharged from any claim of dower.(6) 
 
 26. In Maine, one whose land was attached on mesne process, mar- 
 ried. A judgment being obtained, the execution was seasonably 
 levied on the land. After the levy, he died. Held, the widow had 
 no right of dower.(7) 
 
 27. In Delaware,(8) a statute of, 1816 provides, that a widow shall 
 have dower in all lands owned by the husband during coverture, free 
 from all "conveyances, debts, liens, &c., excepting any lien or incum- 
 
 (1) Allen V. Allen, 4 Ala. (N. S.) 556; 
 
 Crittenden v. "Woodruff, 6 Bng. 82 ; v. 
 
 Johnson, lb. 94. See Outlaw v. Tell, 3 Bng. 
 — ; Nance v. Hooper, 11 Ala. 552. 
 
 (2) Mildred v. Neill, 2 Bland, 355 ; Ewings 
 V. Ennalls, lb. 356. 
 
 (3) Gardiner v. Miles, 5 Gill. 94. 
 
 (4) Frost V. Peacocl<, 4 Edw. Oh. 618. 
 
 (5) Lawrence v. Miller, 2 Comst. 245. 
 
 (6) Moore ti. City, &o., 4 Sandf: 456. 
 
 (7) Brown v. Williams, 31 Maine, 403. 
 
 (8) Dela. St. 1829, 167. 
 
CHAP. X.] 
 
 DOWER. HOW BARRED. 
 
 125 
 
 brance existing before the passage of tlie act. And it is said that, 
 previously, dower was subject to debts. 
 
 28. In Ohio, it is provided, that the husband of an insane woman 
 may convey his land, free from the incumbrance of dower.(l) 
 
 29. But in all the States, the most usual mode of barring dower, is 
 by a deed(«) of the husband in which the wife joins, and which con- 
 tains at the close an express relinquishment of dower. In many of the 
 States, this method is prescribed by express statutes, and added as an 
 exception or qualification to the common law definition of dower.(:^)(6) 
 In Massachusetts, the practice was referred by one distinguished jurist 
 to early colonial and provincial acts, and by another to New England 
 common law.(ci) A statute of Georgia recites, that the conveyance of 
 the lands of a feme covert, by fine and recovery, was never practised in 
 any of the American colonies.('i) 
 
 30. In many States, a private examination of the wife is required to 
 render her release of dower valid, and seems to have been })racticed 
 before any statutory provisions requiring it. Substantially the same 
 provisions are made, with regard to a release of dower, and a convey- 
 ance by the wife of her own lands, which has been already treated ofj 
 and to the remarks concerning which the reader is referred.(5)(c) 
 
 31. In Massachusetts, it was remarked by Parsons, Ch. J.,(6) that a 
 release of dower has been sometimes effected by a separate deed of the 
 wife, subsequent to that of the husband, and reciting the sale by him 
 as the consideration. Bat the Revised Statutes provide, that the hus- 
 band' shall join in the subsequent deed, and such deed by the wife alone 
 is void.(7) And Judge Story supposes,(8) that Judge Parsons' lemark 
 was by him applied, and is applicable only to the case, where the wife's 
 deed, though subsequent, is made on the same day and as part of the 
 same transaction with the husband's, and that this course was sonieiim.es 
 adopted, but not so generally as to give it the validity of a usage. If 
 
 (1) Ohio St. 1836-7, Mar. 29. 
 (2)4 Kent, 58; 3 Maa. 351; Lufkin v. 
 Curtis, 13 Mass. 223. 
 
 (3) Fowler v. Shearer, 1 Mass. 20-1: 3 
 Mas. 351-2. 
 
 (4) Anth. Shep. 692. 
 
 (C) Supra, ch. 1 ; Auth. Sbep. 593. 
 
 (6) 7 Mass. 20 ; aca Frost v. Deering, 8 
 Shepl. 156. 
 
 (1) Mass. Rev. St. 410 ; Page v. Page, 6 
 Cush. 196. So in Michigan,— Rev. St. 264; 
 see Sts. 1849, 60; and Maine, — Rev. St. 392; 
 and Wisconsin,— Wise. lb. 334. 
 
 (8) 3 Mas. 353. 
 
 (a) An unsealed release is bad. Manning v. Laboree, 33 Maine, 343. 
 
 (&) That is, "a widow shall be endowed," &o., unless sJie have parted with her right, in ths 
 method prescribed. In Massacliusetts, the early colonial and provincial statutes, are said 
 to imply and recognize, though not create, the power of a feme covert thus to bar her 
 dower. Col. St 1644; Prov. St. 9 Wm., ch. 1 ; 3 Mas.- 351-2. 
 
 It has been held, that statutes providing for this mode of releasing dower, supersede all 
 other methods. French v. Peters. 33 Maine, 396. In Indiana, a widow marrying again, 
 cannot alienate her dower. Rev. Sts. Descent, sec. 18. 
 
 (c) It has been held, that the certifloate of acknowledgment need only he in the usual 
 form, and substantially conformable to the statute. Brown tJ.Farran, 3 Ohio, 15. See 
 Dundas v. Hitchcock, 12 How. 256 ; Bavarty v. Fridee, 3 McLean, 230. 
 
 A statute requiring in any release of dower, or other conveyance of real estate by a married 
 jvoman, a certificate of a magistrate on the deed, that the wife, on a private examination, 
 apart from her husband, acknowledged that she signed and delivered the same " as lier vol- 
 untary act and deed, freely, without any fear, threats or compulsion of her huabaiid," is 
 sufficiently complied with, if the words " (reely and of her own accord," are substiluted for 
 the words, "as her voluntary act and deed, freely." Dundas v. Hitchcock, 12 How. 
 U. S. 256. 
 
126 
 
 DOWER. HOW BARRED. 
 
 [CHAP. X. 
 
 the wife's deed be seven months subsequent to the husband's, given 
 after two mesne conveyances, for a new consideration, and not reciting 
 the husband's sale as the consideration, it is void. This is not joining 
 in the deed of the husband, according to the words of the statutes. 
 Nor does the husband's mere assent m'ake any difference. So, a release 
 indorsed upon the husband's deed, in consideration of the sum men- 
 tioned in the deed, is insufficient.(l) 
 
 32. In Kentucky, the wife may release by a subsequent deed.(a) But 
 in general, the sole deed of a wife is void. In Ohio, she may join with 
 the husband's attorney.(2) 
 
 33. A release of dower before marriage is void.(3) 
 
 34. In New Hampshire, the wife may release alone. So, although 
 an infant. The wife cannot release to the husband. (4) 
 
 35. In Massachusetts, merely joining in the husband's deed is insuf- 
 ficient, without words of release. So, in Maine, a wife does not_ re- 
 lease her dower, unless she uses apt words to express such intention. 
 The words, " in token of her free consent," inserted in the conclusion 
 of the deed, are not suflScient.(5) But in Maryland the deed may bar 
 dower, though the wife be not named in it.(6) So, in Ohio, the wife 
 need not join in the covenants, nor expressly release her dower.(7) 
 
 36. The wife need not sign the deed in person. A signing by any 
 third person, or by the husband, if done in her presence and under her 
 direction, will be sufficient. And, in case the witnesses to her signa- 
 ture fail to prove it, her own admissions are competent evidence.(8) 
 
 37. The demandant in a writ of dower is not barred by a release of 
 dower made by her to a third person under whom the tenant does not 
 claim. (9) 
 
 38. Where a wife releases her dower, and afterwards the purchaser 
 from the husband recovers damages of him for a breach of the cove- 
 nant that he had a right to convey, there being attachments on the 
 land at the time of conveyance, the release of dower becomes void, be- 
 cause the recovery in this action debars the purchaser from afterwards 
 claiming anything by his deed. So, where a wife joins in the deed of 
 her husband and releases her dower, and an execution against him is 
 afterwards levied upon the land, and the creditor recovers it from the 
 purchaser, on the ground that the conveyance was fraudulent, the right 
 of dower revives, and the widow may recover it from such creditor or 
 his as3igns.(10) 
 
 39. Where land was mortgaged to secure a debt, in which mortgage 
 the wife joined, and was subsequently sold under a judgment against 
 
 (1) Powell V. MoDson, &e., 3 Mas. 341; 
 Shaw V. Russ, 1 Shepl. 32; French v. Peters, 
 33 Maine, 396. 
 
 (2) 1 Ky. Rev. L. 436 ; Thompson v. Pee- 
 bles, 6 Dana, 391 ; Glenn v. Bank, &c , 8 
 Ohio, 172 ; French v. Peters, 3? Maine, 
 396. 
 
 (3) Hastings v. Dickinson, 1 Mass. 155. 
 
 (4) Ela V. Card, 2 N. H. 116;" Rowe v. 
 Hamilton, 3 Greenl. 63 ; N. H. Rev. St. 297. 
 In Kentucky, release of dower by an infant 
 
 feme is voidable, Oldham v. Sale, 1 B. Monr. 
 77. 
 
 (5) Stevens v. Owen, 25 Maine, 94. 
 
 (6) 3 Mas 347 ; Catlin v. Ware, 9 Mass. 
 218 ; Learned v. Cutler, 18 Pick. 9 ; 1 Md. L. 
 128 ; Stevens v. Owen, 25 Maine, 94. 
 
 (7) Smith V. Hardy, 16 Ohio, 191. 
 
 (8) Frost V. Deering, 8 Shepl. 156. 
 
 (9) Robinson v. Bates, 3 Met. 40. 
 
 (10) Stinson v. Sumner, 9 Mass. 143; Rob- 
 inson V. Bates, 3 Met. 40. 
 
 (a) Not by parol, though privately examined. Worthingtctfi v. Middleton, 6 Dana, 300. 
 
CHAP. X] 
 
 DOWER. HOW BARRED. 
 
 127 
 
 the husband, at the suit of a stranger to the mortgage ; held, the wife 
 was not divested of her dower, though the court had ordered the pur- 
 chase-money in part to be applied to the mortgage debt.(l) 
 
 40. The wife may validly join in a Zea.se as well as an absolute deed. 
 In such case she shall be endowed of the rent.(2) 
 
 41. In Maine, the wife of one under guardianship may release her 
 dower alo\ie.(3) In Alabama,(a) by statute, an injani may release dower. 
 In "Wisconsin, the guardian of an infant. So, in Maryland, Chancery 
 may aSirm the release of dower by an infant. But it has been held in 
 New York and Ohio, that a release of dower, though a substitute for 
 the old process of recovery, does not so far partake of the nature of 
 the latter, as to render valid the release of an infant. Nor does a pri- 
 vate examination give validity to such release. Nor is a release of 
 dower, like a fine, made valid by mere consent of the husband. (4) 
 
 42. It has been seen, that in equity, which regards a conveyance 
 agreed to be made, as actually made, dower may sometimes be barred 
 even without any release. On the other hand, equity will sometimes 
 allow dower even after a release, where the deed was merely prepara- 
 tory to another deed which has never been made. 
 
 43. Thus, where several tenants in common, with their wives, con- 
 veyed lands, previously lotted out, to a trustee, to be sold in lots ; held, 
 the widow of a deceased tenant should have equitable dower in those 
 lots which the trustee had neither conveyed nor contracted to convey. (5) 
 
 43 a. Where a widow, having a right of dower in land of her de- 
 ceased husband, sells the land, while acting as administratrix upon his 
 estate, to a person whom she afterwards marries, by whom it is again sold 
 by a warranty deed, in which she joins " in token of relinquishing her 
 right of dower in the premises," her release divests her of all the right 
 of dower which she has in the land, either by reason of her first or 
 second marriage.(6) 
 
 43 b. A wife who joins in a deed with her husband is no party 
 thereto, except for releasing her dower, and is not thereby estopped 
 from setting up a subsequent title.(7) 
 
 48 c. A wife uniting with her husband in conveyance of his land, in 
 which she has no interest but her right of dower, incurs no obligation by 
 reason of any collateral and merely personal covenant inserted in the 
 deed, nor by the representations it may contain. Such covenants are 
 the acts of the husband alone.(8) 
 
 43 d. A release of dower may be either gratuitous or for a conside- 
 ration paid to the wife. And though this much exceed the value of 
 the right relinquished, the transaction will not be adjudged void unless 
 there be a want of good faith in her.(9) 
 
 (1) Avery, J., dissenting. Taylor v. Fow- 
 ler, 18 Ohio, 567. 
 
 (2) Herbert tJ.-Wren. 1 Cranoli. 370. See 
 Hall V. Hall, 2 M'Cord,' Cha. 280. 
 
 (3) Me. St. 1853, 29. 
 
 (4) St. of Ala. 1836, No. 22 ; Md. L. 1095 ; 
 Priest V. Cummings, 16 Wend. 617, 20, 331 ; 
 
 Jones V. Todd, 3 Mas. 361, 356; Hughes 
 V. Watson, 10 Ohio, 137 ; Wise. Eev.St. 334. 
 
 (5) Hawley v. James, 5 Paige, 318. 
 
 (6) Uaher j;. Richardson, 29 Maine, 415. 
 
 (7) Blair v. Harrison, 11 111. 384. 
 
 (8) Shelton ii. Deering, 10 B. Mon. 405. 
 
 (9) Hoot V. Sorrell, 11 Ala. 386. 
 
 (a) In the same State, a deed, to bar dower, must be signed in presence of two or more 
 creditable witnesses, or acknowledged. Clay, 174. If made out of the State, it may be 
 acknowledged before a notary, or a judge of a court of record. lb. 
 
128 
 
 DOWER. HOW BARBED. 
 
 [CHAP. X. 
 
 44. A release of dower can operate only as a release, accompanying 
 the conveyance of another, and ceasing to operate with the lattery not 
 as the transfer of an independent estate. Thus, where a husband, 
 whose land is bound by the lien of a judgment, conveys the land with 
 a release of dower, and it is afterwards sold under the judgment, the 
 purchaser from the husband cannot claim as an assignee of the wife, or 
 as deriving a distinct estate from her, against the execution furcliaser. 
 So, upon a sale of mortgaged lands, the vendee takes them clear of 
 dower, if released. But if the mortgage is paid, never takes effect, or 
 ceases to operate, the right of dower revives. Where the husband 
 only owned a right of redemption, this alone passed or was incumbered 
 by the mortgage, and his wife's dower could not have been released to any 
 greater extent. And where that right expired by lapse of time, the 
 mortgage became inoperative, and ceased to be a conveyance of the hus- 
 band's estate, and therefore could no longer operate as a bar to dower. 
 So, a widow is not barred of her claim for dower against a mortgagee 
 who has foreclosed', if she did not join in the mortgage, by her release 
 of dower to the purchaser of the equity of redemption. (1) 
 
 45. A very common method of barring dower, is by devise or bequest 
 from the husband to the wife. Upon this subject, the English law has 
 been thus stated : Every devise or bequest in a will imports a bounty, 
 therefore cannot, in general, be averred to be given as a satisfaction for 
 that to which the devisee is by law entitled ; hence a devise is no bar 
 of dower, unless so expressed in the will, either at law or in equity. 
 The court will go as far as it can not to exclude the claim to dower.(2) 
 Several English cases sustain this doctrine. 
 
 46. A person being indebted, devised part of his lands, which were 
 subject to a satisfied mortgage, to his wife, but not in bar of dower, and 
 the residue to his executors till his debts were paid. The wife having 
 recovered dower at law, the heir brings a bill in equity for relief Held, 
 the devise was no bar of dower.(3) 
 
 47. A devised lands to his wife for life, and other lands to his 
 brother in fee. The former lands were of greater value than the 
 wife's dower. Held, both in law and equity, the devise was no bar of 
 dower.(4) 
 
 48. More especially does this rule apply, where the devise is made 
 for the term of widowhood of the wife, or is in any other respect less 
 beneficial than dower.(5) 
 
 49. A devises to his wife lands for her widowhood, afterwards, with 
 all his other lands, to trustees for a term of years, for payment of debts 
 and legacies ; and directs, that after the expiration of two years of the 
 term, the trustee shall permit her to receive the rents and profits of 
 another farm, for the rest of the term during her widowhood. The 
 widow having recovered her dower at law, and an application in Chan- 
 cery for an injunction having been granted ; upon a rehearing in the 
 latter court, it was held, that even at law the devise was no bar of 
 dower, and, if it were so at law, it would not be in equity ; and the 
 
 (1) Douglas 0. M'Co7, 5 Ohio, 521 ; Pride son v. Robinson, Jac. 503 ; Hilliard v. Bin- 
 V. Boyce, Rice, 275 ; Holdioh v. Holdich, 2 ford, 10 Ala. 977 : Church v. Bull, 2 Denio, 
 •Y. <fc Coll. Cha. 18 ; Ellis v. Lewis, 3 Hare, 430. 
 
 310; Blain v. Harrison, 11 Illin. 384; Little- (3) Hitohin v. Hitohin, Prec. in Cha. 133. 
 field V. Crocker, 30 Maine, 192. (4) Iiemon v. Lemon, 8 Tin. Abr. 366. 
 
 (2) I Cruise, 139; Walk. Intro. 325; Dick- (5) Lasher v. Lasher, 13 Barb. 106. 
 
CHAP. X.] 
 
 DOWER. HOW BARRED. 
 
 129 
 
 decree was reversecl.(a) This judgment was afterwards affirmed by the 
 House of Lords.(l) 
 
 50. Devise of land, in trust to sell, and pay part of the proceeds to 
 the Avidow. Held, she need not elect between the devise and her 
 dower.(2)(Z)) 
 
 51. But where a devise or bequest is expressly given as a satisfac- 
 tion, substitute, or recompense for dower, or upon condition that the 
 wife shall not claim dower, she is bound to elect between the two, and 
 an election of one is a perpetual waiver of the other. ISTor is it material 
 whether the property given by will consists of real estate or personal, 
 except perhaps, that to make personal property a bar of dower, stronger 
 proof of an intent to that effect is required, than in case of a devise of 
 lands. But if, after the widow has elected and enjoyed the provision 
 by will, it from any cause fails, as for instance, if personal property, 
 from which an annuity is to be raised, becomes exhausted, it seems she 
 may claim her dower.(3) In Massachusetts, Maryland(c) and Virginia, 
 express statutes so provide.(4) But where a testator devised to his 
 wife his whole estate during widowhood, and she makes no renunciation 
 of the devise, but afterwards forfeits it by marriage, she shall not have 
 dower. (5) 
 
 52. So, in New York, where a testator, in lieu of dower, devised 
 certain property to his wife, and directed that his sons should annually 
 deliver to her a certain quantity of wood ; and, aftir the widow had 
 accepted the devise, and for many years enjoyed the property, the sons 
 failed to deliver the wood as directed : held, the widow could not claim 
 dower, but her remedy was under the will, against those chargeable 
 with its execution : that, although the wife would not be bound by a 
 post-nuptial agreement merely, yet she would be bound by an election to 
 avail herself of such agreement; and, in this respect, a devise stood on 
 the same footing with a settlement made upon the wife after mar- 
 riage.(6)(i) 
 
 (1) Lawrence v. Lawrence, 1 Lord Rav. 
 438 ; 2 Vern. 365 ; 3 Bro. Pari. Ca. 483. 
 
 (2) Ellis V. Lewis, 3 Hare, 310. 
 
 (3) Lealse v. Randall, 4 Rep. 4 a ; Bush's 
 Case, Dyer, 220; Gosling v. Warburton, Cro. 
 Eliz. 128. (See Ay res v. Willis, 1 Ves. sen. 
 
 230.) 
 
 (4) Mass. Rev. St. 4U ; Anth. Shep. 451 ; 
 1 Vir. Rev. C. 171. 
 
 (5) Vance v. Campbell, 1 Dana, 229. 
 
 (6) Kenhedy v. Mills, 13 Wend. 553 ; lb. 
 556, 
 
 (a) Because, as is said, the matter had been previously settled at law. 1 Ld. Ray. 438, n. 
 
 (6) In a very late case in Virginia, a husband conveyed land with warranty, the wife not 
 joining in the deed, and devised all hiis estate to her, remainder to her children. Held, she 
 should take the devise, and also dower in the land sold. Higginbotham v. Cromwell, 8 
 Gratt. 83. 
 
 (c) "If nothing shall pass by such devise.'' In the same State, if the will gives her both 
 personal and real property, she must renounce the whole in order to claim her legal rights. 
 Md. L 407. 
 
 (d) But, in the same State, where the testator devised his whole property to his wife for 
 life or widowhood, remainder to his children, and she occupied some years under the will 
 and then married again ; held, she should liave dower. Bull v. Church, 4 Hill, 206. See 
 Fuller V. Tales, 8 Paige, 325; Lewis v. Smith, 11 Barb. 15 2 ; Flagler v. Flagler, 11 Paige, 
 457. 
 
 A testator devised all hia real and personal estate to his wife, " during her life, or so long 
 as she should remain his widow," and after her decease, or remarriage, to his children. 
 The wife survived him, entered and occupied under the will for several years, and then mar- 
 ried a second husband. Held, she was entitled to dower. Church v. Bull, 2 Denio, 430. 
 
 Where a testator owned the entire estate in certain premises, subject to dower, and de- 
 vised a part of the premises to the person having the right of dower, and the residue to A, 
 
 Vol. I. 9 
 
130 
 
 DOWBR. HOW BARRED. 
 
 [CHAP. X. 
 
 53. A provision by will, though not expressed to be a bar of dower, 
 shall still operate as such, if its fulfilment is manifestly inconsistent 
 therewith. It is said, that no person shall dispute a will who claims 
 under it, and this rule is as' applicable to a dowress as to any other 
 person. Hence, where the dowable estate is so divided, that the claim 
 of dower makes a material change in the will itself, the widow is barred. 
 There is no difference between declaring that she shall not hold 
 both, and devising so that she cannot hold both without disturbing the 
 
 ,will.(l) 
 
 54. This doctrine seems to have been first settled in courts of equity, 
 and a devise has therefore been called an equitable bar. But the lan- 
 guage of the modern cases and the better opinion seem to be, that if 
 the wife has fairly and understandingly, with a full knowledge of the 
 facts, made her election between her dower and the testamentary pro- 
 vision, and in favor of the latter, she will be held to her election at law 
 as well as in equity. It is said, there is no difference in principle be- 
 tween the courts of law and equity on this subject, but the difficulty of 
 reaching the justice of the case has frequently thrown these questions 
 into equity. (2) 
 
 55. Equity will not interpose to compel an election, unless— 1, the 
 devise is expressed or strongly and necessarily implied to be a substi- 
 tute ; or 2, clearly inconsistent with dower ; or 3, where the whole 
 will would be overturned by an allowance of dower.(3) 
 
 55 a. It is said, a devise to others of all the testator's real estate, is 
 not necessarily inconsistent with the right of dower, as such a devise is 
 to be understood as subject to all lawful claims upon the land, includ- 
 ing dower.(4) 
 
 (1) 4 Kent, 56 ; Villa, &o. v. Galway, 1 
 Bro. Rep. 293 n.; Gretton v. Howard, 1 
 Swanat. 413 ; Hamblett v. Hamblett, 6 N. 
 H. 333; Weeks v. Patten, 18 Maine, 42; 
 Stark 1. Hunton, Saxt. (N. J.) 216; Church 
 V. Bull, 2 Denio, 430; Lasher v. Lasher, -13 
 Barb. 106. 
 
 (2) Kennedy v. Mills, 13 Wend. 555; 4 
 
 Kent, 56 ; French v. Davies, 2 Ves. jun. 6'!8. 
 (But see Pickett v. Peavey, 2 Con. S. C. 748.) 
 Edwards ■». Morgan, 13 Price, 182 ; Taylor 
 V. Taylor, 1 T. & Coll. Cha. 727. 
 
 (3) Kennedy v. Nedrow, 1 Dall. 418. 
 
 (4) Per Walworth, Ch., Church v. Bull, 2 
 Denio, 430. 
 
 but without declaring his intention, in his will, to dispose of the whole estate, including the 
 right of dower, or that the dowress should relinquish either such dower or her devise, and 
 no such intention was dedueible by clear and manifest implication from the will ; held, the 
 presumption was, that the testator intended only to devise to A his own estate in the pre- 
 mises, subject to the right of dower therein, and that the dowress was not put to her elec- 
 tion. Leonard v. Steele, 4 Barb. 20. 
 
 The principal trusts of a will, some years after the testator's death, were declared void by 
 a vice-chancellor ; but the payments made previously were sanctftmed by the decree, and 
 the widow was required to elect between her dower and certain valid provisions of the will. 
 Appeals were taken, and the suit protracted, pending which the executors continued to 
 make payments, and the widow, having made no election, died before the decision, which 
 afiBrmed .the decree. In a suit by the executor against tlie assignee of one of the next of 
 kin ; held, the latter could not object to the payments made prior to the decree ; that the 
 payments made subsequently were invalid, and must be disallowed ; and that the widow's 
 administrator might now make the election granted to her by the decree. Howland v. 
 Heekscher, 3 Sandf. Ch. 519. 
 
 Where a husband gave to his wife by will, in lieu of dower, a decent and comfortable 
 support out of his estate, in sickness and in health, during her lifetime, leaving the residue 
 of his estate to his two children ; held, such allowance was not to be measured by the sum 
 necessary to support lier in a boarding-house, but that she should have sufficient to main- 
 tain her in house-keeping at the place of her residence, and in the manner to which she had 
 been accustomed while living with her husband ; such sum being less than the interest on 
 one-third of the testator's estate. ToUey v. Greene, 2 Sandf. Ch. 91. 
 
CHAP. X] 
 
 DOWER. HOW BARRED. 
 
 131 
 
 56. Instances of inconsistency, are where the interest of one-third 
 of the amount of sales of the whole land is given to the widow for life ; 
 so, where the rents of lands are charged with the maintenance and 
 education of children, and provision is made for selling lands to pay 
 debts.(l) 
 
 57. A testator devises one-third of his estate to his wife, the other 
 two-thirds to his two children. Held, the widow could not claim both 
 the devise and her dower.(2) 
 
 58. A devised to his wife an annuity of 200Z., to be issuing out of 
 his lands, with power of distress and entry; subject thereto, he devised 
 his real estates to his daughter in strict settlement ; and directed all his 
 personal estate to be invested in land and settled to the same uses. It 
 was held in equity, that the claim of dower was inconsistent with the 
 will : 1. Because it would deprive the trustees of their possession of a 
 part of the land, whereas by the will they were to hold the whole, sub- 
 ject to the annuity and distress, and the widow was to enter, only upon 
 non-payment. 2. Because it would diminish the annuity itself, inas- 
 much as by entering upon a third of the land in right of her dower, 
 the widow would sink so much of her annuity as that third ought to 
 bear ia proportion. The annuity, being charged upon the wholq land, 
 could not, by an equitable marshalment, be thrown upon the remain- 
 ing two-thirds.(3) 
 
 59. In some later cases, the charging of an annuity upon lands has 
 been held not to be a bar of dower.(a) 
 
 60. Where a testator, not noticing his wife's title to dower, devisss 
 to her the residue of his personal estate, this is no bar of dower, be- 
 cause the claim of the latter does not break in upon the will.(4) 
 
 61. And if only a part of the lands subject to dower are devised to 
 the widow, she may claim her dower in the residue, unless the intent 
 is clearly otherwise. So, the devise of a contingent remainder in the 
 whole lands to the widow is no bar of her immediate title to dower, by 
 implication, because the two estates are not incompatible. Nor will 
 the widow be barred of her dower, although there is a probability that 
 the husband was ignorant of her right to claim it. 
 
 62. Where the husband devises his lands, or all his estate, to trus- 
 tees, charged with an annuity to the widow ; dower being a para- 
 mount claim, equity will not presume, from his having disposed of all 
 his own property, that he meant also to dispose of what was not his 
 own, unless peculiar circumstances justify such construction. (5) 
 
 63. If the lands subject to dower would be insufficient to meet the 
 
 (1) Duncan v. Duncan, 2 Teates, 302 ; 
 Herbert v. Wren, 1 Cranch, 370. 
 
 (2) 4 Dane, 680. 
 
 (3) Villa Real v. Galway, 1 Bro. Kep. 292. 
 See Reynard v. Spence, 4 Beav. 103. 
 
 (4) Ayres v. Willi.', 1 Ves. 230. In this 
 case, the claim of a widow as devisee is com- 
 pared with that of a child. (See further, 
 
 Chalmers v. Stovil, 2 Tea. & Beam. 222 ; 
 Dickson V. Robinson, Jac. 503.) 
 
 (5) Lord Dorchester v. Effingham, Coop. 
 324; Hitchins v. Hitchins, Freem. 241; In- 
 cledon v. Northcote, 3 Atk. 435 ; French v, 
 Davies, 2 Ves. jr. 577, 581 ; Foster v. Cook, 
 3 Br. 351 ; Wood v. Wood, 6 Paige, 596. 
 
 (ffl) Where a widow is to elect between her dower and an annuity, receiving the latter for 
 five years has been held not conclusive evidence of an election. Reynard v. Spence, 4 
 Beav. 103. 
 
132 
 
 DOWEE. HOW BARRED. 
 
 [CHAP. X 
 
 charges made upon them, dower would probably be barred ; and, it 
 seems, a reference may be granted to ascertain the fact.(l) 
 
 64. A widow, receiving a devise for her release of dower, is deemed 
 a purchaser, and shall be fully paid before other legatees ; even though 
 the legacy be not the only consideration of such release. Her claim is 
 even paramount to that of creditors. By relinquiahing her dower, she 
 discharges a highly favored debt due from the testator; and relieves 
 his real estate from' a lien in her favor, which would have preference 
 to any that he himself could have created. Hence, where the widow 
 filed a creditor's bill in Chancery,(ti) praying a sale of the real estate, 
 for payment of debts ; and subsequently presented a petition, alleging 
 that she accepted a devise from the husband improvidently, that the 
 estate was greatly charged with debts, and that she should receive no 
 compensation for her dower, and praying to be let in to the latter ; it 
 was held, that although she could not waive her election of the devise, 
 affirmed by her bringing this suit, in the absence of any fraud or mis- 
 take ; yet, according to the language of the statute, (of Maryland,) she 
 was "a purchaser with fair consideration," both at law and in equity, 
 and that the creditors, having joined with her in an application for 
 sale, could not now claim to be paid in preference to her, but, in order 
 to have equity, must do equity, and allow her legacy in full.(2)(&) 
 
 65. Where devises and legacies are proportionably abated, to make 
 up the portion of a post-testamentary child, the widow's legacy shall be 
 taken into account, m estimating the amount to be deducted from each 
 of the other bequests. But the post-testamentary child, in ord^r to claim. 
 a rateable portion of the widow's legacy, must take his share of the 
 real estate subject to dower. In Illinois, a statute provides, that if by 
 the widow's renunciation of her legacy, other legacies are increased or 
 diminished, the court shall equalize them. (3) 
 
 66. If the provision by will is stated to be for the widow's own sup- 
 port, and the support and education of her children, and she elects her 
 dower ; the bequest fails in toto, and cannot be apportioned for the 
 benefit of the children. (4) 
 
 67. If the testator devises real and personal estate to the widow in 
 lieu of dower, and the whole of his property, subject to such devise, to 
 his executors in trust, and the widow afterwards elects her dower ; the 
 
 (1) Pearson v. Pearson, 1 Br. 292. 
 
 (2) Anth. Shep 451; Burridge «. Bradyl, 1 
 P. Wms. 121 ; Blower v. Morret, 2 Tes. sen. 
 242; Heath v. Derdy, 1 Russ. 545; Marga- 
 ret, Slc, 1 Bland, 203 ; Gibson v. McCormick, 
 
 10 Gill, and J. 65; Thomas v. "Wood, 1 Md. 
 Ch. 296 ; Hubbard v. Hubbard, 6 Met. 50. 
 
 (3) Mitohel V. Blain, 5 Paige, 588 ; IlUn. 
 Rev. L. 624. 
 
 (4) Hawley v. James, 5 Paige, 318. 
 
 (a) On the other hand, an annuity bequeathed by a testator to his widow, in lieu of 
 dower, and charged upon his real and personal estate, is liable to the claims of creditors of 
 the widow, and may be reached by a creditor's bill against her. Degraw D. Clason, 11 
 Paige, 136. 
 
 (6) In the same State, it ia held, that a devise in lieu of dower is to be treated as dower; 
 and, if not claimed by the widow in a creditor's suit, the land shall be sold clear, and she 
 may claim her share of the proceeds. McCormick v. Gibson, 3 Bland, 501. The rule of 
 priority stated in the text does not apply, unless the bounty to the widow consists of real 
 estate. Acey v. Simpson, 5 Beav. 35. 
 
CHA.P. X.] 
 
 DOWER. HOW BARRED. 
 
 133 
 
 property included in the first devise does not pass by the second, but 
 is distributed to the next of kin.(l)(a) 
 
 68. The principles above stated belong to the English law,(6) and, 
 independently of statutory provisions, are generally adopted in this 
 country.(c) But, in the States of Massachusetts, Maine,(2) Indiana, Iowa, 
 Vermont, Pennsylvania, Mary]and,(Q;) (with slight modification,) Vir- 
 ginia,(e) Wisconsin, Illinois, New Hampshire, and Alabama,(/) the 
 widolvr cannot claim both the provision made by will and dower also, 
 unless such plainly appears to have been the testator's intention. In 
 Pennsylvania, iiaryland, and Illinois, this intention must be shown by 
 an express declaration in the will. In Alabama, where the devise is 
 " not satisfactory" to her, the widow may waive it and claim dower.(3) 
 
 69. In Missouri and Delaware,(gr) the statutory provision applies only 
 to a devise of real estate,{4:) and in Missouri bars dower only in land of 
 which the husband died seized. 
 
 70. In South Carolina it has been held, that although Chancery might 
 
 (1) Hawleju. James, 5 Paige, 318. 
 
 (2) Herbert !;. Wreu, 1 Craneh, 370 ; Keller 
 V. Michael, 2 Yeates, 302 ; Webb v. Evans, 1 
 Binn. 565 ; Mass. Rev. St. 410. See St. 1854, 
 73; Purd. Dig 220-1; Park & J. 468 
 Mich. Rev. St. 264; Wise. Rev. St. 335 
 Antli. Sbep. 60, 450; Maine Rev. Sts. c. 95 
 Illin. Rev. L. 624; N". H. L. 199; Ala. L. 
 
 884; Reid D. Campbell, 3 Port. 378; Green 
 V. Green, lb. 19 ; Hastings v. Clifford, 32 
 Maine, 132. 
 
 (3) Ala. L. 258. 
 
 (4) Misso. St. 228; Dela. St. 1829, 168 ; 
 Hamilton w. O'Neil, 9 Mis. 11 ; Dela. ReT. 
 Sts. 291; Iowa Code, oh. 83, sec. 1407. 
 
 (a) Where the will vested the whole title to the testator's estate in trustees, and his 
 widow renounced the provisions the will made for her, and dower was as.signed to her in 
 slaves, which were included in the estate devised to the trustees; held, the assignment 
 only divested the title of the trustees, to the extent of the interest which the law conferred 
 upon the widow in the property assigned as dower; and as she had, by operation of law, 
 a life estate in the slaves, the trustees were only divested of the title to them to that extent, 
 and the reversion remained in them by virtue of the will, and a creditor might sell the title 
 to the reversion under an execution. Myers v. Davies, 10 B. Mon. 394. 
 
 In Indiana, previously to the Revised Statutes of 1843, if a devise to the wife did not 
 state that it was in lieu of dower, and her claim of dovver was not inconsistent with the 
 will, she had a right to take both. Kelly v. Stinson, 8 Blackf 387. 
 
 Previously to the Revised Statutes, a testator devised certain goods to his wife, and the 
 residue of his property, real and personal, to his children. The devise to the wife was not 
 said to be in lieu of dower, nor would her taking dower overturn the will. After the tes- 
 tator's death, the widow released her claim by dower (as it was called) on the personal 
 estate, except the provisions made for her in tlie will. Held, she was entitled to dower in 
 the real estate. Ostrander v. Spickard, 8 Blackf. ^227. See Smith v. Baldwin, 2 Cart. 404. 
 
 (6) But see see. 14, n. a, for a late statutory alteration. The English rule is still adopted 
 in Georgia. Tooke v. Hardeman, 7 Geo. 20. 
 
 (c) Under section 10 of the intestate law of Penn!?ylvania of 1797, the widow's accept- 
 ance of a devise to her, does not bar her of dower in land which her husband conveyed in 
 his lifetime, though with general warranty, and in the conveyance of whieh she did not 
 join. Borland v. Nichols, 12 Penn. 38. 
 
 (d) A partial .failure of a devise to a widow, who abides by the will, will not entitle her to 
 compensation out of the residue of the estate, unless the failure is to .such an extent, as to 
 make what she receives under the will less in value than her legal share of her husband's 
 estate. Thomas v. Wood, 1 Maryland Ch. 296. 
 
 (e) It has been very recently held, that to exclude dower, there must either be an 
 express declaration, or an implication equivalent to it. Higginbotham v. Cornwell, 8 
 Graft. 83, 
 
 ( /) Where lands mortgaged are devised with other lands, and she does not dissent, she 
 has no dower against the mortgagee. Inge v. Boardman, 2 Ala. (N. S.) 331. 
 
 (g) No advancement made in the husband's lifetime shall affect dower. Dela. Rev. 
 Sts. 279. 
 
134 
 
 DOWER. HOW BARRED. 
 
 [CHAP. X. 
 
 imply a provision by will to be a bar of dower, a court of law could 
 not do it.(l)(a) 
 
 71. With regard to the time and mode of electing, it is beld in Eng- 
 land, where the widow is bound to elect, that if she enters upon and en- 
 joys the estate, an election of such estate will be presumed. So, if she 
 partially accede to a settlement, she will be bound for the whole. 
 Otherwise, where any act is done under an ignorance of her rights or 
 the testator's circumstances.(2) But if an insane woman waives the 
 devise to her in due form, does not retract the waiver in any lucid 
 interval, nor her guardian for her, but claims dower and petitions for 
 an allowance ; the waiver will bind her.(3) 
 
 71 a. Where real estate was charged by a testator with an annuity, for 
 the benefit of the widow, and it was provided, that at her death the 
 estate should be disposed of by the executors in accordance with the 
 directions of the testator ; held, the dissent of the widow from the will 
 discharged the incumbrance, and that the estate thereupon passed to 
 the devisees.(4) 
 
 72. Though a devise be not made expressly in lieu of dower, and 
 therefore not a bar, yet the widow by her own acts may make it such. 
 Thus, if she contracts with the heir, reciting in the agreement that she 
 receives certain things in satisfaction of the devise and in lieu of dower ; 
 she shall be barred of the latter. Dower, before assignment, being a 
 right of action merely, may be released, without formal conveyance, by 
 acts and agreements.(5) 
 
 1e. A widow, to whom property was bequeathed, not expressly but 
 constructively in lieu of dower, having occupied the house devised to 
 her, and received other property given her by the will, and disposed of 
 a part of it, fourteen years after the husband's death claimed dower. 
 Held, a reasonable time for her election had elapsed, and she could not 
 waive the devise.(6) 
 
 74. In the absence of any election, whether the widow shall take her 
 dower, or the provision made for her by will, seems to be a point some- 
 what differently settled in different states. In Ohio, (7) if she fails to 
 elect, the law gives her dower.(&) But in Massachusetts, if the provi- 
 sion by will is more beneficial than dower, an acceptance of the former 
 
 (1) Pickett V. Peay, 2 Con. S. 0. 746. 
 
 (2) Milner v. Harewood, 11 Tez. 150; 
 Pusey t). Desbouvrie, 3 P. Wms. 321; Chal- 
 mers V. Storil, 2 Tea. & B. 225 ; Duncan v. 
 Duncan, 2 Tea. 305; Tooke v. Harden, 1 
 Geo. 20 ; U. S. v. Duncan, 4 McL. 99. Some 
 of these cases sustain the principle stated in 
 
 the text rather by analogy than directly. 
 
 (3) Brown v. Hodgdon, 31 Maine, 65. 
 
 (4) Armstrong v. Park, 9 Humph. 195. 
 
 (5) Shotwell V. Sedam, 3 Ohio, 12. 
 
 (6) Reed v. Diekerman, 12 Pick. 146. 
 
 (1) Walk. Intro. 325 ; Swan, 998-9 ; Ham- 
 ilton V. O'Neil, 9 Mis. 11. 
 
 (a) A devised one half of his estate to his daughter, and the other half to his wife. The 
 latter married again, having first made a marriage settlement, by which the moiety of A's 
 estate was conveyed to her second husband. He died, and devised the same half to his 
 widow, in lieu of dower ; but she elected to take her dower, and so the devise lapsed. She 
 then applied to have her dower in A's estate assigned to her. Held, as she had accepted 
 the devise, her right of dower was barred. [Darsan, Oh., dissenting.] Bailey v. Boyce, 4 
 Strobh. Eq. 84. Where a widow occupied a plantation for eleven years under the will of 
 her husband, she was held to have elected to take under the will, and could not claim dower, 
 although the will contained no express provision that she should elect. Caston v. Caston, 2 
 Rich. Eq. 1. 
 
 (6) So, it seems, in Missouri. Hamilton v. O'Neil, 9 Mis. 11. 
 
CHAP. X] 
 
 DOWER. HOW BARRED. 
 
 135 
 
 will be presumed.(l)(a) And the general rule undoubtedly is, that the 
 widow will be understood to accept the devise or legacy, unless she 
 expressly declare a contrary determination. 
 
 75. In most of the States, a definite time is fixed, within which she 
 shall make a formal election. In Massachusetts, Maine, Tennessee, Ohio 
 and North Carolina, within six months firom probate of the will ; in 
 Vermont, (6) eight months; in Connecticut, two months (from the time 
 of exhibition of claims ;) in Maryland, ninety days; in Missouri and 111- 
 inois,(c) twelve months.(2) In Michigan, Indiana and Alabama,(3) 
 one year. In Pennsylvania,(c?) New York and Wisconsin, one year 
 from the testator's death. In Pennsylvania, upon a summons Irom 
 any party interested. In Virginia and Kentucky, upon renunciation 
 within one year from the husband's death, the widow shall be entitled 
 to one-third of the slaves for life. 
 
 76. The statutes of the several States designate the form in which an 
 election shall be made. It is done sometimes by a personal appear- 
 ance(e) of the widow before the Court of Probate, but generally by 
 the filing of a written declaration, which becomes matter of record. 
 In Virginia and Kentucky,(/) either openly in court or by deed. In 
 Tennessee, in the former mode. In New York and Michigan, by an 
 entry upon or suit for the land. In Wisconsin, by a suit. In Arkan- 
 sas, by a release to the heirs within eighteen months.(4:) 
 
 (1) Merrill v. Emery, ]0 Pick. 507. See 
 Clay V. Hart, 1 Dana, 6 ; Malone v. Majors, 
 8 Humph. 577. 
 
 (2) Mass. Rev. Sts. 410 ; Maine lb. o. 95 ; 
 Walk. 325; Illin. Sts. 1842-3, 319; Anth. 
 Sbep. 50, 451 ; 1 N. 0. Rev. Sts. 613; Swan, 
 998 I Conn. Sts. 189 ; Verm. Rev. Sts. 289- 
 90 ; Cummings v. Daniel, 9 Dana, 361. See 
 Bell V. Wilson, 6 Ired. Equ. 1 ; Armstrong v. 
 
 Baker, 9 Ired. 109 ; U. S. v. Duncan, 4 McL. 
 99 ; Harvy v. Green, 9 Humph. 182. 
 
 (3) Ala. L. 258 ; Mich. Rev. Sts. 264 ; Hil- 
 liard v. Binford, 10 Ala. 977; Ind. Rev. 
 Sts. Descent, s. 41. 
 
 (4) Anth. Shep. 483, 648 ; 1 N. T. Rev. 
 Sts. 742 ; Malone v. Majors, 8 Humph. 577 ; 
 Wise. Rev. Sts. 335. 
 
 (a) The later doorine is, that such acceptance will be presumed in all oases in the absence 
 ofany election. Pratt v. Pelton, 4 Gush. 174. If the widow demand dower, and after- 
 wards, being in possession of the land devised to her, lease it, and the lessee enter and 
 occupy; this is not a sufEcient election under the statute. lb. 
 
 (6) In this State, if the widow was not the first wife, if there are no issue, if there was an 
 ante-nuptial agreement, and she receives a comfortable support' — an election will not be al- 
 lowed. Verm. Rev. Sts. 200. 
 
 The right of a widow to waive the provision in the will and claim dower, must be 
 exercised within eight months, though the executor declines to act, and adminrstration is 
 granted with the will annexed. Smith v. Smith, 20 Vt. 270. 
 
 (c) The act does not apply, unless the provision is such, as to raise a reasonable presump- 
 tion that the devise was intended in lieu of dower. U. S. v. Duncan, 4 MoL. 99. 
 
 (d) The statute of Pennsylvania of April 11, 1848, allowing to a widow, who elects not to 
 take under her husband's will, the share of his personal estate which she would have been 
 entitled to had he died intestate does not apply to a case where the husband died before 
 its passage, although the election were not made until afterwards. Hinnershits v. Bern- 
 hard, 1 Harris, 518. 
 
 The share which a widow would have in the estate of her husband if he died intestate, 
 is not dower within the statute of April 8, 1833, allowing a widow to elect between her 
 dower and the provision in her husband's will. lb. 
 
 (e) In North Carolina, it has been held, that a widow must dissent from her husband's 
 will in person, and cannot do so by attorney or guardian ; and if she be lunatic, no objec- 
 tion can be made. Lewis v. Lewis, 7 Ired 72; Hinton v. Hinton, 6 Ired. 274. 
 
 In Delaware, it may be done by attorney, if she is unable to attend. Dela. Rev. Sts. 29. 
 So, by a recent statute, in North Carolina, in case of sickness. And the guardian of a lu- 
 natic or nom compos, may dissent. N. C. St. 1848-9, 90. 
 
 (/) See MoCallister v. Brand, 11 B. Mon. 370. 
 
13 g DOWER. HOW BARRED. [CHAP. X. 
 
 77. But in ISTew York it has been held,(l) in Chancery, that where 
 a widow, by deed, relinquishes the testamentary provision, records the 
 deed, and notifies the executors and trustees, or the tenant of the land, 
 of her election, who thereupon recognize her right of dower and make 
 payments on account of it ; this is equivalent to the statutory formali- 
 ties, and an entry upon, or suit for, any part of the lands is suffi- 
 cient.(a) 
 
 78. It has been held in Massachusetts, that though provision is made 
 for a widow in the husband's will, and though she fails to make her 
 election within six months, she may still claim her dower, if it appear 
 that the estate is insolvent, and the provision in the will wholly fail. 
 By the Eevised Statutes, (ch. 60, sec. 13,) if the widow is lawfully 
 evicted of lands assigned as dower, or is deprived of the provision 
 made for her by will or otherwise in lieu of dower ; she may be en- 
 dowed anew. Upon this ground the case was decided.(2) So, in Maine, 
 if deprived of the provision in the will, she has dower. Or of any 
 substantial part of it.(8) 
 
 79. The same provision is held applicable in Massachusetts, in case 
 of a devise of all the testator's property to the widow, on condition 
 that she pay all his debts, legacies, &c., as well as where there is a be- 
 quest of a certain sum of money or specified property. (4) 
 
 (1) Hawley v. James, 5 Paige, 318. I (3) Hastings v. Clifford, 32 Maine, 32. 
 
 (2) Thompson v. MoGaw, 1 Met. 66. | (4) Thompson v. MoGaw, 1 Met. 66. 
 
 (a) In Mississippi, though the probate of a Vcfill made in vacation ia invalid, yet, if acted upon 
 by the executor in administering the estate, and by the widow of the testator and other par- 
 ties in interest for the period of seven years, without objection, the widow will bo deemed 
 to have elected to take the provision made for her by the will, and cannot afterwards 
 renounce such provision. Sanders v. Sanders, 14 S. & M. 81. 
 
 Where a widow has formally waived the provision in the will, a subsequent contract 
 with the heirs and legatees to accept it, and make no other claim on the estate, can have 
 no effect on the action of the Probate Court. Gowen, &c., 32 Maine, 516. 
 
 Where a widow dissents to her husband's will, she thereby rejects all the provisions in 
 her favor, and is let into the rights which the law would have conferred upon her, if her 
 husband had died intestate. Armstrong v. Park, 9 Humph. 195. 
 
 Devise to the testator's widow of all his estate, in trust to sell, and invest the proceeds 
 for her and her children. The widow entered, and "as widow and sole devisee, acting 
 under and I ly virtue of the last will" of her husband, released certain land mortgaged by him 
 to the mortgagee, in consideration of a large sum, and of bis relinquishing all claim upon 
 certain other property of the testator, with the usual terms of a quit-claim deed. Held, she 
 could not afterwards elect to claim her dower, though within the statutory period. Dun- 
 das V.Hitchcock, 12 How. 256. 
 
 Where a widow remains in the mansion-house, uses the property given her by her hus- 
 band's will, and makes a will disposing of said property, which will is itself annulled by a 
 subsequent event ; she may renounce the testamentary provisions, and her motives in mak- 
 ing such renunciation are not to be inquired into. Mc'Callister v. Brand, 11 B. Mon. 370. 
 
 Where a limited power of disposition of certain property is given to a widow, she may 
 renounce on the ground of such limitation. lb. 
 
 If a widow make a conditional renunciation within one year, and the contingency hap- 
 pen within that year, the renunciation is valid, though it be not recorded before the hap- 
 pening of the contingency. lb. 
 
 Whether the renunciation must be recorded within the year or not, Qucere. lb. 
 
 The renunciation bj"" a widow does not create a new right, but merely confirms a pre-ex- 
 isting right which the law creates in the right to elect. lb. 
 
 A renunciation amounts to a transfer by the widow of her testamentary provision to the 
 heirs and devisees, and entitles her to what the law gives from them. Jb. Where the 
 widow fails to assent within the time fixed by law, she cannot afterwards claim relief in 
 equity, on the ground of mistake as to sufficiency of the estate to meet the charges upon it. 
 Otherwise, where her acceptance of the devise is obtained by fraud. MoDaniel v. Douglas, 
 6 Humph. 220. 
 
CHAP. X.] DOWER. HOW BARRED. 137 
 
 _ 80. The widow having applied for her dower, it appeared that a pre- 
 vious application had been made and refused, before there was sufficient 
 evidence t",!it she would lose her devise, and that she did not appeal 
 from such decree. Held, these facts were no bar to the present peti- 
 tion.(l) 
 
 81. The provision of the Eevised Statutes, as to a widow's electing 
 between her dower and the provision made for her by will, does not 
 apply, where a widow claims her third of unbequeathed personal prop- 
 erty in addition to the provision of the will. (2) 
 
 82. Devise, that the testator's widow "shall have her dower out of 
 my estate, in the same manner she would be entitled to, if this will had 
 not been made." Held, as she was hereby limited to dower, and ex- 
 cluded from her share of the personal property, the devise constituted 
 & provision for her, within the meaning of St. 1833, c. 40; and, upon 
 waiving it, she might claim an allowance from the personal prop- 
 
 83. A testator devised to his wife, during her widowhood, all his 
 property, subject to debts and legacies, and appointed her his executrix. 
 He also authorized her during widowhood to sell and convey so much 
 of his real estate as she might judge necessary, &c., for payment of his 
 debts, for support of herself and her children, and for their education. 
 She accepted the trust and administered the estate. Within two years, 
 she sold a part of the real estate, under the authority in the will, and 
 soon afterwards married again. Subsequently, she sold the rest of the 
 real estate for payment of debts, under a license of court, and with 
 her husband conveyed the same, not reserving her dower, and having 
 full knowledge of the situation of the estate. Thirteen years after the 
 death of her second husband, she first claimed dower in the land sold 
 under the license. Held, she had accepted the provision made for her 
 by the will, and thus waived her claim for dower.(4:) 
 
 84. Devise of parts of the real estate to the wife in fee, and of all the 
 personal estate ; the other parts of the real estate to be disposed of ac- 
 cording to law. The wife having accepted the devise ; held, a bar of 
 dower. (5) 
 
 (1) Thompson v. McGaw, 1 Met. 66. I (4) Dolay v. Vinal, 1 Met. hi. See Holm v. 
 
 (2) Kempton, 23 Pick. 113. Low, 4 Met. 190. 
 
 (3) Crane v. Crane, 17 Pick. 422. I (5) Adams u Adams, 5 Met. 277. 
 
138 
 
 ASSIGNMENT OF DOWER. 
 
 [CHAP. XI. 
 
 CHAPTER XI. 
 
 ASSIGNMENT OF DOWER. 
 
 1. Necessity of assignment. 
 
 2. Nature of estate before assignment. 
 11. Tenancy in common with the heirs, in 
 
 Massachusetts, &c. 
 14. Assignment not required in equity. 
 18. Quarantine. 
 
 24. Assignment by the heir or other tenant. 
 30. Action at law for dower. 
 
 32. When the only remedy. 
 
 33. View. 
 
 34. Damages. 
 36. Demand. 
 
 40. Costs. 
 
 41. Bill in equity for dower. 
 
 48. Assignment by Probate Court. 
 
 56. Forms of proceeding. 
 
 58. How far evidence of title. 
 
 60. When adverse and compulsory, or 
 otherwise. 
 
 Gt. Application for assignment — by whom. 
 
 10. Wrong assignment — how remedied. 
 
 1\. Assignment — when it may be de- 
 manded. 
 
 '72. Limitation of suit for dower. 
 
 1. Although by the death of the husband the right of the widow- 
 to dower becomes consummate, yet, in general, she has no title to any 
 specific lands, and no right of entry upon them, until her dower is 
 assigned or admeasured by the heir or other tenant of the freehold, or 
 in a course of legal proceedings. She has only a potential interest, 
 or right in action.{l){a) 
 
 2. Upon this principle, a mere judgment for dower, in a suit 
 brought by the widow, gives her no right of entry, like a judgment 
 in other real actions ; even though the dower is to be assigned in 
 common, and will, therefore, be rendered no more certain by the 
 assignment.(2) 
 
 3. In Pennsylvania, the widow of a tenant in cdmmon cannot, before 
 assignment, maintain a writ of partition.(3) But in New York it is 
 intimated, that although the widow is not properly made a party to a 
 partition among heirs, devisees, &c., and cannot recover her dower by 
 process of partition, where the husband was sole seized ; she is a proper 
 party to such partition, where he was a tenant in common. (4) 
 
 4. So, in general, it is no defence to an ejectment against the 
 widow, brought by the heir for lands descended to him, or by a de- 
 visee, that he has failed to assign dower therein.(5) That part of the 
 
 (1) Gilb. Ten. 26 ; 9 Mass. 13 ; Cox v. 
 Jagger, 2 Cow. 638 ; 10 Wend. 528 ; 3 Ohio, 
 12 ; 13 Pick. 35 ; Robinson v. Miller, 1 B. 
 Monr. 91 ; Johnson v. Shields, 32 Maine, 
 424 ; Pennington v. Tell, 6 Bng. 215. 
 
 (2) Hildreth v. Thompson, 16 Mass. 191 ; 
 Co. Lit. 34 b. 
 
 (3) Brown v. Adams, 2 Whart. 188. 
 
 (4) Coles V. Coles, 15 John. 319. 
 
 (a) Where, before assignment of dower, the widow' married again ; held, the second hus- 
 band's interest in the laud did not pass by an assignment of all that he held in right of his 
 wife. Brown v. Meredith, 2 Keen, 527. It has been held in Vermont, that the wife, pre- 
 viously to her dower being assigned, has the same right of entry upon the land, whether as 
 against a stranger or her co-tenant, which the husband had during his life. Gorham v. 
 Daniels, 23 Verm. 600. In Delaware, dower is a right at common law; but the right to 
 have it assigned by the Orphans' Court is derived from the act of 1816. Layton v. Butler, 
 4 Harring. 50'?. 
 
 (6) But in Kentucky, neither the heir nor a purchaser from him can maintain an action 
 against the widow for land Inherited, till dower is assigned. Robinson v. Miller, 1 B. Mon. 
 93. In Alabama, the heir may recover the land from one to whom the widow conveyed 
 tefors assignment of dower. Wallace v. Hall, 19 Ala. 367. Where a widow remains in 
 
CHAP. XI.] 
 
 ASSIGNMENT, OF DOWER. 
 
 139 
 
 land, which the widow is specially authorized to occupy without 
 assignment, (as will be seen hereafter,) is of course excepted from the 
 above remarks.(l) 
 
 5. A quiet possession of the land and actual receipt of the rents and 
 profits, for six years, are not equivalent to a legal assignment, so as to 
 give the wife a freehold estate, but constitute either a disseizin or 
 tenancy at will. But where a mother had the right of dower, and the 
 land descended to her daughter, of whom she was guardian, and 
 there was no assignment, but the daughter remained in the family of 
 the mother; held, all the income that was practicable should be 
 obtained from the estate, and the mother charged with two-thirds, but 
 allowed to retain the rest in lieu of dower.(2) 
 
 6. But after dower has been set off, the widow may enter before 
 return of the writ. So, after an assignment by commissioners, made 
 with the assent of the widow and heir, and the report of which is sub- 
 sequently accepted by the Probate Court; the widow, before such 
 acceptance, may enter and take the crops sown by the heir before the 
 assignment.(3) 
 
 7. It has been held in New York,(4)(a) that before assignment the 
 widow may release, but cannot transfer her right ; and in Maine, 
 Illinois, Arkansas and Kentucky,(5) that it cannot be taken in execu- 
 tion. But in Alabama, a widow may assign her interest in her hus- 
 band's estate, in equity. (6) In Ohio,(7) a conveyance by the widow of 
 her dower, before admeasurement, is not void, and will not be set 
 aside on application of a purchaser who has entered and enjoyed. 'He 
 can only claim to have his title perfected. But no transfer can be 
 made, which will justify a suit for dower in the purchaser's own name. 
 In North Carolina, although the widow before assignment is not seized 
 and cannot convey a legal title; she may make a contract concerning 
 the land, which equity will enforce. (8) So, a receipt for money, received 
 as a substitute for dower, given by a widow to the purchaser of the 
 lands of her deceased husband from her sons, in ratification of an ar- 
 
 (1) Evans v. "Webb, 1 Tea. 424; Moore v. 
 Gilliam, 5 Mun. 346 ; Branson v. Yancy, 1 
 B. & Dev. Equ. 11. 
 
 (2) Windham v. Portland, 4 Mass. 384 ; 
 Mathes v. Bennett, 1 Fost. (N. H.) 204. 
 
 (3) Co. Lit. 37 b. n. 2 ; Parker v. Parker, 
 11 Pick. 236. 
 
 (4) Cox V. Jagger, 2 Cow. 638 ; Siglar v. 
 Van Riper, 10 Wend. 414 ; Ritchie v. Put- 
 
 nam, 13, 524 ; Green v. Putnam, 1 Barb. 500 ; 
 Blain v. Harrison, 11 Illin. 384. 
 
 (5) Mason v. Allen, 5 Greenl. 479 ; Shields 
 V. Batts, 5 J. J. Marsh. 15 ; Summers v. 
 Babb, 13 Illin. 483 ; Pennington v. Tell, 6 
 Eng. 215. 
 
 (6) Powell V. Powell, 10 Ala. 900. 
 
 (7) Todd V. Beatly, Wright, 461; Douglass 
 V. M'Coy, 5 Ohio, 527. 
 
 (8) Potter V. Everett, 7 Ired. Equ. 152. 
 
 possession of the land, the remedy of the heirs is at law, not in equity, unless there be some 
 special reason to the contrary. Egbert ■«. Thomas, 1 Cart. 393. Where land was con- 
 veyed, with a covenant that the" grantor was lawful owner, had good right to convey, and 
 would warrant and defend, there being a claim for dower at the time, but no assignment; 
 and afterwards the grantee was compelled to pay an annuity in lieu thereof : this was no 
 breach of the covenant. Tuite v. Miller, 10 Ohio, 382. 
 
 (a) So in Illinois. Summers v. Babb, 13 Illin. 483. So it is held, in Maine, that a 
 widow's right of dower, before it is assigned to her, rests only in action, and she cannot 
 release or convey it, except to a party in possession or in privity of the estate from which 
 it accrued. Such right is not embraced by the Maine Rev. Stat. o. 91, sec. 1, abrogating 
 the common law rule, by which disseizees are prevented from conveying. Johnson v. 
 Shields, 32 Maine, 424. The right is a chose in action, which may be reached by a creditor's 
 bill. Stewart v. M'Martin, 5 Barb. 438. 
 
140 
 
 ASSIGNMENT OF DOWER. 
 
 [CHAR 21. 
 
 rangement between her sons, and after consultation with them and her 
 attorney, and due deliberation, she having received a payment under 
 it, estops her from contesting its validity or claiming her dower.(l)_ 
 
 8. In Indiana, the widow cannot mortgage her dower before assign- 
 ment.(2) So, the interest of the widow before assignment is not a 
 proper subject of lease. Hence, a covenant, in an instrument purport- 
 ing to be a lease of such interest, to pay her a certain sum annually as 
 rent, in consideration of her forbearing to exercise her right of dower, 
 is merely personal, and does not run with the land, or bind an assignee 
 of the supposed lessee. Neither can such transaction have the effect of 
 a release, which must operate presently and absolutely. (3) 
 
 9. The widow having before assignment a mere right of action, this 
 may be lost to her without the formality of a conveyance, as, for 
 instance, by an award.(4) 
 
 10. In Connecticut, (a) upon a construction of the statute concerning 
 dower, it has been held, that immediately upon the husband's death, 
 the widow becomes a tenant in common with the heirs, and may enter 
 without assignment. She is not regarded as a tenant under the heirs.(5) 
 But in New York, the statute, substituting ejectment for the former 
 remedy of the writ of dower, has not the effect to make the widow a 
 tenant in common with the heirs. Her title is still a mere right of 
 action. (6)(&) 
 
 11. In Massachusetts, Vermont, Wisconsin, and Michigan, the widow, 
 may occupy the land with the heirs, or receive one-third of the profits, 
 until tiey object. This was also allowed in England by the ancient 
 law, as "rationahile estoverium in communis In Virginia, she may 
 receive one-third of the profits, till assignment.(7) 
 
 12. In Maine, (8) she shall have one-third of the rents and profits till 
 assignment, if the husband died seized. 
 
 13. These provisions were probably intended to give the widow a 
 remedy only against the heirs ; enabling her to recover the rents and 
 profits Irom the husband's death without demand, and making the 
 amount of them the measure of her damages. It seems, tbey do not 
 authorize assumpsit against any other tenant of the freehold than the 
 heirs, thereby allowing the title to land to be tried in this form of 
 action. (9) 
 
 14. In equity, a formal assignment of dower is deemed unnecessary. 
 
 15. Thus, in New York, the widow's right may be reached by 
 creditors, before assignment, by a process in Chancery.(lO) 
 
 16. An infant heir brings a bill in equity against the widow of the 
 deceased, for an account of rents which the latter had received as guar- 
 
 (1) Simpson, 8 Barr. 199. 
 
 (2) Strong v. Bragg, 7 Blaekf. 62. 
 
 (3) Croade v. Ingraham, 13 Pick. 35. 
 
 (4) Oox V. Jagger, 2 Cow. 638 ; 3 Ohio, 12. 
 
 (5) Stedman v. Fortune, 5 Conn. 462. 
 
 (6) Yatea v. Paddock, 10 "Wend. 628. 
 
 (7) Mass. Eev. St. 410; Mich. Eev. St. 
 
 263; Term. lb. 290; "Wise. lb. 334; Ylr. 
 Code, 474. 
 
 (8) Co. Lit. 34, b; Foster v. Gorton, 5 
 Pick. 185 ; 1 Smith's St. 170 ; Bolster i). 
 Cushman, 34 Maine, 428. 
 
 (9) Gibson v. Crehore, 3 Pick. 475. 
 
 (10) 4 Kent. 61. 
 
 (a) In this State, where dower is claimed in an equity of redemption, with the consent of 
 the widow, the court may order a sale of the whole, allowing to her her proportion of the 
 proceeds. Sts. 1839, 124. 
 
 (6) So in North Carolina. 1 Bad. & Dev. Equ. 77. 
 
CHAP. XI.] 
 
 ASSIGNMENT OP DOWER. 
 
 141 
 
 dian. The widow was entitled to dower, but it had never been assigned. 
 Held, she should be allowed, in accounting, one-third of the rents. (1) 
 
 17. And the widow of a mortgagor may have a bill of equity to 
 redeem before any assignment of dower, because such assignment does 
 not affect her right of redemption, aud because she has no right to 
 demand such assignment as against the mortgagee, before she redeems. 
 Nor is an assignment by the heirs necessary, because she could not 
 redeem a part of the land without the whole.(2) 
 
 18. To the general rule at law, that an assignment of dower is neces- 
 sary to perfect the title of the widow, there is one exception. Magna 
 Charta provided, that the widow might remain in her husband's capital 
 mansion-house, with the privilege of reasonable estovers or maintenance, 
 for forty days after his death, during which time her dower should be 
 assigned. These forty days are called the widow's quarantine. Some 
 have said, that by the ancient law this time was an entire year.(3) 
 
 19. In most of the States, a similar provision has been expressly 
 made by statute. In Massachusetts, and New York,(a) the widow is 
 entitled to possession of the mansion-house for forty days ; In Arkan- 
 sas, two months ; in Maine, ninety days ; in Ohio, Wisconsin and Michi- 
 gan, one year. In Indiana, Virginia, Kentucky,(6) Rhode Island, New 
 Jersey, Alabama, Illinois and Missouri, she may occupy till dower is 
 assigned. In Illinois, Kentucky, Indiana, Missouri, New Jersey, Vir- 
 ginia and Alabama, she may also occupy ihe plantation or messuage. 
 in Arkansas,(c) the mansion and farm. In Georgia, the mansion and 
 tenements.(4) 
 
 20. In Virginia and Kentucky, if deforced before assignment, the 
 widow shall have a vicontiel writ, in the nature of a "cfe quarantina 
 habenda.'\5) 
 
 21. Quarantine is a. personal right, not assignable, and said to be for- 
 feited, by implication of law, by a second marYiage ; though it has been 
 held, that the statutory privilege, of occupying the dwelling-house till 
 assignment, is not lost by this cause, and in Missouri, that the right is 
 assignable. So, the heirs ma}^ recover the mansion-house from one 
 claiming by a transfer from the widow before assignment of dower.(6) 
 
 (1) Hamilton ». Mohun, 1 P. Wms. 118. 
 
 (2) Gibson V. Crehore, 5 Pick. 149. 
 
 (3) Co. Lit. 32, b ; Seider v. Seider, 5 
 "Whart. 208. 
 
 (4) Mass. Kev. Sta. 411; 4 Kent, 62; 
 Walk. Intro. 231, 324; 1 N. 0. Rev. Sts. 
 en; Me. Rev. Sts. 393; Ark. Rev. Sts. 
 338-9 ; Mich. Rev. Sts. 265 ; Wise. Rev. Sts. 
 335; Ind. Rev. L. 209 ; 1 Tir. Rev. C. 170; 
 
 Ala. L. 260; Misso. Sts. 229 ; Illin. Rev. L. 
 237 ; N, J. Rev. G. 397 ; 1 Ky. Rev. L. 573 ; 
 Pharis v. Leachman, 20 Ala. 662 ; Springle 
 V. Stiields, 17, 295 ; Shelton v. Carrol, 16, 148 ; 
 Singleton v. Singleton, 5 Dana, 89; Rambo v. 
 Bell, 3 Kelly, 207. 
 
 (5) 1 Tir. Rev. C. 170. 
 
 (6) Go.'Lit. 32, b ; Wallis v. Doe, 2 Sm. k 
 JI. 220; Stokes v. McAllister, 2 Misso. 163. 
 
 (a) The statute relates to lands in which she has a right or claim of dower. It does not 
 apply to leasehold property. Voelckner v. Hudson, 1 Sandf. 215. 
 
 (ft) But where the widow left the mansion with her family, and it was leased by the ad- 
 ministrator to her father; held, the lease was to be regarded for the benefit of the heira, 
 and not as continuing the widow's po.ssession. Burk v. Osborn, 9 B. Mon. 579, 
 
 (c) In this State, the husband's usual dwelling is assigned for dower, unless serious injury 
 would be thereby occasioned. (See Menifee v. Menifee, 3 Eng. 9.) In Indiana, the term 
 messuage is held to include a fev/ acres adjoining the dwelling-house, and peculiarly appro- 
 priated thereto. Guines v. Wilson, 4 Blackf 334. In Alabama, the widow of one residing 
 in a town cannot retain the rents of a plantation, of which her husband died seized, until it 
 has been assigned to her for dower, on the ground of quarantine. Smith v. Smith, 13 
 Ala. 329. 
 
142 
 
 ASSIGNMENT OP DOWER. 
 
 [CHAP, XI. 
 
 But in Mississippi, ia ejectment by a grantee of the husband, even 
 though the premises are held by a tenant of the widow, yet if she has 
 not given a lease or actual transfer .of her privilege of possession, and 
 she be let in to defend in the action, she may rely on her right of pos- 
 session under the statute.(l) 
 
 22. It is said, notwithstanding the widow's right of occupany, the 
 legal title is still in the heir. But it has been held in Virgina, that the 
 heir cannot maintain an action lor trespass to the mansion-house land.(2) 
 
 23. The widow's right to occupy the mansion usually ceases upon 
 expiration of the quarantine, though dower have not been assigned ; 
 and the heir may enter and bring a suit. Trespass lies against her ; 
 for, she being neither a joint tenant nor tenant in common with the 
 owner of the inheritance, the latter would otherwise be without 
 remedy. (3)(«) 
 
 24. By the ancient common law, dower was assigned by the heir, 
 subject to the judgment of the '■Spares curice," in case of any dispute. 
 But the assignment might be made by any tenant of the freehold ; and 
 this seems to be the universal rule in the United States. 
 
 25. If the land is in possession of a wrongful occupant, as, for in- 
 stance, a disseizor or abator, the widow is not bound in law to wait for 
 her dower until the heir asserts his title, but may compel the terre-tenant 
 to make an assignment. This will be valid, unless he is in possession 
 by fraud and covin of the widow, for the purpose of obtaining dower ; 
 in which case the heir may avoid the assignment, although " equally 
 made by the sheriff after judgment." None, however, can assign dower, 
 except those who have the fireehold and against whom an action would 
 lie.(4) 
 
 26. Lord Coke says,(o) if the husband have conveyed several lands 
 to different persons, and one of them assign to the widow in satisfac- 
 tion of her whole dower, the others cannot avail themselves of such 
 assignment. But if a part of the lands descend to the heir, and he 
 assign in full satisfaction of her whole dower, a grantee of another por- 
 tion of the land, being sued, may vouch the heir, who may plead 
 this assignment in bar, there being a privity between the heir and the 
 grantee. 
 
 27. In Virginia, Kentucky, Missouri, New Jersey and Delaware,(6) 
 statutes provide, that it shall be no defence against a suit for dower, 
 that another person has assigned it, unless this assignment be shown to 
 be in satisfaction of dower firom the lands in question. 
 
 28. In some cases, where the widow brings a suit against the terre- 
 tenant, and the latter vouches the heir, the tenant may " go in peace," 
 
 (1) Doe '0. Bernard, 7 S. & M. 319; Sts. H. 
 &H. 597, =.47. 
 
 (2) Branson v. Yancy, 1 Bad. & Dev. 77; 
 Latham v. Latham, 3 Call. 181. 
 
 (3) Jackson v. O'Donagby, 7 John. 247 ; Mo 
 Cully V. Smith, 2 Bai. 103. 
 
 (4) Co. Lit, 35 a; 3 Co. 784: 4 Dane, 669; 
 Norwood V. Marrow, 4 Dev. & B. 442. 
 
 (5) Co. Lit. 35 a ; (Perk. s. 402 con.) 
 
 (6) 1 Tir. Rev. 0. 170 ; 1 Ky. Rev. L. 574 ; 
 Misso. St. 231 ; 1 N. J. Rev. C. 398 ; Dela. St. 
 1829, 165: Rev. St. 292. 
 
 (a) The action brought (in South Carolina) was trespass to try title. This or some other 
 similar remedy must of course, be requisite. In Indiana, if the widow enter upon any other 
 lands, than " the mansion-house and messuage thereunto belonging," and apply the proceeds 
 to her own use, she is a wrongdoer, and liable to the owner for the rents and profits. 
 4 Blackf 331. See Taylor v. McCrackin, 5 Blackf. 261 ; Stokes v. McAllister, 2 Misso. 163. 
 In Arkansas, the heir is required to assign dower as soon as possible. Rev. Sts. 340. 
 
CHAP. XL] ASSIGNMENT OP DOWER. 143 
 
 and judgment shall be given against the heir alone. Thus, if the heir 
 is vouched as having assets in the same county, which the demandant 
 acknowledges, judgment shall be against the heir; otherwise against the 
 tenant, and for him ovei- in value. If the heir has assets in the county 
 only in part, the judgment is conditional.(l) 
 
 29. The right of the heir to assign dower is not impaired by the 
 statutory provisions for such assignment, which exist in all the States, 
 and will be hereafter mentioned. (2) 
 
 30. As has been already intimated, the widow may maintain an ac- 
 tion for her dower, where it has not been voluntarily assigned her, 
 against the heir, or the tenant or immediate owner of the freehold. 
 If no dower has been assigned, the form of action is a writ of dower, 
 wide nihil habet ; if it has been assigned in part, a writ of right of dower, 
 which lies also in the former case.(3) The writ unde nihil habet is the 
 only one provided in Massachusetts, Maine, Virginia, (it seems,) and 
 Kentucky. In New Hampshire, an action of dower lies, in one month 
 after demand, upon the party seized of the freehold, if in the State ; 
 otherwise upon the tenant. The proceedings in such suit are similar 
 to those upon a petition for dower in the Probate Court.(.4) 
 
 31. The writ '■^unde nihil habet,'''' lies only against a tenant of the free- 
 hold.{o){d) 
 
 32. A suit for dower in most of the States may always be brought 
 at the election of the widow, and it is the only remedy, where the right 
 is not conceded, but dower is claimed in lands of which the husband 
 was not seized at his death ; as, for instance, those which he conveyed 
 or mortgaged, without her signature to the deed. And, if he conveyed 
 different parcels to several persons, the widow shall be endowed pro- 
 portionally from each, and they cannot be joined in suit. So it has 
 been held in Kentucky, that the Probate Court cannot assign dower in 
 an equitable estate. (Z)) But, if a mortgagee of the husband assent to an 
 assignment by the Probate Court, although it has no jurisdiction in 
 
 (1) Co. Lit. 39 a, n. G. 
 
 (2) Moore v. "Waller, 2 Rand. 418, 
 
 (3) 4 Dane, 665, 67 2 ; Stearns on R. A. 
 300 
 
 (4) Mass. Rev. St. 616; 1 Smith's St. 168; 
 1 Ky. R. L. 573 ; N. H. Rev. St. 412. 
 
 (5) Miller v. Beverly, 1 Hen. & M. 368; 
 Hurd V. Grant, 3 Wend. 340. 
 
 (a) In New York, ejectment to recover dower will lie against a tenant who has an estate or 
 interest less than a Treehold, and before dower has been assigned. BUieott t). Mosier, 11 
 Barb. 574. 
 
 Such action must be brought against the actual occupant, if any. lb. 
 
 A verdict in a real action, as of dower, in favor of one of several defendants, on his sepa- 
 rate plea, will not avail another who has suffered a default. Leoompte v. Wash, 9 Mis. 551. 
 With regard to the description of the property in which dower is claimed, in an action for 
 dower, if the writ claims dower in the whole, while the evidence shows title to it in only 
 moiety of the premises, the demandant will recover. Hamblin v. Bank, &c., 1 Appl. 66. 
 A vendor, by articles, before making a deed, and while any part of the consideration re- 
 mains due, is so far tenant of the freehold, as to make him a proper party to the action of 
 dower unde nihil habet. Jones ii. Patterson, 12 Penn. 149. See Shawe v. Boyd, lb 215. 
 
 It seems, non-tenure is a good plea in bar. Casporus v. Jones, 7 Barr, 120. In Maine, 
 it must be pleaded in abatement. Manning v. Laboree, 33 Maine, 343. If the defendant in 
 a suit for dower, buy an outstanding title after suit is brought, this is no defence. lb. See 
 Taylor, 3 Harr. Dig. (Suppl.) 716. A declaration for dower need not show the deforcement 
 of the demandant, or the possession of the defendant. Foxworth v. White, 5 Strobh. 113. 
 
 (S) So, the county courts cannot try a contested claim of dower ; they can only a.«sign dower 
 where the right is conceded. Garris v. Garris, 7 B. Mon. 461. Murphy v. Murphy, ib. 232. 
 
 So, in Mississippi, the proper remedy for one who resists a claim of dower on the 
 
144 
 
 ASSIGNMENT OF DOWEB. 
 
 [CHAP. XI. 
 
 such case, the assignment will be good. Without such assent, it would 
 be absolutely void. 
 
 33. If the widow resorts to an action, the assignment is made upon 
 execution, by the sheriff, and, in general, upon a view. Hence, a de- 
 scription by metes and bounds in the writ is unnecessary. In Illinois such 
 description is given in the judgment upon petition, and in Kentucky, 
 in the judgment upon a writ of dower. In Delaware, no view is granted. 
 And in New York, it is not, of course, allowed, but only upon affidavit, 
 for cause. (l)(a) 
 
 34. By virtue of the ancient statute of Merton, 20 Hen. 3, in a suit 
 for dower, the widow may have judgment for damages from the hus- 
 band's death, as well as for the land ; but only where the husband died 
 seized. As against an alienee, they are recovered from the time of demand 
 and refusal. This principle has been adopted by statute in Wisconsin, 
 Pennsylvania and Kentucky, (where the statute of Merton seems to be 
 literally copied,) and was settled by an early decision, and is now 
 adopted by statute, in New York.(6) So in New Jersey.(c) So the 
 statutes of Merton and Westminster, respecting dower, have always 
 been in force in Delaware.(t/) In Maine, New Hampshire and Rhode 
 Island, damages are recovered only from demand. In Indiana, 
 damages are recovered from a demand, unless there is a minor 
 heir. In Missouri, (e) damages are recovered to the time of trial. 
 
 (1) Sheafe v. O'Neil, 9 Mass. 9 ; lad. Rev. 
 L. 210 ; Einteh v. Cunningham, 4 Bibb. 462 ; 
 Fosdiek v. Gooding, 1 Greeril. 30; Hawkins v. 
 Page, 4 Mon. 137; Watkins, 9 John. 245; 
 Pinkham v. Gear, 3 TS. H. 163 ; Fisk v. East- 
 man, 5, 243; Co. Lit. 34 b. ; Ajeiv. Spring, 10 
 
 Miiss. 83 ; 111. Eev. L. 236, 1 ; Dela. St. 1829, 
 164; Resr. St. 292; Taylor v. Brodrick, 1 
 Dana, 347 ; Vischer v. Cona.nt, 4 Cow. 396; 
 Ostrander v. Kneeland, 2 Jolin. 276 ; Nance 
 V. Hooper, 11 Ala. 552 ; 'Wise. Rev. St. 334. 
 
 ground of paramount title in himself, is ejectment : not in the Probate Court, nor in equity, 
 for an injunction against the probate decree. So, the widow's remedy, if she is out of pos- 
 session, is ejectment. Pickens v. Wilson, 13 S. k M. 691. 
 
 In the latter case, the Probate Court has jurisdiction, as between the widow and her hus- 
 band's representatives, but its judgment cannot affect the rights of the person in possession, 
 even though he appears and answers in the suit. Bisland v. Hewett, 11 S. & M. 164. 
 
 (a) The demand of an assignment of dower, claimed dower " in certain real estate, situate 
 In G B, of which my husband. A, was seized during his marriage with me, or in the land con- 
 veyed by B and wife to A, by deed bearing date February 22, 1830, recorded at G B, book 
 65, p. 211, and which land was conveyed by A and you in common, and now all of it held by 
 you," The deed referred to was a conveyance by B, in which B's wife merely released her 
 dower. Held, the description was sufficiently certain. Atwood v. Atwood, 22 Pick. 283. 
 In New Hampshire, the sheriff is commanded to give seizin of such part of; &c., with the 
 appurtenances, as will produce a yearly income equal to such third on, &o., being the date 
 of the husband's alienation or death. Rev. St. 412, 329. 
 
 .(6) The husband is held to have died seized, though he mortgaged the land and the debt 
 had become due, if there had been no entry nor foreclosure. Hitchcock v. Harrington, 6 
 John. 290. 
 
 (c) But it has been held in this State, that tout temps prist is a good plea for the heir or 
 devisee of the husband, il he died seized, and he need not aver in his plea that he is heir or 
 devisee. Hopper v. Hopper, 1 N. J. 543. But see 2 lb. 715. But it is not a good plea 
 for the husband's alienee, who is liable to damages from the husband's death. Woodruff v. 
 Brown, 4 Harri. 246. 
 
 (d) In this State, interest may be recovered on arrears of an annuity given in lieu of 
 dower, though there be a power of distress. Houston v. Jamison, 4 Harr. 330. 
 
 (e) Execution runs only against the land subject to dower. If the widow die before 
 judgment, it is rendered for damages only. Misso. Sta. 232, 233. 
 
CHAP. XI.] 
 
 ASSIGNMENT OF DOWER. 
 
 145 
 
 In Alabama, from conimencement of suit ; but not in the Orphan's 
 Court.(l) 
 
 35. In South Carolina and Ohio,(a) no damages are recovered. In- 
 terest, or rents and profits.are allowed in South Carolina,(6) where the 
 husband died not seized. In Maine, the widow has one-third of the 
 rents till assignment. Also, damages after demand.(c) In Virginia, 
 she has an account of profits, as against a purchaser from the husband, 
 only from the date of the subpoena. In Maryland, from a demand and 
 refusal, and only in a court of chancery. In this State, an alienation 
 by the widow of her right to dower, pending a suit for rents and profits, 
 is a bar to such suit. In case of a partnership, there is no right of 
 dower till the accounts are adjusted and the debts paid. The widow 
 cannot, therefore, claim rents and profits from the husband's death. In 
 Wisconsin, the widow recovers one-third of the profits from the hus- 
 band's death, from the heir; from others, only from demand. If the 
 heir alienate the land, he is liable to damages from the husband's 
 death to such alienation, not exceeding six years, and not recoverable 
 against both the heir and purohaser.(2) 
 
 86. In England, a widow cannot recover her dower without a 
 previous demand for it. It is a good plea by the defendant, that he 
 hath been always ready and yet is ,to render dower ; because the heir 
 holdeth by title, and doth no wrong till a demand be made, which 
 manifestly distinguishes this case from other actions for recovery of 
 land and damages. And it is said the widow shall have no damages 
 where, before assignment, she has had the use of the land, as where 
 she has an estate for years.(3) 
 
 37. In general, a previous demand is necessary to maintain an action 
 for dower in the United States. Otherwise in New York ; and even 
 damages may be recovered without demand. But the plea of " tout 
 temps prist" is a good defence against the claim for damages. By the 
 
 (1) 4 Kent, 64; Co. Lit. 32 b; N. H. Rev. 
 St. 412; Embree v. Ellis, 21 John. 119; 
 Purd. Dig. 221; Sharp i;. Pettit, 3 Tea. 38; 
 Marshall v. Anderson, 1 B. Mon. 198 ; Lay- 
 ton V. Butler, 4 Harring. 507 ; McClanahan 
 V. Porter, 10 Mis. 746 ; Rankin v. Oliphant, 
 9, 239 ; Beaners v. Smith, 11 Ala. 20 ; Smith 
 V. Smith, 13, 329 ; 1 N. J. Sts. 397 ; 1 N. T. 
 Rev. St. 742; I Smith, (Maine,) 169; N. H. 
 L. 88; R. I L. 189; Ind Rev. St. 240 ; 1 
 Ky. Rev. L. 574; 6 Mon. 283. See Davis v. 
 Logan, 9 Dana, 186; MoElroy v. Wathen, 3 
 B. Mon. 137 ; GantoQ v. Bates, 4, 367 ; Sea- 
 
 ton V. Jemison, 7 Watts, 533 ; "Wise. Rev. 
 Sts. 335 ; Francis v. Garrard, 18 Ala. 794. 
 
 (2) Heyward v. Cuthbert, 1 McO. 386; 
 Wright V. Jennings, 1 Bai. 277 ; McCreary 
 V. Cloud, 2, 343 ; Rickard v. Talbird, Rice, 
 158 ; Bank, &o. v. Dunseth, 10 Ohio, 18 ; 
 Me. Rev. St. 392 ; Tod v. Baylor, 4 Leigh, 
 498 ; Steiger v. Hillen, 5 G. & J. 121 ; Tell- 
 man v. Bowen, 8, 333; Kiddall v. Trimble, 
 1 Md Oh. 143; Goodburn v. Stevens, lb. 
 420 ; Wise. Rev. Sts. 335. 
 
 (3) Co. Lit. 33 a, and n. 3. 
 
 (a) The commissioners for assigning dower appraise the yearly value of the land, from the 
 date o( the petition to that of the assignment, and one-third of the amount, deducting any 
 improvements by a purchaser from the husband, is decreed to the widow. Ohio St. 
 1842, 6. 
 
 (6) So, although the widow has been put to her election whether to take dower, or 
 under her husband's will. Woodward v. Woodward, 2 Rich. Eq. 23. Where commissioners 
 assess a sum of money in lieu of the widow's dower, in lands of which her husband died 
 seized, she is entitled, in equity, in addition to the sum assessed, to one-third of the mesne 
 profits from the death of her husband until the return of the commissioners is confirmed, 
 and to interest on the sum assessed, from the time the return is confirmed until the money- 
 is paid. lb. 
 
 (c) Where the demandant in a suit for dower dies, her executor, &o., may recover dam- 
 ages. Me. St. 1852, 255. 
 
 Vol. I. 10 
 
146 
 
 ASSIGNMENT OF DOWER. 
 
 rCHAP. XL 
 
 statute of New Jersey, the heir of a husband, who dies seized, is obliged 
 to assign dower without demand, and is liable to damages for neglect 
 to assign. (1) 
 
 3S. A demand for dower may be hy parol^Andi need not be in pre- 
 sence of witnesses. An agent may make it without written power of 
 attorney, and elsewhere than on the land. It should describe the land 
 with reasonable certainty, (a) and be made upon him who is tenant of 
 the freehold at the time of demand, though he were not such tenant at 
 the death of the husband. (2) 
 
 39. In Iadiana,(6) if the heirs, &c., reside out of the county where 
 the major part of the lands lie, or any of them are minors without a 
 guardian, a demand is unnecessary. A similar provision is made in 
 Illinois.(3) 
 
 40. In N"ew York, if the tenant of the freehold assign during quaran- 
 tine, no costs shall be recovered in an ejectment for dower. But if, 
 after quarantine, he offer to assign, though before suit brought, costs 
 are allowed (4) In South Carolina, the heir or other owner must pay 
 the cost of assignment, whether by his own act or process of law, even 
 though he return to the summons that he was ready and offered to 
 assign before it was issued. (5) 
 
 41. Dower is an important subject of eg'Mt^y jurisdiction; which has 
 become so common a resort for the enforcement of this claim, (in Eng- 
 land,) that a distinguished judge remarked, that writs of dower had 
 almost gone out of practice. This jurisdiction was never questioned 
 for all purposes of mere discovery. The difficulty of obtaining access to 
 title deeds in the hands of the heir; of ascertaining the precise lands 
 from which dower is to be assigned, and their relative value ; and of 
 procuring a fair assignment of one-third of the estate ; presents a strong 
 case for the interposition of Chancery, to remove all impediments in 
 the way of the legal tide. And although the further power of relief 
 was formerly doubted, it is now fully settled that equity has in all 
 cases concurrent jurisdiction, through commissioners or otherwise, 
 actually to assign dower, unless the title is disputed, and then it sends 
 the case to an issue at law. If the estate is merely equitable. Chancery 
 is said to have exc/uswe jurisdiction. In Maryland, although thelimita- 
 
 (1) Hopper V. Hopper. 2 N. J. 115. 
 
 (2) Jackson v. Cliurohill, 7 Cow. 287 ; 
 Hitclicook «._ Harrington, 6 John. 290 ; 
 Baker v. Baker, 4 Greenl. 67 ; Bear v. Sny- 
 der, 11 Wend. 592; Leavitt «. Lamprey, 13 
 Pick. 382; Page v. Page, 6 Gush. 196; 
 
 Haynes v. Powers, 2 Post. (N. H.) 590; 
 Watson V. Watson, 1 Eng. L. & P,qu. 371. 
 
 (3) Ind. Rev. L. 209-10; lUin. Rev. L. 
 238. 
 
 (4) Yates v. Paddock, 10 Wend. 528. 
 
 (5) Harshaw v. Davis, 1 Strobh. 74. 
 
 (a) A demand, made by an attorney in fact, in virtue of a power authorizing him, for tlie 
 constituent, and in her name and behalf, to demand her just dower to be assigned to her, 
 "in any and all of the before-mentioned premises, or any otlier," no premises whatever 
 being mentioned, is insufficient; although such authority is ratified by a second power of 
 attornpy, in which she recites the former, and autliorizes tlie attorney to commute for and 
 settle all her,clrtims of dower in the premises, no premises being described. Sloan v. Whit- 
 man, 5 Gush. 532. i 
 
 In Miissaehusetts. the demand must be a personal one ; and if there are more tenants than 
 one of the freehold, it must be made on each of them. Burbank v. Day, 12 Met. 557. A 
 written demand upon all, served by a sheriff, by a copy delivered to one, and copies left at 
 the dwellings of the others, is insufficient. lb. 
 
 (h) In this State, the petition for dower must allege a demand. Boyers v. Newbanks, 2 
 Cart. 388. 
 
CHAP. XI.] 
 
 ASSIGNMENT OF DOWER. 
 
 147 
 
 tion above named was formerly recognized, it seems to be now dis- 
 claimed, and the Court of Chancery asserts its fall concurrent jurisdic- 
 tion with other courts, to settle even a disputed legal title.(l)(«) 
 
 42. It was remarked by Lord Alvanley, then Master of the Rolls, in 
 a case which has been called "the pole-star of the doctrine," that a 
 dowress stands on the same footing as an infant, in the view of equity, 
 and that it would be unconscientious to turn her over to law for the 
 recovery of a provision necessary to her immediate subsistence, when 
 she has been compelled to resort to equity for discovery. (2) 
 
 43. In some respects. Chancery gives a relief more perfect than can 
 be obtained at law. Thus, although at law the widow recovers dam- 
 ages from the time of demand, yet, if either she or the tenant dies before 
 they are assessed, they are thereby lost.(6) While equity, although 
 awarding no damages as such,{c) in this case as in all others, will order 
 an account of rents and profits from the husband's death, if he died 
 seized. In England, by a recent act, and also in New Yoi'k, such ac- 
 count is limited to two years previous to commencement of suit. The 
 rents and profits go to the executor, not to the heir, of the widow.(3) 
 
 44. But though, in favor of the widow, the interposition of Chancery 
 may sometimes be peculiarly requisite in cases of dower, yet, in general, 
 equity follows the law, the parties are to stand on their legal rights, 
 and nothing will be effectual as a bar of dower in equity which would 
 not be such at law, unless there be fraud and imposition, or some coun- 
 ter equity against the widow's claim. Thus, equity will not cure any 
 defect in the form of a release of dower. So courts of equity will not 
 permit an equity to be interposed to defeat the dower. But where the 
 widow applies for equitable relief, she cannot resist an equitable de- 
 fence, as against a purchaser for a valuable consideration, who is igno- 
 
 (1) Wild V. Wells, Tothill, 145; Good- 
 enough V. Goodenough, Dickens, 795 ; Swain 
 V. Ferine, 5 John. Cha. 482 ; Herbert v. 
 Wren, 7 Cranoh, 370; 1 Story on Equity, 
 576-7-8; Powell v. Monson, &c., 3 Mas. 
 347 ; Wells v. Beall, 2 Gill & J. 468 ; 
 Steiger v. Hillen, 5 Gill & J. 127 ; Grayson v. 
 Moneure, 1 Leigh, 449 ; Kendall v. Honey, 
 5 Monr. 284; Stevens v. Smith, 4 J. J. Mar. 
 64 ; Badger v. Bruce, 4 Paige, 98 ; London 
 V. London, 1 Humphrey, 1 ; Le Fort v. Dela- 
 
 field, 3 Edw. 32 ; Scott v. Crawford. 11 Gill. 
 & J. 379; Marshall t. Anderson, 1 B. Monr. 
 198; M'Mahan v. Kimball, 3 Blaekf. 12; 
 Blain V. Harrison, 11 Illin. 384; Kiddell v. 
 Trimble, 1 Md. Cha. 143. 
 
 (2) 1 Story, 579 ; Curtis v. Curtis, 2 Bro. 
 Cha. 620, 630, 634. 
 
 (3) 1 Story, 577 ; Johnson v. Thomas, 2 
 Paige, 377; 4 Kent, 70 and n. 2; Coons*. 
 Nail, 4 Lit. (Ky.) 264. 
 
 (a) But, where the husband's seizin is disputed, it is usual to send the case to law. 
 Tellman v. Bowen, 8 Gill. & J. 333. On the other hand, equity may be called upon to 
 interfere by injunction with a suit at law for dower. But this it will not do, except in case 
 of some forfeiture or bar of dower, not proveable at law, but only in equity. There must 
 have been something received by the widow, which was both paid and accepted as an 
 equivalent for dower. O'Brien v. Elliot, 3 Shepl. 125. Where a bill for dower is filed 
 against a purchaser from the husband, who files across bill for indemnity, (on his cove- 
 nants,) the former will be continued, to abide the result of the latter. Lawson v. Morton, 
 6 Dana, 471. 
 
 (6) It has been seen that this defect in the law has been remedied in some of the 
 States. 
 
 (c) Otherwise in Tennessee. London v. London, 1 Humph. 1. It is held in Maryland, 
 that equity alone can give damages against an alienee of the husband, Kidilallv. Trimble, 1 
 Md. Cli. 143. A suit in equity does not lie for rents and profits, after an unsuccessful suit 
 at law. lb. In Alabama, damages are allowed on the ground of title, and interest upon 
 the arrears. Beavers v. Smith, 11 Ala. 20. 
 
148 
 
 ASSIGNMEK'T OF DOWBE. 
 
 [CHAP. XL 
 
 rant of her claim.(l) So there can be no dower in equity, unless the hus- 
 ■ band was seized during coverture.(2) 
 
 45. Whether Chancery will sustain a bill for discovery and relief, 
 in favor of a widow, against a purchaser of the land for valuable con- 
 sideration and without notice, is a doubtful point (b) 
 
 46. Generally speaking, in America, fewer cases occur in regard to 
 dower, in which the aid of a court of equity is wanted, than in Eng- 
 land, from the greater simplicity of our titles, the rareness of family 
 settlements, and the general distribution of property among all the de- 
 scendants in equal or nearly equal proportions. Such instances, how- 
 ever, sometimes occur. As where the husband was a tenant in com- 
 mon, aind a partition, account or discovery is rendered necessary. So 
 where the lands are held by various purchasers; or the relative values 
 are not easily ascertainable, as in the case when they have become the 
 site of'large manufacturing establishments ; or where the right is affected 
 with numerous or conflicting equities.(4) 
 
 47. In New Jersey, although possessing a court with full Chancery 
 powers, dower was formerly considered as exclusively within the cog- 
 nizance of the common law courts, except for discovery. By a late 
 statute, however. Chancery jurisdiction upon this subject is distinctly 
 recognized. (5)(a) 
 
 48. In the United States, suits for dower both at law and in Chan- 
 cery are comparatively of rare occurrence. The statute law of all the 
 States provides a summary mode for obtaining an assignment of dower, 
 by application or petition to the Prerogative, Probate or Orphan's 
 Court, having jurisdiction of the estates of persons deceased. (6) The 
 assignment is made by commissioners or a special jury, after notice 
 to all parties interested. (c) It has already been stated that this course 
 can in general be resorted to, only where the husband died seized of 
 
 (1) Powell V. Monaon, &c., 3 Mas. 360 ; 
 Mayburry v. Brien, 15 Pet. 21 ; Blain v. Har- 
 rison, 11 lUin. 384. See Egbert v. Thomas, 1 
 Cart. 393. 
 
 (2) Dennis v. Dennis, 1 Blaekf. 512. 
 
 (3) 1 Story, 585. 
 
 (4) lb. 587. 
 
 (5) Harrison v. Eldridge, 2 Halat. 401- 
 N". J. St. 1845, 92. 
 
 (o) The courts of chancery, in Arkansas, have jurisdiction in naatters of dower, especially 
 where the lands lie in different counties ; notwithstanding ihe jurisdiction given to the pro- 
 bate courts. Menifee v Menifee, 3 Eng. 9. 
 
 Where the husband was joint tenant, held, the widow, in a bill in equity for dower 
 against the administrator, might unite the other tenant, or, in case of his death, his heirs as 
 defendants, so that the lands might be divided, and her dower assigned. lb. 
 
 When, on a bill in equity for dower and the settlement of accounts between a widow and 
 the administrator, it appears that she has retained a gold watch belonging to her husband • 
 the court may allow her to keep the watch, and charge her with its value. lb. 
 
 (6) In Massachusetts, this mode of assignment, though immemorially practiced, is said to 
 have been authorized merely by an inference from certain statutes. Sheafe v. O'jSTeil, 9 Mass. 
 10-1. A judge of probate has no authority, under Massachusetts Revised Statutes, c. 60, 
 s. 3, to assign dower in mortgaged lands. Kaynhara v. "Wilmarth, 13 Met. 414. By a late 
 statute, (1850, 343,) where a testator provides by his will, that his widow shall have the 
 use and improvement of an undivided part of his real estate for her life or widowhood ■ the 
 Probate Court may set off her int.erest, as in case of dower. 
 
 (c) l>fotiee to the administrator, of proceedings in the Probate Court (under Rev. Sta. of 
 Michigan, 1828, c. 2, p. 262} for assignment of the widow's dower, is not necessary. Camp- 
 bell, 2 Doug. 141. 
 
CHAP. XL] 
 
 ASSIGNMENT OF DOWER. 
 
 149 
 
 the land from which dower is claimed, and the widow's right to dower 
 is not disputed by the heirs or devisees.(l) 
 
 ■i'-'. In Ohio, it is said, probably no action for dower will lie, but the 
 only two modes of obtaining it, are avoluntary assignment by the heir, 
 &c_., and a petition ; and the latter is the only method, where the land 
 is incumbered. In Wisconsin, the writ of dower is abolished. (2) 
 
 50. In Vermont and Michigan, (3)(a) it is provided that the widow 
 may recover her dower as the law directs. Under this clause, an action 
 for dower may undoubtedly be maintained, although in Vermont sub- 
 sequent provision is made for an assignment by the Probate Court. 
 
 51. In New York,(4) the action of dower is abolished; but the 
 remedy of ejectment is provided for the recovery of dower before as- 
 signment. In this suit, commissioners are appointed to make an 
 admeasurement, and possession is given accordingly.(6) So in Illinois. 
 
 52. In Delaware,(5) provision is made for an assignment by the 
 Orphan's Court ; but the action of dower is also recognized and 
 regulated. 
 
 53. In Pennsylvania,(6) the question has arisen, how far the common 
 law remedy for recovery of dower had been superseded by the stat- 
 utory provisions for an assignment in the Probate Court. The action 
 was a writ of dower unde nihil habet. The husband had been a tenant 
 in common with the defendant. It was contended by the counsel for 
 the latter, that the common law right of dower was abrogated by the 
 statute law, which had created an estate for the widow in lieu of 
 dower; and that no remedy therefore would lie for its recovery, ex- 
 cept that expressly provided. On the other hand it was contended for 
 the plain tifl', that such a construction would impair the right of a trial by 
 jury. The court held, that although the right of the widow was given 
 by statute, yet this was merely declaratory or in affirmance of the 
 common law ; that in this case of tenancy in common, the Probate 
 Court would have no jurisdiction; neither could the widow maintain 
 a writ of partition ; and therefore the action brought was her only 
 remed}'. Judgment for the plaintiff(c) 
 
 51. A testator ordered that the residue of his estate, except a house 
 devised to his wife in addition to her dower, should descend as if no 
 will had been made. Held, the widow could not maintain an action 
 
 (1) Mass. Rev. St. 409 ; 4 Kent, 12. See 
 Stiver v. Cawthorn, 4 Dev. & B. 501 ; Me. 
 Rev. St 451. In Mississippi, the Probate 
 Court is said to have full jurisdiction of the 
 claim ofdower in all cases. Caruthers v. Wil- 
 son, 1 Sm. & M. 527. 
 
 (2) Walk. Intro. 326; Wise. Rev. Sts. 586. 
 
 (3) 1 Vt. L. 132, 158 ; Mich. L. 30. 
 
 (4) 2 N. Y. Rev. St. 303, 343 ; Illin. St. 
 1838-9, 22T-8. 
 
 (5) Dela. St. 1829, 164, 168; Rev. Sts. 
 292. 
 
 (6) Brown v. Adams, 2 Whart. 188. But 
 see Bratton v. Mitchell, 1 Watts, 113 ; also 
 Rittenhouse v. Levering, 6 Watts & S. 190. 
 
 (a) By the Revised Statutes, if not assigned in 30 days from demand, she may bring a 
 writ of dower. Rev. Sts. 263. 
 
 (b) The action is brought against the actual occupant; or, if none, against the party 
 owning or interested in the land. Sherwood v. Tandenburgh, 2 Hill, 303. A proceeding 
 for dower, under the Code of New York of 1848, may be regarded as a substitute for the 
 former remedy by petition or bill; and will lie, though the defendant, being seized, is not in 
 actual possession, and six mouths have not elapsed since the death of the husband. 
 Townsend v. Tovvnsend, 2 Sandf 711! ' 
 
 (c) In Maine, before assignment of dower to the widow of a tenant in common, partition 
 must be made. Me. Rev. St. 451. 
 
150 
 
 ASSIGNMENT OP DOWER. 
 
 [CHAP. XI 
 
 of dower. If the land descended, the will being void, exclusive juris- 
 diction vested in the Orphan's Court ; if it passed under the will, the 
 widow was a purchaser, and her remedy was by ejectment.(l) 
 
 55. It may perhaps be safely said, that the remark, made in New 
 York and South Carolina, is equally applicable in most of the other 
 States ; namely, that " the acts (concerning assignment of dower) are 
 made, not to vary the right to dower," (or supersede the old remedy,) 
 " but to institute a more easy and certain mode of obtaining it."(2)(a) 
 
 56. This method of obtaining an assignment of dower partakes of 
 the nature of a suit in different degrees in the several States. The 
 proceeding is usually termed a petition, but in Vermont(3) a complaint. 
 It is in fact everywhere, and in North Carolina and AIabama(4) ex- 
 pressly declared to be, in its nature, summary. 
 
 57. In most of the States, the return of the commissioners appointed 
 by the court to make the assignment, is not made the foundation of a 
 judgment, upon which execution issues; but only gives a right of 
 entry, or vests a title in the widow, which authorizes her to enter, and 
 which she may maintain, if necessary, by a subsequent suit for pos- 
 session. Neither are damages ordinarily allowed in this course^ of 
 proceeding. Its chief object is, to prevent difficulty and contention 
 between the widow and the heir or tenant, as to the just extent or as- 
 certainment of her dower.(5) 
 
 58. In New York, the proceedings before the surrogate, for ad- 
 measurement of dower, are no evidence of title^ in ejectment, but 
 merely of the location of the land ; but as to this they are conclusive. 
 But commissioners for assigning dower have the same powers as the 
 sheriff under an execution ; and are not 'confined to a mere assignment 
 by metes and bounds, but may exercise a discretion, and assign dower, 
 for example, in mines, and such assignment may be enforced by the 
 surrogate.(6) 
 
 59. A record of the assignment of dower in the Court of Probate, 
 is presumptive evidence that the assignment was made upon the peti- 
 tion, and with knowledge, of the widow, such being the usual course, 
 and the proceeding being for her benefit.(7) 
 
 60. But in some parts of this country, particularly the new Western 
 States, a mere petition for dower, which may be called amicable at its in- 
 
 (1) Thomas v. Simpson, 3 Barr. 60. 
 
 (2) Tatea v. Paddock, 10 "Wend. 528; 
 Scott V. Scott, 1 Bay, 507. 
 
 (3) 1 Ver. L. ] 58. 
 
 (4) Alab. L. 259 ; 1 N. C. Rev. St. 614 ; 
 Ark. Rov. St. 340-1. 
 
 (5) "Williams V. Morgan, 1 Lit. 167 ; Martha 
 Watkins, 9 John. 245. 
 
 (6) Jackson v. Dewitt, 6 Cow. 316; Miller 
 V. Hixon, n John. 123 ; Ooates v. Cheever, 1 
 Cow. 460. See "White v. Story, 2 Hill, 543. 
 
 (7) Tilson V. Thomson, 10 Pick. 359. 
 
 {a) In Massachusetts, and probably elsewhere, the Probate Court has exclusive jurisdiction, 
 only where the provisions of the law on the subject can be enforced by no other tribunal. 
 In other cases, it has merely concurrent jurisdiction, which is taken away by the previous 
 commencement of proceedings in another court. Stearns v. Stearns, 16 Mass. 171. See as 
 to assignment of devised lands, St. 1839, 124. In Alabama, it is held that the statutory 
 method of assigning dower is merely cwmulative ; and though such assignment be irregularly 
 made, yet it is binding, if assented to by the wife, especially if she has had possession, and 
 there is no fraud. Johnson v. Neil, 4 Alab. N. S. 166. The common law courts have 
 jurisdiction of a claim for dower by the widow of a tenant in common, dying seized of a 
 fee-simple in one-third of the lands, and a fee-simple determinable by executory devise in 
 one-sixth. Evans v. Evans, 9 Barr, 190. 
 
CHAP. XI.] 
 
 ASSIGNMENT OP DOWER. 
 
 151 
 
 caption, assumes in its progress the character of an adverse and com- 
 pulsory suit. 
 
 61. In Missouri, (1) where the widow is deforced of her dower, or 
 cannot have it without a suit, or an assignment is made unfairly, or 
 none is made for twelve months from the husband's death ; she may 
 bring a suit, and shall recover damages, from the death of the husband, 
 if he died seized — otherwise from demand. It lies against any one in 
 possession, or claiming an interest, or who deforces her. The suit is in 
 form a petition, and the assignment made by commissioners; but a 
 writ of possession issues. A " writ of dower," however, may still be 
 brought.(2) In New Jersey, the right of suing is given in the same 
 words. The time is limited to forty days.(3) 
 
 62. In Vermont, after the return of the commissioners who assign 
 dower, " said dower shall remain fixed and certain," and all parties 
 concerned shall be concluded.(4) 
 
 63. In South Carolina,(5) the form of application for dower is a pe- 
 tition to a common law court, which issues a writ for admeasurement to 
 commissioners. They are sworn to "put the widow in full and peace- 
 able possession," and return a plat of the land with their doings, which 
 become matter of record, and are " final and conclusive." 
 
 64. In New Yoj-k,(6) where an ejectment is provided for the recov- 
 ery of dower, commissioners are appointed to admeasure dower, and 
 possession is given by them ; but (it seems) no writ of possession is- 
 sues. After admeasurement, the widow may have ejectment for the 
 specific lands assigned to her. 
 
 65. In the same State, it seems, if the land in which dower is claimed 
 was alienated by the husband, such alienation and the value at that 
 time are not subjects of inquiry upon trial of the ejectment, but are 
 to be brought before the commissioners for admeasurement. So, a 
 settlement made upon the wife in lieu of dower is not to be inquired into 
 before the surrogate ; but set up in defence to any action for the land 
 which may be assigned to her. Nor have the admeasurers a right to 
 consider any post-nuptial conveyance by the husband to the wife.(7) 
 
 66. In De]aware,(y) in the action of dower, the court appoint com- 
 missioners, whose return is conclusive, and the foundation of a writ of 
 possession and a final judgment for damages and equitable costs. 
 
 67. Ordinarily, the assignment of dower is founded on an application 
 made by the widow herself. 
 
 68. But in Indiana, Virginia, Connecticut and New York, it may, 
 be done on application of the heirs ; in Illinois, Michigan and Ver- 
 mont, of any party interested ; in Missouri, of the heir, legatee, guar- 
 dian, executor, &c., or a creditor of the widow or her second husband.(a) 
 
 (1) Misso. St. 229-30-1-2. See Peake v. 
 Eedd, 14 Mia. 79. 
 
 (2) Mis«o. St. 231-2. 
 
 (3) 1 2Sr. J. Eev. 0. 391 
 
 (4) 1 Ter. L. 158. 
 
 (5) Scott V. Scott, 1 Bay, 504; 1 Brev. 
 Di". 270. 
 
 (6) 2 N. T. Rev. St. 303, 343 ; Borst v. 
 Griffin, 9 Wend. 307; Wardj). Kilts, 12, 131. 
 See Code, 1851, 12. 
 
 (7) Hyde v. Hyde, 1 Wend. 630. 
 
 (8) Dela. St 1829, 164-5; Rev. Sta. 292; 
 Doe V. Carrol, 18 Ala. 148. 
 
 (a) In this State, the widow and children may join in a petition for assignment of 
 dower and distribution of shares, where lands lie in different counties. Commissioners are 
 appointed, but cannot act, if a division is impracticable. St. 1838, 40. In Maryland, a 
 
152 
 
 ASSIGNMENT OF DOWER. 
 
 [CHAP. XL 
 
 In Missouri there shall be no damages. In New Jersey, the guardian 
 of an heir may apply for admeasurement.(a) A purchaser of the widow's 
 right cannot claim an assignment, the sale being void ; and though 
 made with the consent of the heir or his guardian, the proceeding is 
 coram nonjudice and void. In Alabama, a purchaser from the husband 
 may claim an assignment in equity. In the same State, if the widow 
 occupies the husband's dwelling-house, the owner of the fee is bound 
 to move for an assignment of dower.(l) 
 
 69. In Tennessee and Ohio, where the heirs of one deceased pray 
 partition, dower shall first be assigned from the whole land. So in 
 Ohio, where land is directed to be sold by administrators.(2) 
 
 70. In Missouri, one interested in the estate, and not made party to 
 a suit for dower, may after assignment have an action against, the 
 widow for admeasurement of dower; alleging either that she was not 
 entitled, or an undue assignment. If the latter is proved, the court 
 shall assign anew, and award a writ of possession. (3)(6) 
 
 7. The time, after which the widow is entitled to have an assignment 
 of dower, is variously established in the different States. In Vermont 
 and Connecticut, sixty days from demand. In Michigan, thirty days. 
 In New Hampshire, Rhode Island, Maine, Massachusetts, Indiana and 
 Illinois, one month. In Missouri, twelve months from the husband's 
 death. In New York, six months from the time the right accrued. (4)(c) 
 
 72. With respect to the time within which a suit for dower must be 
 commenced, by the English law, such suit has been held not to be with- 
 in the ordinary statutes of limitation. The same principle has been 
 adopted in New Hampshire, Georgia and Kentucky, and, with regard 
 to suits in equity, in Maryland, (c?) although lapse of time may bar a 
 
 (1) Siglar V. Tan Riper, 10 Wend. 419 ; 
 Ind. Rev. L. 210; lUin. do. 238, Misso. St. 
 231 ; Moore v. "Waller, 2 Rand. 418 ; 1 N. J. 
 Rev. C. 399 ; Shields v. Batts, 5 J. J. Mar. 
 15 ; Jackson v. Aspell, 20 John. 411 ; Mich. 
 Rev. St. 263 ; Conn. St. 189; Term. Rev. St. 
 290. See Bancroft v. Andrews, 6 Ciish. 493. 
 
 (2) Ten. St. 1823, 46 ; Walk. Intr. 327. 
 
 See Swan. 299. 
 
 (3) Misso. St. 232. 
 
 (4) ITt.L. 158; N. H. L. 187 ; R. I. L., 189 
 Smith's St 168; Crockerj;. Fox, l.Root, 227 
 Ind. Rev. L. 209; Illin. do. 236; Misso. St. 229 
 Mass. Rev. St. 616 ; 2 N. T. R. S. 303 ; Mich' 
 Rev. St. 263. 
 
 commission to assign dower may issue, on petition of the widow in a creditor's Suit. Sim- 
 mons v. Tongue, 3 Bland, 344. So it may be done in such suit, without her being a party. 
 "Watkins v. Worthington, 2 Bland, 512. In Mississippi, a decree of dower without legal notice 
 of the application therefor, is not binding upon the heirs. Muirhead v. Muirhead, 23 
 Misa. 97. In Alabama, upon petition of the widow, and citation to adverse parties, her 
 right may be determined ; and upon allotment being made, she is put in actual possession. 
 Barney D. Frowner, 9 Ala. 101. Dower cannot be claimed from several alienees of the 
 husband by the same petition. lb. 
 
 (a) It seems, by an ancient English statute, 13 Ed. I. c. 7, the heir or his guardian might 
 have a writ for admeasurement of dower. See 1 Ky. R. L. 86. 
 _ (6) Where dower has been assigned to a widow, on her petition to the county or supe- 
 rior courts of North Carolina, the heirs cannot have a re-allotment, on petition. If they 
 have any remedy, it is noj; by petition. Bowers v. Bowers, 8 Ired. 247. In South Caro- 
 lina, wherri a wrong summons had been served on a respondent in dower, for which reason 
 he had neglected to appear and plead, all the other proceedings were set aside ; for if the 
 judgment were allowed to stand, it would stand as obtained through misrepresentation. 
 Williams v. lanneau, 4 Strobh. 27. 
 
 (c) In Arkansas, if dower is not assigned in one year from the husband's death, or three 
 months from demand, the widow may file a petition in the Probate Court. Rev. St. 340-1. 
 
 (d) The act of 1839, limiting the application for dower to seveo years from the husband's 
 death, applies only to cases where the husband died after its enactment. Tooke v. Harde- 
 man, 7 Geo. 20. 
 
CHAP. XI.] 
 
 ASSiaNMENT OF DOWER. 
 
 153 
 
 bill for an account. But by a recent English statute (3 and 4. 
 Wm. IV, c. 27 f) the time is limited to twenty years from the hus- 
 band's death. In New York, a demand for dower is limited to twenty 
 years from the husband's death, or the removal of certain disabilities. 
 In Kentucky,(a) twenty years are held to be the limitation in Chan- 
 cery. In Massachusetts, the only statutory limitation is not less than 
 one month, nor more than one year, after demand. In South Carolina 
 and New Jersey, the lapse of twenty years is a bar to the claim of 
 dower. In Ohio, the lapse of twenty-one years. (1) 
 
 73. In Connecticut, lapse of time, though connected with other 
 equitable grounds of defence, constitutes no bar to the claim of dower. 
 Thus, fifteen years after the husband's death, his widow claims her 
 dower. In the meantime, a creditor of one of the heirs had taken his 
 share of the land, and the heir was insolvent. Held, she should have 
 her dower without any reference to this incumbrance.(2) 
 
 74. A statute of limitation in common form is held inapplicable to 
 dower, upon the ground that such statute contemplates the case of a 
 seizin which once existed, and from the termination of which the stat- 
 ute begins to run. But a widow before assignment is not seized, and 
 has no right of entry ; nor would an entry be of any avail to her. 
 Nor is she a tenant in common with the heirs. She may make a de- 
 mand, and afterwards sue ; o'r, neglecting to sue in the time prescribed, 
 may make a new demand. Neither can the limitation run against her 
 during the life of the husband ; for she had then a merely future and 
 contingent interest, and the allowance of- such a limitation would ren- 
 der a conveyance by the husband, made twenty years before his death, 
 a complete bar to her claim. (6) So, from an adverse possession of twen- 
 ty years, the law will not presume a release of dower.(3) But it has 
 been suggested in New Hampshire, that the circumstance of a great 
 lapse of time might be left to the jury, as a ground for presuming a 
 release of dower.(4) 
 
 75. A statute of limitation in regard to dower is not applicable to a 
 case, where the husband died before the statute went into operation. 
 But, in reference to such a case, it seems the statute runs from the time 
 of its going into operation. (5) 
 
 76. A. purchaser from the husband, recovering rents after his death. 
 
 (1) 4 Kent. 69; Barnard v. Edwards, i 
 N. H. 107 ; Wells v. Beall, 2 Gill. & J. 468 ; 
 Wilson V. M'Lenaghan, 1 M'Mul. 35; Wake- 
 man V. Roache, Dudl. 123 ; Berrien v. Cono- 
 ver, 1 Harri. 107 ; Tuttle v. Wilson, 10 Ohio, 
 24; Rickard V. Talbird, Rice, 158; Ralls v. 
 Hughes, 1 Dana, 407 ; 1 N. T. Rev. St. 742; 
 Mass. Rev. St. 616; Kiddall v. Trimble, 1 Md. 
 Ch. 143 ; Tooke v. Hardeman, 7 Geo. 20 ; 
 Gaston V. Gaston, 2 Rich. Eq. 1. 
 
 (2) Crocker v. Tox, I Root, 227. 
 
 (3) Barnard v. Edwards, 4 N. H. 107; 
 Ifoore u. Frost, 3 lb. 126; Durham v. An- 
 gler, 2 Appl. 242 ; Parker v.~ Obear, 7 Met. 
 27-8. See Ramsay v. Dozier, 1 Const. S. 0. 
 112 ; Wells v. Beal, 2 G. & J. 468 ; Hogle v. 
 Stuart, 8 John. 104; 1 Swift, 85; Spencer 
 V. Weston, 1 Dev. & B. 213; Guthrie v. 
 Owen, 10 Yerg. 339. 
 
 (4) 4 N. H. 109. 
 
 (5) Sayre v. Wisner, 8 Wend. 661. 
 
 (a) Where the widow of one of the vendors was a claimant in the first instance of the 
 surplus, the statute of limitations was considered to begin to run when her coverture ended. 
 Grundy v. Grundy, 12 B. Hon. 269. 
 
 (6) Such is the reasoning of the court in New Hampshire. Whether a purchaser from 
 the husband would in such case be regarded as holding under, or adversely to him. Qu. 
 
154 
 
 ASSIGNMENT OF DOWER, ETC. 
 
 [CHAP. XII. 
 
 is a trustee for the widow, and cannot avail himself of the statute of 
 limitations.(l) 
 
 77. While the statute of limitations does not operate against the 
 claim of the widow, on the other hand, it is held not to operate in her 
 favor, as against the heirs of the husband. Thus, where a widow con- 
 tinued in possession, married anew, and with her second husband occu- 
 pied over twenty-one years; held, the heirs of the first husbandwere 
 not barred. (2) So, an informal assignment of dower, acquiesced in for 
 twenty-one years, cannot be disturbed. (3) 
 
 78. The death of a widow before assignment of dower extinguishes 
 her right. Her representatives have no right to recover its fruits.(4) 
 So, where she dies after commencement of suit, the court will not allow 
 entry of judgment as of a prior term.(5) Nor will they award damages 
 even to an assignee of her right,(6) even though she died after judgment 
 in her favor.(7) In Maryland, a statute provides that actions for dower 
 shall not abate by the death of either party.(8) 
 
 CHAPTER XII. 
 
 ASSIGNMENT OF DOWER. WHAT SHALL BE ASSIGNED AND BY WHOM ; 
 AND THE EFFECT OF ASSIGNMENT. 
 
 1. By metes and bounds or otherwise. 
 3. Practice in tlie United States. 
 1. Value of land assigned. 
 9. Assignment in common, 
 
 12. Partition by busband. 
 
 13. Assignment by sheriff and commis- 
 
 sioners. 
 15. Improper assignment by sheriff. 
 
 19. Assignment against common right. 
 21. Assignment of rent, &o, 
 
 23. Assignment must be absolute. 
 
 24. Assignment by parol. 
 26. Assignment by guardian. 
 
 29. Implied warranty. 
 
 30. Eniry not necessary. 
 
 31. Assignment has relation. 
 
 1. It is said that dower must be assigned hy the sheriff by metes and 
 bounds, or in certain closes by name, and that any other assignment is 
 void. But the heir may endow tue widow, generally, of the third part 
 of all the lands whereof the husband was seized. And, if the lands 
 were leased, the widow and lessee shall hold in common. (9) 
 
 2. And where the nature of the property does not aimit of an assign- 
 ment by metes and bounds, some other is allowed. Thus, if the property 
 consist of a mill, the widow shall not be endowed of a separate third 
 part, nor in common with the heir, but of the third toll-dish or of the 
 whole mill for a certain time. So in case of mines. But from these 
 dower shall be assigned by metes and bounds, if possible.(lO) 
 
 3. This principle of the English law is adopted by the statute law 
 
 (1) Tellman v. Bowen, 8 Gill. & J. 333. 
 
 (2) Cook V. Nicholas, 2 W. & S. 21, 
 
 (3) Robinson v. Miller. 2 B. Mon. 281. See 
 Johnson v. Neil, 4 Ala, N, 166. 
 
 (4) 1 Knapp, 225 ; 4 Kent. 70, n. 
 
 (5) Rowe V. Johnson, 1 Appl. 146. 
 
 (6) lb. 
 
 (7) Atkins V. Teomans, 6 Met. 438. See 
 Sandback v. Quigloy, 8 Watts. 460. 
 
 (8) Md. L. 407. 
 
 (9) Co. Lit. 32, b, and n. 1. 
 
 (10) Coates V. Cheever, 1 Cow. 460. (This 
 case (p. 480) contains a form of assignment in 
 mines.) See Crouch v. Puryear, 1 Rand. 258 ; 
 Heth V. Cooke, lb. 344; Dunsett v. Bank 
 &c., 6 Ohio, 76; Whaler v. Story, 2 Hill, 
 543; Smith v. Smith, 5 Dana, 179. 
 
CHAP. XII.] 
 
 ASSIGNMENT OP DOWER, ETC. 
 
 155 
 
 of nearly all the States, and undoubtedly practiced upon in all of 
 them.(l) 
 
 4. Ill Massachusetts, in the case referred to, dower may be assigned 
 in common. In Vermont,(a) Maine, New Hampshire and fehode Island, 
 where no division can be made by metes and bounds, or the widow can- 
 not he endowed of the premises, she has one third of the rents and profits. 
 In Kentuck}', she may elect to have the property every third year, or 
 one-third of the rents, &c.(2) In Alabama, an allotment of dower can 
 be made, under the statute, only where it can be designated by metes 
 and bounds. (3) 
 
 5. In Illinois(i) and Missouri, (4) where the commissioners for assign- 
 ing dower report that a division will be injurious, a jury shall assess the 
 yearly value, which shall be paid in lieu of dower. In Missouri, on 
 failure of payment, execution issues. So for any arrears due at the 
 death of the widow, in favor of her executors. A similar provision 
 exists in South Carolina.(c) The valuation is either one-third of the 
 annual income, or one-third of the, whole value of the land for seven 
 years; and where the commissioners returned one-third of the value of 
 the entire fee, their return was set aside. In Georgia, if the property 
 is within a city, village or public place of business, commissioners 
 assign dower according to quantity or valuation, at their discretion. 
 If otherwise, they assign with reference to shape and valuation. (5) 
 
 6. In New York, where the lands of one deceased are sold by order 
 of court, if the widow will not accept a sum in gross in lieu of dower, 
 one-third of the proceeds shall be invested for her benefit.(6)((i) In 
 
 (1) Illin. Eev. L. 238; Ind do. 210; Tenn. 
 St. 1823, 46; Walk. Intr. 327; Mich. Rev. 
 St. 263 ; Ark. lb. 341-2 ; Wise. lb. 334. 
 
 (2) Mass. Rev. St. 409; N. H. Rev. St. 
 329; R. I. L. 189; Verm. Rev. St. 290; 
 Hyzer v. Stoker, 3 B. Monr. 117 ; K7. L. 
 1844, 16-17; 1 Verm. L. 153. 
 
 (3) Barney v. Prownar, 9 Ala. 901. 
 
 (4) Illin. Rev. L. 238; Misso. St. 231-3; 
 Riley v. Glamorgan, 15 Wis. 331. 
 
 (5) 1 Brev. Dig. 271 ; 1 Bay, 504; Russell 
 V. Gee, 4 Const. S, C. 254 ; Hnyward v. Cuth- 
 bert, 2, 626; Ga. St. 1839, 148. 
 
 (6i 2 N. Y. Rev. St. .06; 4 Kent, 45 ; N. 
 T. St. 1840, ch. 177. See, also, N. J. St. 
 1845, 100. 
 
 (a) In this State, if the estate is insolvent, the widow and two-thirds of the creditors may 
 agree on a provision in lieu of dower ; which shall be valid. If approved by the court. 
 Term. Rev. St. 290-1. 
 
 (6) Where the widow remains in missession without assignment, there cannot be a par- 
 tition on sale of the whole premises. Bonham v. Badley, 2 Gilm. 622. 
 
 (c). In Alabama, where a compensation for dower is made in money, the decree should 
 be, not (or a gross sum, based on the estimated value of the widow's life estate, but for the 
 annual payment of the annual value of the dower interest during the life of the dowress, 
 secured by a lien on the estate. Beavers v. Smith, LI Ala. 20. 
 
 Where an assignment cannot be made of a portion of the premises, the interest of one 
 third part of their value at the time of alienation, is a just criterion. lb. 
 
 Where the principal value, in such case, consists of buildings, which require an annual 
 outlay to keep tliem in repair, whether the dowress should contribute her portion of the 
 expenses. Qumre. lb. 
 
 (d) The statute upon this subject is applicable, though the marriage and seizin were long 
 prior to its enactment; and is not for this reason inconsistent with the constitution of the 
 United States or the State; as dower arises, not by contract, but by operation of law. Law- 
 rence V. Miller, 1 Sandf. 516. Such sale may be made, though dower has been assigned in 
 equity. lb. And a sale will pass a title to the lands so assigned, as well as those for which 
 she has merely a right of action. lb. But it is held, that where the estate is an entire farm, 
 and dower has been assigned ; the sale should be of the whole farm, subject to the widow's 
 life estate in a portion of it. Maples v. Howe, 3 Barb. Ch. 611. 
 
 In a suit for partition, the contingent or inchoate right of dower was determined by a 
 master under order of the court, by virtue of the New York Statute, passed April 28, 1840, 
 
156 ASSIGNMENT OF DOWER, ETC. [CHAP. XH. 
 
 Maryland, (l)(a) upon sucli sale by application of the heirs, the dower 
 land shall be reserved, unless the widow consent to a sale of the whole, 
 she receiving a share of the proceeds, not more than one-seventh, nor 
 less than one-tenth. In Pennsylvania,(2) where partition of an estate 
 cannot advantageously be made, and the whole is therefore assigned to 
 one or more heirs, the widow shall receive for her dower an annual sum, 
 which shall remain charged upon the land as a rent, to be apportioned 
 among such heirs. If, for want of an assignment to one heir, the land 
 is sold, the purchaser shall retain one-third or one-half (according to 
 circumstances) of the purchase-money, which shall be a charge on the 
 land for payment of the interest to the widow. The right of the widow 
 to her annuity, in lieu of dower, is personal to herself, and does not 
 pass by subrogation to one of several heirs, who has paid more than his 
 share, nor can the widow exercise her right of distress more than 
 once.(i) 
 
 (1) 2 Md. L. 520. I "W. & S. 400 ; McCarthy v. Gordon. 4 Wliart. 
 
 (2) Purd. Dig. 40'7-12-15 ; Mentzer v. 321. See Beeson v. MoNabb, 2 Barr, 422. 
 Menor, 8 Watts, 296 ; Shouffler v. Coover, 1 ' 
 
 and the same was paid into court. After the death of the wife, the husband petitioned to 
 have the money paid to him. Held, that the sum estimated by the master was the present 
 worth of the wife's dower, and was absolute and personal, and that on her death the hus- 
 band was entitled to it jure mariti. Bartlett v. Janeway, 4 Sandf. Oil. 396. 
 
 Dower cannot be assigned in a proceeding for partition. Tanner v. Niles, 1 Barb.' 560. 
 
 A purchased the shares of some of the tenants in common of a farm, while a suit in equity 
 for a partition was pending. The decree directed a sale. A having deceased, his widow 
 was held entitled to dower in the proceed.?. Church v. Church, 3 Sandf Ch. 434. 
 
 A purchased the land, and entered, but died before receiving a deed, or paying the whole 
 of the purchase-money. Held, his widow had an inchoate right of dower, subject to the 
 payment of the residue of the purchase-money. lb. 
 
 Exceptions having been taken by the creditors, the widow was exonerated from defray- 
 ing any portion of the costs of the proceedings. lb. 
 
 In Wisconsin, where the court orders a sale, the executor, (fee, may contract with the 
 widow to receive a certain sum in lieu of dower. Wis. St. 1853, 78-9. 
 
 (a) In this State, the widow may agree with the heir, (fee, in lieu of an assignment of 
 dower, that he shall lease the lands and pay her one-third of the rent; and she may main- 
 tain assumpsit against him therefor. Marshall v. McPherson, 8 GilL & J. 333. Dower shall 
 be assigned before partition ; but, if the widow consents to a sale by a writing filed in court, 
 the land is sold free of dower, and she receives a share of the price. Md. St. 753. 
 
 A widow having been held entitled to an allowance from the proeeedsof sales of partner- 
 ship lands, in lieu of dower, the husband having died in 1825, and the sale not being made 
 till 1845 ; held, the age of the widow at the husband'rdeath should be taken in fixing her 
 allowance under the Chancery rule. Goodburn v. Stevens, 1 Md. Ch. 420. 
 
 (6) Where an administrator, under a decree of court, conveys property contracted to be 
 sold by his intestate, the price is personalty, and the widow, who releases her dower, has 
 one-third absolutely. Drenkle's Estate 3 Barr, 377. 
 
 If the purchaser agreed to take the land incumbered with her title, she could have 
 claimed both her dower and a third of the proceeds. Per Gibson, C. J., ib. 
 
 Where the husband was a tenant in common, if no partition is made within a, year, the 
 widow's dower is charged upon the whole land. If partition is subsequently made, it may 
 be charged on his share alone. In case of sale, her interest shall be protected. Penns. St. 
 1843, 360. 
 
 In Florida, where lands, from which a widow was dowable, are converted into money, 
 the money should not be ordered to be put out at interest, by a master in Chancery, unless 
 there is a well grounded fear of loss, if it remains in her possession. Osborne v. Van Horn, 
 2 Florida, 360. 
 
 In Delaware, provision is made for securing the rights of tenants in dower and by the 
 curtesy, where a sale is made of land held in common. Dela. St. 1843, 489-91. In Wis- 
 consin, in case of the sale by an administrator of land in which the widow is dowable, he 
 may contract with the heir to commute her dower, and hold in trust such part of the price, 
 as she would be entitled to on the principle oi annuities. Wise. Sta. 1853, 78. 
 
CHAP. XII.] 
 
 ASSIGNMENT OF DOWER, ETC. 
 
 157 
 
 7. Tlie assignment of dower shall be such as to give, not one-third 
 of the lands in quantity, but one-third of the income, or rents and 
 profits, according to the quantity, quality, and productiveness of the 
 lands; and such as is best calculated for the convenience of the widow 
 and the heirs, and will least disturb the will, the provisions of which 
 in her favor she renounces. (1) 
 
 8. Iq Alabama, Illinois, North Carolina(rt) and Kentucky, (2) the as- 
 signment shall include the husband's dwelling-house, or, in Alabama, 
 a portion of it, if it would do injustice to assign the whole. In Ken- 
 tucky, it makes no difference that the widow does^ not herself occupy 
 the mansion. . , . 
 
 9. If the widow waives an assignment by metes and bounds, it .may 
 be made in common. (3) 
 
 10. This is the only practicable mode, where the husband at his death 
 was a tenant in common with another person. ('i)(6) 
 
 11. In one case, in Massachusetts, dower was had in wSjo of the 
 great sheep pasture in Nan tucket. (6). 
 
 12. Contrary to the general rule, that no act of the husband alone 
 can affect the wife's ciaim of dower, if partition were made of lands 
 held by him in common during coverture, she shall have dower only 
 in the portion allotted to the husband ; upon the grounds, that the hus- 
 band's co-tenant might have enforced partition by legal process, and 
 that, partition being an incident to the estate, the wife's inchoate right 
 of dower was acquired subject thereto. But fraud on the part of the 
 husband, as, for instance, in taking for his share woodland, not subject 
 to dower, would avoid the partition as to the widow.(6)(c) 
 
 13. It is said, that the sheriff must assign for dower a third part of 
 each manor; or a third part of the arable, meadow and pasture; but 
 the heir may, with the widow's assent, assign the whole of one manor.(7) 
 In North Carolina,(8) a statute provides that the assignment need not 
 embrace one-third of each tract. In Indiana, if the widow elects one 
 
 (1) Hoby V. Hoby, 1 Ter. 218; Leonard 
 V. Leonard, 4 Masii. 533 ; Miller v. Miller, 12, 
 454; Conner v. Sheperd, 15, 167 ; 1 N. C. 
 Rev. St. 613-4; Illin. do. 237; 4 Kent, 63, 
 n. c; Alab. L. 259; 7 J. J. Mar. 637; 
 M'Daniel v. M'Daniel, 3 Ired 61; Stiver tJ. 
 Cawthorn, 3 Battl. 501 ; Smitli </. Smitli, 5 
 Dana,- 179. 
 
 (2) Alab. L. 259 ; White v. Clark, 7 Moii. 
 642; Illin. Rev. L. 237. 
 
 (3) Co. Lit. 34 b, u. 1. 
 
 (4) 4 Dane, 673; Rowe v. Power, 5 B. & 
 P. 1 ; Co. Lit. 32 b. 
 
 (5) 4 Dane, 674. 
 
 (6) Potter V. Wheeler, 13 Mass. 504. See 
 Jaelcson v. Edwards, 22 Wend. 498; Rey- 
 nard v. Spence, 4 Beav. 103 ; Totten v. Stuy- 
 vesant, 3 Edw. 299. 
 
 (7) 1 Cruise, 132; 1 Bay, 504. That as- 
 sent cures a wrong assignment, see Johnson 
 V. Neil, 4 Alab. N. S. 166. 
 
 (8) 1 N. C. Rev. St. 614. 
 
 (a) But the widow is entitled to only one-third of the real estate, in the whole, including 
 the mansion. And if this would give her more than her third, she can have only part of it. 
 Stiver v. Cawthorn, 4 Dev. & B. 501. 
 
 (6) In Massachusetts, by a late statute, 1842, p 231, the judge of probate may authorize 
 the commissioners, first to make partition, and then assign dower from the part allotted to 
 * the husband's estate. 
 
 (c) But where a wife concurs in the partition of her husband's land, releasing her right 
 to the other tenants in their share of the property, and the husband's portion is conveyed 
 to trustees of his will; she has dower in the wliole, not an undivided part, merely, of such 
 portion. Reynard v. Spence, 4 Beav. 103. The rule in the text applies where a division 
 is made, in equal proportions, by mutual releases. But there is no such limitation to the 
 right of the widow, if; for a valuable consideration, the division was purposely made in un- 
 equal proportions. Mosher v. Mosher, 32 Maine, 412. 
 
158 
 
 ASSI&NMENT OP DOWER, ETC. 
 
 [CHAP. XII. 
 
 tract, it may be assigned to her. In Kentucky, it is held, that where 
 the husband has conveyed away part of a tract of land, dower shall be 
 assigned, if possible, in the remaining part.(l) 
 
 14. But commissioners appointed to assign dower are bound, in gen- 
 eral, like the sheriff in whose place they stand, to assign one third part 
 of eacli parcel of ]and.(a) If they assign one third of a single tract, 
 creditors of the husband may appear and object; because, if this were 
 allowable, the commissioners miglrt assign wholly from land of which 
 the husband died seized, and the creditors would have no claim against 
 that which he had conveyed in his lifetime. (2) 
 
 15. Where the sheriff assigns dower improperly, the court will pun- 
 ish him and set aside the assignment. 
 
 16. A sheriff returned, that he had assigned for dower, in a house, 
 the third part of each chamber, and had chalked it out. Held, an idle 
 and malicious assignment, and the sheriff was committed.(8)(6) 
 
 17. A sheriff refused to make an equal allotment of dower, and took 
 sixty pounds for serving the writ. He was committed, and an infor- 
 mation ordered against him. (4) 
 
 18. A third part of lands containing a coal-work was assigned by 
 the sheriff for dower, without reference to the latter. Upon a bill in 
 equity by the heir to set aside the assignment as fraudulent, and upon 
 his offering one-third of both the land and coal-work b}' way of 
 rent charge ; held, the widow should accept this offer or be endowed 
 anew. (5) 
 
 19. An assignment of one tract, in satisfaction of the widow's claim 
 upon each separate portion of the husband's lands, is termed an assign- 
 ment against common right. The effect of it is, to impose upon her the 
 risk of any defect in the title to the land. If the estate assigned turns 
 out to be more valuable than a third, she may still hold it ; and on the 
 contrary, if it proves less valuable, she must bear the loss. The prin- 
 ciple is, that she has accepted what could not have been lawfully assigned 
 to her against her will. It is a voluntary release of a legal right, for 
 something supposed to be equivalent, or more.(6) 
 
 (1) Ind. Rev. L. 210; Lawson «. Morton, 
 6 Dana, 471. See Childs v. Smitb, 1 Md. 
 Ch. 483. 
 
 (2) Seott v. Scott, 1 Bay, 504; Wood v. 
 Lee, 5 Mod. 55. 
 
 (3) Abingdon's case, I Cruise, 164. (Cites 
 Howard v. Candish, Palm 264.) 
 
 (4) Longvill's case, 1 Keb. "743. 
 
 (5) Hoby V. Hoby, 1 Vern. 218. 
 
 (6) 1 Pick. 317-18 ; Wise. Rev. St. 336. 
 
 (a) Where the plaintiff in her complaint describes the lands in the possession of several 
 tenants occupying different portions thereof; the defendant occupying but a small part; 
 claims lor her dower one third of the whole, and obtains a verdict; upon filln"- the re- 
 cord of judgment, commissioners are to be appointed, to make admeasurement of dower out 
 of the lands which the jury have found in the possession of the defendant, and out of which 
 the plaintiff is entitled to dower. Elhcott v. Mosier, 11 Barb. 574. 
 
 (6) In New York, it is held, that particular rooms in a house may be assigned for dower, 
 with the right of using stairways, halls, &o., for the purpose of passing; and that the 
 heir cannot object thereto. Whether the widow might object, qu. White v Story 2 
 Hill, 543. ■ 
 
 In Alabama, an assignment of dower may designate the lands by the designation of them 
 at the land office. They need not be described by metes and bounds Adams v Barrow 
 13 Ala. 205. ' ' 
 
 A sheriff returned, that commissioners to assign dower had been duly sworn, and pro- 
 ceeded to assign it, " as shown by the annexed return." Held su£6oient, the return being 
 presumed to be that of the commisoners. lb. 
 
CHAP. XII.] 
 
 ASSIGNMENT OF DOWEB, ETC. 
 
 159 
 
 20. The whole of one parcel of land was assigned to the widow for 
 life, to be holden in full satisfaction of her dower, and subject to all the 
 conditions and liabilities, and with all the privileges and incidents, of 
 dower. The land assigned proved to be under mortgage, and at the 
 lime of assignment the mortgagee was in possession. Held, the widow 
 should not have dower in other land of the husband, held by an inno- 
 cent purchaser.(l)(a) 
 
 21. Lord Coke says, an assignment of lands in which the widow is 
 not dowable, or of a rent issuing out of them, is no bar of dower.(6) Oth- 
 erwise, with a rent issuing from lands of which she is dowable. Thus, 
 if it is necessary to assign dower in the capital dwelling-house, and the 
 widow refuses a single room or chamber in it, she shall have a rent 
 therefrom. The statutory provisions of different States in regard to 
 the assignment of rents and profits, in lieu of the lands themselves, 
 have already been stated. (2) 
 
 22. It is said, if the heir assign dower of lands of which the husband 
 was seized, but the widow is not dowable, she is tenant in dower. So, 
 if she be endowed, and afterwards exchange with the heir for other 
 lands, which the husband owned in fee, she shall hold in dower, and 
 by the husband. (3) 
 
 23. The assignment of dower must be absolute. Any condition, ex- 
 ception, or reservation annexed to it — as, for instance, a reservation of 
 trees — will be void ; or the widow, at her election, may sue for her 
 dower anew. (4) 
 
 24. At common law, the heir may assign dower by a mere parol 
 declaration, that the widow shall have certain lands, or, generallj^, one- 
 third of all the lands of which the husband died seized ; and an entry 
 upon the lands assigned, will vest in the widow a perfect title. The 
 statute of frauds does not jender necessary an assignment in writing. 
 The widow holds her estate by laiv^ and not by contract. And after an 
 assignment of dower by the owner of the land, though made by parol, 
 he cannot dispute that the land was subject to dower.(5) 
 
 25. The same principle seems applicable to an assignment by any 
 other tenant of the freehold. Thus, one of two persons, to whom the 
 
 (1) Jones V. Brewer, 1 Pick. 314 ; French 
 V. Pratt, 27 Maine, 381. 
 
 (2) Co. Lit. 34 b. ; Turney v. Sturges, Dyer, 
 91. See Wliile v Story, 2 Hill, 543 ; Per- 
 kins, 406 ; Biekley v. Biekley, And. 287. 
 
 (3) Co. Lit. 34 b. u. 9. 
 
 (4) Co. Lit. 34 b. ; Wentworth v. Went- 
 wortli, Cro. Eliz. 451. 
 
 (5) Co. Lit. 35 a ; Baker v. Baker, 4 Greenl. 
 67; Conant v. Little, 1 Pick. 191; Sliattuck 
 V. Gragg, 23 Pick. 88; Jolinson v. Neil, 4 
 Alab. N. S. 166; Boyers v. Newbanks, 2 
 Cart. 388. 
 
 (o) But where a widow has recovered judgment for her dower, and agrees with a war- 
 rantor of the tenant to receive an annual sum for life in lieu thereof, which is not paid, she 
 may recover her dower. Sargeant v. Roberts, 34 Maine, 135. Such a transaction can op- 
 erate neither as a lease nor release. There is no privity between the parties to it. lb. 
 
 ill) In order to bar the widow of lier action for dower, where rent has been assigned with 
 her con.sent, and accepted by her, it must appear that the rent will endure for her life. EUicott 
 V. Mosier, 11 Barb. 574. 
 
 A p ea in an action for dower, alleging that the husband died intestate ; that the defendant 
 occupied the premises under a lease Irom liim, and that the plaintiff and heirs had collected 
 and received the rents reserved ever since his death as the same became due, and had divided 
 and enjoyed the rents, in proportion to the interest of each in the premises, the plaintiff 
 reoeiving'one-third in lieu of dower; and insisting that the plaintiff was thereby estopped 
 from maintaining the action ; constitutes no defence. lb. 
 
160 
 
 ASSIGNMENT OF DOWfiR, ETC. 
 
 [CHAP. XII. 
 
 husband lias transferred the land in joint tenancy, may assign a third 
 part of it, and thereby bind his companion.(l) 
 
 2S. So, the guardian of an infant heir may validly assign dower.(2^(a) 
 
 27. But in Missouri, Kentucky, New Jersey and Virginia,(3) where 
 the widow sues such guardian for her dower, and he endows her by 
 favor ^ or "makes default, or by collusion defends .the plea faintly," the 
 heirs, on becoming of age, may avoid the assignnient. 
 
 28. In Ohio,(4) the assignment of dower by the heir or other party 
 interested must be made by deed. 
 
 29. In the assignment of dower there is an implied warranty, that 
 the tenant, if impleaded, may vouch the heir; and, if evicted by par- 
 amount' title from the lands assigned, she shall be endowed anew ;(&) ex- 
 cept'in- the- case above-mentioned, of an endowment a^awMicornjnon rigU. 
 But-iV-is'sdd,- if the assignment of dower were made by an alienee of the 
 husb'and, the .widow shall not vouch him to be newly'endowed, forwarit . 
 of privity. A new assignment is the widow's only remedy. She has no 
 claim upon the covenants in her husband's deed, which can beenforcS'd 
 by the heirs alone. On the other hand, if after assignment iof dowdr 
 the heirs are deprived of any part of their lands by a claim adverse to 
 the husband's title, there shall be a new assignment, although the dower 
 land has not been taken. And in case of an excessive assignment the 
 widow shall account for rents, &c., with an allowance for any improve- 
 ments. So, also, her second and third husbands.(5) 
 
 29 a. Where the widow surrenders her dower, in part satisfaction of 
 a claim against an estate of which she is 'administratrix, and the settle- 
 ment is afterwards set aside at the instance of the creditor ; she will be 
 entitled to her dower or its value.(6) 
 
 29 h. A widow being evicted from an estate in which she had a right 
 of dower, by a suit to enforce a lien for the purchase-money, to which 
 she was not a party ; held, her right of dower was not divested, and 
 she was entitled to that proportion of the rents and profits, from the 
 time the land was sold under a decree in such suit, which her right of 
 dower bore to the value of the land, less the unpaid purchase- 
 money.(7) 
 
 29 c. Where the husband's conveyance is set aside as fraudulent 
 against creditors, and the land sold and conveyed under a decree for 
 their benefit after his death,, the widow shall have dower, though she 
 joined in the conveyance. (8) 
 
 (1) Co. Lit. 35 a, u. 1 and 2. 
 
 (2) Jones t. Brewer, 1 Pick. 314; Boyers 
 V. Newbanks, 2 Cart. 388. 
 
 (3) Misso. St. 231-2; 1 Ky. Rev. L. 575 ; 
 1 K J. Rev. C. 398; 1 Vir. Rev. C. 111. 
 
 (4) Walk. Intro, 326. 
 
 (5) Bustard's case, 4 Cep. 122 a. ; Mass. 
 Eav. St. 411 ; Scott v. Hancock, 13 Mass. 
 
 168; Bedingfield's case, 9 Co. V\ b. ; St. 
 Clair V. 'WiUiams, 7 Ohio, part 2, 110; Sin- 
 gleioii V. Singleton, 5 Dana, 89 ; 'Verm. Rev. 
 St. 290 ; "Wise. ib. 335. 
 
 (6) Puison V. 'Williams, 23 Miss. 64. 
 
 (7) Willet -0. Beatty, 12 B. Mon. 172.' 
 
 (8) Summers v. Babb, 13 Illin. 483. 
 
 (a) In Maine and Arkansas, statutes so provide. Ark. Rev. St. 340; Me. Ib., 463. In 
 England, an infant cannot assign dower, ad ostium, Co. Lit. 34 a. In "Wisconsin, wliere 
 dower has been wrongly recovered from an infant, he may recover it back. Rev. St. 336. 
 It is held in Indiana, that dower need not be demanded ffoipan infant; that at common 
 law he has no power to assign dower, and if he does it, and the assignment ig excessive, 
 a writ of admeasurement lies. McCormick v. Taylor, 2 Cart! 33.6. But he cannot defeat it 
 by entry. And an admeasurement lies only for him, not for the widow, lb. . 
 
 (6) In Arkansas, if land assigned for dower is deforced, the widow has double damagea. 
 
CHAP. XII.] 
 
 ASSIGNMENT OF DOWER, ETC. 
 
 161 
 
 80. By the assignment of dower, the widow acquires a freehold 
 estate without livery of seizin in England, and probably in this country 
 without entry ; because dower is due of common right, and the assign- 
 ment is an act of equal notoriety.(l)(«) 
 
 31. After assignment, the law regards the widow, hy relation^ as 
 having had possession from the death of the husband. She acquires 
 no new freehold, but comes to her dower in the per, by her husband, 
 and is in, in continuation of his estate ; while, on the other hand, 
 the heir is considered never to have been seized of this portion of the 
 land.(2) 
 
 32. Upon this principle, where a disseizor dies, although the dis- 
 seizee cannot enter upon the heir, yet, if dower be assigned in the land, 
 he may enter upon this portion of it ; because the widow claims under 
 the husband, and not under the heir.(3) So the widow, after assign- 
 ment, becomes entitled to the back rents.(4) 
 
 33. The principle of the common law above stated, so far as it avoids 
 the seizin of the heir in regard to the lands of which the widow is 
 endowed, can hardly be regarded as in force in the United States.(5) 
 Indeed the English law itself seems to be confused and contradictory 
 upon this subject ; for while the assignment of dower is said to defeat 
 the seisin of the heir, it is also laid down that such assignment consti- 
 tutes a "Species of subinfevdation, and the widow holds as a tenant to 
 tie heir.(6) But whatever may be the rule of law in England, in the 
 United States the ancient doctrine of seizin has been so far modified, 
 either by express legislation or by necessary implication therefrom, 
 sanctioned by usage and adjudication ; that for all practical purposes, 
 it seems, the heirs of a husband hold a vested reversionary interest in 
 the lands from which the wife is endowed, subject to conveyance, de- 
 vise, distribution and legal process. This peculiarity in American law, 
 however, is a subject deserving of careful examination, and v;ill be 
 particularly considered in a subsequent portion of this work.(Z)) 
 
 (1) Co. Lit. 35 a; 4 Dane, 670. 
 
 (2) Windham v. Portland, 4 Mass. 388; 
 Norwood V. Marrow, 3 Battl. 448. See Boss 
 V. Ross, 12 B. Mod. 437. 
 
 (3) Lit. 393. 
 
 (4) 3 J. J. Mar. 48. 
 
 (5) Cook V. Hammond, 4 Mas. 467 ; Pay v. 
 Hunt, 5 Pick. 400-1-2. 
 
 (6) Park, 344. 
 
 (a) Lord Coke remarks, in regard to the legal requisites of an assignment of dower, "here 
 be two things that the law doth delight in, viz. : 1, to have this and the like opmly and 
 solemnly done; 2, to have certaintie, which is the mother of quiet and repose." Co. 
 Lit. 34 b. 
 
 (6) A distinction seems to have been made in Massachusetts between curtesy and dower, 
 as to their effect in defeating the seizin of the heir, in which respect they are alike at com- 
 mon law. The former has been held not to defeat such seizin ; while, as to the latter, the 
 English rule is said to be in force. (See 4 Mas. 467; 3 lb. 368 ; also Robison v. Codman, 
 1 Sumner, 130.) In North Carolina, both the principles stated in the text are recognized 
 as equally in force ; to wit, that the widow holds of the heir or reversioner, and at the same 
 time her estate is a continuation of the husband's, and, in case of any intervening title, re- 
 lates back to his death. Norwood v. Marrow, 4 Dev. & B. 442. 
 
 A died seized of lands, and leaving a widow and six children, of whom B and C were two. 
 An application was made by the heirs of A for partition, and an attorney of some of the 
 children, minors, appealed for them, being appointed guardian. The commissioners ap- 
 pointed to make partition also assigned dower to the widow. She entered on the land 
 assigned, and afterwards joined with C, one of the children, in a conveyance of his part, 
 ■which came to B by sundry mesne conveyances. B brought ejectment against E for the 
 part conveyed to him. Held, the assignment of dower displaced the heir's seizin, and re- 
 lated back, so as to give the dowress seizin from the death of her husband ; that, aa the 
 
 Vol. L 11 
 
162 ASSIGNMENT OF DOWER, ETC. [CHAP. XII. 
 
 34. The widow is regarded as so far holding under the next owner, 
 that, like other tenants, she is estopped to set up against him a para- 
 mount title purchased by her. Nor can a purchaser from her be al- 
 lowed to do it.(l)(a) 
 
 (1) Kirk V. Nichols, 2 J. J. Mar. 410. 
 
 assiftnment of dower, which in itself was bad, had been followed by her entry and possession, 
 and by the ratifying acts of the heirs, it was good; but that as the assignment and the judgment 
 for partition were simultaneous, the latter was not defeated, so as to divest the heirs of the 
 momentary seizin which followed the judgment and supported the partition. Fowler v. 
 Griffin, 3 Sandf 385. 
 
 It has been very recently decided in New York, that, after assignment of dower, the 
 widow's title relates back to the marriage, if the husband was then seized of the land ; if 
 not, to the time of his seizin ; that the assignment defeats the seizin of the heir ab initio ; 
 and, as she does not hold under the heir, she has no right to become party to an application 
 for sale of the land to pay debts. Lawrence v. Brown, 1 Seld. 394. If the surrogate order 
 a sale of all the husband's estate, including that assigned for dower, the sale is void as to 
 this portion, though the widow were notified to appear. lb. 
 
 (a) Having now finished the important and somewhat extensive titles of curtesy and 
 dower, it is worth while briefly to compare these two estates, and designate their several 
 points of similarity and of difference. See Co. Lit. sees. 2, 52, 53. 
 
 Both are life estates created by act of law, and arise out of the same relation, that of mar- 
 riage. Both require a present seizin, either in law or in deed, in the owner of the inherit- 
 ance ; that is, a title not subject to any particular freehold estate. In both, marriage alone 
 gives an incipient or initiate title, which the death of the party owning the inheritance ia 
 necessary to consummate. Both curtesy and dower are a continuation of the deceased 
 party's estate, having the effect to interrupt the seizin as between ancestor and heir, although 
 in the former case the estate is said to be in the post, and in the latter by the husband. And 
 lastly, neither of these estates is defeated by the ending of the estate out of which it springs, 
 according to the origiaal limitation ; while both aHke are determined by forfeiture under a 
 condition. Co. Lit. 30 b, n. 1. 
 
 In regard to the points of distinction between curtesy and dower, each seems to be in 
 some particulars the more favorably regarded by the law. Tenant by the curtesy does not 
 forfeit his estate, as a wife forfeits her dower, by elopement and adultery. The former may 
 immediately enter upon the laud after the death of the wife, while the latter must wait for 
 an assignment or judgment of law. Curtesy embraces the whole estate of the wife ; while 
 dower is confined to one-third of th# husband's estate. 
 
 On the other hand, dower does not require actual seizin on the part of the husband, as 
 curtesy requires it in the wife. And the wife shall have dower, but the husband shall not 
 have curtesy, without the birth of issue ; provided that the issue, which she might by possi- 
 bility have had, could inherit the estate. 
 
CHAP. XIII.] 
 
 JOINTURE. 
 
 16S 
 
 CHAPTER XIII. 
 
 JOINTITRE. 
 
 2. 
 
 Definition. 
 
 24. 
 
 A provision — not a contract. 
 
 3, 
 
 Origin. 
 
 25. 
 
 Infants. 
 
 5. 
 
 Value. 
 
 26. 
 
 Waste. 
 
 6. 
 
 When to take effect. 
 
 21. 
 
 Emblements. 
 
 8. 
 
 Quantity of estate. 
 
 28. 
 
 Eviction or breach of covenant 
 
 11. 
 
 Must be a legal interest. 
 
 
 the jointress' lien upon lands.' 
 
 12. 
 
 Must be an entire satisfaction. 
 
 38. 
 
 Favored in equity. 
 
 13. 
 
 And so stated. 
 
 42. 
 
 Interest. 
 
 15. 
 
 Ante-nuptial. 
 
 43. 
 
 How barred — by deed. 
 
 16. 
 
 Provisions not strictly jointures. 
 
 45. 
 
 By elopement, &c. 
 
 20. 
 
 Equitable jointure. 
 
 47. 
 
 By devise, &c. 
 
 23. 
 
 Wtio may receive a jointure. 
 
 58. 
 
 Joiniure in the United States. 
 
 and 
 
 1. The next estate for life, and one immediately connected with that 
 of dower, is a jointure. 
 
 2. A jointure is a competent livelihood of freehold for the wife, of 
 lands or tenements, &c., to take effect presently in possession or profit 
 after the decease of the husband, for the life of the wife at least, if she 
 herself be not the cause of its determination or forfeiture. (1) 
 
 3. This estate originated with the statute of uses. By the common 
 law, as has been stated above, (ch. 10, s. 1,) a wife's right to dower at- 
 tached immediately upon her marriage, and could be defeated only in 
 the few modes which have been mentioned. No conveyance to the 
 wife during coverture would operate as a substitute for her dower ; 
 upon the maxim, that no right or title to a freehold estate can be 
 barred by a collateral satisfaction ; neither was her release, being made 
 during coverture, of any effect.(a) To obviate this inconvenience, it 
 became very common to convey lands to uses, a widow not being dow- 
 able of a use ; and, when a cestui que use married, the friends of the 
 woman, by way of provision for her, procured him to take a convey- 
 ance from his feoffees, and limit it to himself and the wife for their 
 lives in joint tenancy or jointure. When the statute of uses transferred 
 the legal estate to the cestui, the widow became dowable, even though 
 the above-named provision had been made for her. Hence this statute 
 provided, that no woman thus provided for should claim dower in 
 
 (1) Co. Lit. 36 b ; Vance v. Vance, 8 Shepl. 364; Me. Eev. St. 392. 
 
 (a) In Alabama, it is held that an ante-nuptial agreement is no bar to dower, though 
 made expressly in lieu thereof; but that such agreement, if reasonable, may be enforced 
 in equity. Gould v. Womaek, 2 Alab. (S. S.) 83. 
 
 So a conveyance by a husband to his wife of a life estate in certain property, which 
 passes a present vested interest, and is not testamentary in its character, will not bar her 
 dower. Mitchell jj. Mitchell, 8 Ala. 414. Whether a release of any claim to dower is 
 sufficient consideration for a marriage settlement. See Lewis v. Caerton, 8 Gratt. 148 ; 
 Blackman v. Blackman, 16 Ala. 633; Infra p. 61. 
 
 ■ A contract, made by husband and wife and her trustee, during the coverture, by which, 
 in consideration of her receiving separately, and absolutely controlling, her property, she 
 releases her dower in the husband's lands, is invalid, and no bar to dower. Townsend v. 
 Townsend, 2 Saadf. 711. 
 
164 
 
 JOINTURE. 
 
 [CHAP. XIII. 
 
 the lands of her husband ; in other words, it niade a jointure, if con- 
 formable to its provisions, a bar of dower.(l) 
 
 4. From the definition of a jointure, given above, it may be seen 
 that several circumstances are requisite to constitute this estate. These 
 are enumerated at length, and the general principles of law upon this 
 subject fully stated, in Vernon''s case, already referred to.(2) 
 
 5. With regard to the amount and value of the property limited, 
 although the statute seems to make no express provision upon this 
 point, it must be a reasonable and competent livelihood, taking into 
 view the circumstances of the parties, the amount of the husband's 
 estate, and the portion which he received with the wife.(3) 
 
 6. The jointure must take effect, in possession or profit, immediately 
 from the husband's death — otherwise, it would be less beneficial than 
 dower. Thus, if the estate is limited to the husband for life, remain- 
 der to A for life, remainder to the wife ; this is no bar of dower, it 
 seems, even though A die during the coverture.(4) 
 
 7. So, a limitation to the husband in tail, remainder to the wife for 
 life, is not a good jointure, though his issue die before himself, and 
 therefore the widow come into possession immediately upon his 
 death. (5) 
 
 8. The estate limited must be at least as great as for the life of the 
 wife. It is insufficient, if only in part freehold, and in part an annuity, 
 not secured by real estate. The estates mentioned in the statute, are 
 to the husband and wife and his heirs ; or to them and the heirs of 
 their bodies, or one of their bodies ; or to them for their lives or her 
 Iife.(6) 
 
 9. It is said in an ancient treatise, that an estate to a husband and 
 wife and their heirs is not a good jointure, because not mentioned in 
 the act.(7)(a) But it has been since held, that these estates are men- 
 tioned only as examples, and do not exclude' others equally beneficial 
 and consistent with the intention of the act. Thus, an estate to a man 
 and his wife and the heirs male of their bodies; or to him for life, 
 remainder to her for life ; is a good jointure. (8) 
 
 10. It was formerly held, that a jointure durante viduitate was good, 
 because it would continue for life, unless terminated by the widow's 
 own act. But it has been decided in New York, that a jointure during 
 life or widowhood is bad, unless accepted. (9) 
 
 11. A jointure, to be strictly legal, must be limited to the wife her- 
 self, not to another person in trust for her, even though she assent. 
 But equitable jointures are now allowed, and will be noticed here- 
 after.(lO) 
 
 (1) Vernon's ease, 4 Eep. 1 ; Lincoln Col- 
 lege case, 3 Rep. 59 b. ; Co. Lit. 36 b. ; 
 Hastings v. Dickinson, 1 Masa. 155 ; Power 
 V. Sheil, 1 Moll. 296. 
 
 (2) Supra, 3 ; 4 Rep, 1 ; Mass. Re'«»St.410. 
 
 (3) M'Cartee v. Teller, 2 Paige, 511; 4 
 Dane, 686. 
 
 (4) Co. Lit 36 b; 4 Rep. 2 a ; 1 Mass. 155; 
 
 (5) Wood V. Shurley, Cro. Jac. 488; Caru- 
 
 thers V. Caruthers, 4 Pro. Rep. 500 ; Smith 
 V. Smith, 5 Ves. 192. 
 
 (6) 4 Rep. 3 b, 2 a ; Dyer, 97 a, 248 a ; 
 Co. Lit. 36 b; Tanoe v. Vance, 8 Shepl. 364; 
 Tnd. Rev. Sts. Descent, sec. 38. 
 
 (7) Pro. Abr. Dower^ 
 
 (8) 4 Rep. 3 b, 2 a. 
 
 (9) Mary Vernon's case, 4 Rep. 3 ; McGar- 
 tee V. Teller, 2 Paige, 511. 
 
 (10) Co. Litt. 36 b. 
 
 (a) Another reason mentioned is, that such estate goes to the heirs generally, but the 
 statute was intended to benefit the issue. Dyer, 248 a, n. 
 
CHAP. XIII.] 
 
 JOINTURE. 
 
 165 
 
 12. A jointure, to be a bar of dower, must be made in satisfaction of 
 the whoh dower.{\) 
 
 13. It must also appear to have been made to the wife as a satisfac- 
 tion of dotver. Before the statute of frauds, this fact might be averred, 
 that is, proved by parol. And it has been suggested that the law is 
 still the same, as there is nothing in that statute excluding averments. 
 But the modern doctrine seems to be otherwise.(2) Thus, where to a 
 bill in equity for dower, the heir pleaded that the husband made a bond, 
 in trust, to secure the wife a certain sum ; that it was intended in lieu 
 of dower, and that she acknowledged it to be so : held, parol evidence 
 of such acknowledgment was inadmissible. (3) 
 
 14. It is sufficient, however, if the deed show by strong implication 
 that the provision was intended as a bar of dower. But equity requires 
 a very distinct manifestation of such intent.(4) 
 
 15. A jointure, to be binding on the wife, must be made before mar- 
 riage. If made after marriage, she may refuse it and demand dower.(5) 
 
 16. A jointure, made conformably with all these requisitions, is in 
 general absolutely binding upon the wife, and prevents the claim of 
 dower from ever arising. Many provisions made by the husband for 
 the wife, though not in the form above prescribed, may operate as a bar 
 of dower, if accepted by her.(6) In this respect, a settlement made during 
 the husband's life stands on the same footing with a devise or bequest; 
 which, it has been seen, if intended as a substitute for dower, the widow 
 can receive only in that way. Indeed, a provision for the wife by will 
 is often in statutes and elsewhere called a jointure, and «as originally 
 upheld as a bar of dower, as being within the equity and reason of the 
 statute of uses, which establishes jointures.(7)(a) 
 
 17. Thus, if an estate be settled upon the wife after marriage, and if, 
 after the husband's death, she accepts it, she is barred of her dower.(8) 
 
 18. So if the estate limited is less valuable than dower — being bur- 
 dened with a condition, or made determinable during the life of the 
 wife; still, if she accepts it, she shall not have dower. Thus, where an 
 estate was limited by the husband to the wife for life, upon condition 
 of her performing his will, and after his death she accepted and entered 
 upon the estate; held, inasmuch as the estate was for life, though 
 conditional, and the widow had accepted it, she was barred of her 
 dower.(9) 
 
 19. In some cases, however, if the provision made for the wife has 
 not the legal requisites of a jointure, the widow may claim both such 
 provision and dower also. This is of course the case, where there was 
 no intention to bar dower. And it is said, that where the estate limited 
 
 (1) Co. Litt. 36 b. 
 
 (2) 1 Cruise, 149; Owen, 33; 4 Rep. 3. 
 
 (3) Tinney c. Tinney, 3 Atk. 8 ; "Walker v. 
 "Walker, 1 Tes. 5i; Couch u. Stratton, 4Ves. 
 jr. 391; Charles v. Andrews, 9 Mod. 152. 
 
 (4) Ambler ». Norton, 4 Har. & MoHenry, 
 23 ; Vizard v. Longdale, 3 Atk. 8 ; Lord 
 Dorchester v. Effingham, Coop. 323. 
 
 (5) Co. Lit. 36 b ; 4 Rep. 3 a ; Vance v. 
 Vance, 8 Shepl. 364. 
 
 (6) 1 Cruise, 151; 4 Rep. 2 a; Mass. Rev. 
 St. 410. 
 
 (7) Tfernon's case,'4 Rep. 4 a, b ; 4 Dane, 
 685. 
 
 (8; Co. Lit. 36 b ; "Walk. Intro. 325. See 
 Frank v. Frank, 3 My. & G. 171. 
 (9) Vernon's case, 4 Rep. 1 ; Dyer, 317 a. 
 
 (a) A jointure is ordinarily settled before marriage ; and a devise takes effect after it is 
 ended by death. Hence, they are held to stand on substantially the same ground. 4 
 Bep. 4 a. 
 
166 
 
 JOINTURE: 
 
 [CHAP. xiir. 
 
 is not to commence immediately upon the husband's death, the widow- 
 shall have such estate in addition to her dower, although the interme- 
 diate party have died before the husband.(l)(a) 
 
 20. In equity, any provisioa which a woman accepts before marriage 
 in satisfaction of dower — as, for instance, a trust estate, or a mere per- 
 sonal covenant of the husband — may constitute a good jointure. Thus, 
 a sum of money secured by bond. So, a bond to the mother of the 
 intended wife, conditioned that the husband or his heirs should settle a 
 certain sum per annum upon her, in satisfaction of dower. So even a 
 covenant by the husband, that 'his heirs, executors or administrators will 
 pay an annuity for life to the wife, though it be not charged upon lands, 
 is a good jointure. For, although the husband might defeat his own 
 covenant by immediately conveying away all his property, this would 
 be an eviction, which would let in the wife to her dower. And 
 although the husband was not in terms bound himself, equity would 
 treat him as bound, and, upon a suit of the wife by her next friend, 
 compel him immediately to settle the annuity.(2)(Z)) 
 
 21. So, where a man and infant woman, each of whom owned lease- 
 hold estates, assigned them to trustees, in trust to permit the husband 
 to receive the rents for his life, and the wife for her's after his death ; 
 held, a good jointure.(3) 
 
 22. A jointure will be good in equity, though the estate limited does 
 not proceed immediately from the husband. Thus it may come through 
 trustees, or the demandant in a common recovery, suffered for the pur- 
 pose of a jointure, or the father of the intended husband, by a convey- 
 ance from him to trustees, in pursuance of previous articles.(4) 
 
 23. All persons, capable of being endowed, are also capable of taking 
 a jointure. (5) 
 
 24. It has been held in England, that a jointure is s, provision, not a 
 contract. Although it is undoubtedly necessary that the woman should 
 have notice of it, yet there is no law requiring that she should be a 
 party to the deed by which the jointure is created. Upon the same 
 principle, it was decided by the twelve j udges, three dissenting', that an 
 infant woman is bound and barred of her dower, by a jointure made to 
 her before marriage. (6)(c) 
 
 25. Inasmuch as a legal jointure bars the dower of an infant at law. 
 
 (1) 4 Rep. 2 a; Co. Litt. 36 b. 
 
 (2) Tinney v. Tinney, 3 Atk. 8 ; Estoourt 
 V. Estcourt, 1 Cox, 20 ; 1 Cruise, 152 ; Bucks 
 V. Urury, 3 Bro. Pari. Ca. 492 ; Leohmere 
 V. Lechmere, Gas. Tern. Tal. 80 ; Seys v. 
 Price, 9 Motl. 219; Caruthera v. Caruttiers, 
 4 Bro. 506 n. ; Jordan v. Savage, 2 Abr. Eq. 
 101 ; Potto w ti. Fricker, 5 Eng. L. & Equ. 
 443. 
 
 (3) Williaras v. Ohitty, 3 Ves. jr. 545. 
 
 (4) Bridge's case, Moore, US; Ashtoti'a 
 case. Dyer, 228. 
 
 (5) 1 Cruise, 152. 
 
 (6) Buckingham v. Drury, 3 Bro. Pari. 
 Gas. 492 ; Garuthers v. Caruthers, 4 Bro. 
 Rep. 506 n. ; Jordan v. Savage, 2 Ab. Equ. 
 101 ; Earl of Buckingham v. Drury, 2 Edea, 
 73 ; 4 Kent, 55 u. 
 
 (a) Such is probably the meaning of the language, "although the wife attains to them, 
 and enters and takes the profits; yet she shall have dower of the residue." 4 Rep. 2 a. 
 
 (6) Lease for life to A, remainder to his executors for years. The term vests in him, as 
 if it had been to A and his executors. Go. Litt. 54 b. 
 
 (c) In this case, however, the settlement was made by an indenture of three parts, be- 
 tween the husband, the wife and trustees, executed in the presence of| and witnessed by, 
 her guardian. Pour judges only delivered opinions in the affirmative. In "Wisconsin, (Rev. 
 Sts. 334-5,) the woman must be a party to the deed ; if she is a minor, her father or guar- 
 dian shall join. 
 
CHAP. XIII] JOINTURE. 167 
 
 an equitable jointure will bar it in equity, more especially if assented 
 to by the father or guardian. But, although in equity, as at law, a 
 jointure not in itself valid may become a bar of dower by the accept- 
 ance of the wife, yet in the case of an infant it is otherwise ; for an 
 infant has no capacity in law to accept. Hence, a jointure for life or 
 widowhood is bad.(l) 
 
 26. In general, a jointress, like other tenants for life, has no right to 
 commit waste. But where there is a covenant that the lands settled 
 shall be of a certain yearly value, and they prove otherwise ; she may 
 commit waste to make up the deficiency.(2) 
 
 27. A jointure is not, like dower, a continuation of the husband's 
 estate. Therefore a jointress is not entitled to the crops sown at his 
 death.(3) 
 
 28. Eviction from her jointure restores a woman's right to dower, either 
 entirely, or in proportion to the value of the lands evicted ; whether 
 the eviction take place before or after the husband's death, and notwith- 
 standing an acceptance by the widow of the remaining portion of the 
 lands.(4) 
 
 29. A jointure was settled before marriage. The husband purchases 
 other lands, aliens them and dies. The widow is evicted from her 
 jointure. Held, she should have dower in these lands, though the 
 husband owned them only while the jointure remained good, and while 
 therefore her dower was barred. (5) 
 
 80. Upon the same principle, if a jointure is covenanted, or even 
 merely expressed, by the husband to be of a certain annual value, and 
 proves of inferior value ; equity will make up the deficiency from his 
 estate. And although the covenant is contained only in articles, not in 
 the settlement itself, the widow will not be at first turned over to law 
 for damage-, but equity will inquire into the amount of the defect, and 
 send it to be tried at law upon a quantum damnificat. In such case, 
 the widow, in England, stands as a specialty creditor, and has a claim 
 against the other lands of the husband. (6) 
 
 81. At law, a mere covenant to settle even certain specific lands 
 gives no lien upon those lands. In equity, a covenant to settle lands 
 generally, or lands of a certain value, gives no lien upon the husband's 
 real estate ; but the widow stands as a specialty creditor for an amount 
 not exceeding her dower. But a covenant to settle particular lands 
 gives a lien upon them, except as against ignorant purchasers for a con- 
 sideration. So, if the covenant declare the settlement to be in execu- 
 tion of a power, equity will ascertain to what lands such power is ap- 
 plicable, and enforce a lien upon them. (7) 
 
 82. No act or neglect on the part of the wife, during coverture, will 
 bind her, in case of eviction from the jointure, or of its proving of in- 
 ferior value to that agreed upon. It is a maxim in law, that the laches 
 of a feme covert shall not be imputed to her. Thus, a husband, after 
 marriage, gives a voluntary bond to settle a jointure, and afterwards 
 makes such settlement, whereupon the bond is given up. After the 
 
 (1) McCartee v. Teller, 2 Paige, 611 ; Cor- ton, 4 Hen. & Mun. 23 ; 4 Kent, 55 n. 
 bit V. Corbit, 1 Sim. & Stu. 612. (5) Mansfield's case, Co. Lit. 33 a, n. 8. 
 
 (2) Bassett v. Bassett, Pinch, 189; 1 Abr. (6) Glegg v. aiegg, 2 Ab. Eq. 27 ; Prob- 
 Eq. 221. ' ert v. Morgan, 1 Atk. 440 ; Speake v. Speake, 
 
 (3) Pisher u. Forbes, 9 Vin. 373. ITer. 218; Parker ii. Harvey, 2 Abr. Eq. 
 
 (4) Gervoye's case, Moore, IVl ; Hastings 241 ; 1 Cruise, 110. 
 
 V. Dickinson, 7 Mass. 153 ; Ambler v. Wes- (7) 2 Story on Eq. 496, and n. 
 
168 
 
 JOINTURE. 
 
 [CHAP. XIII. 
 
 husband's death, the widow was evicted. Held, in equity, that the 
 giving up of the bond did not bind her, she being a, feme covert; and that 
 the bond should be satisfied from the personal estate, unless she re- 
 covered her dower.(]) 
 
 33. A husband, having a power to settle a jointure, not exceeding 
 1001. per annum, after marriage, appointed lands to trustees for this 
 purpose, covenanting that they were worth lOOZ. ; and, if they were not, 
 that, upon demand made during his life, he would make up the defi- 
 ciency. The husband lived several years, and no complaint was made 
 respecting the jointure. After his death, the widow brings a bill in 
 equity, to have a deficiency made up from the personal estate. De- 
 creed, in favor of the widow. (2) 
 
 84. If the wife had a title before marriage to the lands assigned her - 
 for a jointure, it seems, upon entering on them, she is remitted to her 
 former title, and shall recover dower as if evicted. (3) 
 
 45. A widow shall be endowed for life only, though evicted from a 
 jointure in fee(4) 
 
 36. In equity, a jointress is regarded as a purchaser, marriage being 
 held a valuable consideration. Hence, a court of equity will always 
 interpose for her protection ; and, where there is a mere agreement for 
 a jointure, compel an execution of it, which shall relate to the time when 
 it ought to have been made.(5) 
 
 37. If the agreement is to settle a jointure before marriage, a mar- 
 riage without such settlement is no waiver or release of the contract; 
 but the wife, after her husband's death, may enforce it in equity. (6) 
 
 38. Equity will not relieve against a jointure, although it operates 
 very unequally in favor of the wife. 
 
 39. As part of a marriage treaty between A and the father of B, 
 A was to have a marriage portion of £5,000, and settle £500 per 
 annum upon B. The father demanded that the fee of the jointure 
 should be settled upon her, in case A died without issue, which A 
 refused. A afterwards resumed the negotiation, received articles for 
 the £5,000, settled the £500 per annum, and mortgaged the reversion 
 of the jointure, with his other lands, for the payment of £5,000 to his 
 widow, if he should die without issue. In a fortnight afterwards A 
 died, having been feeble and sickly at the time, and having also de- 
 clared on his death-bed, and in presence of the wife, without contra- 
 diction, that no such agreement had been made. The wife brings a bill 
 for foreclosure of the mortgage against the heirs of A, and they bring 
 a bill for relief, allegiug fraud. Held, that marriage being a valuable 
 consideration, mere unreasonableness in the provisions of a settlement, 
 without fraud, was insufficient to set it aside ; and that the fairness of 
 the transaction was to be determined by the state of facts at the time, 
 not what took place afterwards. The defendants were decreed to pay 
 the £5,000, without interest.(7) 
 
 40. A jointress, being regarded as a purchaser, will be relieved in 
 equity against a prior voluntary conveyance. (8) 
 
 (1) Beard v. Nutthall, 1 Tern. 427. 
 
 (2) Fothergill v. Fothergill.l Abr. Eq. 222. 
 
 (3) "Wood V. Shurley, Ore. Jac, 490. 
 
 (4) 4 Dane, 685. 
 
 (5) 1 Cruise, 156; Sydney i;. Sydney, 3 P. 
 "Wms, 216 ; Buchanan «. Buchanan, I Ball 
 
 k Beat. 206. 
 
 (6) Haynerv. Hayner, 1 Cruise, 218. 
 
 (1) "Whitfield V. Vay\oT, Show. Pari. 0». 
 20; ("Wiokerley v. "Wiokerley, 2 P. "Wms. 
 619.) 
 
 (8) 1 Cruise, 16t. 
 
CHAP. XIII.] 
 
 JOINTURE. 
 
 169 
 
 41. Where an heir or other person seeks in equity to avoid a jointure, 
 for want of title in the husband to make it, and prays a discovery of 
 title-deeds ; in order to obtain such discovery, his bill must submit to 
 confirm the jointure, even though made after marriage. And the 
 ■widow will not be compelled to produce her own deed, unless the 
 party not only offer to confirm, but actually confirm, the jointure. 
 Upon such confirmation, the court will order her to deliver up even 
 leases, if expired, or attendant on the inheritance, although she may 
 have claims for back rents, and upon the covenants.(l) 
 
 42. Interest is not allowed upon the arrears of a jointure, except 
 under special circumstances ; as where the widow has been compelled 
 to borrow money on interest. And even this ground is doubted. 
 A contract is said to be the only proper reason. (2) 
 
 43. In general, a jointure, like dower, is not liable to be barred or 
 affected by any act of the husband alone. But it may undoubtedly 
 be barred by a joint deed of husband and wife.(3) 
 
 44. It seems, if the jointure were settled before marriage, it being 
 an absolute satisfaction of the right of dower, this right will not be 
 revived by a conveyance of the husband and wife, releasing her joint- 
 But if made after marriage, inasmuch as the widow might waive 
 
 ure 
 
 it and claim dower, such release will have the effect to restore the 
 wife's right of dower. (4) 
 
 45. In England, a wife does not lose her jointure, like dower, by 
 elopement and adultery. And, in equity, this is no defence to a bill 
 brought by the wife herself, or by trustees, for a specific performance 
 of marriage articles for a jointure ; more especially where specific lands 
 are to be settled, and where both the averment and proof are not of 
 positive acts of adultery, but of mere elopement with another man. (5) 
 
 46. In New York, Missouri, and New Jersey, a jointure ; and in 
 New York and Arkansas, every other pecuniary provision in bar of 
 dower, is barred by elopement and adultery. In Delaware, a jointure 
 is baired by divorce for adultery of the wife, or by adultery and elope- 
 ment or separation without the husband's fault, unless he be reconciled 
 to her.(6) 
 
 47. With regard to the effect of a provision by will, for the benefit 
 of the wife, it has been held in England, that such provision, being no 
 bar of dower, is upon the same principle no bar of a jointure, which is 
 to be considered as coming in the place of, and having the same privi- 
 leges with dower. And where there is a covenant that the jointure 
 lands shall be of a certain value, and they prove deficient, the devise 
 or bequest shall not be taken as a satisfaction of such deficiency, or 
 performance of a covenant, but as a bounty, and the defect shall be 
 made up as if no devise had been made. It is said, this is not like the 
 case where a husband covenants to settle lands, and permits them to 
 descend ; which is held an implied performance. But it is a question 
 of the construction of a will, and the intent of a testator. The husband 
 
 (1) Towers v. Davys, 1 Tern. 479 ; Leach 
 
 V. Trollop, 2 Tes. 662; Lomax v. , 
 
 Sel. Cas. in Cha. 4; 1 Story on Equ. 78. 
 
 (2) Hubert v. Parsons, 2 Ves. 261 ; Tew 
 V. Winterton, 1 Ves. jun. 451. 
 
 (3) I Cruise, 160. 
 
 (4) Co. Lit. 37 a; Dyer, 358 b. 
 
 (5) Blount V. "Winter, 3 P. Wms. 277; 
 Sydney v. Sydney, 3 lb. 269 ; Buchanan v. 
 Buchanan, 1 Ball & B. 206. 
 
 (6) 1 N. Y. Rev. St. 742 ; 1 N. J. Eev. C. 
 400; Misso. St. 229; Dela. St. 1832, 149; 
 1829, 165 ; Rev. Sts. 291. 
 
170 
 
 JOINTURE. 
 
 [CHAP. XIIL 
 
 having contracted to make tte jointure of a certain value, this is what 
 the widow has a right to, as a purchaser ; it is her own estate, or a 
 debt from her husband to her. JSTor does the largeness of the settle- 
 ment at all 'vary her rights.(l) 
 
 48. By marriage articles between an intended husband and the 
 father of his intended wife, , the father covenanted to pay a certain sum 
 of money, and to settle lands to certain uses, if the husband would set- 
 tle lands upon his wife to the value of £500 per annum, as a jointure 
 in lieu of dower. The father falfilled his covenants, and the husband 
 settled lands, the annual value of which exceeded the amount agreed 
 upon. But afterwards, finding some defect in the title of a part of the 
 lands, and being advised that upon his dying without issue, the jointure 
 might become void in consequence of an entailment for the benefit of 
 his sisters, he suffered a fine of the jointure lands, and also, in pur- 
 suance of a power from his father, appointed other lands to his wife, 
 declaring the same to be in recompense of all deficiencies in her jointure. 
 The husband afterwards made his will, by which he gave the wife a 
 large pecuniary legacy, all his personal estate, several houses and lands, 
 and made her a residuary legatee; all which provisions were more than 
 double the value of the jointure. Neither the wife nor her father or 
 friends had notice, during the marriage, of the title of the sisters. The 
 husband, by the death of his wife's parents, received a considerable 
 amount of property, and was allowed by her to have the benefit of her 
 estates derived from her father. The will devised to the sisters and 
 their issue, the reversion of all the husband's inheritance after the 
 widow's death. After the husband's death, his sisters claimed the lands 
 settled as a jointure, and by legal title evicted the widow therefrom. 
 The widow files a bill in Chancery, to have her jointure confirmed or 
 dower assigned ; and the defendants file a cross-bill for discovery. 
 Held, by Lord Harcourt, that the defendants should convey to the 
 widow lands of her husband to the value of £500 per annum for life, 
 which she should hold in addition to all the other provisions above- 
 mentioned for her benefit. On appeal to the House of Lords, the decree 
 was affirmed. (2) 
 
 49. A man, upon his marriage, gave bond to a trustee, to settle upon 
 the wife, within four months, freehold lands worth £100 per annum. 
 After marriage, he devises freehold and copyhold lands, of the value 
 of £88, to his loving wife and her heirs ; and dies within the four months. 
 Held, this devise was no satisfaction of the jointure, because land can- 
 not be a satisfaction of money, nor the converse ; nor copyhold a satis- 
 faction of freehold. That the phrase, his loving wife, imported a bounty, 
 and that the wife should take the devise in addition to the £100, if 
 there were assets for payment of bond debts, and those charged by will 
 upon the land. (3) 
 
 60. More especially is this construction to be adopted, where the 
 husband by his will expressly ratifies and confirms the marriage arti- 
 cles, although in the same sentence he gives to his wife lands for 
 life.(4) 
 
 (1) Probert v. Morgan, 1 Atk. 440; 1 
 Cruise, 169 a; Prime v. Stebbing, 2 Ves. 
 409. 
 
 (2) Grove v. Hoolce, 4 Pro. Pari. Ca. 563 ; 
 5 Tin. Abr. 293. 
 
 (3) Eastwood v. Tinke, 2 P. Vms. 613. 
 (4J Prime v. Stebbing. 2 Vea. 409. 
 
CHAP. XIII.] JOINTURE. 171 
 
 51. And the same rule prevails, though the specific lands charged 
 with the jointure are expressly devised away, by the will which makes 
 provision for the wife. 
 
 52. A man, in consideration of marriage and a large marriage por- 
 tion, covenanted to convey lands in C to trustees, to raise an annuity 
 for his wife, as a jointure and in lieu of dower. The conveyance was 
 not made ; but the husband, having sold large estates of greater value 
 than the lands in C, and contracted for the purchase of others, made 
 his will, devising to his wife a leasehold house in London with all the 
 furniture, and also the estates contracted for, or the purchase-money of 
 those sold, and devising the lands in C to trustees for the benefit of his 
 heir, subject to an annuity. The widow, after entering upon the estates 
 devised to her, brought a bill in equity against the heir for a specific 
 execution of the marriage articles. Held, both in Chancery and in the 
 House of Lords, that the devise was no bar of the jointure.(l) 
 
 53. If a devise is made expressly as a substitute or satisfaction for 
 the jointure of the wife, she cannot hold both, but must make her elec- 
 tion between them. 
 
 54. A man agreed to purchase lands to the amount of £10,000, and 
 settle them upon his intended wife for her jointure. After the mar- 
 riage, his father gave him an estate for life, with a power to grant a 
 rent-charge of £400 per annum, to any woman whom he should marry, 
 for her jointure. The husband accordingly granted such rent-charge, 
 in satisfaction of a part of the jointure ; afterwards conveyed a lease- 
 hold of £200 per annum, in trust for the wife ; and then, by will, con- 
 firmed the rent-charge, and the conveyance of the leasehold, by way of 
 addition, and in full compensation of the jointure. Held, these pro- 
 visions were a satisfaction of the jointure, and the widow must elect 
 between them. (2) 
 
 55. It is suggested that, in analogy to 'the law concerning dower, a 
 devise shall be held a satisfaction of the wife's jointure, if the will raises 
 a strong implication that such was the testator's intention. The follow- 
 ing case is cited to this point.(3) 
 
 56. The father of a husband settled lands upon the wife, and cove- 
 nanted that they were worth £1,000 per annum. After the father's 
 death, the husband, his heir, devised to his wife other lands worth 
 £500, a legacy of £1,000, and a part of his household goods. Subse- 
 quently, being minded to make some further provision for her, he re- 
 voked the uses of a portion of his estates, and limited them to trustees to 
 raise £10,000 for her. By a codicil, he devised to her an annuity of £500 
 for life. The widow brings a bill in equity to have a deficiency in her 
 jointure made up. Held, the other provisions must be taken as a sat- 
 isfaction of such deficiency .(4) 
 
 57. Upon this case, however, it is remarked, that it was prior to 
 Prime v. Stehbing,{ci) and also that it was finally decided upon the 
 ground, that the husband was a very weak man, and under the influence 
 of his wife, and, at the execution of the codicil, actually insane. 
 
 (1) Broughton v. Errington, 1 Bro. Pari Ca. | (3) 1 Cruise, 171. 
 
 461 ' (4) Mouiitague v. Maxwell, 4 Bro. Pari. Ca. 
 
 (2) Grandison v. Pitt, 2 Ab. Eq. 392. I 598 ; 2 Ab. Bq. 421. 
 
 (o) Supra, sec. 50. 
 
172 
 
 JOINTURE. 
 
 [CHAP. XIII. 
 
 ' 58. In the United States, no very considerable departures have 
 taken place from the English law of jointure ; except in a few of the 
 States. Universally, a jointure accepted will operate as a bar of dower; 
 and, in many of the States, the statutes providing for the right of 
 dower, in the way of qualification or exception, expressly disallow it 
 in cases where the widow has received a jointure. Vermont seems to 
 be the only State where a woman of fall age, "endowed by way of 
 jointure," before marriage, could ever waive her jointure and claim 
 dower. And now, by the Revised Statutes of that State, a jointure or 
 pecuniary provision, made by the husband or any other person, before 
 marriage, or, with the wife's consent, after marriage, to take efiPect after 
 the husband's death and in lieu of dower ; is a bar thereof. So any 
 devise, &c., which the Probate Court determines to have been so in- 
 tended. So her half of the estate, where there are no children or their 
 representatives. And the widow cannot elect between an ante-nuptial 
 provision and her dower, where she was not the first wife, and there 
 are no issue, and she receives a comfortable support, if the court order 
 otherwise. In Indiana, where both curtesy and dower are expressly 
 abolished, a jointure will bar the wife's share of her husband's estate; 
 and a similar provision for him will bar his share of her estate.(l) 
 
 59. Mr. Dane remarks, that the colony law of Massachusetts of 1644 
 supposed the widow might be barred of her dower by a jointure.(2) 
 
 60. In the same State, a jointure which would be good in equity 
 has been held insufficient to bar dower. 
 
 61. By marriage settlement, a husband covenanted that the wife 
 should have an annuity from his estate after his death, and, in con- 
 sideration thereof, she covenanted not to claim dower. The husband 
 died insolvent. Held, the covenant for an annuity could not operate 
 as a jointure ; nor the covenant of the wife as a release of her dower, 
 or a valid contract : the claim of dower at the time of the covenant not 
 haviog accrued, and the consideration failing by the husband's insol- 
 vency.(3) Nor could it operate by way of estoppel{4:) 
 
 62. So, where a man and woman, before marriage, entered into 
 mutual covenants through a trustee, in the nature of a jointure ; the 
 former covenanting for an annuity, and the latter agreeing to relinquish 
 all title to dower, and also that her covenant might be pleaded in bar 
 to any claim of dower, with a saving of her right to the annuity : held, 
 the covenants were not extinguished by the marriage, as they could 
 not by possibility be enforced or performed during the marriage ; but 
 that a failure to pay the annuity would restore the wife's right to 
 dower in fall, although she might perhaps be liable upon the covenant 
 for the difference of value between the two, (5) 
 
 63. In South Carolina, the English statute of uses on this subject 
 has been almost in terms re-enacted. In Ohio, it is said the provision 
 must be for the life of the wife.(6) 
 
 (1) Anth. Sbep. 21 ; Term. Rev. St. 289; 
 Ind. Eev. Sts. Descent, sees. 36-7. 
 
 (2) 4 Dane, 685. 
 
 (3) Haalings v. DickinsoQ, 1 Mass. 153. 
 
 (4) 15 Mass. 110. 
 
 (5) Gibson K.&ibson, 15 Mass. 106;*Yano6 
 V. Tance, 8 Shepl. 364. 
 
 (6) Anth. Shep. 560 ; Walk. Intr. 325 ; 2 
 Const. S. C. 747. See Green v. Green, 7 
 Por. 19. 
 
 * This case is said to be not distinguishable from Hastings v. Dickinson, (supra, n. 3.) 
 But some of the remarks of Wilde, J., would seem to imply that such a covenant, if per- 
 formed, might bar dower. 
 
CHAP. XIII.] JOINTURE. 173 
 
 64. In Massachusetts, (a) Maine,' Michigan, Arkansas, "Wisconsin and 
 NewYork, a woman's assent to her jointure, or any pecuniary provi- 
 sion in lieu thereof, must be expressed, if she be of full age, by her 
 becoming a party to the conveyance by which it is settled, or, if she is 
 an infant, by her joining with her father or guardian m such convey- 
 ance. Like provisions are made in Virginia. In South Carolina, by 
 an old act, if a jointure be made after marriage, unless by act of Parlia- 
 ment, the wife may refuse it and demand dower.(l) 
 
 65. In Maine and Massachusetts,(2) if a jointure is settled before 
 marriage without the wife's assent, or after marriage with her assent, 
 she is allowed sis months aftet notice of the husband's death, to 
 elect(i) between the jointure and her dower. In Virginia, she is allowed 
 nine months ; in Vermont, sixty days ; in New York, Indiana, Arkan- 
 sas and Michigan, one year. In Missouri, if a jointure be settled upon 
 an infant, or after marriage, the wife may elect,(3) 
 
 66. In Missouri, (4) a jointure may be created by an agreement with 
 the husband, or a third person, prior to and in contemplation of mar- 
 riage, for real or personal estate, to take effect after the husband's 
 death by way of jointure, and expressed to be in bar of dower ; or by 
 a conveyance to the husband and wife, or a third person, and their 
 heirs, to the use of them both or of her alone, as a jointure. So, in 
 New York, a jointure may be limited in trust.{5) 
 
 67. In Delaware, dower will be barred by any estate in or charge 
 on lands, prior to and in contemplation of marriage, for life, to take 
 effect at or before the husband's death, in lieu of dower ; provided the 
 wife be of age. In Rhode Island, (c) by a jointure hy deed or luill. for 
 
 (1) Mass. Eev. St. 410; 1 N. Y. Rev. St. 
 lil; Anth. Shep. 562; Mich. Rev. St. 264; 
 Ark. Rev. St. 337-8 ; "Wise. Rev. Sta. 334-5 ; 
 Tir. Code, 474. 
 
 (2) Mass. Rev. St. 410 ; Me. lb. 392. 
 
 (3) 1 JSr. Y. Rev. St. 742; Misso. St. 229; 
 Mich. Rev. St. 265 ; Ind. lb. Descent, sec. 40. 
 (4) -Misso. St. 229. 
 (5) 1 N. Y. Rev. St. 741. 
 
 (a) Previous to the marriage of A with B, an indenture of three parts, sealed by the 
 parties, was made by and between A, B and 0. A covenanted and agreed with 0, that in 
 the event of the marriage taking place, and his wife surviving liim, he would, " by his last 
 will or otherwise," make a certain provision for her, by the payment of a gross sum to C, 
 and by payment or giving security for the payment to him of a furtlier sum yearly during 
 the widowhood of the wife, for her use, and to be paid to her by 0, instead and in satisfac- 
 tion of dower in the real, and of any distributive share of the personal estate of A. C cove- 
 nanted and agreed with A that he would accept the trust, and receive and pay over the 
 money, for the use and benefit of B ; and the latter coverjanted and agreed with A and C, 
 that in case the marriage took place, and she should survive A, and the money above men- 
 tioned should be provided to be paid and actually paid, and the annuity well and sufBoiently 
 secured and provided to be paid, as stipulated, the same should be in full satisfaction of her 
 dower in the estate of A, and should bar her from claiming the same, if she should survive 
 him, and also bar any claim on her part of any share in his personal estate, unless given her 
 by his will. The marriage took place, and A died, leaving a will, in which no reference 
 was made to the indenture, but which contained a general direction for the payment of the 
 testator's debts and the performance of his obligations. The executor of A, within the time 
 stipulated, made the payments and gave the security therein specified to C, for the benefit 
 of the widow, who refused to receive the same, but made a demand of dower, and brought 
 her action therefor. Held, by the indenture, a pecuniary provision was made for the benefit 
 of the demandant, in lieu of dower, and assented to by her, within the provisions of the 
 Rev. Sts. ch. 60, sees. 8, 9, by which the demandant was barred of her dower. Vincent v. 
 Spooner, 2 Cush. 467. 
 
 (6) So, in Wisconsin, she may elect. "Wise. Rev. Sts. 335. 
 
 (c) A husband, by will, made certain provisions for his wife, declaring them to be in 
 "lieu of her dower or other interest in my estate," and, after making the will, acquired other 
 
174 
 
 JOINTURE. 
 
 [CHAP. xni. 
 
 life or in fee, in lieu of dower, to take effect in possession on the hus- 
 band's death, and forfeitable only like dower. If made after marriage, 
 or to an infant, she may waive it,(l) In Virginia and Kentucky ,(2) 
 the law is substantially the same; except that the jointure may be 
 either expressly or by averment in lieu of dower. In Ohio, an infant 
 jointress may waive her jointure.(3) In Tennessee, a post-nuptial 
 settlement, made in lieu of maintenance, dower and distribution, is 
 voidable at the election of the wife ; yet, if she claims dower and dis- 
 tribution after the death of her husband, she must renounce the benefits 
 of the deed.(4) 
 
 68. In Missouri, Michigan, Wisconsin, Indiana, Vii'ginia, South Caro- 
 lina, Delaware, Massachusetts, Maine, Connecticut and Ohio,(5) eviction 
 from a jointure or any part thereof restores the right to dower, wholly 
 OT pro tantx It is remarked, that this provision is omitted in the Ee- 
 vised Statutes of New York. But, in the absence of any statutory 
 provision, the English rule undoubtedly prevails. (See supra, s. 28.) 
 
 69. In Missouri, Rhode Island, Virginia and Keutucky,(6) if through 
 any informality in the settlement a jointure fails to bar dower, and the 
 latter is claimed, the widow loses her jointure. 
 
 69 a. In Pennsylvania, where a marriage contract was set up in bar of 
 dower and proved, and it also appeared that the contract had been given 
 up by the trustee under it to the husband to be cancelled, and he did des- 
 troy it, but no evidence of its contents as to the terms or amount of the set- 
 tlement was brought, and it appeared that the contract was made to quiet 
 the children of the husband, who promised when he had shown it to 
 them to destroy it ; held, as the proof of the contents of the contract 
 was not clear, and as it had been cancelled by the husband Recording 
 to his original intention, though it was kept some time before it was 
 actually destroyed, the widow's dower was not barred ; that the destruc- 
 tion of the contract was binding on the husband, and, if ratified by the 
 wife by her acts after his death, was binding on her.(7) 
 
 70. In Connecticut,(8) the rules of the English law relating to joint- 
 ures have probably been farther relaxed than in any other State. 
 There, a jointure may consist of personal estate ; and any provision 
 accepted before marriage in lieu of dower will be a good equitable 
 jointure.(a) 
 
 71. It was agreed between husband and wife, that bis executors 
 should pay her $100 in lieu of dower from his estate, which was worth 
 
 (1) Dela. St. 1829, 165 ; Dela. Rev. Sts. 
 290; R. I. L. 191. 
 
 (2) IVir. Rev. 0.111; 1 Ky. Rev. L. 
 575-6. 
 
 (3) "Walk. Intr. 325. 
 
 (4) Parham v. Parham, 6 Humph. 287. 
 
 (5) 1 Brev. Dig 268; Walk. Intr. 325; Mis- 
 sou. Sts. 229; ITirg.R.O.ni ; 4 Kent, 55 n.; 
 Dela. St. 1829, 165; Mass. Rev. St. 411; 
 
 4 Hen. & M. 23 ; Maine Rev. St. 393 ; Conn. 
 St. 190; Dela. Rev. Sts. 290; Wise. lb. 335; 
 Vir. Code, 474 ; Iiid. Rev. Sts., Descent, 
 see. 42. 
 
 (6) Misso. St. 229; 1 Vir. R. 0. 171; 1 
 Ky. Rev. L. 576 ; R. I. L. 191. 
 
 (7) G-angwere, 2 Harris, 417. 
 
 (8) Dut. Dig. 53. 
 
 real estnte. The widow having elected to accept the provisions of the will ; held, she waB 
 barred of her dower in the after-acquired estates, and that a letter of the testator, en- 
 closed with his will, was inadmissible to show a contrary intent. Chapin v. Hill, 1 Rhode 
 Island, 446. 
 
 (a) By Statute, a jointure made before marriage must be expressed as made in lieu of 
 dower. Conn. St. 189. 
 
CHAP. XIV.] 
 
 ESTATE FOR TEARS. 
 
 175 
 
 $6,000. After his death, the widow gave a receipt acknowledging sat- 
 isfaction. Held, in Chancery, a good bar of dower.(l) 
 
 72. A man and woman of advanced years, being about to marry 
 each other, entered into a written agreement, by which he promised not 
 to interfere with her property, to support and clothe her, and allow her 
 a part of the avails of her labor. The husband executed his part of 
 the agreement. After his death, his executor delivered to the widow 
 the articles which she had brought to the house. In consideration 
 of the premises, the widow by an unsealed instrument released the es- 
 tate from her claim of dower, but afterwards brought a suit at law to 
 recover it. The heirs file a bill in Chancery, for an extinguishment 
 and release. Held, the contract was one highly beneficial, and the re- 
 lease founded on a valid consideration ; aud the bill was sustained. (2) 
 
 CHAPTER XIV. 
 
 ESTATE FOR TEARS. 
 
 1. Estato less than freehold — estate for 
 
 years — lease. 
 3. Definition — " term," what is a. 
 
 5. How created, and for what time. 
 
 6. Must be certain. 
 
 9. Estate of executors and trustees. 
 
 12. An inferior estate. 
 
 13. Tenant not seized. 
 
 14 When it commences — entry — interesse 
 termini. 
 
 18. Jnfuturo. 
 
 22. How terminated. 
 
 29. Is a chattel. 
 
 26-36. Limitation of 
 27. Husband and wife. 
 31-5. Liable for debts. 
 
 32. Freehold cannot arise from. 
 
 33. Incidents. 
 
 34. Estovers. 
 38. Merger. 
 48. Surrender. 
 
 54. Assignment and under-lease. 
 68. Assignment by reversioner. 
 
 77. Conveyance of 
 
 78. Forfeiture. 
 
 1. Having treated of Freehold Estates, we proceed to consider Es- 
 tates less than Freehold. 
 
 2. Of these, the first in order is an estate for years. This, next to a 
 fee-simple, is the most common estate known the law. It is that to 
 which the term lease is chiefly, though not exclusively, applied. 
 
 S. An estate for years, is a right to or a contract for the possession of 
 land,- for a certain specified time.(3) Both the time and the estate itself are 
 called in law a term. Hence the term may expire before the time — as, 
 for instance, by a surrender. (A) Thus, if a conveyance be made to A for 
 three years, and, after the expiration of the said term, to B for six, and 
 A surrender or forfeit his term after one year ; B's estate takes effect 
 immediately. Otherwise, if the language had been, " after the expira- 
 ration of the said time, or the said three years." {Infra, oh. 15.) 
 
 4. Lease for years, if the lessee live so long, remainder to A for the 
 residue of the term. A shall hold for the whole term after the lessee's 
 death .(5) 
 
 fl) Selleck v. Selleck, 8 Conn. 79, n. 
 
 (2) Andrews v. Andrews, 8 Conn. 79. 
 
 (3) 4 Kent, 85 ; 1 Cruise, 174 ; 2 Black. 
 
 Coram. 112. See Hitohman v. AValton, 4 
 Mees. & W. 409. 
 
 (4) Co. Lit. 45 b. 
 
 (5j Wright V. Cartwright, 1 Burr. 282. 
 
176 
 
 ESTATE FOB TEARS. 
 
 [CHAP. XIY. 
 
 5. This estate is never created, lilce a life estate, by act of law, but 
 always by act of parties. The title is applicable, though the time limi- 
 ted be less than a year.(l)(a) 
 
 6. Every estate for years must have a certain beginning and ending, 
 to be ascertained, at its creation, either by express words, or by refer- 
 ence to some certain collateral act.(2) 
 
 7. According to the maxim, " id certum est quod certum reddi potest^'' 
 a lease for so many years as A shall name, is a good estate for years ; 
 but a lease for so many years as A shall live, or by a parson for so long 
 a time as he shall continue in that office, is bad, as an estate for years. 
 In England, it would be void for want of livery; but in this country 
 would probably create a life estate.(3)(6) 
 
 8. A conveyance for twenty-one years, if A shall so long live, 
 creates a tenancy for years ; because the estate, though it may end 
 sooner, cannot last longer, than the time fixed. 
 
 9. A devise to executors, for payment of debts and till the debts are 
 paid, gives them an estate for so many years as will be necessary to 
 raise the required sum. A devise, till such time as a certain sum shall 
 be raised from the rents and profits, has th'e same effect. Lord Coke 
 speaks of the former of these estates as an uncertain interest ; being 
 neither for life, for years, nor at will. The uncertainty would make it 
 a life estate ; but this would defeat the object, as the party might die 
 before the debts were paid. 
 
 10. Devise to trustees, of all the testator's lands in A ; in trust to 
 .permit the wife to enjoy them for life, afterwards, out of the rents and 
 profits, to pay B an annuity for five years, if he live so long. The will 
 also gives legacies, to be paid when the legatees come of age, and' con- 
 stitutes the wife executrix. Held, the trustees took a chattel interest 
 in the, lands in A, either until the legacies were paid, or all the legatees 
 came of age. (4) 
 
 11. A feoffment to the use of A, his executors and assigns, till ten 
 pounds should be levied out of the profits, was held to pass a chattel 
 interest.(5) 
 
 12. Tenancy for years is an inferior title to a life estate, however 
 
 (1) Lit. 67 ; Co. Litt. 54 b. 
 
 (2) 1 Cruise, 174. 
 
 (3) 2 Bl. Com. 115; Co. Litt. 45 b, u. 2; 
 Goodrigiit v. Ricliardson, 3 T. R. 463. 
 
 (4) Co. Litt. 42 a; Matthew Manning's 
 
 case, 8 Bep. 96 a; Sir Andrew, &c., 4 Rep. 
 81b; Carter v. Barnadiaton, 1 P. "Wms. 509 ; 
 Doe V. Needs, 2 Mees. & "Wels. 129. 
 (5) Co. Litt. 42 a, n. 7. 
 
 (a) A year, in law, consists of tliree hundred and sixty-five days, tlie additional day of leap 
 year not being reckoned; and a half year, of one hundred and eighty-two days. A month, 
 in England, means ordinarily a lunar month, except in mercantile contracts, or where the 
 intention is otherwise. But in this country, a calendar month will be usually intended. 
 In New York and New Hampshire, express statutes so provide. So in Massachusetts, in 
 the construction of statutes. Co. Litt. 135 b; Ind. Rev. L. 409 ; 4 Kent, 95, n. b ; 1 N. 
 T. Rev. Si. 606 , Mass. lb. 60 ; N. H., lb. 44 As to the meaning of the word day, see 
 PulHiig V. The People, 8 Barb., 314; Judd v. Pulton, 10 lb. 117. 
 
 A term for years continues through the anniversary of the day on which it commenced. 
 Aokland v. TuUey, 9 Ad. & Ell. 879. See Brewer v. Harris, 5 Gratt. 285. 
 
 (6) A lease, to hold till a child then unborn, shall come of age, has been held to constitute 
 a tenancy at will, on account of the uncertainty whether the child will ever reach that age. 
 Bishop, &c., 6 Co. R. 35. 
 
 ■Where one has a lease for forty years, a grant, for so many years as shall remain at his 
 death, is void. Otherwise, with a demise for so many years, to commence after his death. 
 The Rector, &c, 1 Co. 153 a. 
 
CHAP. XIV.] 
 
 ESTATE FOR TEARS. 
 
 177 
 
 long it may last ; being in its nature a chattel interest, according to 
 Lord Coke, " never without suspicion of fraud, "(1) and not real estate. 
 This inferiority may be traced to the original nature of such tenancy, 
 which grew out of the mere possession of land by the villeins, in the 
 early period of the English law.(a) This naked possession was gradu- 
 ally enlarged into a tenancy at will, yielding rent in kind, and at 
 length into a letting of the land for a certa.in specified time ; but never 
 rose to the dignity of a freehold. Before the statute of Gloucester, 
 passed in the reign of Edward I., the law, regarding tenants for years 
 as rather bailiffs or servants, than as having any estate in the land, 
 allowed their title to be defeated by recovery against the landlord in a 
 real . action. This act, and the statute 21 Henry VIII., allow such 
 tenant to falsify or avoid a collusive recovery.(2) These provisions 
 have been re-enacted in New York and North Carolina, and extended 
 to a tenant holding by an execution title.(3) 
 
 13. Such being the nature of his estate, a tenant for years is not said 
 to be seized of the land, but only possessed of the term. The subject of 
 seizin has already been considered, (chap. 2.) 
 
 14. At common law, the mere delivery of a lease does not make the 
 lessee a tenant for years, till he enters. But he has an interesse termini, 
 which passes to his executors, if he die without taking possession, and 
 may be assigned over. So, when one buys land at a sheriff's sale, 
 upon which there is a lease from the defendant in execution older than 
 the judgment, and at the time of the sale the lessee has not entered into 
 possession, the purchaser buys, subject to the lessee's right of entry 
 and user. Before entry, a lessee cannot maintain trespass. But, more 
 especially as against a wrong-doer, his possession of a part is that of 
 the whole. And, under the statute of uses, an estate for years may be 
 created without entry.(4) 
 
 15. It is remarked, that there are subtleties upon the subject of an 
 inter esse termini, that betray excessive refinement, and lead to useless 
 abstruseness ;(5) and the rule of American law i^ stated to be, that the 
 execution and delivery of the lease perfects the title of the lessee to 
 all intents and purposes.(6)(&) 
 
 (1) Co. Litt. 46 a. . 
 
 (2) 1 Cruise, 172; Gilb. Ten. 34; Wiso. 
 Rev. Sts. 314. 
 
 (3) 1 F. 0. Rev. Sts. 261 ; 2 N. T. Rev. 
 Sts. 340. 
 
 (4) Litt. 58, 66, 324, 459 ; Co. Lit. 200 b, 
 46 b, 51 b, 270 a; 1 Cruise, 175-6 ; WnUams 
 
 V. Bosanquet, 1 Brod. & B. 238 ; Copeland v. 
 Stephens, 1 B. & A. 593 ; Raine v. Alderson, 
 6 Soott, 691 : Field v. Howell, 6 Geo. 423 ; 2 
 Phil. Evi. 182; Taylor v. Perry, 1 Soott 
 N. 576. 
 
 (5) 4 Kent, 97, n. a. 
 
 (6) Walk. Intr. 278. 
 
 (a) In the time of Littleton, the letting of lands to a villein, for years, operated as an en- 
 franchisement. Litt. 205. By the ancient law, a term could not exceed forty years. Co. 
 Lit. 45, b. By the constitution of New Tork, (1846,) agricultural leases are limited to twelve 
 years.- 
 
 (6) If a person receive a lease ly metes and iotmds, his possession is co-extensive there- 
 with, and is not available to establish the possession of his landlord any farther. Massengill 
 V. Boyles, 11 Humph. 112. 
 
 A lease cannot give the lessee such a constructive possession of the whole tract, of which 
 the defendant occupied a part at the time of the demise, as will enable him to maintain tres- 
 pass against the defendant, however good the title of the lessor may be. "Wilson v. Douglas, 
 2 Strobh. 97. ^ . ^ ^ 
 
 Littleton says, " when the lessee entereth by force of the lease, then is he tenant for term 
 of years," and the lessor may distrain or have an action of debt for rent. Lord Coke says, " to 
 
 Vol. I. 12 
 
178 ESTATE FOR TEARS. [CHAP. XIV, 
 
 16. It seems, if a lessee enter upon the land before the time agreed 
 on, his entry is a disseizin, not a possession under the lease ; and, 
 although he remain in possession after the time, he is still a disseizor 
 as before, by rehtion.{V) 
 
 17. But if a lease is limited from a time past, and the lessee was in 
 possession before that time, this shall be intended to have been by per- 
 mission, and not a disseizin.(2) , 
 
 17 a. After an agreement to lease, if the owner notifies the applicant 
 for a lease, that he cannot take possession until a lease is made and 
 security given for the rent ; and the applicant subsequently takes 
 possession, and cultivates a part of the premises at the same time with 
 the owner ; he cannot recover of the owner in trespass, although the 
 owner harvested and retained the entire crops ; such notice being 
 sufficient to prevent any dispossession of the lessor.(3) 
 
 18. An estate for years may be created to commence m futuro, and 
 the lessee acquires an immediate interest ; because such conveyance 
 does not, like a conveyance of the freehold in futuro, place the latter in 
 abeyance, which is contrary to the policy of the law.(a) 
 
 19. Where a lease- is to commence in futuro, if, before entry of the 
 the lessee, a stranger enter by wrong, the former may still make a valid 
 assignment of his term ; because, before entry, the estate, not being 
 vested, cannot be divesteU or turned to a mere right, by any wrongful 
 act ; but when the lawful time of entry arrives, the lessee or his as- 
 signee enters by a title paramount to all intermediate claims.(4) 
 
 (1) Henninga v. Brabason, 1 Lev. 45. | (3) Crott3 v. Collins, 13 lUiii. 361, 
 
 (2) Waller v. Campian, Cro. Eliz. 906. | (4) 1 Cruise, 116. 
 
 many purposes he is not tenant for years" till entry ; and instances that his estate cannot 
 be enlarged by a release, although he may release the rent ; that the lessor cannot grant 
 away the reversion, as such, nor the lessee make a valid swrrmidefr. But a release will 
 operate to extinguish the rent, whether made before or after commencement of the term. 
 And, before entry, there may be a surrender in law, as by taking a new lease. Co. Lit. 338 a. 
 
 In an action by a lessee against the lessor, for refusing to deliver the premises, the plaintiff 
 cannot offer evidence of a contract to assign the lease, or a proposal to purchase it. Law- 
 rence V, Wardwell, 6 Barb. 423. But he may show the amount of money paid to workmen, 
 whom he was obliged to discharge for this c^use. See Noyes v. Anderson, 1 Duer, 342. 
 So he may recover expenses incurred in preparing to remove to and occupy the premises, 
 together with the difference between the real value of the rent and the sum agreed to be 
 paid; but not the profits which he might have made in his business, had he occupied the 
 premises. Giles v. O'Toole, 4 Barb. 261. 
 
 Where demised premises are destroyed after the execution of the lease, but before the 
 commencement of the term, and before the lessee has taken possession, he is not liable for 
 rent. Wood v. Hubbell, 5 Barb. 601. 
 
 Delivery of possession is necessary to the obligation to pay rent, whether the lessor 
 refuses, or is unable, to give possession. lb. 
 
 In the equitable action for use and occupation, the tenant is not answerable, unless he 
 has had the beneficial enjoyment of the property. G-ilhooley v. Washington, 4 Comst. 217. 
 But the action of covenant upon a sealed lease, for the non-payment of rent, does not depend 
 upon occupation and enjoyment. lb. 
 
 Where a lessor made a fraudulent representation to his lessee as to the territorial extent 
 of his right, and the lease was mads for a term commencing in futuro, and the lessee 
 took possession at the commencement of the term, and after having discovered the fraud; 
 held, the lease passed a present interest in the term to the lessee ; and, by taking possession, 
 lie waived only his right to rescind the contract, but not his right to recover the damages 
 occasioned by the fraud. Whitney v. Allaire,. 1 Comst. 305, 
 
 (a) See ch. 2. Allaire v. Whitney, 1 Hill, 484 ; Field v. Howell, 6 Geo. 423 ; Ind. Rev. 
 Sts. 232. 
 
CHAP. XIV.] 
 
 ESTATE FOR YEARS. 
 
 179 
 
 20. So if after commencement of the term the lessor continue in 
 possession, the lessee may still m«ke a valid assignment.(l) 
 
 21. But where a lessee in futuro, having entered, is turned out of 
 possession, he can no longer make a valid assignment ; having merely 
 a right of entry left him, which is not assign able. (2)(a) 
 
 22. A freehold estate, in the language of Lord Coke, cannot begin 
 nor end without ceremony. Hence such estate can in general be termi- 
 nated, before its natural expiration, only by some similar act to that 
 with which it commenced, such as entry. But "a lease for years may 
 begin, and so may end, without ceremony. Hence, it may be made to 
 cease by a proviso in the instrument itself Thus a trust term will 
 cease, upon fulfilment of the trusts for which it was created, if the in- 
 strument creating it so provide.(3) 
 
 23. An estate for years is denominated a cJiatiel real. Being an in- 
 terest in land, it has the quality of immohiliiy, which constitutes it 
 real ; but having no indeterminate duration, it is not ranked with in- 
 heritances and other freeholds, but is a mere chattel.(6) Hence' an estate 
 for years, upon the owner's death, passes with personal property to the 
 executor, &c., and not with the real estate to the heir.(4) 
 
 24. Upon this principle, the levy of an execution upon a term, in 
 the form of a levy on real estate, in Massachusetts is held void. But 
 in New Hampshire a different rule has been settled.(5) 
 
 25. In Massachusetts it is now provided, that a term originally 
 created for a hundred years or more, and of which fifty remain unex- 
 pired, shall have all the incidents of a fee-simple. So, in Vermont, the 
 owners of long terms are invested with some of the privileges of free- 
 holders. And in Ohio, lands, held by permanent leases, are treated as 
 real estate in regard to judgments and executions, and descent. But a 
 term for ninety-nine years is to be sold on execution, as a chattel.(6) 
 
 26. The legal succession to a term cannot be controlled by any limi- 
 tation in the conveyance. Hence, if a lease be made to a minister, or 
 other sole corporation, and his successors, the estate will still pass, upon 
 his death, to his executor or administrator, who shall hold it, not in 
 autre droit, but in his own right. The reason of the above rale is, that 
 a chattel can never be in abeyance. Thei'efore such estate may pass 
 to the successor of a sole, who is merely the head of an aggregate, 
 corporation.(7) 
 
 (1) Wheeler v. Thorogood, Cro. E)iz. 127; 
 1 Leon. 118. 
 
 (2) Brnerton v. Raineford, Cro. Eliz. 15; 
 Saffyn's case, 5 Rep. 124 a. 
 
 (3) Co. Lit. 214 b; Ark. Rev. Sts. 263. 
 See NiooU v. Walworth, 4 Denio, 386. 
 
 (4) 1 Cruise, 111; Wisoon. Rev. Sts. ch. 
 56, 65; Ellison, 2 T. & Coll. 528; Ackland 
 V. Pring, 2 Man. & G. 937; Dillingham v. 
 Jenkins, 7 S. & M. 479. 
 
 (6) Chapman v. Gray, 15 Mass. 439; 
 Adams v. Preneh, 2 N. H. 387. 
 
 (6) Mass. Rev. St. 411; 2 Chase's St. of 
 Ohio, 1185; Bisbee v. Hall, 3 Ohio, 465; 
 Ohio Sts. 1853 ; 1 Term. L. 199. 
 
 (7) Co. Lit. 9 a, 90 a ; 1 Co. Lit. (Thomas' 
 ed.) 224, n. k; 2 Bl. Com. 431. See Daniels 
 V. Richardson, 22 Pick. 565. 
 
 (a) A leases to B, for two years from a future day, a house, stated in the lease to be then 
 in possession of C. holds over wrongfully after the day fixed. B cannot sue A, as on an 
 implied promise to deliver possession. Cozens v. Stevenson, 5 S. & R. 42. If a lessee as- 
 sign his lease before the time of taking possession arrives, a judgment docketed against him 
 before he became lessee is not a lien upon the land, as he never had possession. Crane v. 
 O'Connor, 4 Edw. Ch. 409. 
 
 (6) Though for 999 years, and In consideration o( asumin gross. Osborne v. Humphrey, 
 7 Conn. 335. Aco. Spanger v. Stanler, 1 Md. Ch. 31. 
 
180 
 
 ESTATE FOR TEARS. 
 
 [CHAP. XIV. 
 
 27. Where a -woman, owning a chattel real, marries, it does not, like 
 personal chattels, vest in the husband absolutely, but sub modo. He 
 has the power to dispose of it ; but, if he does not, either legally or 
 equitably, it reverts on his death to her.(l) 
 
 28. Where the husband, holding a term in right of the wife, leases 
 the land for a shorter period and dies, the wife has the reversion, but 
 the rent goes to his executors.(a) If the husband grant the whole 
 term on condition, and the executors re-enter for a breach, they hold 
 absolutely. (2) 
 
 29. If the husband and wife are ejected from the land, and the 
 former recovers it in a suit brought by himself alone, this vests the 
 term absolutely in him.(3) 
 
 30. In England, by the statute of frauds, if a wife die before her 
 husband, he is entitled to administer upon her estate, and takes her 
 chattels real to his own use. They vest absolutely in him, and upon 
 his death pass to his administrator. (4) A similar rule generally pre- 
 vails in the United States. 
 
 31. The purchaser of a term from an executor is in no case bound 
 to see to the application of the purchase-money. Because, being per- 
 sonal estate, such term is primarily liable for debts.(5) 
 
 32. A freehold cannot be derived out of a term. Thus, a rent- 
 charge for life, proceeding from an estate for years, is itself a chattel.(6)(&) 
 
 33. The incidents of an estate for years a,re in some respects the same 
 with, and in other respects different from-, those of a life estate. 
 
 34. Tenant for years is entitled to estovers. (See ch. 4.) 
 
 35. An estate for years, with other chattels, is primarily subject to 
 the pa;f'ment of debts, in the hands of an executor or administrator. 
 So, also, it is liable to be attached and sold on execution. But a 
 judgment is no lien upon it. This point will be further considered 
 hereafter. (7Xc) 
 
 36. By the old law, the gift of a term, like that of any other chattel, 
 for a day or an hour, passed the entire interest. But this rule has 
 been changed, and a term for years may now be limited for any num- 
 ber of lives in being.(8) 
 
 37. But a term for years is not entailable. The disposition of such 
 
 (1) Steed V. Cragh, 9 Mod. 43 ; Co. Lit. 46 
 b ; BlliaoD, 2 T. & Coll. 528 ; "Wynne v. 
 "Wynne, 4. Mann. & G. 253. 
 
 (2) Co. Lit. 46 b. 
 
 (3) lb. 
 
 (4) Co. Lit. 351 a, n. 1 ; Harg. Law Tracts, 
 415; Squibb v. "Wynne, 1 P. "Wma. 378; 
 
 Cart V. Reeve, lb. 382 ; Whitaker v. Whit- 
 ker, 6 John. 112. 
 
 (5) Ewer v. Corbet, 2 P. Wma. 148. 
 
 (6) 1 Cruise, 179. 
 
 (7) 1 Cruise, 183 ; Tredenbergh v. Morris, 1 
 John. Oaa. 223 ; Shelton v. Codman, 3 Cuah. 
 318. See Mass. Sts. 1847, 440-1. 
 
 (8) Dyer, 74, pi. 18, (7 b, n. a.) 
 
 [a) Demise to A, and B his wife, for twenty-one year.'i. A leasea to C for nine years. 
 Held, for an injury to his reversion, A might maintain an action, alleging the estate to be 
 his. "Wallia v. Harrison, 5 Meea. & "W. 142. 
 
 (6) In England, an exception to thia rule ia the case of tithes, which may be freehold, 
 though the estates on which they are charged are not. 3 Bl. Com. 104, n. 
 
 (c) See Judgment, Execution. The sale of leasehold property by a sheriff need not be on 
 the premisea, and hia return is sufficient evidence of the sale. No deed ia necesaary to 
 pass a title. Sowera v. Vie, 2 Harris, 99. 
 
CHAP. XIV.] 
 
 ESTATE FOR TEARS. 
 
 181 
 
 term to one and the heirs of his body passes the entire interest ; so that 
 the estate continues, though the grantee die without issue.(l) 
 
 38. In general, where a tenant for years becomes seized of the free- 
 hold,(a) the term merges in the freehold and becomes extinct. So one 
 term merges in another immediately' expectant thereon. The same 
 person cannot fill the characters of tenant and immediate reversioner 
 in one estate. " Nemo potest esse et dominus et ienens."(2) 
 
 39. A leases to B, and, before the rent becomes due, conveys the 
 reversion to C, and C conveys it to B. The rent is hereby extin- 
 guished.(3) 
 
 40. There is no merger, where the two estates are successive, not 
 concurrent; as where a lease is granted to tenant ^^ pour autre vie" to 
 commence at the termination of his estate. Nor where there is any 
 intervening estate, either vested or contingent ; or the estate in rever- 
 sion or remainder is smaller than the preceding estate. Thrfs, if a 
 lease be made to a man for life, remainder to him for years, he holds 
 both estates, and may grant either of them distinctly; for a greater 
 estate may uphold a lesser, though not the converse.(4) 
 
 41. Where a lessee conveys his whole interest to the reversioner, 
 reserving a rent, no reversion being left in the former, the rent is not 
 incident to a reversion, as in ordinary cases, and there is no merger. 
 As where a tenant for life leased for her own life to the reversioner.(5) 
 
 41 a. But where a tenant for years depiised to the remainder-man, 
 to have and to hold during the term, reserving to the lessor the right 
 to erect buildings on the premises, without molestation, the lessee yield- 
 ing and paying a yearly rent, and engaging to keep the fences in re- 
 pair, and to pay all taxes, " it being understood, that in case the lessor 
 should use any part of the land for buildings and their appendages, a 
 proportionate amount shall be deducted from the rent which the lessee 
 is to pay ;" held, the term merged in the remainder, and that the lessee 
 could not maintain an action of waste against the lessor.(6) 
 
 42. Where one is possessed of a term in his own right, and seized 
 of the freehold in autre droit, or the converse, it seems the doctrine of 
 merger does not apply ; more especially where one of the estates falls 
 to him by act of law. Thus, if a man having a term marries a woman 
 who afterwards becomes seized of the freehold by descent ; or if one 
 having the freehold is made executor of a tenant for years in the same 
 land ; the term does not merge. Lord Coke, however, says, that where 
 a man having a term for years takes the/eme lessor to wife, the term is 
 extinct. And in the case of Piatt v. Sleap, this doctrine was sustained 
 
 (1) Dyer, 1 a, pi. 8, and n. a ; 1 Cruise, 
 184; Hayter v. Rod, 1 P. Wma. 360 ; Eiach 
 V. Ward, 2 Sim. & St, 409. 
 
 (2) Dyer, 112, pi. 49 ; 4 Kent, 98. See 
 Sharp V. Carlile, 5 Dana, 489 ; Doe v. Lawes, 
 1 Ad. & Bil. 195; "Webster «. Gilman, 1 
 Story, 499 ; Tayloe v. Gouldj 10 Barb. 388 ; 
 
 Cottee V. Richardson, 8 Eng. L. & Equ. 498. 
 
 (3) York V. Jones, 2 N. H. 454. 
 
 (4) Doe V. Walker, 5 Barn. & Cross. Ill ; 
 3 Pres. on Conv. 166. 
 
 (5) M'Murphy v. Minot, 4 IS. H. 251. 
 
 (6) Pynehon v. Stearns, 1 1 Met. 304. 
 
 (a) So, where the tenant mortgages the term to the landlord. Cottee v. Richardson, 8 
 Eng. L. & Eqa 498. In Virginia it is provided, (Sts. 1849, ch. 260, sec. 1,) that a rever- 
 sion expectant upon a lease shall merge in any other estate ; but not to affect the rever- 
 sioner's claim for rent. 
 
182 
 
 ESTATE FOR TEARS. 
 
 [CHAP. XIT. 
 
 by a dissenting judge, who said to the counsel at the bar, that as clear 
 as it was that they were at the bar, so clear it was that the term was 
 extinct.(l) 
 
 43. It is said, that where a wife has the inheritance, and the husband 
 a term in the same land, if issue be born to them by which the hus- 
 band becomes tenant by the curtesy, the term merges.(2) 
 
 44. So, also, that a term held by one as executor will merge m the 
 freehold held by him in his own right, as far as he is concerned, and 
 as between his heir and executor, though not in relation to creditors 
 of the estate, who would be. thereby deprived of their debts.(3) 
 
 45. A distinction is made between the c^se of a term held_ by the 
 husband, and a freehold by the wife ; and that of a freehold in him, 
 and a term in her. There shall be a merger in the fornaer case, but 
 none ii^ the latter ; upon the ground that marriage, being the free 
 act of the husband, may fairly be allowed to prejudice his rights, but 
 not those of his wife, on whose part the marriage ia regarded as the. 
 act of law.(4)(a) 
 
 46. Merger is not favored in equity, and will not be allowed but for 
 special reasons. At law, the intention of a party is not regarded ; but 
 in equity, if there is any beneficial interest to be protected, such as that 
 of creditors, infants, legatees, husbands, or wives, or any right or inten- 
 tion to the contrary ; the union of the legal and equitable interests— 
 as for instance, those of trustee and cestui que trust — in one person, 
 will not effect a merger. The same rule applies where the party in 
 whom the two estates unite is under some personal incapacity, such as 
 infancy or insanity, to make an election. (5) 
 
 47. The foregoing view of the doctrines relating to merger fully 
 justifies the remark of a distinguished writer upon the subject, Mr. 
 Preston, that the learning in relation to it is involved in much intricacy 
 and confusion, and there is difficulty in drawing solid conclusions 
 from cases that are at variance or totally irreconcileable with each 
 other.(6) 
 
 48. Analogous to merger, is a surrender ; the former never takes 
 place, unless there is a legal power to make the latter. Surrender is 
 the yielding up of an estate for life or years, to him that hath the next 
 immediate estate in reversion or remainder. Hence, it appears, that 
 while merger is the act of law, surrender is the act of a party. The 
 
 (1) See Doe i;. Pett, 11 Ad. & EU. 842; 
 Cro. Jac. 275. 
 
 (2) Sug. on Ten. 533 ; Piatt v. Sleep, 1 
 Bulstr. 118. 
 
 (3) 1 Rolle Abr. 934, pi. 9 ; 1 Cruise, 186 ; 
 Cage V. Acton, 1 Ld. Ray. 520 ; Sug. 533. 
 See Gibson v. Crehore, 3 Pick. 482. 
 
 (4) 1 Cruise, 186; Bac, Abr. Lease, R. ; 
 Cage V. Aoton, 1 Salli. 326. But see Godb. 
 2 ; 4 Kent, 101 ; 3 Pres. on Convey. 273, 
 285, 294; Donisthorpe v. Porter, 2 Eden 
 
 Rep. 162. See also Huston v. Wickersham, 
 8 Watts, 519. 
 
 (5) Pres. on Convey. 43-49 ; Gardner v. 
 Astor, 3 John. Cha. 53 ; Starr v. Ellis, 6, 
 393; Freeman i;. Paul, 3 Greenl. 260; Gib- 
 son V. Crehore, 3 Pick. 475 ; James v. John- 
 son, 6 John. Cha. 417 ; James v. Morey, 2 
 Cow. 246; Mechanics', &c. v. Edwards, 1 
 Barb. 271; Lewis v. Starke, 10 S. & M. 120. 
 
 (6) 4 Kent, 102. 
 
 (a) Where a husband, in right of his wife, accepted land at the appraised value, under a 
 partition in the Orphan's Court, of the estate of her ancestor, and entered into recognizances to 
 pay the valuation to the other heirs ; held, he acquired a life estate in his wife's share of the 
 land, and a fee-simple in his own right in the residue. Snevily ii. Wagner, 8 Barr, 396. 
 
CHAP. XIT.] 
 
 ESTATE FOR TEARS. 
 
 183 
 
 former, indeed, as well as the latter, is often the result of a party's own 
 act ; as where he voluntarily purchases the reversion or remainder ; 
 but the result or final operation itself, of drowning one estate in the 
 other, is an act of law ; while a surrender has this very extinguish- 
 ment, in the mind of the party making it, for its sole object. It is said, 
 that a relinquishment by the tenant to the reversioner or remainder- 
 ma,n constitutes a surrender ; while o grant of it produces a merger. 
 It is presumed, however, that no such subtle and artificial distinction 
 would be now recognized. Thus, if a lessee conveys his interest to 
 the landlord, by an instrument in the form of the lease, this is a surren- 
 der, and merges the term.(l)(a) 
 
 _ 49. As the interest of an under-lessee would not merge in the rever- 
 sion of the lessor, if acquired by the former ; so he cannot surrender 
 to the lessor, but only to his immediate landlord, or his assignee.(2) 
 
 49 a. A lease provided, that the lessee should surrender the premises at 
 the lessor's request, upon failure to pay the rent within a certain time. 
 Held, a provision for the lessor's benefit, and that it did not authorize 
 the lessee to surrender for the purpose of giving up the lease.(3) 
 
 50. Though a surrender is characterized as the act of a party, yet it 
 may be implied, in law. Before the statute of frauds, the cancella- 
 tion of a lease operated as such ; but, since the statute, it is otherwise 
 But the doctrine seems now well established, though once doubted, 
 that the acceptance of a new lease, even by parol, or of any estate in- 
 consistent with the old one, is a surrender in law, although the new 
 lease be voidable, if not absolutely void. So an assent that the lessee 
 shall cease to be liable, and the acceptance of a substituted tenant, 
 discharges the lessee. So, an abandonment by the tenant is a surrender, 
 and authorizes the landlord to re-enter.(4) 
 
 51. A surrender extinguishes the relation of landlord and tenant, and 
 all their rights as such. Thus it extinguishes all rent not then due.(5) 
 So, it seems, while a surrender, made by the original lessee, has no effect 
 to destroy the estate of his sub-tenant, it at the same time discharges 
 the latter from his covenants and liability for rent. To remedy this 
 evil, an English statute provides, that a surrender made for the purpose of 
 
 (1) 1 Prest. 23, 25, 153; Co. Lit. 338, a.; 
 Doe V. Forwood, 3 Ad. & Ell. N. 627 ; 
 Shephard ii. Spaulding, 4 Met. 416. 
 
 (2) 2 Prest. Abstr. 7. 
 
 (3) Proctor v. Koith, 12 B. Men. 252. 
 
 (4) Magenniai). MeCuUogh, Gilb. Ca3. 236; 
 Whitney v. Meyers, 1 Duer, 266 ; Livingston 
 V. Potts, 16 John. 28 ; Jackson v. Gardner, 8 
 894 ; Smith v. Miner, 2 Barb. 180 ; Vir. Code, 
 
 ch. 116, sec. 13; Greider, &e., 5 Barr, 422; 
 Roe V. York, 6 E. 86 ; MoKinney v. Reader, 
 7 Watts, 123 ; Hesseltine v. Seavey, 4 Shepl. 
 212. See Prestais v. McOall, 7 Gratt. 126. 
 
 (6) Barton's case, Moore, 94 ; Webb. v. 
 Russell, 3 T. R. 401; 2 Shep. Touch. (Prest.) 
 301; St. 4 Geo. 2, ch. 28, sec. 6 ; 1 N". T. 
 Rev. Sts. 744; N. J. Sts. 191-2. 
 
 [a) But if A & B leave to 0, and C afterwards conveys to A, this is no surrender. 
 Sperry v. Sperry, 8 N. H, 477. Where there is an outstanding lease for years, and the re- 
 versioner makes a second lease to a third person, to commence immediately, it is a vested 
 estate, and will entitle the second lessee to take the rents reserved by the former lease, al- 
 though his right of possession will not commence until the expiration of the first term ; and, 
 after the making of the second lease, if the first lessee becomes owner of the reversion, 
 his lease will not merge in the greater estate ; but if the term of the second lease, instead 
 of commencing immediately, be to commence at the determination of the former term, then, 
 on the first lessee acquiring the reversion, his term will merge, and the term of the second 
 lease commence at the same time. Logan v. Green, 4 Ired. Equ. 370. 
 
184 
 
 ESTATE FOB TEARS. 
 
 [OHAP. XIT. 
 
 renewal, shall have no effect upon the relation between the first lessee 
 and his tenant, a new lease being made by the landlord. Similar acts 
 have been passed in New York, Virginia and JSTew Jersey.(l)(a) 
 
 52. It has been intimated, that the quitting possession of premises 
 leased, and delivering up the key, may amount to a surrender, where 
 these acts are conformable to a well-known local usage. So, although 
 a parol license to a tenant to quit has been held not to discharge him, 
 acceptance of a new tenant is a surrender, and does discharge him.(&) 
 But where a tenant for years quit in the middle of a year, and sent 
 the key to the landlord, who gave notice that, he should claim rent, 
 took possession, and offered to let the house ; held, the tenant was lia- 
 ble to an action for use and occupation, from the time of leaving till 
 the premises were again leased.(2) 
 
 52 a. A leased to B, one of the firm of C & B, a store for B's sole use, 
 as a jewelry and fancy goods store, in expectation that he and C would 
 dissolve. The lease contained a restriction against the use of the store 
 for any other business. and B did not dissolve, and B desired to re- 
 linquish the lease, but could not agree with A on the terms. B never 
 entered into actual possession, and, while the store was vacant, ex- 
 ecuted a lease of it to E for a hat store, for a term corresponding with 
 the unexpired term of B's lease. C delivered the key to E. Both G 
 and E disclaimed all connection with B, and denied that he had been con- 
 sulted, or had any connection with either of them in the transaction. 
 Held, that E must be considered, in respect to A's rights, as substituted 
 in the place of B, the lessee. (3) 
 
 52 h. After a lessee had underlet the whole of the premises by two 
 written sub-leases, the landlord called on the under-tenants, produced 
 the sub-leases, demanded of them the rent, forbade their paying any 
 more rent to the original lessee, and said he was the rightful landlord, 
 and had taken the place off the lessee's hands ; and he afterwards col- 
 lected all the rents which were collected of the sub-tenants. Held, 
 there was a surrender of the original lease by operation of law, and 
 that the landlord could not collect the subsequent rent of his original 
 lessee. (4) 
 
 53. An assignment by the lessee, with permission of the lessor, can- 
 
 (1) Gneider, &c. 5 Barr, 422. 
 
 (2) Randall v. Rich, 11 Mass. 496 ; Mar- 
 seilles V. Kerr, 6 Whart. 500 ; Lamar v. Mo- 
 Namee, 10 8-ill & J. 116 ; Aokland v. Lutley, 
 9 Ad. & Ell. 879 ; Feltham -o. Cartwright, 1 
 
 Soott, 695. See eh. 16, sec. 110, n. ; 4 Shepl. 
 212. 
 
 (3) Howard v. Ellis, 4 Sandf. 369. 
 
 (4) Bailey v. Delaplaine, 1 Sandf. 5. 
 
 (a) As to the effect of a surrender by the lessee after assigning the lease : See Beman v. 
 Green, 1 Duer, 382. 
 
 (6) So if the lessor take possession. And if ha promise money to the tenant, the latter 
 may recover it. 10 Gill & J. 116. Any new agreement with the tenant, more especially if 
 sanctioned by a decree in Chancery, is equivalent to a surreader. Soott v. Hawsman, 2 
 McLean, 180. 
 
 Thus, a parol agreement, that the land be given up, and no subsequent claim made for 
 rent. Gore v. Wright, 8 Ad. & BU. 18. The words " renounce and disclaim, and also surren- 
 der and yield up all right, &o., use, trust, term, &c., of years, &c., and possession, &c.," consti- 
 tute a surrender, not a disclaimer. Doe v. Stagg, 5 Bing. N. 564. See Doe v. Cooper, 1 
 Mann. & G. 135. But where the tenant, under a parol demise, during the term agreed to 
 give up possession for one month and then resume it, and accordingly quit, but the land- 
 lord would not re-admit him ; held, the transaction was neither a surrender nor an eviction, 
 and constituted no bar to a suit for rent. Dunn v. De Nuovo, 3 Mann. & G. 105. 
 
CHAP. XIY.] 
 
 ESTATE FOR YEARS. 
 
 185 
 
 not be construed as a surrender, so as to discharge the lessee from his 
 covenants, and from liability for the acts of the assignee.(l)(a) 
 
 54. Tenant for years, unless specially restrained, may either assign 
 or underlet ;(2) the former, by transferring all his estate ; the latter, 
 by transferring the land for a less portion of time than his whole term, 
 whereby a reversion is left in himself. In the latter case, he has the 
 power of distraining for rent ; but not in the former, — because he has 
 no reversion. An under-lessee is not liable to the original lessor in an 
 action of covenant, there being no privity between them. But his goods 
 and chattels upon the land have been held liable to distress, for the rent in 
 arrear.(J) An assignee of the lessee is liable to an action of debt by the 
 landlord, or his assignee, upon the ground oi privity of esiate,{c) and 
 even notwithstanding an agreement to pay the lessee ;(cZ) while the 
 lessee himself still remains liable upon his covenant, by privity of con- 
 tract, notwithstanding acceptance of rent from the assignee.(e) But an 
 assignment alters and transfers from the original parties the privity of 
 contract, founded merely upon implication of law ; so that the first 
 lessee, after acceptance of rent from the assignee, it not liable to an ac- 
 tion of debt, but only of covenant.(3) 
 
 (1) Jackson v. Brownson, 1 John. 227. 
 
 (2) 1 Cruise, 1T4. See WoodeD v. Butler, 
 10 Miss. 116; Lawrence v. "Williams, 1 Duer, 
 585 ; University, Ac, v. Poslyn, 21 Yerra. 
 52 ; MoFarlan v. "Watson, 2 Comst. 286 ; 
 Graves v. Porter, 11 Barb. 592. 
 
 (3) Campbell v. Stetson, 2 Met. 504; 4 
 
 Bibb, 538; 4 Kent, 95; Holford v. Hatch, 
 Doug. 183; Lekeux v. Nash, Str. 1221; 
 Howland v. Coffin, 9 Pick. 52; Waldo v. 
 Hall, 14 Mass. 487 ; Coles v. Marquand, 2 
 Hill, 447 ; Dewey o. Dupuy, 2 "Watts & S. 
 556; Wollaston v. Hakewill, 3 Man. & G. 
 297. 
 
 (a) But where the lessor assented to the assignment, and verbally agreed to accept the 
 assignee as his tenant, and took him for the rent ; held, under the Revised Statutes of 
 Michigan, 1833, sec. 9, a surrender of the lease, and that the lessee was no longer liable for the 
 rent. Logan v. Anderson, 2 Doug. 101. 
 
 (6) Contra, Gray v. Rawson, 11 Illin. 527. 
 
 In New Jersey, he is made liable for the rent to the landlord, in proportion to the prem- 
 ises occupied by him. N. J. St. 1848, 224. 
 
 (c) "Where a lessee assigns his term, and rent subsequently accrues, and the lessor gives 
 the original lessee a release of all demands,, such release will not bar an action against 
 the assignee for. the rent accrued subsequent to the assignment. McKeon v. "Whitney, 3 
 Denio, 452. 
 
 It is no objection to the recovery, by a landlord, against the assignee of his leasee, of rent 
 previously accrued, that the landlord had removed the defendant for non-payment, under 
 the summary statute process. lb. 
 
 It seems, that nothing but a surrender, a release, or an eviction, can, in whole or in part, 
 absolve a tenant from the obligation of his covenant with his landlord. Per Gibson, C. J. 
 Fisher *. Milliken, 8 Barr, 111. 
 
 "Where one was interested in a lease belonging to a firm of which he was a member, and 
 also as having received rent from an under-tenant, though the under-lease was not created 
 by him ; held, he was liable upon the covenants, as an equitable assignee in possession. 
 Sanders v. Benson, 4 Beav. 250 ; ace. Astor v. L'Amoreux, 4 Sandf. 524. 
 
 (d) A parol promise to pay rent, made by the assignee of a lease under seal, with a surety, 
 to the executor of a lessor, and indorsed ou the lease, does not affect the liability of the as- 
 signee for the performance of the other covenants in the lease. Torrey v. "Wallis, 3 Cush. 442. 
 Where a lessor during the term sold the premises leased, and directed the rent to be paid to the. 
 vendee, and the lessee, with full knowledge of the sale and direction, paid the rent accord- 
 ing to his obligation to a party other than the vendee ; held, the vendee could not recover 
 rent of the lessee in an action in his own name, without an express promise of the lessee 
 after the assignment to pay to him. Marney v, Byrd, 11 Humph. 95. 
 
 (e) Where A leased to B, who afterwards assigned the lease to C, and A sold and con- 
 veyed the land to D, and D conveyed the same to E, without mentioning the lease ; held, 
 B could not maintain an action of covenant in his own name against B, upon an express 
 covenant for the payment of rent. Crawford v. Chapman, 17 Ohio, 449. 
 
186 
 
 ESTATE FOR TEARS. 
 
 [CHAP. XIT. 
 
 54 a. A party holding the legal title of laad in trust is not liable for 
 the ground rent in arrears, if, previously to the time the rent accrued, 
 he has conveyed or assigned, by way of gift, the equitable interest to 
 another, who is in possession and enjoyment of the land at the time the 
 rent accrued, and was during the time for which it is due.(l) 
 
 54 h. Where the assignee of a lease, which he has taken in trust for 
 another, ceases to have any beneficial interest, and has yielded the posses- 
 sion to the beneficiary, the privity of estate between him and the lessor is 
 dissolved, and he is no longer liable upon the covenants of the lease.(2) 
 
 54 c. Thus, where A bid off a lease at a judicial sale, and received 
 an absolute transfer of the same, and then agreed that B should have the 
 lease on paying the price, and B immediately took and always kept 
 possession of the demised premises, and subsequently paid A in full ; 
 held, after such payment, A was no longer liable to the landlord as as- 
 signee of the lease, although he did not transfer it to B, and was nom- 
 inally assignee. (3) 
 
 54 d. A party in possession, (not being the lessee,) in subordination 
 to the lease, is presumed to be an assignee in favor of the lessor.(4) 
 
 54 e. But the presumption is rebutted, by proof of a surrender of the 
 lease by the lessee to the lessor during such party's possession. (5) 
 
 54/ If the lessor produce the surrender, he thereby admits the ten- 
 ancy of the lessee at the time of its date. (6) 
 
 55. The ordinary distinction between an assignment and an under- 
 lease is, that the former transfers the land for the whole term ; the 
 latter, for only a 'part of it. But it has been held in Ohio, that a 
 transfer of only a part of the lands, though for the whole term, is an 
 under-lease, and the assignee or under-lessee not liable for rent to the 
 lessor. On the other hand, in Kentucky, such transfer is an assign- 
 ment ; and, for subsequent rent, the assignee is liable in covenant to 
 the lessor.(7)(a) 
 
 55 a. In New York, the following cases have occurred upon the 
 same subject. 
 
 (1) Wickersham v. Irwin, 2 Harris, 108. 
 
 (2) Astor V. L'Amoreux, 4 Sandf. 524. 
 
 (3) lb. 
 
 (4) Durando v. Wyman, 2 Sandf. 591. 
 
 (5) lb. 
 
 (6) lb. 
 
 (7) Fulton V. Stuart, 2 Ohio, 216 ; Cox v. 
 Fenwiok, 4 Bibb. 538. See Wheeler v. Hill, 
 4 Shepl. 329 ; Trustees, &o. v. Clough, 8 N. 
 H. 22 ; Daniels v. Richardson, 22 Pick. 565 ; 
 Simpson v. Clayton, 6 Scott, 469. 
 
 (a) A woman, having a life estate in certain land, leased it for her life, reserving an annual 
 rent, but without a clause of re-entry for non-payment thereof. The lessee having conveyed 
 the land in fee, and his grantee having taken possession ; held, such grantee, his executor 
 or administrator, was liable to the lessor in an action of debt for the rent. Daniels v. 
 Richardson, 22 Pick. 565. Such grantee having conveyed a part of the land, held, the rent 
 should be apportioned to each part according to its annual value. lb. Where a feoffment 
 was made to A and B, to the uses, &c., that the plaintiff C should have a yearly rent, which 
 A covenanted that A and B, their heirs, &c., should pay ; held, that A stood, in relation to 
 0, like the assignor of a lease as to the landlord, and was not liable to an action of debt. 
 Randall v. Rigby, 4 Mees & W. 130. 
 
 If a lessee underlets a part of the demised premises, and the sub-tenant is recognized as 
 such, and rent demanded of him, by the lessor, the lessee and sub-tenant are not jointly 
 liable to the lessor, for the mesne profits of the whole premises. Fifty Associates v. How- 
 land, 5 CusH. 214. 
 
 Where A erected a nuisance, and leased the premises to B, who sub-let to C, and he sub- 
 let to D ; it was held, that A, B, C and D should be made parties to a bill to restrain the 
 nuisance; but, if B had assigned his whole interest to C, B would not be a proper party. 
 Brady v. Weeks, 3 Barb. R. 157. 
 
CHAP. XIT.] 
 
 ESTATE FOR YEARS. 
 
 187 
 
 55 b. In covenant against the assignee of the lessee, for non-payment 
 of rent, the declaration alleged, that all the estate of the lessee in the 
 premises leased had come to and vested in the defendant by assignment. 
 Issue being joined upon this averment ; held, the point of such issue 
 "was, whether the defendant was assignee of the whole of the estate of 
 the lessee in any part of the land ; and, it being proved that he was 
 lessee of the whole estate in a part only of the land ; held, further, that 
 there was no variance, and that the plaintiffs could recover such part 
 of the rent reserved, as the defendant was liable to pay in respect to 
 the part of the premises held by him.(l) 
 
 55 c. Where a lessee parts with the residue of his term to another 
 person, with the right of re-entry reserved to the lessee, it is not an 
 assignment, but a "sub-lease, and the lessee has the right to re-enter for 
 a breach of the conditions. (2) 
 
 55 d. The assignee of a lessee demised the premises for the residue of 
 the term, reserving the delivery of possession at the end of the term, 
 and the intermediate possession, in case of destruction by fire. Held, 
 an under-lease, not an assignment.(3) 
 
 56. The assignment of a lease subjects the assignee to certain implied 
 liabilities to the assignor, in regard to the payment of rent. Thus, if 
 the form of assignment is " he (the assignee) paying" all past and future 
 rent, and indemnifying the plaintiffs against their covenants, and the 
 assignor is afterwards obliged to pay the rent ; he shall recover it from 
 the assignee, upon the promise in law arising from his acceptance of 
 the assignment.(4)(a) 
 
 57. It is a principle of the English law, that a lease cannot be va- 
 lidly assigned without writing. Mere delivery of the instrument 
 itself, it seems, passes no title. This provision has been expressly re- 
 enacted in nearly all the States, (a transfer by operation of law only 
 excepted.)(5) 
 
 58. In New York, it has been held that the assignment of a lease 
 need not be under seal. In Pennsylvania, a lease for less than three 
 years may be transferred by parol. In Vermont, the assignment of a 
 lease for more than a year must be by deed, acknowledged and re- 
 corded.(6) 
 
 59. No consideration is necessary.(7) Where the consideration is 
 paid by one, and the assignment made to another, the whole legal and 
 equitable title is vested in the latter, except as to creditors of the 
 former.(8) 
 
 60. In Ohio, an assignment must be witnessed. (9) 
 
 (1) Van Rensselaer v. Gallup, 5 Denio, 454; 
 ace. Same v. Jones, 2 Barb. 643. 
 
 (2) Linden v. Hepburn, 3 Sandf. 668. 
 
 (3) Post V. Kearney, 2 Comst. 394 ; Kear- 
 ney V. Post, 1 Sandf. 105. 
 
 (4) Fletcher v. MoFarlane, 12 Mass. 43. 
 
 (5) Anth. Shep. 245; Ind. Rev. L. 269; 
 
 Stat, of TJ. 
 
 (6) Term. Rev. St. 315 ; Holliday v. Mar- 
 shall, 7 John. 211; MoKinney u. Reader, 1 
 "Watts, 23. 
 
 (7) Noy, 86, 90; 4 Dane, 135. 
 
 (8) Ostrander?;- Livingston, 3 Barb.Ch.416. 
 
 (9) Bisbee I!. Hall, 3 Ohio, 466. 
 
 (a) On the other hand, the assignor may agree to indemnify the assignee against all back 
 rents. In sueh case, if the former refuse to pay them, the latter may do it voluntarily, and 
 enforce his claim for indemnity. Techte v, Brownell, 8 Paige, 212. "Where the assignee 
 agrees to pay rent to the assignor, the executor of the assignee's executor will be liable to 
 the lessor, though he has done no other act than proving the wiU. If the rent reserved to 
 the assignor exceeds that in the lease, the surplus is a rent-seek. "Wollaston v. Hakewill, 3 
 Man. & G. 297. 
 
188 ESTATE FOR TEARS*. [CHAP. XIT. 
 
 60 a. The following clause in a deed, " I do hereby rent and lease 
 unto the said A, 100 acres, where he now lives, for the unexpired term 
 of the general lease which I now hold, in trust for the use of B during 
 her life, and to the heirs of A after the death of the said B _;" was held 
 to vest such a legal interest of the term in A, as to enable him to main- 
 tain an action of trespass to try titles, even several years after the death 
 ofB.(l) 
 
 61. The assignor of a term for years is liable to the assignee, upon 
 any express covenants contained in the assignment ; but no covenants 
 will be implied between them against eviction by the lessor, or anyone 
 claiming under him. 
 
 62. A leases land to B, who afterwards, by a writing upon the lease, 
 doth " grant, bargain, &c., to 0, the whole of the premises, &c. To 
 have and to hold during the term ; he, the said C, performing all cove- 
 nants," &o. is evicted by a person claiming under a mortgage from 
 A, and brings an action of covenant therefor against B. Held, C had 
 a claim against A upon his covenants in the original lease, which were 
 inherent, and went with the land, and even, upon the covenant implied 
 in the words " grant and demise ;" but that the action would not lie 
 against B. It would be otherwise -vaith an under-lessee. (2)(a) 
 
 63. In an action of debt, by the assignee of the lessor against the 
 assignee of the lessee, the latter cannot offer parol evidence that the 
 rent exceeds the annual value of the premises.(3) 
 
 64. A liability to pay rent does not run with the land, so as to bind 
 the assignee upon the covenant, unless there be : 1. Some estate or in- 
 terest leased; 2. A rent reserved, properly so called — that is, not a 
 sum in gross, as a personal debt, but a reservation out of the leasehold 
 estate or interest ; 3. A covenant of the lessee to pay such rent.(4) 
 
 65. Whether the assignee of a lease is liable for rent accruing before 
 the assignment, seems to be a doubtful question. (5) 
 
 65 a. A conveyed to B, subject to a lease for years previously 
 given by A to C, and also to an assignment to D of A's interest 
 in the rents reserved by such lease, for a portion of the term, all which 
 appeared upon the face of the deed, which was duly recorded. C 
 assigned his lease to B ; and B conveyed different portions, of the 
 estate respectively to E and F. C became insolvent. Held, that D, 
 as assignee of the lessor, had a suflScient remedy at law against E and 
 F, as assignees of the lessee, for the rent of the portions respectively 
 occupied by them during the term for which they actually held the 
 premises ; but that he had no claim upon them for rent accruing be- 
 fore they acquired their title respectively, or after they in good faith 
 parted with it ; and that F was not liable for the rent of a portion of 
 
 (1) Johnson v. High, 3 Strobh. 141. | Burden v. Thayer, 3 Met. T8. See Bordman 
 
 (2) Waldo V. Hall, 14 Mass. 486 ; Blair 
 V. Ranking, 11 Miss. 440. See eh. 15, § 11. 
 
 (3) Howland v. Coffin, 12 Pick. 125. 
 
 (4) Croade v. Ingraham, 13 Pick. 35 f aco. 
 
 Osborn, 23 Pick. 295 ; Flower v. Hartopp, 
 6 Beav. 476 ; Oravea v. Porter, 11 Barb. 592. 
 
 (5) M'Murphy t. Minot, 4 N. H. 256 ; 
 Woodf. 214, 338 ; Child v. Clark, 3 Barb. Ch. 52. 
 
 (a) But where a lessee assigned by deed, containing the word grant, and the lessor dis- 
 trained upon the land for rent due before the assignment ; held, the assignee might maintain 
 an action of covenant against the lessee; but not asstimpsit, though there were a subsequent 
 promise. Baber v. Harris, 9 Ad. & Eli. 532. 
 
CHAP. XIV.] ESTATE FOR TEARS. 189 
 
 the premises of which he ^Yas merely a mortgagee, and on which he 
 had not entered under his mortgage.(l) 
 
 66. An assignment need not always be positively proved, but may 
 be inferred from acts and admissions of the parties.(a) And one 
 in possession of leasehold premises, under circumstances which imply 
 an assignment of the lease to him, is liable to the landlord on the 
 covenant to pay rent during his occupation of the premises, by virtue 
 of his privity of estate.(2) 
 
 67. The plaintiff leased land to A, in 1802. In 1812, A had ceased 
 to occupy, and the defendant had entered and under-let. The plaintiff 
 brings an action of covenant for rent against the defendant, as the as- 
 signee of A ; and offers evidence that in 1810, he, the plaintiff, re- 
 covered a judgment against B, for rent of the land, as an assignee of 
 the lease, and also, that in 1812 the defendant, having recovered a 
 judgment against B, extended his execution upon the land, and 
 acknowledged the delivery of seizin. Held, that the former part of 
 this proof seemed sufficient to charge the defendant, as presumptive 
 evidence of assignment ; but moreover, that the latter part was admis- 
 sible, as showing admissions of the defendant, and the person under 
 whom he claimed. Nor did it ghange the case, that the defendant 
 levied his execution as upon a fee-simple, since by this levy all B's 
 interest passed. (3) 
 
 67 a. A lease contained a covenant of the lessee not to assign the 
 lease, nor underlet the whole or any part of the premises, without the 
 previous consent of the lessor in writing. The lessor gave his consent 
 in writing, that the lessee might underlet. The lessee afterwards made 
 an assignment of the residue of the term to the plaintiff, who thereupon 
 took possession and occupied until he was ousted by the lessor, and 
 then brought his action of covenant against the latter for a breach of 
 the covenant for quiet enjoyment. After the assignment, and before 
 the eviction, the defendant received and accepted rent from the plain- 
 tiff, and gave him the following receipt therefor: "Eeceived from Mr. 
 T. O'K. ninety-five dollars for rent, in full, as per lease. In advance. 
 $95. T. K." Held, whether the written consent extended to an 
 assignment of the premises or not, the receiving of rent, with know- 
 ledge that the plaintiff had become possessed of the lease and premises 
 by assignment, was a waiver of the restriction against assigning ; and 
 that the receipt, referring to the lease, was evidence(5) that the defend- 
 
 (1) Chfld V. Clark, 3 Barb. Ch. 52. | (3) Adams v. French, 2 N. H. 386. 
 
 (2) Glover v. "Wilson, 2 Barb. 264. | 
 
 (a) And a party in possession, not being the lessee, will be presumed to be an assignee, 
 not an under-tenant. Acker v. Witherell, 4 Hill, 112. So, where one enters into possession 
 of vacant demised premises by the consent or permission of the tenant, he will be considered, 
 in respect to the landlord, as substituted in the place of the tenant, although he disclaims all 
 privity with him. Howard v. Ellis, 4 Sandf. 369 ; ace. Carter v. Hammett, 12 Barb. 253. 
 But whether an assignee of property, generally, shall be regarded as assignee of a lease be- 
 longing to the assignor, thereby incurring the liabilities incident to that relation, depends 
 upon his own election. lb. 
 
 (6) Where a lessor sues an assignee of his lessee in covenant for rent, the premises may 
 be referred to as " certain premises particularly, described in said indenture." Van Rensse- 
 laer V. Bradley, 3 Denio, 135. So where the assignment is of a part, the premises may be 
 described as "70 acres of the southerly side of the demised premises." lb. But not as 
 "the said demised premises, or some part thereof." And a count, stating that a certain 
 
190 ESTATE EOR TEARS. [CHAP. XIT. 
 
 ant had knowledge of the assignment and received the defendant as his 
 tenant.(l) 
 
 68. While a lessee may assign his lease, the landlord may also assign 
 the reversion, and thereby render the former liable to pay rent to the 
 assignee. The general principles of law upon this subject have been 
 thus well stated in Massachusetts by Mr. Justice Wilde.(2) 
 
 69. At common law, the assignment of a reversion was incomplete 
 without the attornment of the tenant — a formal process of acknowledg- 
 ing or adopting the transfer. If he refused to attorn, he was not liable 
 to the assignee for the rent. But this principle was found inconvenient, 
 as the tenant might unreasonably refuse to attorn, which was a great 
 clog upon transfers. By St. 4 & 5 Anne, c. 16, assignments of rever- 
 sions were made valid without attornment ; but provision was made, 
 that all payments of rents to the lessor, made before notice to the 
 tenant of the assignment, should be held good.(a) I have always 
 understood that attornment was never considered necessary under the 
 provincial government. It was a doctrine of the old feudal law, and 
 was not applicable to our tenures. But probably notice was required 
 here, before the statute of Anne, as a substitute for attornment; or if 
 it were not so, as the provision of the statute is founded on a principle 
 of universal equity, it must be supposed to have been adopted here, 
 unless the contrary can be shown. On general principles, also, we 
 should hold notice necessary in a case like this, (where seven quarterly 
 instalments had accrued.) For, if the assignee'of a reversion will lie 
 by and suffer the lessee to pay rent to the lessor, as it falls due, he has 
 no ground for complaint, although lie may suffer by his neglect.(&) 
 
 70. These observations were made in a case where there was a cross- 
 demand due from the lessor to the lessee, which it was agreed between 
 them should go in payment of the rent. Whether, ajier notice by the 
 assignee, this agreement would be a good defence against him in a suit 
 for the rent, was not distinctly decided or considered; though the re- 
 marks above cited would seem to imply that such defence would not 
 be allowed. In South Carolina, by special statute, no payment of rent 
 
 (1) O'Keefe t. Kennedy, 3 Gush. 325. i Bowser v. Bowser, 8 Humph. 23 ; Kirk v. 
 
 (2) Parley V. Thompson, 15 Mass. 25. See Taylor, 8 B. Mod. 262. 
 Doev. Forwood, 3 Ad. & EH. {N. S.) 621; I 
 
 sum is due " for the said demised premises," is bad. lb. A couDt, alleging that a certain 
 portion of rent for the assigned premises is due and in arrear, is sufficient, without an ' 
 averment that it has not been paid by the lessee. lb. 
 
 (a) With this protection, however, the tenant is considered to have attorned at the time 
 of assignment. The notice relates. Hence, the assignee is entitled to the back rents due 
 at the time of notice. Moss v. Gallimore, Doug. 275 ; Birch v. Wright, 1 T. B. 384. See 
 Keay «. Goodwin, 16 Mass. 4; Eitchburg, Sua. v. Melven, 15 Kixsa. 269. 
 
 (S) "Where one enters on land without title, and the tenants surrender their possession 
 and attorn to him, the attornment is void, and not the commencement of an adverse posses- 
 sion. Jackson v. Delanoey, 13 John. 537. Acquiescence on the part of a landlord, in the 
 payment of rent by his tenant to a stranger, constitutes a valid attornment. Jackson v. 
 Brush, 20 John. 5. But in ejectment against a tenant by the landlord, the former cannot 
 show in defence a parol acknowledgment by the latter of title in another. Jackson v. 
 Davis, 5 Cow. 123. Nor will a tenant's secret agreement to attorn destroy the possession 
 of the landlord. Rankin v. Tenbrook, 5 Watts, 386. See Doe v. Cooper, 1 Man. & G. 135; 
 Harris v. Goodwyn, 2, 418, n. 
 
CHAP. XIT.] 
 
 ESTATE FOR TEARS. 
 
 191 
 
 in advance, for more than twelve months, shall be valid against third 
 persons.(l) 
 
 71. A landlord, having received rent in advance, sold the land 
 before the expiration of the time for which rent had been paid. The 
 purchaser brings an action for money had and received against him. 
 Held, this action did not lie, even if it was agreed that the plaintiff 
 should receive such rent.(2) 
 
 72. Where rent is paid in advance, and the land afterwards conveyed 
 without notice of such payment, subject to the lease ; the tenant is pot 
 liable for the rent to the grantee.(3)(a) 
 
 73. In New Jersey, Delaware, Kentucky and Alabama, statutes ex- 
 pressly provide that no attornment shall be necessary, but that any 
 payment of rent to the lessor, before notice of an assignment, shall be 
 valid against the assignee. In those States where an execution may 
 be levied upon the rents, the officer may require the tenant to attorn, 
 or, if he refuses, deliver possession to the creditor. This provision 
 is made by statute in Maine. In Vermont, it is extended to per- 
 petual leases in fee, or for so long time as the lessee shall perform his 
 covenants. 
 
 74. In Virginia, an assignee of the reversion is placed in all respects, 
 with regard to his claims upon the lessee and his assigns, upon the 
 footing of the original lessor.(6) A lessee and his assigns, also, have 
 all rights and remedies against an assignee of the reversion which they 
 would have against the original lessor, excepting a recovery in value 
 upon a warranty. This is substantially a re-enactment of the Statute 
 of Hen. 8. The same law prevails in North Carolina, New York,(c) 
 Kentucky and Delaware ; and, it is said, the provision of the English 
 act is so reasonable and just that it has doubtless been generally ap- 
 proved and adopted as a part of our American law. (4) 
 
 75. In Missouri, attornment to a stranger is void and shall not affect 
 the possession of the landlord, unless made with his consent, under a 
 judgment or decree, or to a mortgagee after forfeiture. Similar provi- 
 sion is made in Kentucky, New Jersey, New York and Virginia. 
 Where execution has issued upon a c?orman< judgment, the attornment 
 of the tenant is void.(5) 
 
 76. In Indiana, if a lessor assign the lease itself, without the rever- 
 sion, the assignee acquires no right of action against the lessee, upon 
 covenants which run with the land ; as, for instance, to pay rent, re- 
 
 (1) S. C. St. Mar. 1817, p. 36; Willard v. 
 Tillman, 19 Wend. 358. See ch. 15. 
 
 (2) Stone v. Knight, 23 Pick. 95. 
 
 (3) Stone v. Patterson, 19 Pick. 476. 
 
 (4) Anth. Shep. 244 ; 1 Ky. Rev. L. 444 ; 
 Aik. Dig. 93; 1 Smith, 351; Verm. L. sec. 
 326, 1835, 9-10; lb. 476; 2 Ky. Rev. L. 
 
 1109; 1 N. C. Rev. St. 259; 1 K T. Rev. 
 St. 747-8 ; D§la. St. 1829, 370 ; 4 Kent. 119 ; 
 Willard v. Tillman, 2 Hiil, 274; Dela. Rev. 
 Sts. 421. 
 
 (5) Misso. St. 377; 1 Ky. Rev. L. 444; 1 
 ST. T. Rev. St. 744 ; 1 Vir. Rev. C. 159 ; 
 Hoskins v. Helm, 4 Litt. 311. 
 
 (o) A purchased fron B lands which a few days before B had leased to C for three years, 
 being in possession, with the right of cutting all the timber on the land ; taking notes 
 for the rent. Held, the lease was valid against A, but that he might claim payment of the 
 notes, unless they had been iona fide transferred to a third person, in which case, he 
 would have a claim for the amount of them against B. Beebe v. Coleman, 8 Paige, 392. 
 
 If)) In the same State, in case of partition, a lessee shall hold of the party to whom his 
 portion of the divided premises is assigned. Tir. Code, 525. 
 
 (c) The provision applies to grants in fee, reserving rent. 
 
192 
 
 LEASE. 
 
 [CHAP. XT. 
 
 pair, &c. But in New York it is held, that although in such case 
 there is no privity between the assignee and the lessee, yet the former 
 may sue in his own name for subsequent rent. More especially where 
 his title has been recognized by payment of rent.(l)(a) 
 
 77. If a tenant conveys or devises generally, his whole interest will 
 pass.(2) 
 
 78. Tenant for years, coming under the denomination of ^particular 
 tenant, forfeits his estate, by attempting to convey a greater interest than 
 he has, if freehold. But not by attempting to convey a longer term ; for 
 the latter is a mere contract, and has no effect upon the reversioner or 
 remainder-man. If a husband forfeits a term held in jure uxoris, the 
 forfeiture binds the wife, because he would have power to dispose of 
 it.(3)(5) 
 
 CHAPTER XV. 
 
 LEASE. 
 
 1-2. Definition. 
 3. Form. 
 
 5. Presumption o£ 
 
 6. Words necessary ; whether a contract 
 
 or a lease. 
 
 20. Whether a lease or an agency. 
 26. " " partnership. 
 
 24. Contract upon shares. 
 
 25. Lease in some of the U. States. 
 
 21. Acceptance of lease. 
 
 28. Commencement and termination; "date" 
 
 and "day of the date." 
 32. " Lease," import of the word. 
 35. In the alternative. 
 
 31. Conditional. 
 
 40. Who may lease — tenants in tail. 
 
 42. Husband and wife. 
 
 45. Tenant for life. 
 
 46. Guardian. 
 
 50. Executor and heir. 
 52. Joint tenants, Ac. 
 
 55. Infant. 
 
 56. Avoiding or forfeiture of lease, and 
 
 what will be a confirmation. 
 11. Covenants. 
 18. Eenewal. 
 82. Estoppel. 
 101. License. 
 
 1. In immediate connection with Estate far Years, the subject treated 
 in the last chapter, it seems proper to consider that particular form of 
 transfer or assurance, called lease, by which this estate is created. 
 
 (1) Allen V. Wooley, 1 Black. (Ind.) 149 ; 
 Willard v. Tillman, 2 Hill, 214 ; Moffat v. 
 Smith, 4 Comst. 126. 
 
 (2) Jackson v. Van Hoesen, 4 Cow. 325 ; 
 Co. Lit 42 a, n. 9. 
 
 (3) Co. Lit. 251 b; Eastcourt v. Weeks, 1 
 Salk. 181 ; 1 RoUe Abr. 851. 
 
 (a) The assignment of the rent, without the reversion, gives the assignee a right to sue in 
 his own name for rent subsequently accruing. Kendall v. Garland, 5 Cush. 14. A suit 
 against a lessee, to recover possession on account of the non-payment of rent, &c., is properly 
 brought by the lessor in his own name, although he has assigned the future rent. Cham- 
 berlin v. Brown, 2 Doug. 120. Where a lessor assigns the reversion, the assignee's right 
 to the whole rent for the current quarter cannot be controlled, by a contemporaneous ver- 
 bal agreement to divide it between him and the assignor. Plinn v. Calow, 1 Man. & G., 589. 
 
 A, by virtue of a levy, acquired an estate in certain land, and leased the same for one 
 year, for a rent payable quarter-yearly, the lease'to terminate if the premises should be re- 
 deemed in that time. A assigned the lease, and the land was redeemed from the levy at 
 the end of six months, the lessee having paid three quarters' rent to the assignee of the 
 lease. Held, that A was not entitled to recover of the assignee the amount of the rent re- 
 ceived by him for the third quarter. Southard v. Parker, 26 Maine, 214. 
 
 (6) Any disafBrmanoe of the landlord's title, by the lessee, operates as a forfeiture, and 
 makes the latter a trespasser. Newman v. Butter, 8 Watts, 51. 
 
CHAP. XT.] LEASE. 193 
 
 2. A lease is a contract for the possession and profits of lands and 
 tenements on the one side, and a recompense of rent or other income 
 on the other ; or a conveyance of lands, &c., to one for life, for years, 
 or at will, in consideration of a rent or other recompense. (l)(a;) 
 
 3. With regard to the form of a lease, it has been remarked, (2) that 
 in this country very great ignorance prevails, as to the legal effect of 
 the covenants contained therein, owing to the general use of printed 
 form.s, or copies from books of forms, or from some old instrument in 
 print. 
 
 4. A lease for years, must, in general, be in writing, parol leases 
 passing only an eistate at will. (6) Leases are usually sealed, as well as 
 signed ; and Mr. Dane suggests, that where, by statute, as is gene^-ally 
 the case, leases for more than a certain length of time are required to 
 be recorded, it is to be implied ihat they must be under seal. Bat, or- 
 dinarily, no seal is necessary to the validity of a lease.(3) In Dela- 
 ware, no lease shall operate for a longer term than one year, unless 
 made by deed. In Virginia and Kentucky, a conveyance for more 
 than five years, in Vermont and Rhode Island, for more than one year, 
 in Maryland, Alichigan, New Hampshire, Maine and Massachusetts, (c) 
 
 •(1) 4 Cruise, 51. See 4 Ad. & Ell. N. 367 
 U. S. V. Gratiot, 14 Pet. 526. 
 
 (2) Per Parker, Ch. J.,* 16 Mass. 239. 
 
 (3) 4 Dane, 126 ; Hunt«. Hazleton, 5 ¥. H. 
 216; Kinziew. Trustees, Sec, 2 Scam. 188. 
 See University &o., v Joslyn, 21 Verm. 52. 
 
 * Tlie same learned judge remarks, that tlie printed form of lease sold at the shops was 
 originally drawn up by some unskilful person, and ought to be discontinued. Brewer v. 
 Knapp, 1 Pick. 335. 
 
 (a) There may be a lease, without any reservation of rent. Failing v. Sohenck, 3 Hill, 
 344," Hunt v. Comstock, 15 "Wend. 667. If payment of rent is the only proof offered of a 
 tenancy, it may be rebutted by other evidence. Doe v. Francis, 2 Carr. & K. 57. Mere 
 participation in profits, with a joint occupation, does not amount to a tenancy ; as where a 
 person contracted witti a hotel company, that he should reside in the hotel, free of charge 
 for board, conduct and have the exclusive management of it, and, at the end of the term, 
 the furniture be restored to the company. State v. Page, 1 Spear, 408. 
 
 A grant of franchises, for a limited time, after which they revert to the State, is not a lease. 
 Bridge &c. v. The State, 1 New Jmcsey, 384. Lease to A. Annexed to tlie lease, was 
 an undertaking signed by B and C, and sealed with one seal opposite the name of B, in the 
 following vrords : " In consideration of one dollar in hand to me paid by A, I hereby cove- 
 nant and agree to become surety for the faithful performance of said A's covenant, as expressed 
 in the aforesaid lease." In an action of covenant upon this instrument by the lessor against 
 B and C ; held, although it did not expressly appear to whom the covenant was made, yet, 
 reference being made therein to the lease, both instruments must be read together, to as- 
 certain the contract ; that, taken together, they were equivalent to an express covenant to 
 the plaintiff; that, even if this were not the rule, the fact of executing the covenant under 
 the plaintiff's lease, and delivering it to the plaintiff, would enable her to recover thereon ; 
 that the consideration mentioned in the writing was sufEcient to make the covenant valid, 
 on the ground of mutuality ; that the obligation of the defendants was joint and several; 
 that they were both jointly liable in covenant, although there was but one seal^ and that 
 was opposite the signature of the first signer ; and that, the declaration averring the cove- 
 nant declared on to be "sealed with the seals of the said defendants," and the trulh of that 
 averment being admitted by the demurrer, the court must regard the seal as affixed by 
 both parties. Van Alstyne v. Van Slyck, 10 Barb. 383. See McLaren v. Watson, 19 Wend. 
 557, 26, 425. 
 
 (6) See Estate at Will. Whether certain premises are parcel of the premises demised, if 
 not ascertained by the written contract, is always a question open to extrinsic evidence. 
 Crawford v. Morris, 5 Gratt. 90. But a written agreement to pay a certain rent, cannot be 
 varied by parol evidence of a subsequent verbal contract for a smaller sum, and the actual 
 payment thereof. Crowley v. Vittey, 9 Eng. L. & Equ. 501. 
 
 (c) In Tennesse, an agent may lease for seven years, though his authority is not in wri- 
 ting. Johnson v. Somers, 1 Humph. 268. 
 
 A recent English statute, (7 & 8 Vict., c. 76, sec. 4,) provides, that all leases must be by 
 
 Vol. I. 13 
 
194 
 
 LEASE. 
 
 [CHAP. XV. 
 
 for more than seven years, is invalid, unless sealed and recorded. In 
 Vermont, acknowledged and recorded. Between the parties, recording, 
 it seems, is unnecessary. In Indiana, leases for more than three years, 
 to be valid against third persons, must be recorded. In Connecticut, 
 leases for more than one year are good only against the lessor and his 
 heirs, unless attested by two witnesses, acknowledged and recorded. 
 In Ohio, an unsealed writing is good, as a lease, after entry and enjoy- 
 ment. Before, it is only a contract.(l) In North Carolina, no regis- 
 tration is necessary. 
 
 4 a. A statute provided, that " no bargain, sale, mortgage or other 
 conveyance of houses and lands, shall be gOod, &c., against any other 
 person but the grantor, &c., unless the deed, &c., be acknowledged and 
 recorded," &c. Held, the act did not apply to a lease for years of land 
 and a right of way .(2) 
 
 5. Leases may be presumed from long possession, not otherwise to be 
 explained.(3) 
 
 6. The words appropriated to this kind of contract, are '' demise, 
 lease, and to farm let ;" but any other expression, indicating an intent 
 on the one side to quit, and on the other to take, possession for a given 
 time, is sufficient to constitute a lease ; more especially where there is 
 a certainty as to the time when the term shall commence and terminate, 
 and the amount of rent to be paid. So, although in the form of a 
 license, covenant or agreement.(a) It is enough, if there be express 
 words of present demise, or equivocal words accompanied with others, 
 to show the intention of the parties not to have a future lease, espe- 
 cially if possession be taken ; and their- intention may be gathered, 
 not only from the instrument, but from their concurrent or subsequent 
 acts. (4) 
 
 7. "It is covenanted and agreed between A and B, in these words : 
 First, that A doth let said lands for five years, to begin at the M. feast 
 next ensuing ; provided, that B should pay A annually during the term 
 £120. Also the said parties do covenant, that a lease shall be made 
 
 (1) 1 Md. L. 26; Del. St. 1829, 368 ; Ind. 
 Rev. St. 232 ; Tirg. Code, 507 ; Conn. St. 
 350; 1 Ky. Rev. L. 432; 1 Va. Rev. C. 156; 
 N. H. Rev. St. 243 ; Taylor v. Bailey, Wright, 
 646; Mass. Rev. St. 407; Anderson w. Critoh- 
 er, 11 Gill & J. 450; Barney v. Keith, 4 
 Wend. 502 ; Me. Rev. St. 374 ; Chapman v. 
 Bluck, 4 Bing. N". 187 ; Verm. Rev. St. 312; 
 Oiiaylor L. & T. 19 ; Burnett v. Thompson, 3 
 N. C. 379, Doe v. Keiv, 3 Bing. 181. 
 
 (2) Stone v. Stone, 1 R. I. 425. 
 
 (3) 4 Pet. 1. 
 
 (4) Co. Lit. 45 b; Bae. Abr. Lease, K; 
 
 Wright V. Trevesant, 3 C. & P. 441 ; Moore 
 V. Miller, 8 Barr, 272; Jenkins «. Eldredge, 3 
 Story, 325 ; Moshier v. Reding, 3 Eairi; 478; 
 Merrick v. Lewis, 3 McC. 211 ; Rights. Proc- 
 tor, 4 Burr. 2208; Tooker v. Squier, 1 Rolle's 
 Abr. 817; Whitlock u Hortou, Cro. Jao. 91; 
 Hall V. Seabright, 1 Mod. 14 ; Doe v. Ash- 
 burner, 5 T. R. 163; PineoD. Judson, 6 Bing. 
 206 ; Chipman v. Bluck, 1 Arn. 27 ; Doe «. 
 Benjamin, 9 Ad. & Ell. 644 ; Alderman v. 
 Neate, 4, 704; Gushing v. Mills. 6 Mann, & 
 a. 173. 
 
 deed, but any written agreement to let shall be valid, and a party occupying under such 
 agreement may, from payment of rent or other circumstances, be construed as a tenant 
 from year to year. 
 
 (a) On the other hand, the word let is a comprehensive term, which does not necessarily 
 pass a mere term for years, but may convey the fee. " A hath let to B, his legal heirs and, 
 representatives, at the rate ol $15 per acre, to be paid by B, or his legal heirs, annually to A, 
 his heirs and assigns." This paasesjthe fee, subject to a ground-rent in fee Krider v Laf- 
 fen.y, 1 Wliart. 303. 
 
 Leases are to be construed like other contracts, so far aa intention and cuBtom are to gov 
 ern in their construction. Iddings v. ^agle, 2 "Watts & S. 24. 
 
CHAP. XT.] 
 
 LEASE. 
 
 195 
 
 and sealed, according to the effect of these articles, before the next feast 
 of S." Held, the words " doth let," made this a present lease, and that 
 the following expressions of prospective import merely contemplated 
 the making of farther assurance.(l)(a) 
 
 8. By articles between A and B, A covenanted, granted and agreed, 
 that B should have and enjoy the land for six years, in consideration of 
 which, B covenanted to pay an annual rent to A and his heirs. Held, 
 a good lease.(2) 
 
 9. A and B agreed with C that they would, with all convenient 
 speed, grant him a lease of, and they did thereby set and let to him 
 certain land, to hold for -21 years, at a certain rent, payable semi- 
 annually. The lease to contain the usual covenants, and certain special 
 ones, one of which spoke of " this demise." Held, these words, with 
 the words set and let, made this a present lease, with an agreement for 
 a more formal one thereafter.(3) 
 
 10. A hath let, and by these presents doth demise, &c., unto B for 
 21 years, to commence after A hath recovered , said lands from C. 
 Leases, with powers of distress and clauses for re-entry, &c., to be 
 drawn and signed at the request of either party, as soon as A recovers, 
 &c. Held, a present lease.(4) 
 
 11. A bargained, covenanted and agreed with B, by articles, that he 
 would lease to B a farm, for six years from April 1, 1807, on condition 
 B should pay $250 on April 1, each year during the terra. B cove- 
 nanted to pay accordingly. Before April 1, 1807, A sold the farm. 
 Held, without paying |250, B had a vested estate as lessee, and might 
 maintain ejectment.(5) 
 
 12. A and B entered into a sealed contract, which, after reciting a 
 covenant by A to finish a certain building then erected, for the manu- 
 facture of cotton, furnish water power and machinery therefor, by a 
 certain day, and keep the machinery in repair for one month, pro- 
 ceeded thus — "And A does hereby lease said building to B for the 
 term of 10 years," from the day before named, but B is to have the use 
 of the building, &c., after they are completed, free of rent, from a day 
 prior to the date of the instrument, until they shall be ready for opera- 
 tion ; " and B shall also use said building free of rent, for the purpose 
 of storing cotton and machinery and making repairs, from the dale of 
 this instrument ;" and B covenants to keep the running machinery in 
 repair after the expiration of one month. B took possession under the 
 contract. Held, the instrument created a present demise, to commence 
 infuturo, not merely an agreement for a lease.(6) 
 
 13. On the other hand, it has been repeatedly held, that notwith- 
 standing words of present demise, an instrument shall not operate as 
 
 (1) Harrington v. "Wise, Cro. Eliz. 486; 
 Jackson!;. Keisselbraoh, 10 Jolin. 436; Poole 
 V. Bentley, 12 E. 168; Hallett v.WjVie, 3 John. 
 44. 
 
 (2) Drake v. Munday, Cro. Car. 20T ; Tis- 
 dale V. Essex, Hob. 34. 
 
 (3) Baxter v. Browne, 2 Black. R. 973. 
 
 (4) Barry v. Nugent, 5 T. B. 165. 
 
 (5) Thornton v. Payne, 5 John. 74. 
 
 (6) Bacon v. Bowdoin, 22 Pick. 401. 
 
 (a) So, where an instrument contained an agreement for a subsequent lease and demise, 
 when a fence, &c., should be finished, but also a clause for re-entry, upon breach of cove- 
 nant; and the proposed tenant entered and paid rent; held, a lease, not a mere agreement 
 for one. Alexander v. Bonnin, 6 Scott, 611. 
 
196 
 
 LEASE. 
 
 [CHAP. XV. 
 
 an actual lease, if there is a manifest intention, appearing on the whole 
 paper, that it should operate otherwise.(a) This intention may be in- 
 ferred from strong circumstances of inconvenience, connected with a 
 different construction ; such as a forfeiture. Thus, A and B entered 
 into t'lie following articles : " A doth demise, &c., to B, to have it for 
 40 years," with a rent reserved, and a clause of distress. A memoran- 
 dum was afterwards written in the same paper, that these articles were 
 to be ordered by counsel of both parties, according to due form of law. 
 A lease was afterwards drawn by counsel, but not sealed, the parties 
 differiug as to Jire-boie. Held, no lease.(l) 
 
 13 a. An instrument contained words of present demise, but also an 
 agreement by the owner to make alterations and improvements, and by 
 the other party, to take a lease when they should be made. Held, a 
 mere agreement for a lease.(2) 
 
 13 b. Agreement between A and B, that A should enjoy the mills, 
 &c., and that B would give him a lease for a certain time, and at a cer- 
 tain rent, and purchase an additional piece of land and add it to that 
 demised. Held, a mere agreement.(3) 
 
 13 c. A agreed " to let premises to B, on lease, with a purchasing 
 clause, for 21 years, at £63 per year ;" B to enter any time on or be- 
 fore a certain day. Held, a mere agreement, there being no words of 
 demise, the commencement of the tenancy being left uncertain, and the 
 words as to purchasing showing that the letting was to be by a par- 
 ticular instrument, containing such lease.(4) 
 
 13 d. An agreement provided, that out of the rent mentioned, a pro- 
 portionate abatement should be made, in regard to certain excepted 
 premises, and the tenant hold under all usual covenants, &c. Held, not 
 a lease, because it might be disputed what are usual covenants.(5) 
 
 18 e. The defendant entered into a contract with A, in writing, not 
 under seal, "to let" to A a certain farm, to commence on the first of 
 April, 1842, and continue from year to year for five years, or so long 
 as the parties should agree and be satisfied, reserving to either party 
 the right to terminate the contract by giving one month's notice in 
 writing ; the produce; of the farm " to be equally divided by weight 
 or measure, between the parties." Held, although this gave A an in- 
 terest in the land, and a right to occupy it without molestation from the 
 defendant, while he continued in the performance of the contract, yet 
 
 (1) Sturgioii V. Painter, N07 R. 128; 
 Tenny v. Childs, 2 M. & S. 225 ; Pleasants v. 
 Higham, 1 Roll. Abr. 848. See People v. 
 Grillis, 24 Wend. 201; Jones j). Reynolds, 1 
 Ad. & Ell. (N. S.) 506 ; Rawson v. Eioke, 1 
 Ad. & Ell. 451 ; Bicknell v. Hood, 5 Mees. & 
 "W. 104; Chapman «. Towner, 6, 100; Bra- 
 shier V. Jackson, lb. 549 ; Helser v. Pott, 3 
 Barr, 179 ; Jackson v. Moncrief, 5 Wend. 26; 
 
 V. Myers, 3 John. 388 ; Tempest v. 
 
 Rawling, 13 E. 1 ; Fenner v. Hepburn, 2 T. 
 &C. 159. 
 
 (2) Jackson v. Delacroix, 2 "Wend. 433. 
 
 (3) 5 T. R. 163. 
 
 (4) Denk v. Hunter, 5 B. & A. 322, 1042. 
 
 (5) Morgan v. Bisgell, 3 Taun. 65. But see 
 Doe 1). Benjamin, 1 Per. & Dav. 440. 
 
 (a) "Where the instrument referred to a parol agreement, and did not state the commence- 
 ment or duration of the tenancy ; held, a mere agreement, not a lease. Gore v. Lloyd, 12 
 Meea. & W. 463. Such agreement may operate as a license to enter, and give a right' to 
 claim specific performance or damages. Price v. "WUliams, 1 Mees. k "W. 6. An express 
 proviso, that the instrument shall operate only as an agreement, not a lease, will.be carried 
 into effect, though other clauses indicate a different intent. Perring v. Brooke, 1 M. & R. 
 510. But not the mere use of the word agreement. John v. Jenkins, 1 Or. & M. 233. 
 
CHAP. XT.] 
 
 LEASE. 
 
 197 
 
 it did not constitute a lease, but A was a quasi tenant at will,, Avjiile the 
 contract continued in force, and the defendant and A were tenants in 
 common of the growing crops, and of the produce of the farm before 
 severance.(l)(a) Held, also, the interest of A in the growing crops, 
 before severance, was assignable, and the plaintiff, having received from 
 A a legal assignment of his interest, became tenant in common with 
 the defendant, in place of A, and might sustain an action of account 
 against the defendant, to recover his just proportion. 
 
 l-i. A doth hereby agree to let, and B agrees to rent and take, &c., all 
 his estate, &c. It is agreed that said B shall enter immediately, but 
 not commence payment of rent till, &c. It is further agreed that leases, 
 with the usual covenants, shall be made on or before, &c. Held, no 
 lease ; but only an agreement for immediate possession, till a lease could 
 be drawn.(2) 
 
 15. A certain instrument recited that A, if he should have a title to 
 certain land upon B's death, would immediately lease it to C, and de- 
 clared that he did thereby agree to demise the same, with a subsequent 
 covenant to procure a license, &o., to do it. Held, only a contract for 
 a lease. (3)(6) 
 
 16. A agreed to let her house to B during her life, supposing it to be 
 occupied by B, or a tenant agreeable to A, and a clause was to be added 
 in the lease, to give A's son an option to possess the house when of age. 
 Held, only a contract, not a lease.(4) 
 
 17. A town, by vote, directs that a lease of certain land may be made, 
 " which shall vest in the lessee all the right of said town to enter upon 
 said quarries and remove stones, and do any other lawful act for and 
 in behalf of said town, in relation thereto." This vote, and a lease 
 made in pursuance of it, give to the lessee a perfect right of entry and 
 possession, with all the powers of the town in relation to the subject. 
 The lessee becomes a legal owner, and may maintain trespass either 
 against a stranger or the agent of the town. But the mere vote of a 
 town, that their agent may let certain land for a year, is no lease, and, 
 if he let without writing, the lessee has only an estate at will. (5) 
 
 18. " It is hereby agreed between A and B, that A will let to B the 
 use of the county house in L, from December, 1817, to April, 1818, 
 and B agrees to pay A therefor $250, provided a majority of the county 
 court agree thereto. November 13, 1817." Held, no lease, but an 
 agreement upon condition precedent ; and, in assumpsit by A for the 
 rent, B was allowed to prove by parol that he occupied as tenant of the 
 county.(6) 
 
 19. Articles of agreement between A and B contained the following 
 (jlause : " that the said mills, &c., he shall enjoy, and I engage to give 
 
 (1) Aiken v. Smith, 21 Yt. 11% 
 
 (2) Goodtitle v. Way, 1 T. R. 735. 
 
 (3) Doe V. Clare, 2 T. R. 139. See 10 John. 
 336; 4 Dane, 132. 
 
 (4) Doe V. Smith, 6 E. 530. 
 
 (5) Todd V. Hall, 10 Conn. 559-60; Hing- 
 ham V. Sprague, 15 Pick. 102. 
 
 (6) Buell V. Cook, 4 Conn. 238. 
 
 (a) So, though the defendant, subsequent to the assignment, had caused- an undivided 
 half of the produce to be attached and sold on execution, as the property of A, and him- 
 self become the purchaser. lb. [In this case, the case of Hurd v. Darling, 14 Vt. 214, 
 16 Tt. 377, was examined, and the correctness of the decision was questioned, by Ben- 
 nett, J.] 
 
 (6) Tbe two last cases turned in part upon the point, that the proper stamp was wanting. 
 
198 LEASE. [CHAP. XT. 
 
 him a lease in for 31 years from, &c., at the rent, &c., and that I will pur- 
 chase one yard in breadth to be laid to the raoe, &c. And if it be 
 bought, and the purchase is more than £200 per acre, said B to pay" 
 the additional cost. Held, the words he shall enjoy, and / engage to give 
 him a lease, showed an unequivocal intention for a future lease; and this 
 construction was confirmed by the consideration, that A was to obtain 
 other land to be laid to the mill, before the lease should be made. If 
 B should seek to enforce the instrument, as a contract, in Chancery, he 
 would not be turned round with the objection, that he had already a 
 legal, executed estate, but a lease would be decreed to be made.(l)(a) 
 
 19 a. The question may also arise, whether a particular transaction 
 constitutes a lease or a sale. 
 
 19 h. Sale of a house by written agreement, for a certain 'sum, and 
 in the meantime a weekly rent reserved. The purchaser afterwards, 
 married the defendant, the purchase-money was paid, and the seller 
 died. The executors proceed in the county court against the defend- 
 ant to recover possession. Held, on application for a prohibition, that 
 the relation of landlord and tenant did not exist, and a prohibition was 
 granted.(2)(&) 
 
 20. So, the question may arise, whether an occupant of land is a 
 lessee, or merely a servant, of the owner. 
 
 21. The defendants, owning a manufactory and a pond above it, 
 and having purchased of the plaintiff the right to draw off water from 
 the pond through his land, made a written contract with one B, by 
 which B was to ran the defendants' mill one year, and manufa'cture for 
 them at a certain price cotton furnished by them, and to keep the mill 
 in good running order at his own expense, except the main gearing, 
 which was to be repaired by the defendants, if necessary. No rent was 
 to be charged by the defendants, and they were not to be called on for 
 any expense, unless the main gearing should fail or some injury arise 
 to the dam. Six or seven acres of land, where the factory stood, with 
 the factory houses, blacksmith shop, &c., were to be used by B. In an 
 action against the defendants for an injury to the plaintiff, caused by 
 
 (1) Doe V. Ashburner, 5 T. S. 163 ; 4 Kent, r (2) Banks v. Rebbeok, 5 Eng. L. & Equ. 
 105, and authorities. I 298. 
 
 (a) The question sometimes arises, whether a transaction is an actual assignment, or only 
 a contract for assignment, of a lease. The latter construction was given, where money was 
 subsequently to be paid, though in the meantime the assignee was to pay rent, perform the 
 covenants, and indemnify the lessee against them; with a condition of re-entry. Lines?. 
 Stephenson, 1 Scott, 69. 
 
 (6) The lessor of a farm, for three years, covenanted to furnish ten cows with hay sufB- 
 cient to winter them, to be kept for the use and benefit of the lessee during the term ; to 
 risk them against all unavoidable accidents; and to pay all taxes upon them. The lessee 
 covenanted to deliver to the lessor, at the expiration of the three years, the same ten cows, 
 or others worth as much in all respects, with hay sufficient to winter them through. Held, 
 this did not pass the absolute property in the cows to the lessee, but was a lease merely, 
 with the right in the lessee, in case any of the cows were lost by accidents, not unavoidable, 
 to return other cows of equal value. Smith v. Niles, 20 Vt. 315. 
 
 In February, 1842, A agreed with B to sell him a farm for a certain sum, $31 6 to be paid, 
 part in June following, and the balance the next April, whether B should decide to take a 
 deed or not. B was to have immediate possession, and decide in July, 1842, whether be 
 would keep the premises under the contract. Held, the agreement was a sale, not a 
 demise, and the $375 not rent, for which a distress could be made. Moulton v. Norton, 5 
 Barb. 286. 
 
CHAP. XV.] 
 
 LEASE. 
 
 199 
 
 B's letting off the water from the pond so rapidly as 
 plaintiff's land ; held, B was a lessee, not a servant of 
 
 as to overflow the 
 Df the defendants, 
 and therefore they were not liable to this action. (1) 
 
 22. Agreement between A and L, that B and his wife should work 
 for A one year, B upon the farm of A, and his wife in the house con- 
 nected therewith. B and his wife having taken possession, A after- 
 wards ordered them to quit, and, upon their refusing, ejected them. 
 Held, A and B stood in the relation of master and servant, and an ac- 
 tion of trespass did not lie.(2)(a) 
 
 22 a. The defendant, owning a farm and ferry, leased them verbally 
 for a year, the profits and proceeds to be equally divided between him 
 and the lessee, the lessee to keep and manage the ferry at his own ex- 
 pense of labor, the defendant to put the boat in good order at the 
 commencement of navigation, and the expense of repairs to be di- 
 vided between the parties ; the lessee to pay the defendant half the re- 
 ceipts weekly ; the lessee to conduct all his business as such tenant, 
 and manage the said " farm and premises" so leased to him, carefully, 
 &c., and allow no one but a suitable man to attend the ferry, and be 
 responsible to the defendant for " damages occasioned by wilful mis- 
 conduct or neglect in the management of the said farm and premises, 
 and in the management of the ferry, and the scow and boat." Held, the 
 lessee was tenant of the defendant, both as to the farm and ferry, and the 
 defendant not liable to a passenger in the boat, for an injury caused by 
 the lessee's negligence in the management of the ferry. (3) 
 
 23. A further question might possibly arise, whether a lessor,, who 
 is to receive for rent a certain portion of the profits of the land, does 
 not thereby become a partner of the lessee. To guard against this con- 
 struction, it is provided in North Carolina, that a lessor of property for 
 gold mining purposes shall not be held as a partner, though he is to 
 receive a sum uncertain of the pmceeds, or any other consideration 
 which is uncertain, but may be made certain. (4) 
 
 23 a. Lease of a ferry for a year ; the lessee to take charge of the 
 business, pay expenses, and pay the lessor half the gross receipts. 
 Held, the parties were not partners, even as to third persons.(5) 
 
 24. A mere contract with the owner of land, to raise a crop upon 
 shares, does not constitute a lease. Thus, A agreed with B to sow and 
 raise on B's land a crop of wheat, B to find the team and one half of 
 the seed, and A to do the labor ; the wheat, when harvested, to be put in 
 B's barn, threshed and divided between them. The wheat, while cut 
 and standing, was attached as A's. Held, A had no lease of the land, 
 and no exclusive interest in the wheat, but it belonged to the parties 
 jointly. But if A agree with B to raise a crop upon B's land, and pay 
 
 (1) Piske V. Framingham, &c., 14 Pick. 491. 
 See Anderson v. Neamith, 7 N. H. 167. 
 
 (2) Haywood v. Miller, 3 Hill, 90. 
 
 (3) Felton v. Deall, 22 Verm. 110. 
 
 (4) 1 M. C. Rev. Stat. 426; Putnam v. 
 Wise, 1 Hill, 234. 
 
 (5) Heimstreet v. Howland, 5 Denib, 68. 
 
 (a) A, the proprietor of a school, employing B as the steward, &o., assigned to him for 
 lodgings a house within the curtilage, but not connected with A's dwelling-house, by any 
 common covering or roof, and without rent. Held, it was in law the dwelling-house of A. 
 State V. Curtis, 4 Dev. & B. 222. 
 
200 LEASE. [CHAP. XT. 
 
 him one-third of it, as rent, this is a lease, and A may have trover 
 against B for taking the crop.(l)(a) 
 
 25. In Delaware, (2) any contract or consent, pursuant to which a ten- 
 ant enters into or continues in possession of lands, &c., under an agree- 
 ment to pay rent, is a demise. The term is one year, unless the instru- 
 ment specify a different term, or the property have been usually let for 
 a shorter time.(6) 
 
 26. AVhere a writing is given for a lease, though not properly exe- 
 cuted as such, (as, in Connecticut, by sealing, acknowledgment and re- 
 cording,) it may be used as evidence that the defendant occupied with 
 permission of the plaintiff.(3) 
 
 27. Where a lease is made, the general presumption is, that it is 
 beneficial to the lessee, and therefore accepted by him. But this bene- 
 fit is to be judged of, not merely by the terms of the lease, but by all 
 the circumstances of the case. If the lessee has himself a perfect title 
 to the land, and the lessor no title, this is not a beneficial lease, and no 
 acceptance will be presumed.(4)(c) (See infra, 70.) 
 
 (1) (4 Kent. 95 ;) Bishop v. Doty, 1 Term. 
 11; Hoskins v. Rhoades, 1 Gill. & J. 266. 
 See ch. 16, sees. 4-7. Jackson v. Brownell, 1 
 John. 267. 
 
 (2) Del. St. 1829, 368; Rev. Sts. 422. 
 
 (3) Cornwall v. Hoyt, 1 Conn. 420. 
 
 (4) Camp V. Camp, 5 Conn. 291. 
 
 (a) Where a transaction of this kind ia a mere contract for personal services, which would 
 expire with the death of the party occupying, it is no lease. Maverick v. Lewis, 3 McCord, 
 211. In Pennsylvania, landlord and cropper is a phrase familiarly known to the law. Id- 
 dings V. Nagle, 2 W. and Serg. 24. Contract between A and B, that B should cultivate 
 A's farm for one season, and deliver him one-half the crops, the grain to be threshed and 
 then divided; and should have the use of a part of the barn to put his grain in. Held, be- 
 fore a division, the parties were tenants in common of the crops. Walker v. Fitts, 24 Pick. 
 19; aco. Putnam v. Wise, 1 Hill, 234. See Chamberlin v. Shaw, 18 Pick. 278; Caswell v. 
 Districh, 15 Wend. 379, 
 
 By an indenture. A, the plaintiff, "demised, granted and to farm let" to B and C his farm 
 with the buildings thereon, reserving for his own use certain rooms and privileges in the 
 kitchen, &o., haiendwn for one year, they covenanting to carry on the farm in a husband- 
 like manner, to furnish one cow and other stock, one-half the seed, &c., and divide the 
 grain, &c., and deposit A's portion in his part of the granary and cellar; and A agreeing 
 to supply certain farming implements, to be kept in repair by B and C; 12 cows, &c., whose 
 product should be equally divided ; the winter manure to be put on the land at A's direc- 
 tion ; the hay to all be fed out on the farm ; half of the calves to be reared, if suitable and 
 promising for that purpose, and the other half killed for veal. The hay and calves having 
 been attached by creditors of B and C, A brings an action against the officer. Held, the 
 above agreement did not so vest in B and C the hay and calves to be reared, produced on 
 the farm during the term, as to render them liable to attachment ; but the effect of it was, 
 that all the hay should be consumed on the farm, and such calves kept on the farm till the 
 term expired, when the division was to take place. Lewis v. Lyman, 22 Pick. 437. 
 
 Lease of a farm, with the cows and sheep thereupon, for five years, at a certain annual 
 rent, with a provision that cows of equal age, &c., should be returned at the end of the term, 
 and also sheep. Held, the cows and sheep, as also others substituted for them, belonged to 
 the tenant, and might be levied upon as his. Carpenter v. Griffiu, 9 Paige, 310. (See ch. 
 16, sec. 4.) 
 
 A agreed by parol with B to clear and sow B's land and receive the crop. Bsold the 
 'land to 0, with notice of this agreement. Held, C was bound by it, and A might enter to 
 take the crop. Davis v. Brocklebank, 9N". H. 73. 
 
 (6) In the city of New York, a lease not limited in duration continues to the first of May 
 next, after possession taken ; and the rent is payable at the usual quarter days for payment 
 of rent in that city, unless otherwise expressed. 1 Rev. Sts. 744. 
 
 (c) It has been held, that a lessee may abandon his contract, if the lessor refuse to give 
 possession on the day fixed. Spencer v. Burton, 5 Blackf. 5'Z. 
 
CHAP. XV.] 
 
 LEASE. 
 
 201 
 
 28. Every lease must have a certain beginning and ending. It may 
 begin from a day past. If made to commence from an impossible date, as 
 the 3 th of February — or from the end of another lease, which does 
 not exist, or is void, or misrecited, it takes effect from delivery ; but if 
 from an uncertain date, as where the month is mentioned, but not the 
 year, it is void.(l) But it may commence or end upon a contingency 
 which must happen, as from the lessor's death, running to a certain 
 day.(2) 
 
 29. So a lease for 21 years, to commence after the termination of a 
 life, is good ; because the commencement, though at first uncertain, is 
 rendered certain by a subsequent event. So, A may grant to B, that 
 when B grants him a certain sum, he shall have and occupy the land 
 for twenty-one years ; and this is a good lease to commence on pay- 
 ment of such sum.(3) 
 
 30. As to the legal import of the words " from the date," " from the 
 day of the date," &c., it was the old rule, that either expression would 
 make the lease to commence the day after the date. But the modern doc- 
 trine is, that there is no general rule on the subject; that, in reckon- 
 ing from an act or event, the day is to be inclusive or exclusive, ac- 
 cording to the reason of the thing and the circumstances of the case ; 
 but ordinarily, the day is inclusive, the words being used, not by way 
 of computation, but of passing an interest, and because this construc- 
 tion is most favorable to the lessee.(4) In several cases, the rule is laid 
 down, that where the computation is from an act done, the day is in- 
 cluded ; as where it is " from the making hereof," or " from hence- 
 forth."(o) 
 
 31. Where the expression is "from the date," the rule seems to be, 
 that if a present interest is to commence from the date, the day of the 
 date is included ; but if merely used to fix a terminus, from which to 
 compute -time, the day is excluded.(6)(a) 
 
 32. The word " lease," as well as " term," seems to be of somewhat 
 equivocal import. {Supra, ch. 14, s. 3,) Thus, instead of applying 
 to the instrument itself, it may be held to refer to the time for which it 
 was to run. 
 
 33. The owner of land, containing a quarry, leases the quarry for 
 ten years, and then conveys the land, " reserving the use of the quarry 
 until the expiration of the lease." By mutual consent, the lease was 
 cancelled within the ten years. Held, the reservation still remained 
 in force, till the ten years expired. (7) 
 
 34. Where a statute requires registration of " any lease for more 
 
 (1) Co. Lit. 46 b, and n. 10. 1 Mod. 180 ; 
 Moore v. Hussey, Hob. 18. 
 
 (2) Goodright v. Richardson, 3 T. R. 462 ; 
 Child V. Bayley, Oro. Jac. 459. 
 
 (3) Dyer, 124; Goodright v. Richardson, 3 
 T. R. 463 ; Bishop of Bath's case, 6 Kep. 34 
 b ; Co. Litt. 45 b. See ch. 14, sec. 6-11. 
 
 (4) 4 Kent, 95 n. b, and authorities. See 
 Farwell v. Rogers, 4 Gush. 460 ; Thomas v. 
 Affiick, 16 Ponn. 14; Bigelow ii. WiUson, 1 
 Pick. 485 ; Arnold v. V. S., 9 Cranoh, 104 ; 
 
 Jacobs V. Graham, 1 Blaokf. 392 ; Wilcox v. 
 Wood, 9 Wend. 346; Webb v. Dixon, 9 
 E.'15. 
 
 (5) Co. Lit. 46 b ; Blake v. Crowninshield, 
 9 N. H. 304 ; The King v. Justices, kc, 4 
 Nev. & Man. 375; Brainard v. Bushnell, 11 
 Conn, n ; Glassington v. Rawlins, 3 B. 407. 
 
 (6) Arnold v. H. S., 9 Cranch, 104 ; Co. 
 Litt. 46 b, n. 8, 9. 
 
 (7) Farnum v. Piatt, 8 Pick. 339. 
 
 (a) Under an agreement to quit on notice of 10 days, the day on which notice is given 
 must be excluded. Aiken v. Appleby, 1 Morris, 8. 
 
202 
 
 LEASE. 
 
 [CHAP. XT. 
 
 than seven years from the making thereof •" a lease to commence in 
 futuro, though for a term less than seven years, is within the act, if 
 the time be more than seven years from the making of the lease to 
 the end of the term.(l) 
 
 35. Where a lease is made for different periods, in the alternative — 
 as, for instance, for seven, fourteen or twenty-one years ; although not, 
 as has been contended, void for uncertainty, the legal construction 
 seems to be somewhat doubtful. Thus it has been held, in one case, 
 that the duration of the lease, for one or the other of the times named, 
 might be determined either by the lessor or the lessee, after due no- 
 tice ; but in a later case, that the latter alone could exercise his elec- 
 tion. By continuing over one period, he extends his tenancy -to the 
 next.(2) 
 
 35 a. Lease of a dwelling and other buildings, used for manufac- 
 turing, meadow and pasture lands, with all water courses, &c., to com- 
 mence, as to the meadow, from the 25th of December last past ; as to 
 the pasture, from the 25th of March following; and as to the houses, 
 mills, and other premises, from May 1st. Held, this last was the sub- 
 stantial time of entry, the houses, &;c., being the principal subject, to 
 which the other premises were merely auxiliary. (3) 
 
 35 b. A executed to B a lease for one year, containing these words : 
 " B to have the privilege to have the premises for one year, oge 
 month, and twenty days longer; but, if he leaves, he is to give four 
 months' notice before the expiration of this lease." Held, the term did 
 not terminate until the expiration of two years, one month, and twenty 
 days, in case the tenant did not give notice of his intention to quit four 
 months previous to the expiration of the first year.(4) 
 
 35 c. Lease dated March 25, 1783, to hold from the 13th of March 
 lasl past. It was proved that the lease was executed some time after 
 date. Held, the term commenced March 25th, 1783.(5) 
 
 36. A lease for one year, so for two or three years, as the parties 
 shall agree, from the first year, is a lease for two years ; and after the 
 beginning of every subsequent year, is not determinable till the end 
 of it. (6) 
 
 36 a. A demise " not for one year only, but from year to year," 
 constitutes a tenancy for at least two years, not determinable by a no- 
 tice to quit at the end of the first year.(7) 
 
 36 b. So a lease /or years continues two years.(8) 
 
 37. A lease may be made to terminate before its natural expiration, 
 by proviso or condition. Of this nature, is the usual condition of re- 
 entry upon non-payment of rent.(a) 
 
 38. But such proviso is construed strictly, and its terms must be 
 literally complied with. 
 
 39. Lease for twenty-one years, provided that either party, or their 
 
 (1) Chapman v. Gray, 15 Mass. 439. 
 
 (2) Ferguson v. Cornish, 2 Burr. 1034; 
 Goodright V. Richardson, 3 T. R. 462 ; Dann 
 V. Spurrier, 3 B. & P. 399-442 ; Leo, &c. v. 
 Merritt, 21 Wend. 336. See "Waring i). King, 
 8 Mees. & W. 571. 
 
 (3) Doe V. Watkins, 1 B. 551. 
 
 (4) Chretien v. Doney, 1 Comst. 419. 
 
 (5) Steels V. Mast, 6 Dow. & R. 392. 
 
 (6) Harris v. Evans, 1 'Wils. 262 ; 4 Dane, 
 133. 
 
 (7) Den v. Cartright, 4 E. 29. 
 
 (8) Bao. Abr. Leases, (L.) 3, 
 
 (a) See Bent. Also, Browning v. Haskell, 22 Pick. 310. 
 
CHAP. XV.] 
 
 LEASE. 
 
 203 
 
 heirs or executors, might terminate it at the end of seven or fourteen 
 years, by giving six months' notice in writing, under his or their 
 respective hands. The lessor died, having devised the lands to three 
 executors, as joint- tenants. Two of them gave notice, as for the 
 whole. Held, this was insufficient, it not appearing that the termina- 
 tion of the lease would be a benefit to them ; and that neither a subse- 
 quent ratification by the non-signing executor, nor his joining in a 
 suit for the land, was sufficient to bind the lessee.(l) 
 
 89 a. With regard to the parties to a lease, it is held, that one 
 disseized can deliver a lease only as an escrow, to take effect after his 
 entry, and it will pass his right of entry. (2) 
 
 40. By St. 32 Hen. 8, c. 28, tenants in tail are empowered to make 
 leases for life or for years, which will bind their issue, but not the re- 
 versioner or remainder-man. A lease conformable to this statute, 
 though made by feoffment and livery, will not operate as a discon- 
 tinuance. 
 
 41. It has been already stated, (ch. 3,) that, in several of the United 
 States, tenants in tail are empowered to convey in fee, and thereby 
 bar the entailment. It has been questioned, whether such power 
 involves the right of creating lesser estates. In Delaware alone, it 
 seems, tenant in tail is expressly , authorized to convey a fee or any 
 less estate. The English statute is said not to be in force in Massa- 
 chusetts.(3) 
 
 42. By the same English statute, all leases made for years or for 
 life, by those having an inheritance in right of their wives, or jointly 
 with their wives, of any estate of inheritance before or after coverture, 
 shall bind the wife ; provided the lease be by indenture, in their joint 
 names, sealed by her, and the rent reserved in such manner as to follow 
 the estate itself And the husband shall have no power over the rent 
 beyond his own life, but by joining the wife in a fine. 
 
 43. "Where a lease is made not conformably to this statute, the wife, 
 or, if she die before the husband, her heirs, may avoid it.(4) 
 
 44. The act above referred to, so far as it relates to husband and 
 wife, has been substantially re-enacted by a statute of North Carolina, 
 which, however, seems to leave it doubtful whether a lease, to be valid, 
 must be an indenture. The wife is privately examined. The act is 
 expressly declared not to apply to a grant of the reversion, or a lease 
 without impeachment of waste, or for more than three lives or twenty- 
 one years. (o) 
 
 44 a. The husband may lease lands owned in fee by the wife for a 
 term of years, during the coverture at least ; and an agreement to give 
 such a lease, if not otherwise objectionable, may be enforced in Chan- 
 cery.(t).) 
 
 44 b Land was conveyed to husband and wife, who executed 
 articles, reciting a sale by them in consideration of a certain sum, and 
 of certain quantities of grain yearly, during their joint lives, with two 
 acres of land for the same term, in consideration whereof, the husband 
 
 (1) Right V. Cuthell, 4 Dane, 133. 
 
 (2) Doe V. Watts, 9 E. 19. 
 
 (3) 4 Cruise, 57 ; Vaugti. 383 ; Walter v. 
 Jackson, 1 Eolle Abr. 633; Wheelright v. 
 
 Wheelright, 2 Mass. 450; Dela. St. 1829, 
 197 ; 4 Dane, 126-7. 
 
 (4) 4 Cruise, 57. 
 
 (5) 1 N. 0. Rev. Sts. 261. 
 
 (6; Eaton v. Whitaker, 18 Conn. 222. 
 
204 LEASE. [OHAP. XT. 
 
 leased, demised. &c. The wife, not having acknowledged the articles 
 under the statute, survived the husband, and received the stipulated 
 returns for two or three years, when she was ejected from the two 
 acres, and the returns were not paid. Held, she was entitled to re- 
 cover in ejectment, from those having no other title than under the 
 articles, and denying her right.(l) 
 
 44 c. A husband leased his wife's land for one year, and died. Held, 
 his life estate ceased at his death, and the rent belonged, not to his 
 administrator, but to the wife.(2) 
 
 45. A tenant Jor life cannot make a lease, to continue beyond his 
 own estate. One coming in as tenant to a tenant for life does not, 
 upon his death, become the tenant of the remainder-man, without his 
 assent, express or implied. And if A, tenant for the life of B, lease 
 for years to C, and B die before the end of the term ; A may re-enter, 
 though he have since purchased the reversion in fee. So the leases of 
 tenants by the curtesy and tenants in dower become void with their 
 death, {supra, s. 44, c.) Where the tenant for life and the reversioner 
 or remainder-man join in. leasing ; during the life of the former, it shall 
 be his lease, and the confirmation of the latter ; and afterwards, vice 
 versa.{3) 
 
 45 a. In South Carolina, where a tenant for life of land or slaves 
 dies after the 1st of March in any year, having leased the land or 
 slaves to another, the lessee shall not be disturbed in his possession 
 during the year, but he shall secure to the remainder-man the rent or 
 hire which shall accrue after the death of the tenant for life. (4) 
 
 46. A guardian in socage, in England, having an interest as well as a 
 power, may lease the ward's land in his own name. But the lease ex-_ 
 pires upon the ward's coming of age.(5) 
 
 47. In "Virginia, a testamentary guardian may make a lease, reserving 
 the best annual rent and most beneficial covenants, for any term, end- 
 ing when the ward shall be of age, or continuing longer at the ward's 
 election. So he may take or make a surrender of an old lease. The 
 committee of an insane person are invested with the same power. In 
 North Carolina, a guardian may lease slaves and land, the latter only 
 in writing, during the minority of the ward, with special provisions as 
 to the preservation of the estate, and to guard against waste. In Ill- 
 inois, a guardian may lease for such time and on such terms as the 
 court may direct, but not beyond the ward's minority, which in females 
 is eighteen years.(a) In Connecticut, th.e conservator of an idiot cannot 
 lease his land. (6) 
 
 (1) Clark V. Thompson, 2 Jones, 2'74. | (5) Bao. Abr. Lease, 1, s. 9. (See Koe v. 
 
 (2) Arnold j;. Hodges, 10 Humph. 39, (in- Hodgson, 2 "Wils. 129, 135; 2 RoUe's Abr. 
 
 fra. s. 45.) 
 
 (3) Co. Lit. 47 b ; 4 Cruise, 62 ; Co. Lit. 
 45 a ; Treport's case, 6 Rep. 14 ; Horsey v. 
 Horsey, 4 Harring. 517. 
 
 (4) Freeman v. Tompkins, 1 Strobh. Eq. 53. 
 
 41.) 
 
 (6) Anth. Shop. 477; 1. Vir. K C. 322, 
 235 ; 1 N. C. Rev. St. 311 ; Treat v. Peck, 5 
 Conn. 280; Illin. Rev. L. 455; lllin. St. 
 1835, 36. 
 
 (a) In the same State, a testamentary guardian, appointed by deed or will by father or 
 mother, has charge of the estate. 
 
CHAP. XV.] 
 
 LEASE. 
 
 205 
 
 48. If a guardian lease by parol for a year, and during the year the 
 ward die, his heir cannot recover the rent.(l)(a) 
 
 49. In Massachusetts, a lease by the father or mother, as guardian 
 by nature, of the child's land, is void ; upon the principle, that such 
 guardian is under no bonds for the faithful performance of his trust. 
 In Connecticut and Missouri, the father, as guardian by nature, has 
 control of the child's estate, subject to an account in Connecticut, and 
 also in Missouri, unless the estate is derived from the father. The 
 father's power extends to land which descended ex parte materna. In 
 Missouri, a mother has the same authority, where there is no lawful 
 father, or where the father is dead. (2) 
 
 50. An executor or administrator may lease lands, in which the de- 
 ceased owned a term for years ; and the rents will be assets. (3)(&) 
 
 51. An heir may lease before entry, but not after an abatement by 
 the entry of a stranger.(4) 
 
 52. Joint tenants, parceners, and tenants in common may lease their 
 undivided shares, jointly or severally. (c) And where one leases, the 
 lessee has the same rights in relation to the others, which the lessor 
 before had. So one may lease to another — this being a mere contract, 
 by which the latter shall take the whole instead of half the profits.(5) 
 
 53. If two tenants in common lease the land, and one of them die, 
 the other cannot maintain an action alone, for rent accruing after the 
 death of the former.(6) 
 
 54. If there be two parceners, owners of three acres of equal value, 
 and one of them lease his interest, and upon partition only one acre be 
 assigned to the lessor ; the lessee may still have an additional half 
 acre. But if two parceners own two acres, and one of them lease one 
 .acre, and upon partition the other is assigned to him, the lease becomes 
 v_oid.(7) 
 
 54 a. Where there are several trustees, a part of them cannot exclude 
 the others from possession; and a lease given by a part, although a 
 majority, can give the lessees no better right to possession than the mi- 
 nority have. (8) 
 
 54 h. One of three trustees has no authority to put an end to a lease of 
 the property of the charity. (9) 
 
 55. If an infant lease his lands, the lease, it seems, is not void, al- 
 though sometimes so held, but only voidable, whether with or without 
 
 (1) Welles 1). Cowles, 4 Conn. 182. 
 
 (2) May v. Calder, 2 Mass. 55 ; Foster v. 
 Gorton, 5 Pick. 185; Dut. Dig. 23; Bacon v. 
 Taylor, Kirby, 368 ; Kline v. Beebe, 6 Conn. 
 494; Misso. St. 293. 
 
 (3) 4 Cruise, 62. 
 
 (4) 4 Dane, 135; Tayl. L. & T. 53; Shep. 
 Touch. 269. 
 
 (5) lb. 2 Ohio, 293; Keay v. Goodwin, 
 16 Mass. 4. 
 
 (6) Burne v. Cambridge, 1 M. & Rob. 539 ; 
 Jurist, (Jan. 1818,) 413. 
 
 (7) Co. Lit. 46 a, and n. 5. 
 
 (8) Cox V. Walker, 26 Maine, 504. 
 
 (9) Kingsley v. School Directors, &c., 2 
 Barr, 28. 
 
 (a) It ia said in this case that a guardian has an authority only, not coupled with an in- 
 terest. 
 
 (6) In Missouri, he may lease for a term not exceeding three years; St. 1843, 3, 4. In 
 Alabama, at auction, (Clay, 199.) 
 
 (c) Where several persons become bound for the payment of rent. In contemplation of 
 law the lease is to all, where there is nothing in the body of the instrument to negative 
 that conclusion. Magee v. Fisher, 8 Ala. 320. 
 
 Under a joint lease to two tenants, the occupation of one is su£6oient to make both liable 
 for the rent. Kendall v. Garland, 5 Cush. "74. 
 
206 LEASE. [CHAP. XV. 
 
 rent ; inasmucli as the infant cannot plead to an action upon it " non 
 est factum," hnt must plead his infancy specially. If such_ rent is re- 
 served as to make the lease a beneficial one, it is prima facie binding; 
 but may be avoided by the infant when he comes of age, or by his heir, 
 if he die in minority. If an infant make a lease, and after coming of 
 age mortgage to the lessee, the mortgage referring to the lease, this is 
 a confirmation of the latter. So, if an infant receive rents, he cannot 
 demand them again when of age.(l)(n) 
 
 56. A lease may become void, or be forfeited, by various causes. In 
 some points of view, this subject will be considered hereafter.(6) So 
 far as this consequence follows from some act or neglect of the lessee, 
 it is said to be doubtful, whether a lease can be forfeited by a mere 
 neglect of the lessee to perform his contract. A sub-lessee certainly 
 cannot allege such forfeiture, until it has been claimed by the party in- 
 terested. (2) 
 
 57. Where a lease made by any particular tenant is merely voidable, 
 if, after his death, the heir, reversioner or remainder-man accept or sue 
 for rent from the lessee, or do any other act recognizing the existence 
 of the lease ; this operates as a confirmation of it. But if it were void, 
 there can be no confirmation.(3) In order to have the effect above re- 
 ferred to, the act of the party entitled must be done with a knowledge 
 of his title at the time ; or he must have lain by, and suffered the ten- 
 ant to make improvements.(4) 
 
 58. Both these principles are illustrated in the case of a lease by 
 tenant in tail, not conformable to St. 32 Hen. 8. If the issue receive or 
 sue for the rent, or sue for waste, this is a confirmation. But as to the 
 reversioner orlremainder-man, the lease is void, and no act of his will make 
 it good. 
 
 59. A lease by husband and wife, not conformable to the statute, is 
 voidable merely, and may therefore be confirmed by the wife, after the 
 husband's death. Whether a lease by the husband alone is absolutely 
 void, seems an unsettled point.(5) 
 
 60. All leases made by tenants for life, (unless by virtue of apoioer,) 
 becom3 absolutely void by their death. Thus, where such lease was 
 
 (1) Bac. Abr. Lease B. ; Co. Lit. 45 b, n. 
 1; Zoucli V Parsons, 3 Burr. 1806; Stody «;, 
 Johnson, 2 T. & Coll. 586; Parker v. Elder, 
 11 Humph. 546. 
 
 (2) Todd V. Hal!, 10 Conn. 559-60. 
 
 (3) Noy's Max. 88. 
 
 (4) Jenkins v. Church, Cowp. 482. 
 
 (5) Doe V. Weller, 7 T. R. 478 ; Bao. Abr. 
 Leasee. ; "Wotton t). Hele, 2 Saun. 180, u, 
 9 ; Doe v. Butclier, Doug. 52. . 
 
 (a) In England, the subject of leases by ecclesiastical persons. Is an important one, and 
 has been regulated by enabling and restraining statutes, the construction of which has given 
 rise to many nice questions. In the United States, these 3ots are not in force, and the sub- 
 ject itself is of little importance. I have met with no statutory provisions relating to it. 
 In Vermont, (1 Ver. L. 234,) lands appropriated or granted for the use of the ministry or 
 " social worship of God," may be leased by the selectmen of the town where they lie. In 
 the same State, glehe rights, granted by the Crown to the Church of England, are declared 
 to be public reservations, and to have vested in the State ; and they are granted to the 
 towns where they are located, with power to the selectmen to lease them, the rent to be 
 applied in aid of schools. See Pawlet v. Clark, 9 Cranoh, 292; Cheever v. Pearson, 16 Pick. 
 273 ; Verm. Rev, St. 403. A lease of a benefice, by which it is provided that certain 
 tithes shall be collected by the lessee, and appropriated to the payment of the debts of 
 the rector of the parish, is void under the 13 Eliz. c. 20. Walthew v. Crofts, 4 Eng. L. & 
 Eq. 604. 
 
 (6) See Sent Condition. 
 
CHAP. XV.] 
 
 LEASE. 
 
 207 
 
 made for twenty-one years, and the remainder- man, after the death of 
 tenant for life, allowed the lessee to occupy four or five years, and re- 
 gularly received rent from him ; held, he might still, after notice to 
 quit, maintain ejectment. 
 
 61. So where the remainder-man, after the death of tenant for life, 
 sold the land at auction, and both in the conditions of sale and the 
 deed to the purchaser the lease was mentioned, and excepted from the 
 covenant against incumbrances ; and the purchaser made a mortgage, 
 in which the same notice was taken of the lease, and the mortgagee 
 received rent from the tenant : still the lease was held void.(l) 
 
 62. Nor will the circumstance of the tenant's laying out money upon 
 the land operate at law as a confirmation, where there seems to have 
 been no intention to confirm the old, or grant a new lease ; but both 
 parties acted under the mistaken belief, that the original lease was 
 good. (2) 
 
 68. But where a remainder-man receives rent, and allows improve- 
 ments to be made, knowing the defect in the lease, Chancery will com- 
 pel him to execute a new lease. 
 
 64. A tenant for life leased under a power, but not conformably to 
 it. After his death, an assignee of the lessee erected buildings, and 
 the remainder-man received rent for six years. The latter then brings 
 ejectment, and recovers the premises; and the tenant prays, in equity, for 
 an injunction against proceedings at law, and that he may be quieted. 
 The defendant, in his answer, did not deny notice. Held, he should 
 execute a new lease. (3) 
 
 65. In New York, a lease is avoided by conviction of the tenant of 
 using the premises for a bawdy-house.(4) 
 
 66. Where a lease contains the proviso, that if the rent shall not be 
 paid at a certain time, the lease shall be void, and the rent is not paid 
 at that time; a subsequent acceptance of rent will not operate as a 
 waiver of the lessor's right to avoid the lease, or as a confirmation 
 thereof Thus, where the condition was, that upon non-payment 
 within forty-days, the lease should be void ; and the rent was not thus 
 paid, but afterwards the lessor accepted it, and made an acquittance as 
 if it had been paid at the day, and afterwards for several years con- 
 tinued to receive the rent ; held, the above proviso was a limitation to 
 determine, not merely a condition to undo, the estate ; that, upon non- 
 payment, the land became discharged of the contract ; the tenant held 
 neither at will nor at sufferance ; and the lessor might re-grant the land. (5) 
 But if there be a proviso in a lease, that upon alienation the lessor may 
 re-enter; acceptance of rent after breach of condition will be a waiver, 
 if the lessor had knowledge of such breach ; more especially where 
 such rent has subsequently accrued. (6) (See infra, c. 16.) 
 
 67. So it has been held in New Hampshire, that where a lessor re- 
 enters for non-payment of rent under a condition for re-entry, accept- 
 
 (1) Doe V. Archer, 1 Bos. & P. 631. 
 
 (2) Doe V. Butcher, Doug. 50. 
 
 (3) Stiles «; Cowper. 3 Atk. 692. 
 
 (4) 2 N. Y. B. S. 702. 
 
 (5) Finch V. Throckmorton, Cro. Eliz. 221. 
 Poph. 53. In this case, however, Queen 
 Elizabeth was the lessor, and the non-pay- 
 ment of rent was found by office before the 
 
 second grantee entered. Co. Lit. 215 a, k 
 n. 117; Symson v. Butcher, Doug. 51; 
 Gwynn v. Jones, 2 Gill & J. 183. 
 
 (6) Pennant's cape, 3 Rep. 64 ; Roe v Har- 
 rison, 2 T. R. 425 ; Goodright v. Davids, 
 Oowp. 803; Clialkerii. Clialker, 1 Conn. 79; 
 Jackaou v. Brownson, 7 John. 234. 
 
208 
 
 LEASE, 
 
 [CHAP. XV. 
 
 ance of the instalment due, as well after entry as before, is a waiver of 
 breach, and the tenant is not a trespasser for entering and gathering 
 vegetalDles on the land.(l)(a) 
 
 68. A lessee covenants to plant a certain number of trees, and 
 always to keep that number on the land. After the breach, the lessor 
 receives rent. He may still re-enter for any subsequent breach.(2) _ 
 
 69. In some cases, a lease, though avoided in part by a party having 
 a right so to do, will afterwards revive. Thus, where a widow avoids 
 a lease made by the husband during marriage, it shall be in force again 
 after her death. (3) 
 
 70. The law presumes a lease to be beneficial to the lessee. (See 
 ante, 27.) Hence, idiots, infants and married women may be the les- 
 sees. They may disclaim, upon the removal of their disabilities ; but a 
 subsequent occupancy will give validity to the lease.(4) 
 
 71. A lease usually contains covenants, both on the part of the lessor 
 and the lessee. If the lessor alone signs the lease, he cannot maintain 
 an action of covenant. But the assignee of a lease has been held to 
 be bound in equity by the covenants, though he did not sign any 
 instrument.(&) 
 
 71 a. Where it is agreed that a lease shall contain the iLsual covenants, 
 the question " what are usual covenants" depends upon circumstances, 
 such as the usage of the place and the nature of the property ; but is 
 always for the jury. (5) 
 
 71 b. Thus a lessor cannot, as matter of right, demand a covenant 
 from the lessee not to assign or underlet without license ; or not to 
 carry on a particular trade on the premises; or to keep them insured 
 or pay taxes; nor will he be bound to covenant that he will rebuild in 
 case of fire, with a stipulation that the rent shall cease on his failure to 
 do so. But a covenant for the lessee's quiet enjoyment, without inter- 
 ruption from the lessor or those claiming under him, is said to be 
 usual.{&) 
 
 71c. Equity will restrict a lessee to the specific performance of his co- 
 venants. So, where a lease contained a clause, restricting the use of the 
 premises to " the regular dry goods jobbing business," and the lessee 
 commenced selling goods at auction therein ; held, although there was 
 no damage or irreparable injury dongto the lessor, nor any nuisance at 
 law, yet it/was a breach of covenant, and the lessor could restrain the 
 tenant by injunction. (7) 
 
 lid. With regard to covenants affecting the title to the demised pre- 
 mises, it has been held, that no inlplied covenant against eviction arises 
 •from the mere relation of landlord and tenant.(8) So in New Hamp- 
 
 (1) Coon 1). Brickett, 2 N. H. 163. 
 
 (2) Bleecker v. Smith, 13 Weud. 530. 
 
 (3) Co. Lit. 46 a. 
 
 (4) 4 Cruise, 67. 
 
 (5) Bennet v. Womack, Y B. & C. 62T. 
 
 (6) Church v. Brown, 15 Tes. 258; Yan 
 V. Corp, 3 My. & K. 269, 280, 282 ; Bennet 
 V. Womack, 7 B. & 0. 627 ; Doe v. Sandham, 
 
 1 T. R. 705 ; Tayl. L. & T. 27. See Page v. 
 Broom, 3 Beav. 36. 
 
 (7) Steward v. "Winters, 4 Sandf, Ch. 587. 
 
 (8) Jackson v. Cobbin, 8 Mees. & W. 790 ; 
 Granger v. Collins, 6 Mees. & W. 458. See 6 
 Scott, 447 ; Piston v. Cater, 9 Mees. & W. 
 316; Walker v. Hatton, 10, 249. 
 
 (a) " It is unjust, that a lessor should receive toth the penalty and the rent ; accept per- 
 formance of the condition, and retain the forfeiture for non-performance." 2 N. H. 164. 
 
 (6) See Trustees, &c. v. Spencer, 7 Ohio, 149; "Wilson v. Leonard, 3 Beav. 373 ; Duftteld 
 v.Whitlock, 26 "Wend. 55 ; Gardner v. Kelteltas, 3 Hill, 330. 
 
CHAP. XV.] 
 
 LEASE. 
 
 209 
 
 stire, it has been held, that the words " let and lease" do not make a 
 covenant in law, or implied covenant.(l) But the word demise implies 
 a covenant of the right to lease and for^quiet enjoyment.(2)(a) So, in 
 Ohio, the words " have rented."(ci) 
 
 71 e. A covenant, that the lessee shall quietly enjoy the premises "free 
 from all eviction, interrifption, or molestation from or by any person," 
 is not broken by a forcible disturbance and injury committed by a mob, 
 against the will of the covenantor, although the mob were exasperated 
 by some of his previous acts.(4)(6) 
 
 71/ The words, "doth agree that the lessee shall hold and occupy" 
 during the term, amount to a general covenant for quiet enjoyment, 
 but it does not apply to disturbances made by virtue of subsequently 
 acquired rights. As, for instance, the subsequent location of a town- 
 way over the land ; the establishment of whicb, at the time of making 
 the lease, was a mere naked possibility ; and for which, moreover, the 
 lessee, as owner, has a perfect constitutional remedy against the public, 
 to the extent of the damage sustained by him. Upon these grounds, 
 the case is held to be in principle like a tortious eviction. (5)(c) 
 
 71 g. So, where the lessor covenants against all claiming under him, 
 it is no breach, that the tax collector enters and seizes goods for arrears 
 due even piior to the lease. (6) 
 
 71 h. But where a landlord covenanted to repair all external parts of 
 the premises leased, and the corporation, by virtue of an act subse- 
 quently passed, took down an adjoining tenement, leaving the partition 
 and wall without support, which thereby gave way ; luild, an action 
 would lie upon the covenant, notwithstanding a provision in the statute 
 for compensation. He was bound immediately to make the necessary 
 repairs.(7) 
 
 71 i. For breach of th6 covenant for quiet enjoyment, the damages 
 consist of the costs incurred by the lessee, in defending against the suit 
 of an adverse claimant, with the rent paid the lessor since eviction, for a 
 period not exceeding six years.(8) 
 
 (1) Loveringu. Lovering, 13 N. H. 513. 
 (•2) Cranchi). Fowle, 9 N. H. 219. 
 
 (3) Toung V. Hargrave, T Ohio, 63. 
 
 (4) Surget v. Ariglii, 11 S. & M. 87. 
 
 (5) Ellis V. Welch, G Mass. 246 ; see Wilson 
 V. Anderson, 1 Carr. & K. 544; Frost o. 
 Earnest, 4 Whart. 86 ; Wainwright v. Rams- 
 den, 1 Nicholl, &c., 714; Patterson «. Boston, 
 
 23 Pick 425 ; Lister v. Zobley, 7 Ad. & Ell. 
 124; Queen v. London, &o., ib. 717. 
 
 (6) Stanley v. Hays, 3 Ad. & Ell. (N. S.) 
 105. 
 
 (7) Green v. Bales, 2 Ad. & Bll. (N. S.) 
 225. 
 
 (8) Kelly v. Dutch, &e., 2 Hill, 105. See 
 Dexter v. Manley, 4 Gush. 14 ; Smith v. 
 Howell, 6 Bng. L. & Equ. 490. 
 
 (a) Otherwise where there is an express covenant for quiet enjoyment. Line v. Stephen- 
 son, 4 Bing. II. 678 ; Cranch v. Fowle, 9 N. H. 219. 
 
 (6) So, in ease of a written unsealed agreement between A & B, that B shall have the sole 
 and uninterrupted use and occupation of A's land; if at the commencement of the term 0, 
 a former tenant, but whose term has expired, is in possession ; A is not liable for breach, 
 of his contract. Gardner t). Keteltas, 3 Hill, 330. 
 
 (c) For the reason stated in the text, the taking of part of a leased lot by the government 
 of a city, to widen the street, does not annul the lease, or discharge the liability for rent 
 during the term. Parks v. Jioston, 15 Pick. 198 ; Wainwright v. Ramsden, 5 Mees. & W. 
 602. 
 
 A covenant to pay assessments, in a lease of land in the city of New York, executed in 
 1799, was held to extend to assessments imposed for opening streets pursuant to statutes 
 passed subsequently, and imposing them in a mode unknown to the laws existing when the 
 lease was executed. Kearney v. Post, 1 Sandf. 105. 
 
 Vol. I. 14 
 
210 
 
 LEASE. 
 
 [CHAP. XV. 
 
 72. A lease often contains covenants on the part of the lessor or 
 lessee, to put or keep the premises in repair. {a) 
 
 72 a. In an action of covenant, by a lessor against two lessees, for 
 rent due upon a lease, containing a covenant on the part of the lessor 
 to repair, the plaintiff need not prove that the premises were put iu 
 repair before possession was taken, nor that both defendants went into 
 possession, the taking possession by one being in law a possession by 
 both, and a waiver of the condition to repair, and the fact that the 
 premises were out of repair being a matter of defence, to be proved by 
 the defendants.(l) 
 
 72 h. In an action against a tenant upon his covenant to repair, the 
 breach alleged was, that he suffered and permiited the premises to be 
 out of repair; but the proof, that windows were voluntarily removed. 
 Held, a variance. (2) 
 
 72 c. A covenant by the landlord' to ^a^/ all repairs does not'bind 
 him to make them.((^) 
 
 72 d. Where a tenant himself agrees to make certain repairs, anJ 
 others become necessary in order to make the premises habitable, he 
 cannot leave because the landlord fails to make them. (4) 
 
 . 72 e. The mere removal and sale by a tenant, during the term, of 
 fixtures, which he does not immediately replace, but which can be re- 
 placed before the end of the term, is not in itself a breach of his cove- 
 nant to repair and uphold the demised premises, and to deliver up the 
 same at the end of the term, together with all things affixed thereto, 
 though such ipmoval may be made in such a way as to amount to non- 
 repair.(5) 
 
 (1) Harger u Edmonds, 4 Barb. 256. 
 
 (2) Edge v. PembertOD, 12 Mees. & W. 
 187. 
 
 (3) Loomis v. Eeetler, 9 Watts, 616. 
 
 (4) Arden v. Pullen, 10 M. & "W. 321. 
 
 (5) Burrell v. Davis, 3 Bni.'. Law & Equ. 
 403. 
 
 (a) As to the question, whether a landlord impliedly undertalces that tiie premises shall 
 be tenantable, see Smith v. Marrable, 1 0. & Mar. 479 ; 11 Mees. & W. 5 ; a case where the 
 house was infested with bugs, and it was held that the tenant might quit for that cause; 
 and a similar later ease, (Harti). Windsor, 12 Mees. & W. 68,) where the same nuisance 
 existed, but the tenant had agreed to keep in repair, and a garden was let with the house. 
 In this case the tenant quit before any rent was due, and without having had any beneficial 
 occupation. Held, (overruling prior cases,) that the facts furnished no defence to a suit for 
 the rent. 
 
 So where a wharf was leased, and, before entry of the tenant, a large portion of it was 
 destroyed by natural decay, of which the lessee gave notice to the 'landlord, requesting him 
 to repair; but he neglected to do it, and the lessee then refused to enter or pay rent; held, 
 he was still liable for tiie rent. Hill v. Woodman, 2 Shepl. 38. See Hinde v. Gray, 1 Man. & 
 G. 195 ; Cleves v. WHlonghby, 7 Hill, 83. 
 
 Where a lease is iu writing, parol evidence cannot be given that the landlord, at the time 
 of executing it, promised to repair. Cloves v. Willoughby, 7 Hill, 83 ; Citv, Ac. v. Price. 3 
 Post. N. H. 542. 
 
 Where there Is no agreement on the part of the lessor to repair, the lessee cannot, when 
 sued for the stipulated rent, set up tho want of repairs, either as a defence or in reduction 
 of the claim. Hoffatt v. Smith, 4 Comst. 126. 
 
 So it is held, that tenants have no right to charge their landlords for repairs, unless by 
 express contract; and this rule applies, a fortiori, where the tenant knew tliat the premises 
 were out of repair, and covenanted to return them in the order in which they were received. 
 City Council v. Moorhead, 2 Eich. 430. 
 
 But a tenant making new repairs and erections on the farm, under a promise to give the 
 farm to tlie tenant and his wife, (the daughter of the landl6rd,) may recover the value of 
 such repairs and erections, if the landlord devise the farm to another. Cornell v, Vanarts- 
 daleu, 4 Barr, 364. 
 
CHAP. XV.3 
 
 tBASS. 
 
 211 
 
 72/ It has been'held, that, in assumpsit for rent, the tenant may- 
 avail himself of a breach of the landlord's agreement to repair, by way 
 of recoupment, though not as a set-off.(l) 
 
 72 g. So, in replevin, after a distress for rent, although it seems that 
 the defendant may avail himself of a breach of the landlord's agree- 
 ment to repair, by way of recoupment, yet he cannot by way of set-off, 
 nor under a plea of eviction, nor can the recoupment be pleaded in 
 bar.(2) 
 
 72 A, So, it has been held that damages occasioned to a tenant by 
 great, unnecessary and tortious negligence, and delay of the landlord's 
 servants in making repairs during the term, and by the unworkmanlike 
 manner of doing the work, cannot be set up as matter of recoupment in 
 an action for the rent.(3) 
 
 72 i. Where a lessor agreed to put the barns on the premises in re- 
 pair, but neglected to do so ; held, the damages of the lessee, which he 
 was entitled to recoup in a suit for rent, were the amount it would cost 
 to put the barns in repair, and not the detriment which he suffered by 
 their remaining out of repair during the term. (4) 
 
 72y. In an action of covenant for rent, the defendant cannot recoup 
 for damages arising from violation of a covenant by the plaintiff since 
 the commencement of suit,(5) even though they exceed the amount of 
 rent.(6)(a) 
 
 72 k. If a lessee covenant to repair, he is bound upon his covenant, 
 although the premises are burned down without his fault ; nor can he 
 legally quit, though the premises become untenantable. So, where he 
 covenants to keep in repair, " saving and excepting the natural decay 
 of the same," and to surrender up at the end of the term in as good 
 condition, &c., reasonable use and wearing thereof excepted. (7)(6) 
 
 (1) Whitbeck v. Skinner, 1 Hill, 53. 
 
 (2) Nichols «. Dusenbury, 2 Comst. 283. 
 
 (3) Cram ii. Dresser, '2 Sandf. 120. 
 
 (4) Dorwlu V. Potter, 5 Denio, 306. 
 
 (5) Hargen v. Edwards, 4 Barb. 250. 
 
 (6) M'CuUouglu;. Cox, 6 Barb. 386; Ken- 
 dall V. Moore, 30 Maine, 327. 
 
 (7) Bullock V. Dommitt, 2 Cliit. K. B. 
 608; Pliillips V. Stevens, 16 Mass. 238; 
 Arden v. Fallen, 10 Mees. & W. 321. See 
 Belchers. M'Intosh, 8 Carr. & P. 720; Doe 
 V. Rowlands, 9, 734. 
 
 (a) With regard to the respective liabilities of landlord and tenant to third persons, for 
 neglect to repair, it has been held, that the tenant is liable for an injury resulting from the 
 ■want of repair of the grate over a vault, under the highway, in front of his premises ; and 
 the landlord is not liable, if the premises were let iu good repair, and he was not bound by 
 the lease to keep them in repair Bears v. Ambler, 9 Barr, 193. 
 
 "Where a town was compelled to pay damages for an injury resulting from a defect in a 
 highwayj occasioned by the want of repair of a cellar-way constructed in the sidewalk, and 
 leading to a building adjoining thereto, which was in the occupation of a tenant; held, 
 tlie occupant and not the owner was liable to the town for such damages. But if, in such 
 case, there were an express agreement between the landlord and tenant, that the formei' 
 should keep the premises in repair, then, to avoid circuity of action, the landlord would be 
 liable in the first instance. Lowell v. Spaulding, 4 Gush. 277. 
 
 A tenant for years in the occupation of the premises, and not the landlord, is liable (ot 
 the penalty incurred by a violation of the ordinance of the city of New York against any 
 persons suffering any sink, &o., to run upon or within three feet of any wharf, &c. City, (fee. u 
 Corlies, 2 Sandf 301. 
 
 (6) A covenant to lea-ve all buildings now on the land binds a lessee to repair, in case of 
 fire. Pasteur «. Jones, Cam. & Nor. 194. But where a lease contains a covenant, to deliver 
 up the premises at the end of the term in as good order and condition as at the date of the 
 lease, ordinary wear and tear excepted, but not to repair or rebuild, and the buildings are 
 destroyed by fire ; the lessee is not bound to rebuild. Warner v. Hitohina, B Barb. 666. 
 
212 LEASE. [CHAP. XT. 
 
 73. If a penalty is annexed to the covenant to repair, inevitable ac- 
 cident will excuse from the forme)-, though not from the latter. As 
 where one covenanted to sustain and repair the banks of a river, under 
 pain of forfeiture of £10. The banks being suddenly destroyed by a 
 great flood, held, the party was bound lo repair, but not subject to the 
 penalty .(1) It is to be observed, however, that this was a case of loss 
 by act of God. 
 
 74. In New Jersey, by statute, no action lies against any person, on 
 the ground that a lire began in a house or room occupied by him. 
 But this provision does not impair the effect of any covenant. In Mis- 
 souri, if a building is burned or injured without fault of the tenant, his 
 servants, agents or family, he is not responsible, unless the lease so pro- 
 vides ; and a covenant to repair will not require a tenant to rebuild. (2) 
 
 74 a. Sometimes the lessor and lessee covenant respectively to pay 
 different charges connected with the estate. Thus, a lessor agreed to 
 pay all taxes,(a) and the lessee all other costs, expenses, &c., and it 
 was further agreed that the lessee might make any additions and 
 repairs not injurious to the estate. The city having assessed the lessor 
 for paving the footway in front of the estate, under the Massachusetts 
 statute of 1795, c. 31, s. 2, and he having paid the same, held, he could 
 not recover it Irom the lessee under the covenants.(3) 
 
 75. If a lessee covenant with several lessors jointly, that he will pay 
 to each lessor severally a specified proportion of the rent, the interest 
 of each lessor will be several, and each may maintain a separate action 
 for his part of the rLnt.(4) 
 
 76. A Ifssor of a steam mill covenanted to furnish so much power 
 every day in the year, and that the rent should cease during any failure 
 to do so. Held, the suspension of the rent was not a liquidation of 
 damages for such failure. (5) 
 
 77. A covenant in a lease to pp«y rent during the term, and for such 
 
 (1) 1 Dyer, 33 a. i (4) Gray v. Johnson, 14 N. H. 414. 
 
 (2) 1 N. J. St. 210 ; Miaso. St. 1840-1, 26. (5) Fisher v. Barrett, 4 Cush. 381. 
 
 (3) Torrep v. Walhs, 3 Cush. 442. | 
 
 But where fixtures aitaelied l>y the lessee are severed by the fire, and are carried away by 
 the lessee, the lessor may recover tlieir value in an action on the lease. lb. In Pennsyl- 
 vania, seizure and eviction by public enemies is a defence to the obligation of giving up the 
 premises in repair. Pollard v. Sbouffer, 1 Dall. 210. A covenant to repair binds the tenant 
 only to suffer no further dilapidation than results Irom natural causes. If the house is old, 
 he is merely required to keep it up as such. Harris J). Jones, 1 Moo. & R. 173. Not to give 
 the landlord a new house. Yoa\\\iV. Morton, ti Scott, 227; Stanley v. Tuesgood, 3 Bing. 
 N. C. 4. In general, a tenant, in neglecting -to repair, is guilty oi permissive waste. But a 
 tenant from year to xjear is only bound to make ordinary tenantable repairs, which will 
 keep the Imuse wind and water tight, and to replace what he breaks or injures. But, if the 
 hodse is substantially out or repair or untenantable, it is said the tenant is not bound to 
 repair, but may quit without paymg rent. 4 Kent, 110 and n.; Pindar i;. Ainsley, 1 T. R. 
 312; Muraford v Eiown, 6 Cow. 475; Edwards v. Hetherington, 7 T. R. 117; Collins j;. 
 Barrow, 1 iloo. & R. 112; Longu Fitzsimmons, 1 W.&S. 532; Belcher «. Mcintosh, 2 Carr. 
 & K. 186. See Aldis v. Masun, 6 Eng. L & Equ. 391 ; Beach v. Crain, 2 Comst. 66. 
 
 Upon covei ait to deliver up the premises at the end of the term in as good order, ka., 
 as they then are, or may be put into by the lessor, the lessee is bound to make the repairs 
 necessary lor tins purpose. Jaques v. Gould, 4 Cush. 384. 
 
 (a) A lessor ol land, the taxes upon which are assessed against his lessees, is liable to a 
 vendee, who pays the taxes under levy for the amount so paid, in the absence of any con- 
 tract between the lessor and lessees, by which the latter were bound to pay them. Cald- 
 -well V. Moore, 1 Jon«», 58. 
 
CHAP. XV.] LEASE. 213 
 
 further time as the lessee shall occupy, binds him to pay rent accruing 
 after the expiration of the time stipulated ; and a surety for the lessee 
 incurs the same ]iability.(a) Thus, a lease was made lor one year, the 
 lessee paying a certain rent per annum, and at the same rate for any 
 shorter period. The lessee covenants to pay said rent in quarterly 
 payments, and to pay the rent as above stated, and all taxes and duties 
 levied and to be levied thereon, during the term, and for such further 
 time as' he shall occupy. On the back of the lease, the defendant 
 guarantied performance of the within covenants, and the lessee by 
 another writing agreed to quit on reasonable notice, if the lessor should 
 wish to sell or pull down the house. Held, the covenants bound both 
 the defendant and the lessee, so long as the latter occupied, even beyond 
 the year ; and that the defendant was liable for several quarters' rent, 
 although not notified at the end of each quarter, having suffered no 
 damage from the want of such notice.(l) 
 
 78. In this connection may properly be considered the subject of the 
 renewal of leases. It is said, in case of church leases, or those made 
 by trustees of charities, which are usually renewable for a fine or in- 
 creased rent, although the lessors are not legally bound to renew, yet 
 the tenant has in equity a transferable interest in this privilege.(2) A 
 landlord is not bound to renew the lease without an express covenant 
 to do it. And covenants for continual renewal are not favored, for they 
 tend to create a perpetuity, and have been said to be equivalent to an 
 alienation of the inheritance. Hence, in the case of trustees of a charity, 
 they have been held invalid in Chancery. But, if explicit, the weight 
 of authority is in favor of their validity. Covenants of renewal run 
 with the land, and bind a grantee of the reversion. A covenant to 
 renew implies the same term and rent, and perhaps the same condi- 
 tions. But a covenant to renew, upon such terms as may be agreed on, 
 is void for uncertainty. An agreement made while the tenant is in 
 possession, for a subsequent increased rent, does not constitute, a new 
 tenancy.(3)(Z') * 
 
 (1) Salisbury v. Hale, 12 Pick. 416. I Simpson v. Clayton, 4 Bing. N. 158 ; Simp- 
 
 (2) Phyle v. Wardell, 5 Paige, 268. son v. Clayton, 6 Scott, 469 ; Harney v. Har- 
 
 (3) 4 Kent, 108; Geeckie v. Monk, 1 Carr. ney, 5 Beav. 134; Richards tJ. Richards, 2 Y. 
 & K. 307 ; Rutgers v. Hunter, 6 John. Cha. & Coll. Cha. 419. /See Cottee v. Richardson, 
 215; Whitlock t. Duffield, 1 Hoffm. 110; I 8 Eng. L. & Equ. 498. 
 
 (a) A tenant holding over is bound by all covenants applicable to his new situation. 
 De Young v. Buchanan, 10 Gill k J. 149. And in case of a lease '.vhich is void, the law 
 implies a Similar parol contract as to the rent. Anderson v. Critcher, 11. 450. So where 
 the assignee of a void lease holds through the term, paying the rent reserved ; assumpsit 
 lies against him upon an implied promise to repair, conformably to the covenants. Beale 
 V. Sanders, 5 Scott, 58. 
 
 But a tenant holding over does not of course hold on the same terms as before. Elgar v. 
 Watson, 1 C. & Mar. 494. In case of lease to A and B, if A holds over with B's consent; 
 both are liable Tor the rent. Whether, if without sach consent, qu. Christy v. Tanered, 9 
 Mees. & W. 438. 
 
 (6) The renewal of a lease, with an agreement for performance of certain work stipulated 
 for in the former lease, is not a waiver of damages for non-compliance with the former lease. 
 Walker v. Seymour, 13 Mis. 592. A covenant to renew a lease at a certain rent docs not 
 carry with it any of the covenants in the old lease. Willis v. Astor, 4 Edw. Ch. 594. 
 
 Demise by A to B, for 55 years, in consideration of £530, subject to a yearly rent of 
 £84. covenant to repair, &c. The consideration being unpaid, B assigned to A, by way of 
 mortgage, the whole of the residue of the terra, subject to the rent and covenants, and with 
 a power of sale. Notice of sale having been given by A, pursuant to the power, in con- 
 
214 
 
 iEASK 
 
 [CHAP. XT. 
 
 79. In Ohio,(l) it is said, perpetual leases, renewable forever, are very 
 common, but are mere chattels. But, by a late statute, they are invested 
 with all the incidents of estates in fee, in respect to descent, distribution, 
 and sales upon legal process. But in Pennsylvania, where a lease was 
 made for twelve months, and so from year to year, at the pleasure of 
 both parties, with a covenant by the lessee not to assign without per- 
 mission under seal, and a proviso that the lessor should reimburse 
 money laid out in improvements ; held, this passed no freehold.(2) 
 It would be otherwise, it seems, where, upon a long lease, the landlord 
 covenants to pay for improvements, or, if not, to convey in fee.(3) 
 
 80. Where a lease is made to a person, his heirs and assigns, to con- 
 tinue while he pays the rent, and he covenants for himself and his 
 heirs ; on failure to perform the covenants, the lessor may treat the 
 lease as forfeited, but not the lessee.(4) 
 
 81. How far a tenant himself may cause the implied renewal of a 
 lease, by holding over after his term, will be more particularly con- 
 sidered hereafter.(a) In Connecticut it is held, that if a lessee for one 
 year hold over, this is a renewal of the lease, (of course at the option 
 of the lessor) for the same term. The same consequence follows where 
 a sub-tenant occupies ; or, having occupied, abandons the posses- 
 sion. (5) 
 
 81 a. "Where a lease for ten years contained a covenant of renewal for 
 ten years, if the parties could agree upon the rent, and the lessor coven- 
 anted, in ease they did not so agree, to pay for improvements which 
 the lessee should place upon the premises ; and the lessee covenanted in 
 the like case, that at the end of the term, " upon the lessor's paying for 
 the improvements as aforesaid," he would peaceably surrender posses- 
 sion to the lessor and his assigns ; held, the lessor's right to demand 
 possession at the expiration of the term was not qualified by the obli- 
 gation to pay for the improvements, and therefore, that his assignee, 
 (there being no renewal of the lease,) could recover in ejectment, al- 
 
 (1) Walk. Tntro. 21S ; Swan's Dig. 289. 
 See Loring v. Melendy, 1 1 Ohio, 355. 
 
 (2) Krauae, 2 Wliart. 398. 
 
 (3) Eli V. Beaumont, 5 S. & R. 124. 
 
 (4) Polts V. Huntley, T Wend. 210. 
 
 (5) Bacon v. Brown, 9 Conn. 338. 
 also, Doprill v. Stephens, 4 M'Cord, 59. 
 
 See^ 
 
 sideration of £500, he by deed " bargained, sold, assigned, transferred and set over " to the 
 defendant, the premises described in the lease, to hold for all the residue of the term, dis- 
 charged from the mortgage debt, but subject to the payment of the yearly rent and ,to the 
 covenants in the lease ; and the defendant covenanted to pay the rent and perform the cove- 
 nants. The defendant then entered. Held, although the term was merged by the mort- 
 gage, the effect of the conveyance was to create a new term of the same duration as the 
 unexpired part of the old term, and that the defendant was liable upon the covenants to 
 pay the rent, and to perform the repairs. Cottee v. Richardson, 8 Eng. L. & Equ. 498. 
 
 Where trustees leased a part of the estate, with a covenant to renew the lease, or to pay 
 for certain erections, which the lessee covenanted to make, on th-e termination of the lease ; 
 held, on refusal of the trustees to renew, the trust estate was liable to pay for the erections. 
 Robinson v. Kettletap, 4 Bdw. Ch. 67. 
 
 In Delaware, (Rev. Sts,) a lease is considered as renewed, unless three months' notice be 
 given before its termination. 
 
 On a lease at an annual rent of $550, was indorsed an extension of the term at a rent of 
 $600, and, during the extended term, another indorsement was made, providing that the 
 "within lease" be "extended the further period of one year without alteration." Held, 
 the terms " within lease " referred to the prior indorsement as well as the original lease, and 
 that a yearly rent of $600 was thereby reserved. Cram v. Dresser, 2 Sandf 120. 
 
 (a) See ch. 19. In Kentucky, if a tenant holds over, he is liable to the same rent. 
 Whittemore v. Moore, 9 Dana, 315. 
 
CHAP. XT.] LEASE. 215 
 
 though the improvements were not paid for ; and that the words, 
 " upon the lessor's paying, &c.," did not constitute a condition precedent 
 to the lessor's right to have possession, after the lease had expired.(l) 
 
 81 b. Where premises were leased to two partnei's for a year, with a 
 right of renewal, and before the year expired the partnership was dis- 
 solved, and one partner remained in possession, held over after the 
 expiration of the lease, and applied for a renewal, which was refused 
 by the landlord ; held, an action for possession might be maintained 
 by the landlord against the partner in^possession, without joining the 
 other.(2) 
 
 81 c. It was agreed, that the tenant should get the house at the price 
 herein stated, for one year after his present year expires, and is to have 
 the preference each succeeding year thereafter. Held, this did not 
 create a tenancy from year to year, entitling the tenant to a legal notice 
 to qmt.(3) 
 
 81 d. Where, simultaneously with the execution of a lease for years, 
 the landlord stipulates, that at the end of the term he will renew the 
 lease or pay for the buildings erected by the tenant, and at the end of 
 the term he tenders a renewal, which the tenant refuses to accept ; the 
 landlord may recover possession without paying for the buildings.(4) 
 
 81 e. An extension of a term, subject to the covenants in the original 
 lease, will apply such covenants to subjects within their scope existing 
 at the extension, although they were unknown when the term was 
 created. (5) 
 
 82. It is the general rule, that in any action between landlord and 
 tenant, the latter is precluded or estopped{a) by his lease or occupation, 
 from disputing the title of the former to the land, or setting up the ad- 
 verse title of another, acquired by him since the lease, either in plead- 
 ing or by evidence. The principle is said to be not a technical one, 
 but founded in good faith as well as public pohcy, and so firmly es- 
 tablished, that "you may as well attempt to move a mountain." As a 
 consequence, or perhaps more properly a part, of the same rale,aa third 
 person, having title to the land, paramount to that of the lessor, cannot 
 recover rent of the tenant, until he has actually entered, or made an 
 effectual claim under his title. An action for rent does not lie in favor 
 of a stranger for the purpose of trying his title, or by one of two liti- 
 gating parties claiming the land ; such action not depending on the 
 validity of the plaintiff's title, but on a contract between the parties, 
 express or implied. It is said, the only exception to this principle of 
 estoppel, is where it would work a fraud upon the lessor or the com- 
 monwealth. It applies not merely to a tenancy, strictly so called, but 
 to any occupation hy permission of another. So, it applies alike to an 
 action for rent, for recovery of the premises on the ground of forfeiture 
 or otherwise, or for mesne profits. So, though the lease be void, and 
 so appear upon the plaintiff's own evidence; as, for instance, where it 
 is executed by attorney, but not in the name of the principal. So also 
 
 (1) Tallman v. Coffin, 4 Comst. 134 
 
 (2) G-eheebe v. Stanley, 1 La. Ann. 17. 
 
 (3) Crawford v. Morris, 5 Gratt. 90. 
 
 (4) Pearce v. Golden, 8 Barb. 522. 
 
 (5) Kearney ii. Post, 1 Sandf. 105. 
 
 (a) An estoppel is a restraint or impediment, imposed by the policy of the law, to pre- 
 elade a parly /j-ora averring the tiruth. Gibson v. Gibson, 15 Mass. 110. 
 
216 
 
 LEASE. 
 
 [CHAP. xy. 
 
 it is applicable, not only to the lessee or lessor himself, but to any one 
 claiming under him, or in continuation of his estate ; as to an assignee, 
 sub-lessee, or purchaser ; or the wife of a deceased tenant ; or an as- 
 signee or the heir of the lessor. So, as between heir and administrator.(a) 
 So if a man take a lease of his own land, or land of which he has pos- 
 session, he is concluded, though it would be otherwise, in ihe former 
 case, if the lease were merely of the herbage. So, by agreeing to hold 
 under the true owner, the adverse possession of an occupant ceases. 
 By disclaiming the landlord's title, the lessee forfeits his lease or be- 
 comes a trespasser, and is not entitled to notice to quit. But the prin- 
 ciple has been held not applicable to a. parol disclaimer. On the other 
 hand, the tenant cannot show a parol admission by the landlord of an 
 adverse title.(l)(6) 
 
 83. Land of the plaintiff, in the occupation of the defendant as lessee, 
 
 (1) Cook V. Loxley, 5 T. B. 4 ; Balls v. 
 "Westwood, 2 Camp. 11; De Lancey v. Ga 
 Nun, 12 Barb. 120; Binney v. Chapman, 5 
 Pick. 127; Galloway v. Ogle, 2 Binn. 468; 
 Codman v. Jenkins, 14 Mass. 93; Marley t. 
 Kodgers, 5 Terg. 217 ; Ankeny v. Pierce, 
 1 Bre. 202; Love v. Dennis, Harp. 70; Boyer 
 T. Smith, 5 Watts, 55 ; Co. Lit. 47 b, 48 a & 
 n. 12; Congregational, &c. v. Walker, 18 
 Term. 600; King v. Murray, 6 Ired. 62; 
 Greeno v. Munson, 9 Verm. 37 ; Phelan v. 
 Kelly, 25 Wend. 389; Doe v Barton, 11 Ad. 
 & Ell. 307; Lunsford v. Alexander, 4 Dev. 
 & B. 40; Failing v. Sehenck, 3 Hill, 344; 
 Cooper V. Smith, 8 Watts, 636; Duke v. 
 Harper, 6 Terg. 280; Jackson v. Davis, 5 
 Cow. 123; Cobb v. Arnold, 8 Met, 398; Mo- 
 Intyre v. Patton, 9 Humph. 447 ; Burke v. 
 
 Hale, 4 Bng. 328 ; Newman v. Mackin, 13 
 Sm. & M. 383 ; University, &c. v. Joslyn, 21 
 Verm. 52; Kinney v. Doe, 8 Blackf. 350; 
 Doe V. Challis, 6 Eng. L. & Equ. 249; Lans- 
 dell V. Gower, 8, 317; Palkner v. Beers, 2 
 Doug. 117; Byrne v. Beeson, 1, 179; Kinge 
 y. Lachenour, 12 Ired. 180; Lockwood v. 
 Walker, 3 Mc'L. 431 ; Kendall y. Carland, 6 
 Cush. 74; Blantin v. Whitaker, 11 Humph. 
 313; Gray v. Johnson, 14 N. H. 414;. Hill 
 v. Hill, 4 Barb. 419 ; Sharpe v. Kelley, 5 
 Denio, 431 ; Read v. Thompson, 5 Barr, 327 ; 
 Portier v. Bellance, 5 Gilm. 41 ; Sneed v. 
 Jenkins, 8 Ired. 27 ; Dolby v. lies, 11 Ad. & 
 Ell. 333 ; Doe v. Long, 9 Carr. & P. 773 ; 
 Woodward v. Brown, 13 Pet. 1 ; Walden v. 
 Bodley, 14, 156; Mann v. Gwinn, 8 Gratt. 
 Index; Dela. liev. Sts. 366. 
 
 (a) Where an administrator leased the mansion-house of his intestate, while the heirs 
 were minors, and after the lease expired the tenant held over, under a claim of an agree- 
 ment with the administrator to purchase ; held, the lease, though made without authority, 
 was to be assumed to have been made for the benefit of the heirs, — ^the right of action for 
 for use and occupation was in them ; and they were not to be affected by the tenant's claim of 
 title, until they were proved to have had notice of it after their majority. Burk v. Osborn, 
 9 B. Mon. 679. 
 
 The principle has also been held applicable, as between trustee and cestui que trust. Wal- 
 den «. Badley, 14 Pet. 156. 
 
 So a party whose land is sold by execution, while in possession, is a quasi tenant of the 
 purchaser, and cannot dispute his title. Aliter where he is not in possession. Wood u. 
 Turner, 7 Humph. 517-18, 685. So, where land is sold on execution, and after the' sale the 
 original owner, who was not in possession at the time of the sale, rents the land to a third 
 person ; the relation of landlord and tenant exists between the parties, and the tenant, who 
 purchased the title of the purchaser at execution, cannot set up such title against the origi- 
 nal owner. lb. 
 
 So a purchaser, entering under an executory contract, becomes a quasi tenant, and, upon 
 cancelling the contract, is estopped from setting up a. title under another, hostile to that of 
 his vendor. Kirk v. Taylor, 8 B. Mon. 262. See Hall v. Stewart, 2 Jones, 211 ; ace. Hill v. 
 Hill, 4 Barlx 419. 
 
 (6) In Connecticut, the plaintiff in a summary process against a tenant need not prove 
 himself even to have been owner of the land. And, though a grantee of the lessor may 
 maintain such action, especially if the tenant has attorned; yet, if brought by the lessor, 
 his conveyance of the reversion will be no defence. White v. Bailey, 14 Conn. 271. The 
 principle of estoppel applies to one who is admitted to defend against an action of eject- 
 ment with the tenant in possession. Belfour v. Davis, 4 Dev. & B. 300. Where a lease 
 purports to be made by virtue of a power contained in a will ; the lessee is estopped to 
 deny the execution ol such will. Bringloe v. Goodson, & Scott, 71. 
 
CHAP. XV.] 
 
 LEASE. 
 
 217 
 
 was levied upon by a creditor of the plaintiff, and the defendant evict- 
 ed. The defendant afterwards occupied, as lessee of the creditor, and 
 then purchased the fee from him. The land was afterwards levied 
 upon by another creditor, the former levy being defective and void. 
 The plaintiff brings an action, for the rent accruing between the two 
 levies. Held, as the defendant had occupied, either as lessee of the 
 first creditor, or as owner, there was no contract, express or implied, 
 between him and the plaintiff; that the remedy of the latter was against 
 the first creditor ; and this action would not lie.(l) 
 
 84. A having leased land, with a building upon it, to B, entered into 
 a negotiation with for a sale of the land alone to him. It was .left to 
 referees to settle the price, and A put into their hands a deed, to be deliv- 
 ered to C with the award. A was to remove the building by a certain day. 
 The referees, having awarded a certain price, delivered the deed to 0, 
 which was recorded; but A excepted to the award, refused the price, 
 tendered the penalty agreed on, and denied that the deed passed any 
 title. C never notified A to remove the building, but notified B to 
 quit, at the time fixed for removing the building, or pay rent to him 
 slibsequently. B continued to occupy, and expressly promised to pay 
 rent to A, A indemnifying him against C's claim, and actually paid 
 rent to A for a period subsequent to the award; but paid a subsequent 
 instalment to 0, receiving from him an indemnity against A. For the 
 latter rent, A brings an action against B. Held, the above facts fur- 
 nished no defence to such action. (2) 
 
 85. A had agreed to become tenant to until a certain time, at such 
 rent as the arbitrators should award. In an action for use and occupa- 
 tion by G against A ; held, A was not bound by an implied contract to 
 pay rent to 0, after the time stipulated ; and that the title could not be 
 thus tried.(3) 
 
 85 a. A demised land to B, who paid him rent. C afterwards dis- 
 puting A's title, it was left to arbitrators, who awarded in C's favor. 
 A then gave up the title-deeds, and by his authority C directed B to 
 pay rent to himself, which he did. A then distrains for the rent. 
 Held, he had no claim to it, being estopped by the acts above stated. (4) 
 
 86. A, holding a lease of certain land, took possession from B of a 
 house which B had erected before A had a lease, upon adjoining waste 
 land, to which B had no title. A leases the house to 0. In ejectment 
 for the house by A's landlord against ; held, was estopped to deny 
 the plaintiff's title.(5) 
 
 87. Complaint under the Massachusetts Statute, 1825, c. 89, by a 
 landlord against his tenant, to recover possession of a piece of land. 
 Held, the tenant could not set up as a defence, that the landlord was dis- 
 seized by his refusal any longer to pay rent.(6) 
 
 87 a. A, having been in peaceable and adverse possession of land 
 for twenty years, by way of compromise of a claim made upon him 
 for rent, gives a note to B. In a suit thereupon, held, the above -facts 
 constituted no legal defence.(7) 
 
 (1) Alien ?;. Thayer, 17 Mass. 299. 
 
 (2) Binney v. Chapman, 5 Pick. 124. 
 
 Jackson v. Welden, 3 John. 283; 
 
 Davis. 5 Cow. 123. 
 
 (3) Boston V. Binney, 1 Pick. 1. 
 
 (4) Downs V. Cooper, 2 Ad. & Ell. N. S. 
 256. 
 
 (5) Doe V. Fuller, 1 Tyr. & G. IV. 
 
 (6) Sacketi;. Wheaton, 17 Pick. 103. 
 
 (7) Cobb V. Arnold, 8 Met. 403. 
 
218 
 
 LEASE. 
 
 [CHAP. XT. 
 
 87 b. The land of A being levied on by an attachment at the suit of 
 B, A conveyed the same to C, under circumstances supposed to indi- 
 cate an intention to defraud his creditors. rented the land to D ; B 
 then obtained a judgment against A, and the laud was sold to satisfy it. 
 C brought an action against D to recover possession. Held, if D 
 showed no title acquired subsequent to the commencement of his 
 tenure, he could not defeat by setting up such fraudulent conveyance.(l) 
 
 88. Inasmuch as a tenant cannot even defend against an action at 
 law, by denying the title of the lessor ; a fortiori equity will not aid 
 him in such a denial. Thus A took possession of land, as the tenant 
 of B. B, the term having expired, demanded possession, and brought 
 a process of forcible entry, upon which, however, A was finally ac- 
 quitted. B then brought ejectmeat against A, who purchased an ad- 
 verse title of C. A files a bill in equity for an injunction against the 
 suit. Held, the acquittal of A proved nothing as to the title of the 
 land ; that the purchase of an adverse title, or disclaimer of that of 
 the lessor, was a forfeiture, from which the statute of limitation would 
 run ; but, until the legal time of limitation expired, A could not dis- 
 pute the landlord's title at law, nor have relief in equity. (2) 
 
 89. The principle of estoppel does not apply, if waived by the land- 
 lord, for whose benefit it is adopted. So it does not apply, if a 
 tenant has in any way ceased to stand in that relation. The principle 
 is said to have a, present, not a future operation; not being enforced, for 
 instance, where the lease is ended, or the landlord transfers the rever- 
 sion, or the tenant has restored possession, or obtained a decree for the 
 title ; or where he disclaims the landlord's title,(«) and holds over ; or 
 a judgment in ejectment(5) has been rendered against him, or he has 
 been evicted by an adverse claimant. But mere payment of rent to a 
 stranger, claiming the land, will not be suf&cient.(3)(c) It is said, " by 
 
 (1) Randolph v. Carlton, 8 Ala. 606, 
 
 (2) Payton v. Stith', 1 Pet. 486. 
 
 (3) Jackson v. Rowland, 6 Wend. 666 ; 
 -«. Davis, 5 Cow. 123; Presbyterian, 
 
 &c. V. Picket, Wriglit, 57 ; Avery v. Barnum, 
 lb. 517 ; Boston V. Binney, 11 Pick. 8; Jotins 
 V. Church, 12, 561; 1 Mar. 99, 330; 2, 243 ; 
 Fowlers. Cravens, 3 J. J. Mar. 429; Logan 
 V. Steel, 6 Mon. 105; Maverick «. Gibbs, 3 
 
 M'Cord, 211; Greeno v. Munson, 9 Term. 
 37 ; Hall v. Dewey, 10, 593; Swift v. Dean, 
 11, 323; Nerhooth v. Althous, 8 Watts, 
 427; Newell v. Gibha, 1 W. & Ser. 496; 
 Belfour v. Davis, 4 Dev. & B. 300 ; Hough 
 V. Dumas, lb. 328; Bullard v. Copps, 2 
 Humph. 409; Agar v. Toung, 1 C. & Mar. 
 78. 
 
 (a) In which case, if the landlord has knowledge of such disclaimer, the possession is ad- 
 verse, and the landlord cannot sell or lease the premises while so adversely held. Stephen- 
 son V. Richmond, 11 Humph. 591. 
 
 (b) In Illinois, Missouri and New Jersey, . where a tenant is sued in ejectment by a 
 stranger, he is required, under a penalty, to give notice of it to the landlord. lUin. Rev. 
 L. 676 ; Miss. Sta. 376; 1 N. J. L. 192. 
 
 (c) Where a tenant pays the rent, after the expiration of the year, which was due at its 
 close ; in an action by the landlord for possession, such payment will not estop him from show- 
 ing that the landlord's title was extinguished during the year. Randolph v. Carlton, 8 
 Ala. 606. 
 
 A parol agreement by a tenant in possession, at the death of the landlord, to pay rent to 
 one claiming to be guardian of the remairfSer-man, does not estop him from denying the 
 title of the latter. Stokes v. MoKibbin, 1 Harr. (Penn.) 267. 
 
 In ejectment, evidence of former admissions of the defendant's father, that he was tenant 
 of the plaintiff, accompanied by evidence that the defendant resided on the land with his 
 deceased father, and had remained there ever since, will not estop the defendant, claiming 
 merely by his own possession, from denying the plaintiff's title. Emery v. Harrison, 1 
 Harr. 317. 
 
CHAP. XT.] 
 
 LEASE. 
 
 219 
 
 the making of the lease the estoppeldoth grow, and consequently by 
 the end of the lease the, estoppel determines." It is also said, that 
 whether one, who receives possession from another, is estopped from 
 claiming title, must depend upon the inquiry, whether the claim at- 
 tempted to be set up is consistent with the contract under which the 
 possession was taken.(l) Nor does the principle apply to the case of a 
 defective conveyance in fee.(2)(a) Nor where the estoppel is mutual 
 So a tenant may purchase the landlord's estate sold on execution. If 
 he buy the whole, the rent is entirely extinguished ; if a part, it is ex- 
 tinguished pro tanto.Q)) So if A, being in possession, acknowledges 
 the title of B, or attorns to him ; A is still not estopped to show 
 that he acted under a wrong belief as to B's title.(3)(c) 
 
 89 a. So, it has been held that in an action for rent, the tenant may 
 prove a verbal promise of the plaintiff that he would claim no rent if 
 the title was in another, and that such is the fact.(4) 
 
 89 h. Where a person is induced to accept a lease by false represen- 
 tations, promises and threats, he may afterwards dispute the Jessor's 
 title, especially when, at the time of accepting the lease, the lessee was 
 in quiet occupancy of the premises.(5) And it makes no difference, in 
 
 (1) Baskin u. Seeohrist, 6 Barr, 154. See 
 Isaac V. Clark, 2 Gill, 1 ; Miller v. Bonsadoii, 
 9 Ala. 317. 
 
 (2) Co. Lit. 47 b ; Claridge v. M'Kenzie, 4 
 Scott, n. 796; Ripley v. Tale, 19 Term. 156. 
 
 (3) Hughes V. Trustees, &c., 6. Pet. 369; 
 Kenada v. Gardner, 3 Barb. 589. See Walton 
 V. Newso Ti, 1 Humph. 140 ; Cbilton v. Nib- 
 
 lett, 3, 404 ; Love v. Edmondston, 1 Ired. 
 152; Page v. Hill, 11 Mis. 149; Dikeman v. 
 Parish, 6 Barr, 210. 
 
 (4) Nellis V. Lathrop, 22 Wend. 121; 
 Washington v. Conrad, 2 Humph. 562 ; Doe 
 V. Brown, 7 Ad. and Ell. 447. See Doe v. 
 Evrington, 6 Bing. N. 79. 
 
 (5) Wood V. Chambers, 3 Rich. 150. 
 
 (a) A sold and conveyed to B, and remained in possession. After his death his widow 
 also remained in possession. The estate, after the sale to B, was sold on execution to C, 
 and A's widow took a lease from C. Held, the principal of estoppel applies only to the re- 
 lation of landlord and tenant created ly contract, and not to that created by operation of law; 
 that the widow was the lawful tenant of C ; and that, the possession of C having been 
 therefore continuous for seven years, the Tennessee act of 1819, i;. 28, vested in him the 
 title. Vance v. Johnson, 10 Humph. 214. 
 
 Whei-e one enters into possession under a parol contract of purchase, pays a portion of the 
 purchase- money in advance, and is, by the contract, to receive a deed upon furnishing cer- 
 tain security for the remainder, which security is offered, but the vendor refuses to convey; 
 the purchaser may claim adversely to the vendor; and his possession, if open and exclu- 
 sive, accompanied by claim of title, will avoid a deed, executed by the vendor to a third 
 person, subsequent to the performance of the contract on the part of the purchaser. 
 Ripley v. Yale, 19 Term. 156. 
 
 And, even if the purchaser could be considered as tenant at will to the vendor, until the 
 completion of the contract; yet, if he offer to perform the contract on his part, and the 
 vendor refuse to convey, and the purchaser thereupon give notice to the vendor that he 
 shall " hold on to the land ;" the possession of the purchaser becomes adverse, and will 
 avoid a deed subsequently executed by the vendor to a third person. 
 
 A covenanted to make and deliver to B, at the end of a year, " a good and sufficient 
 deed, with covenants of warranty," of a farm then in the posses.sion of B; all the green 
 grain growing in the ground at the time of executing the deed " to pass" to B. B cove- 
 nanted to pay tlieretor $35 per acre, with interest from a day prior to the date of the con- 
 tract. A afterwards tendered the deed, pursuant to his covenant; but B refused toper- 
 form his covenant, and A brought ejectment against him. Held, that B, by his covenant, 
 had recognized A's title, and agreed to hold under him for a year, and was therefore es- 
 topped from disputing A's title. Tindall v. Den, 1 New Jersey, 651. 
 
 {ti) Where land is sold under a decree in Chancery, the party in possession stands in the 
 relation of tenant to the purchaser, and is estopped to dispute his title. Siglar v. Malone, 3 
 Humph. 16. 
 
 (c) The attornment of a tenant to a stranger, though invalid against the landlord, is still 
 binding upon himself. Kenada v. Gardner, 3 Barb. 589. 
 
220 
 
 LEASE. 
 
 [CHAP. XV. 
 
 such case, that the false representations were made under a mistake of 
 the lessor.(l)(a) 
 
 89 c. So the mere fact, that one had been in possession as tenant of his 
 father-in-law, is not a bar to the proof of a parol sale and gift to him by 
 his father-in-law, where he ceased to pay rent for several years, contin- 
 ued to hold the land under his contract, paid part of the purchase- 
 money, made valuable improvements, and had the property assessed in 
 his own name. (2) 
 
 90. A, having been tenant at will to B, remained in possession fifty- 
 seven years after B's death. Held, the jury might presume that the 
 land had been restored to B's heirs, and an actual ouster of them, and 
 that A had acquired a perfect title. 
 
 91. So, in ejectment by the heirs or devisees of a lessor against the 
 lessee, the latter may show in defence, that the lessor had only a life 
 estate. Thus, a lessee covenants to pay rent, and to give up the 
 land to the lessor, his heirs and assigns, A devisee of the lessor brings 
 ejectment against an assignee of the lessee, after the expiration of the 
 term. The lessee is not estopped to show that the lessor was but a 
 tenant for life.(3) 
 
 92. The tenant in a real action conveyed the land to A; in 1813, A 
 devised it to the demandant. In 1816, A.reconveyed to the tenant, 
 by an indenture for one year, " all the land, &c., which A held from 
 the tenant by deed dated March 20, 1813, now improved by" the ten- 
 ant. The term having expired, held, the tenant was not estopped to 
 claim under the deed of 1816. Also, that if he were, the demandant, 
 claiming under A, would be estopped by the deed of 1816 to say that 
 A in 1822 held under the deed of 1818, and " estoppel against estoppel 
 sets the matter at large."(4) 
 
 93. A hires land of B, and pays him rent. Afterwards, B having 
 agreed with C to give him a long lease of the land, A pays rent to C. 
 In an action by C against A for another quarter's rent, held, A was not 
 estopped from showing that the above-named agreement has been re- 
 scinded, and that he had paid this rent to B.(5) 
 
 94. A surrender of the estate by a lessee to his lessor will not au- 
 thorize him to deny the title of the latter, unless it be made fairly, and so 
 as to give time to the lessor to take possession. Thus, if immediately 
 after such surrender the tenant takes a lease from an adverse claimant, 
 this proceeding will avail him nothing.(6) 
 
 95. An infant will not be estopped to deny the title of his landlord, 
 though he has admitted that he held under him, and given a note for 
 the rent. 
 
 96. A lessee is not estopped to aver a mode of payment of rent, vary- 
 ing from the literal import of the lease, and provided for by an inde- 
 
 (1) Wood V. Chambers, 3 Pick. 150. 
 
 (2) Aurand v. Wilt, 9 Barr, 54. 
 
 (3) Camp V. Camp, 5 Conn. 291 ; Heclc- 
 hart V. McKee, 5 Watts, 385 ; Doe v. Seaton, 
 2 Crompt. M. & R. 728 ; Tilghman v. Little, 
 13 Illin. 239. See Heath i;. Williams, 25 
 
 Maine, 209 ; King v. Murray, 6 Ired. 62 ; 
 Byrne v. Beeaon, 1 Doug. 179. 
 
 (4) Carpenter v. Thompson, 3 N. H. 204. 
 See Warren u, Leiand, 2 Barb. 613. 
 
 (5) Brook V. Briggs, 2 Bingh. K. C. 572. 
 
 (6) Boyer v. Smith, 3 Watts, 449. 
 
 (a) More especially if the tenant did not first enter under him. 
 3 N. H. 204. 
 
 Carpenter v. Thompson, 
 
CHAP. XV.] 
 
 LEASE. 
 
 221 
 
 pendent parol agreement. Thus, in an action by an assignee of the 
 reversion, though the rent is by the lease to be paid quarterly, the les- 
 see may plead, that- before the time when the lease was made he loaned 
 money to the lessor, the interest of which, it was agreed, should go to 
 pay the rent.(l)(a) 
 
 97. In an action for rent, by an assignee of the reversion against an 
 assignee of the lease, it appeared that upon the execution of the lease 
 the lessee gave several promissory notes, not proved to be negotiable, 
 equal in amount to the rent reserved, payable respectively as the rents 
 would fall due, and stated in the deed of assignment of the reversion, 
 to be given as collateral security. The notes were transferred with the 
 reversion to the plaintiff. Held, it was a question for the jury, whether 
 the notes were intended by the parties to be in payment of the rent.(2) 
 
 98. A contract, by which a tenant is induced to desert his landlord, 
 is corrupt and void ; and the person to whom he has attorned cannot 
 maintain an action japon it. And, if an adverse claimant tampers with 
 a tenant, and gets possession either by his consent or a collusive recov- 
 ery, he is estopped to deny the landlord's title. So a tenant is estopped, 
 though he has surrendered to a stranger.(8) 
 
 99. The purchaser of a term is bound to surrender it to the lessor, 
 not to the original lessee. (4)(Z)) 
 
 100. The principle of estoppel may be applied to the lessor as well as 
 the lessee, Thus, if'the lessor at the time of leasing has no vested in- 
 terest in the land, but subsequently acquires such an interest, it passes 
 to the lessee or his assignee from the latter period, by estoppel ; or 
 rather, that which was before an estoppel is turned into a lease in in- 
 terest. This rule applies where the lessor, at the time of leasing, has 
 a future and contingent interest: as, for instance, where he is an heir 
 apparent, or claims under a contingent remainder or executory devise; 
 but not where any actual interest, however small, passes by the lease. 
 Thus, if A, tenant for the life of B, lease to C for years, and then pur- 
 
 (1) Farley v. Thompson, 15 Mass. 18 ; 
 McUoon V. Smith, 3 Hill, 147 ; Robins v. 
 Kitchen, 8 Watts, 390. 
 
 (2) Howland v. Coffin, 9 Pick. 52. 
 
 (3) Morgan v Ballard, 1 Mar. 558 ; Stewart 
 V. Roderick, 4 Watts & S. 188. See Gushing 
 
 V. Adams, 18 Pick. 110; N. T. Code, 1851, 
 33-4; Oravenori). Bowser, 4Barr, 259; Dela. 
 Rev. Sts. 421. 
 
 (4) Bruce v. Halbert, 3 Mon. 65; Byrne v. 
 Beeson, 1 Doug. 179. 
 
 (a) But parol evidence is inadmissible that the rent was not to commence till a later 
 day than that mentioned in the lease. Henson v. Coope, 3 Scott, N, R. 48. 
 
 So parol evidence is inadmissible that the land was part of a larger lot, taken from the 
 plaintiff's by one A, and by agreement between them subdivided, and deeds of tlie seve- 
 ral portions made to persons designated by A, including the defendant; and with the 
 understanding that A should pay the whole rest. Buck v. Fisher, 4 Whar. 516. 
 
 (6) In regard to the estoppel of a tenant, the old law seems to have made a distinctiou be- 
 tween leases by indenture, and those by deed-poll. Littleton says (sec. 58) the lessee may 
 plead that the lessor had nothing in the tenements at the time of the lease, "except the lease 
 be made by deed indented ;" and Lord Coke (47 b.) tliat by a deed-poll the lessee is not 
 estopped, and may even plead non dimisit, and give the want of title in evidence. See 
 Nagleei). Ingersoll, 7 Barr, 185. But the distinction seems to be now entirely exploded. 
 The principle of the modern doctrine is, that the lessee is estopped, not so much by an ex- 
 press agreement on his part, as by his acceptance of the lease and occupation of the land. 
 And the case seems analogous to that of rent reserved upon a feoffment by deed-poll, wliioh 
 is said to be reserved by the words of the feoffor, and not by the grant of the feoffee, and binds 
 the latter. (Co. Lit. 143 b ; and see IngersoU v. Sergeant, 1 Whart. 350-l.J 
 
222 
 
 LEASE. 
 
 [CHAP. XV. 
 
 chase the reversion in fee, upon the death of B he may still avoid the 
 lease.(i) 
 
 101. Of the nature of a lease, is a license to occupy, use or take the 
 profits of land. This, however, seems to pass no estate, but merely con- 
 fer a certain right or privilege. It is a mere authority to enter upon the 
 lands of another, and do an act or series of acts, without having any 
 interest in the land ; founded in personal confidence, not assignable, 
 and valid, though not in writing.(2)(a) 
 
 102. Thus, an executory contract for the purchase of land,with leave 
 to the purchaser to enter and possess until default in the payment of 
 the purchase-money, without any fixed period or compensation, is a 
 license, and not a lease ; it is not an easement, nor a permanent interest 
 in land, nor does the relation of landlord and tenant exist. The pur- 
 chaser cannot be treated as a wrongdoer until default, without a de- 
 mand of possession.(3)(6) So, where a parol contract, being for the 
 sale of an interest in land, is void as a contract; it may still operate as a 
 license^ which will excuse the entry of the purchaser. But, in an action 
 of trespass by the vendee, the vendor may justify under a revocation 
 of the license by such re-entry, after default. So a. deed invalid as a 
 conveyance, for want of a witness, may be good as a Iicense.(4) 
 
 102 a. The owner of wild land agreed with another person to go on 
 and clear a part of it, and to fence, and to help the latter to build a house, 
 reserving to the former the use of the timber, except what was needed 
 for " house, rails and firewood." Held, a mere license to occupy the 
 land, giving no right to dispose of any timber cut in clearing it.(5) So, 
 in an agreement for the sale of land, the purchaser agreed not to cut, 
 or sull'er to be cut, any timber fi-om the land, without the .consent of 
 the vendor in writing. In trover by the vendor against one claiming 
 under the purchaser, to recover the value of timber cut from the pre- 
 
 (1) "Weale v. Lower, Pollexfen, 54 ; Helps 
 V. Hereford, 2 Barn. & A. 242 ; Co. Lit. 48 a 
 u 11; lb. 45 a, 47 b; 4 Kent, 97 ; Blake v. 
 Tucker, 12 Term. 39; Hubbard v. Norton, 
 10 Conn. 422 ; Logan v. Moore, 7 Dana, 76 ; 
 Brown v. M'Cormick, 6 Watts, 60. SeeBur- 
 ohardv. Hubbard, 11 Ohio, 316. 
 
 (2) Mumford v. Whitney, 15 Wend. 380 ; 
 Foisom V. Moore, 1 Appl. 252. 
 
 (3) Dolittle V. Eddy, 7 Barb. 74. 
 
 (4) Carrington v. Roots, 2 Mees. & W. 248 ; 
 Sulhvant v. Prankliti, &o., 3 Ohio, 89; 7 Barb. 
 74. 
 
 (5) Callen v. Hilty, 2 Harr. (Pena.) 286. 
 
 (a) It amounts to nothing more than an excuse for the act, which would otherwise be a 
 trespass. Cook 'u. Stearns, 11 Mass. 537; Whitney j). Holmes, 15, 152; Dolittle v. Eddy, 
 7 Barb 74. See Whitmarsh «. Walker, 1 Met. 313. Hence a plea of fe'cmse does not bring 
 in question the title to real estate. Wheeler v. Romell, 7 N. H. 515. A license is suEfioient 
 to disprove any claim arising from adverse possession. Luce v. Corley, 24 Wend. 45 1. A 
 distinction is made in a late English case, between a license of profit, or profit a prendre, 
 and a penonal license of pleasure; the former of which may be exercised by an agent. 
 In this case, there was a grant to heirs and assigns. , Wickham v. Hawker, 7 Mees. & W. 63. 
 A license to search for metats, raise and carry them away, and convert them to the party's 
 own use, is assignable. Muskett v. Hill, 5 Bing. N. 694; 7 Scott, 855. A parol license to 
 build and maintain a bridge on another's land is valid. Ameriscoggin, &c. v. Bragg, UN. 
 H. 102. 
 
 (6) On the other hand it may be proved by parol, that a grantor was authorized to enter 
 upon the land and remove certain property; this being a mere license. Parsons ii. Camp, 
 U Conn, 25. 
 
 A parol license, to enter on land and lay down aqueduct logs, for the purpose of convey- 
 ing water from a spring to adjoining land, with liberty to enter from time to time to examine 
 and repair the same, is not a sale of land, or an interest in land, within the statute. Samp- 
 son V. Burnside, 13 N. H. 264. 
 
CHAP. XV.] LEASK. 223 
 
 mises ; held, the defendant coulcf not give evidence of a parol license 
 from the plaintiff to the purchaser to cut the timber.(l) 
 
 103. A parol license from A to B, to take trees from A's land so 
 long as B pleases, expires upon A's death. (2) But where the defend- 
 ant gave a written license to two persons to take logs from the land of 
 the plaintiff, and one of the two died, but the other, under his license, 
 and without any intimation by the defendant of a purpose to revoke 
 the license, subsequently took the logs ; held, the license was not re- 
 voked by the death of one of the parties, but the defendant was liable 
 in trespass.(8) 
 
 104. A general parol license, to cut and carry away wood growing 
 upon land, if available at all, must be acted on within a reasonable 
 time; and applies only to the wood, as it is substantially at the time of 
 giving the license. And what is a reasonable time, the facts being 
 agreed, is a question for the court. Such license does not continue fif- 
 teen years, not being acted upon. (4) 
 
 104 a. Devise to A's children " of a plantation, to come into their 
 possession, or into the hands of the executors for their benefit, at the 
 testator's death, providing that A have the privilege of living on the 
 place with his children during his life." Held, A did not take an es- 
 tate for life, but his title was under a license, and of A's children only 
 those took who were in esse at the testator's death. (5) 
 
 104 b. An unsealed lease provided as follows : "all the hedges, trees, 
 thorn-bushes, fences, with lop and top, are reserved to the landlord." 
 The landlord having entered the close, and drawn the trees, when cut 
 down, over it, the tenant brings an action against him. Held, the 
 above agreement might be shown under a plea of leave and license.(6) 
 
 105. By an indenture between the town of B and a mill-dam corpo- 
 ration, the latter granted to the former a certain proportion of a tract of 
 land covered with water, " excepting the mill creek, and such other 
 canals as may be agreed to be kept open for the passage of boats." 
 By a subsequent indenture between the same parties, it was agreed that 
 the town might put a covering over part of the creek or canal, " pro- 
 vided only, that no interruption or impediment shall be made or per- 
 mitted below said covering, to boats on passing through or mto said 
 canal." .Held, these provisions did not constitute a license to the abut- 
 ters' to navigate the creek. 
 
 106. The creek being kept open for boats, held, although there was 
 an implied public license to navigate it, this was not such a perpetual 
 license as could be pleaded as a grant, or a dedication to the public ; 
 and that no individual could acquire a prescriptive right, by the use of 
 it while thus open. (7) 
 
 107. If a transaction between two parties amounts to the grant of a 
 permanent privilege in the land, it will constitute a lease, not a license, 
 though the words might seem to import the latter. (a) 
 
 (1) Pierrepont v. Bernard, 5 Barb. 364. 
 
 (2) Putney v. Day, 6 N. H. 430. 
 
 (3) Chandler v. Spear, 22 Verm. 388. 
 
 (4) Gilmore v. Wilbur, 12 Pick. 120. 
 
 (5) Calhoun v. Jester, 1 Jones, 474. 
 
 (6) Hewitt V. laharn, 7 Eng. L. & Equ. 595. 
 
 (7) Baker v. Boston, 12 Pick. 184. 
 
 (a) That eitlier conatruction may sometimes be given, see Tear- Book, 5 Hen. 7, pi. Ij 
 Hall V. Seabright, 1 Mod. 15. See, also, 'Winiams v. Morris, 8 Mees. & W. 488. 
 
224 
 
 LEASE. 
 
 [CHAP. XT. 
 
 108. A, in consideration of £5, grants to B the privilege of flowing 
 certain land for twelve years without restriction, and for eighty years 
 in the winter during one-half of the year. This is a lease.(l) But the 
 grant of a mere license to flow passes no property. It does not create 
 an easement, which can arise only by deed or prescription. It is a 
 mere remitter of damages.(2) 
 
 108 a. Where A, under a license from B, the owner of land through 
 "which a watercourse flowed, erected a mill thereon, and ever afterwards 
 held and occupied such mill as if it were his own ;' but it did not 
 appear that there was any consideration for the license, or that it was 
 to continue for any definite period, or that there was any agreement 
 as to the nature of the occupation, or any mutual stipulations; in an ac- 
 tion brought by A against C, the owner of a mill below, for setting 
 the water back upon A's mill, by means of a dam erected by 0, it was 
 held that such license did not amount to a lease from B to A. nor 
 create any privity of contract or estate between them. (3) 
 
 109. It is said that licenses which, in their nature, amount to the 
 granting of an estate, for however short a tioje, are not good without 
 deed, and are considered as leases, and must always be pleaded as 
 such.(«) Thus, a license from the owner of land to make a dam, bank, 
 or canal on his land, to raise water for working a mill, merely saves 
 the other party from being a trespasser, in doing the particular act ; 
 but does not authorize him to enter upon tlie land afterwards for the 
 purpose of making repairs.(4) 
 
 109 a. Where the proprietor of a wharf in a harbor was authorized 
 by statute to extend it into the channel to the line of the harbor ; and, 
 before any extension thereof, in pursuance of such act, the legislature 
 incorporated a railroad company, with authority to locate and con- 
 struct a railroad across and over the flats between such wharf and the 
 line of the harbor ; held, the act operated as a grant, and was not a 
 mere license, revocable at the pleasure of the legislature, and revoked 
 by the act incorporating the railroad company. (5) 
 
 109 b. The declaration stated, that the plaintiff had been tenant to 
 one A, and during his tenancy had put up (certain fixtures; tha,t, 
 during the tenancy, A granted to the plaintiff leave and license to 
 keep the fixtures on the premises after the expiration of the .tenancy, 
 in order that he might sell them to the incoming tenant, and to enter 
 and recover them, if such tenant would not purchase them ; that the 
 defendant subsequently became tenant; that he would neither pur- 
 chase the fixtures, nor allow the plaintiff to enter and remove them. 
 The defendant traversed that A granted such license to the plaintiff. 
 At the trial, the plaintiff gave in evidence the following letter written 
 to him by A's attorney : '• Mr. A has no objection to your leaving 
 the fixtures on the premises and making the best terms with the in- 
 
 (1) Smith V. Simons, 1 Boot, 318. 
 
 (2) Clinton v. M'Kenzie, 5 Strobh. 36. See 
 ■Woodward v. Sedy, 11 Illin. 157. 
 
 (3) BranchiS). Doane, IT Conn. 402. 
 
 (4) Cook V. Stearns, 11 Maaa. 537 ; Whit- 
 
 ney 0. Holmes, 15, 152. See Jamison v 
 M'Credy, 5 Watts & S. 129. 
 
 (5) Pitchburg, &o. v. Bo.9ton, &c., 3 Cush. 
 58. 
 
 (a) In trespasa 'quare ckmsum fregit, a license cannot be given in evidence under the gen- 
 eral issue. It should be specially pleaded. Crabs v. Petick, 7 Blaokf. 373. 
 
CHAP. XV.] LEASE. 225 
 
 coming tenant." Held, that this document, if it gave a license at all, 
 gave one coupled with an interest in land ; and, therefore, not being 
 under seal, it could not be enforced against the incoming tenant.(l) 
 
 110. An executory is to be distinguished from an executed license. 
 The former, where ilie autiiorized act has not been done, is revocable, 
 and a mere transfer of tiie land, without express notice, has been held 
 a revocation ;(«) but the latter, where the act has been done, is irrevo- 
 cable, so far as to exempt the party from any liability to the owner of 
 the land.(2)(i) 
 
 110 a. S gave to J an oral license to erect and continue a mill-dam 
 on S's land, and to dig a ditch, through said land, to convey water to 
 a mill that J was about to build on his own land. J erected the dam 
 and dug the ditch, and afterwards erected the mill, and continued 
 them during the life of S. After S had granted the license, he con- 
 veyed his land to M, without any reservation. J continued the dam 
 and ditch, after the decease of S, for the purpose of working the 
 mil!, and M requested him to remove the dam and fill up the ditch, 
 and, upon J's refusal so to do, M attempted to remove the dam, and 
 tore down a part of it, and J forcibly interposed, prevented M from 
 proceeding further, and repaired the injury so done to the dam by M. 
 M thereupon filed .a bill in equity, praying that J might be enjoined 
 and prohibited from any longer continuing the dam, which was alleged 
 to be a nui.^ance, and that the same might be ordered to be abated. 
 On an issue framed and submitted to a jury, they found that the dam 
 was a nuisance. Held, that M was entitled to a decree for an abate- 
 ment of the nuisance, and for a perpetual injunction against J, to pre- 
 vent its renewal. Held, aLso, that J was not responsible for any acts 
 done in pursuance of the license beibre it was countermandecl, and 
 
 (1) Ruffey v. Henderson, 8 Eng. Law and I Wallis v. Harrison, 4 Mees. & W. 5,^8: 
 Eq. 305. Woodward v. Secly, 11 Illin. 157 ; Sampson 
 
 (2) ClieeTer v. Pearson, 16 Pick. 2T3 ; \i). Barnside, 13 N."H. 264. 
 
 (ai So, a license is to be distinguislied from mere acts of assent or acfiuiescence, wliicli 
 constitute evidence of one. Thus, the defendant erected a dam, the plaintiff was present 
 durinfT such erection, made no oiijection, said he tliought it would benefit liis mill, and that 
 he was .satisfied with defendant's mode of using the water. Held, no license, but only evi- 
 dence of one for the jury. Johnson v. Lewis, 13 Conn. 303. Jilven an executory license 
 cannot in all cases be revoked. Thus, where A purchased goods sold upon tlie land of B, 
 and a condition of sale, to which B was party, was, that the purchaser might enter to take 
 them ; but B locked liis gates and forbade an entry; held, A was not liable for breaking the 
 gates. Wood v. Manley, 1 1 Ad. k Ell. 34. 
 
 If one enter upon the land of another by virtue of a parol licons', given for a considera- 
 tion, and erect fixtures, sucii license becomes irrevocable, and trespass will lie against the 
 owner of the land fur destroying them. Wilson v. Clialfant, 15 Oliio, 248. 
 
 Such license, executed, gives the right of possession to control, repair and protect the 
 fixtures. lb 
 
 What is the nature and extent of the estate or interest in him who erects the fixtures. 
 Quaere. lb. 
 
 (6) Upon this ground, where a license is pleaded to erect and, maintain, evidence of a 
 licence to erect only, does not sustain such plea. Alexander v.^Bonnin, 6 Scott, 611. 
 
 Where a landlord had distrained for rent, and, in consideration of his giving up the dis- 
 tress, the tenant agreed to surrender the premises in a week, and accordingly removed his 
 furniture, and after a week the lessor entered; held, he was not liable to an action of tres- 
 pass, the facts showing a license from the plaintiff, which, it seems, was not revocable. At 
 any rate, a revocation must be distinctly replied. Feltham v. Cartwright, 7 Scott, 695. 
 
 A license to build and maintain a bridge over another's land is not revocable, it seems; 
 certainly not, without compenaatiou. 11 N. H. 102. 
 
 Vol. L 15 
 
226 
 
 RENT. 
 
 [CHAP. XVI. 
 
 therefore was not liable to pay any expenses incurred by M in re- 
 moving the old dam ; but that he was liable for building a new dam 
 or repairing the old one, after the license was countermanded, and tha>. 
 M was entitled to have the same abated at the expense of J.(l) 
 
 111. A and B were joint tenants; and, although no partition had 
 been made between them, it was understood that A should have the 
 east, and B the west end of the tract. B agreed that A might build 
 a mill on A's half, and cut as much timber off the west half, and over- 
 do w as much of the land, as was necessary for that purpose. After- 
 wards B sold to 0, who ngreed with A to abide by these stipulations. 
 After the dam was partly erected, and timber collected for building 
 the mill, C sold to D, who soon after notified A to discontinue the 
 work ; and, on his refusal, brought trespass for overflowing the land. 
 Held, the action could not be maintained, and that the original parol 
 agreement could not be revoked after it had been executed at the de- 
 fendant's expense.(2) 
 
 112. For any abuse of a license, the party injured may maintain an 
 action. Thus, the plaintiff, having a way over the defendant's land, 
 gave him a license to build an arch over such way, but the defendant, 
 in so doing, unnecessarily and unreasonably obstructed the way. Held, 
 the plaintiff might maintain an action on the case for this obstruc- 
 tion. (8) 
 
 CHAPTER XVI. 
 
 RENT. 
 
 1. Definition. 
 
 3. Must be certain. 
 
 4. In what payable. 
 
 5. Effect of a reservation of part of the 
 
 produop, and whether tlie landlord 
 has a lien. 
 
 11. Kinds of rent. 
 
 12. Rent-service. 
 
 13. Rent-charge. 
 
 15. Rent-secli. 
 
 16. Fee-farm rent, 
 n. Seizhi of rent. 
 
 18. From what it may issue. 
 
 23. On what conveyance reserved. 
 
 24. Several rents reserved by one deed. 
 
 46, 
 
 52-3, 
 
 29. To whom reserved. 
 41. When payable. 
 
 To whom it passes upon the lessor's 
 
 death. 
 Remedies for recovery of rent — dis- 
 tress. 
 57. Re-entry. 
 
 62. Debt and covenant. 
 
 63. Assumpsit. 
 
 65. Election of remedies. 
 
 68. Restoration of land after forfeiture; 
 
 attachment for — before due. 
 
 69. Suit in Chancery. 
 72. Estates in a rent. 
 
 86. Not lost by non-user. 
 
 1. In the natural order of topics, we now proceed to state the rules 
 of law applicable to the most important incident of an Estate for Years 
 and a Lease, which were respectively treated of in the two preceding 
 chapters ; viz.. Rent. This, for the most part, though not exclusively, 
 pertains to the two subjects above referred to, and therefore finds a 
 proper place in immediate connection with them. 
 
 0) Stevens v. Stevens, 11 Met. 251. 
 (2) SheEBeld v. Collier, 3 Kelly, 82. 
 
 (3) Gushing v. Adams, 18 Pick. 110. 
 
CHAP. XVI.] 
 
 RENT. 
 
 227 
 
 _ 2. Rent is a periodical return made by any particular tenant of land, 
 either in money or otlierwise, in retribution 'lor the land. 
 
 8. A rent must be certain, or capable of being made so bv either 
 party.(l)(a) 
 
 ■i. The old doctrine is, that rent must t's.sue out of the thing granted, 
 and not be a part of the thing itself. Thus, it cannot consist of the 
 annual vesture or herbage ; for that should be repugnant to the gTant.(2) 
 It is^ often reserved, however, in a certain portion of the produce. (J) 
 But it has been held, that the whole property in such produce remains 
 in the lessee till it is divided, and the lessor's share delivered to him. 
 So, also, that a creditor of the former may legally seize the whole. So, 
 also, that upon his death it passes to his adrninistrator.(3)(c) 
 
 5. And the same principle has been adopted where the lease pro- 
 vides that the lessor shall have a claim upon the produce as security 
 for the rent. 
 
 6. A lease provided that the produce, whether growing or harvest- 
 ed, if deposited upon the land, should be held for the rent, and be at 
 the lessor's disposal, who might enter and take it for rent in arrear. 
 Before rent-daj, previous insialments having been paid, a creditor of 
 the lessee seized, by legal process, a quantity of corn raised upon the 
 land. Held, no property had vested in the lessor, as against creditors 
 either by way of sale, mortgage or pledge, for w^ant of delivery, and 
 continued possession; and the agreement, giving the lessee an absolute 
 title until the lessor should take possession, was fraudulent against 
 creditors.('i) 
 
 (1) 3 Cruise, 186; Co. Lit. 142 a. 
 
 (2) lb. 
 
 (3) Stewart v. Doughty, 9 Jolin. 113 ; 
 Dockham v. Parker, 9 Greenl. 137. See 
 ch. 15, a. 24; also, Rinehart v. Olwiae, 
 5 Watts & S. 157; Morgaa v. Moody, 6 
 
 333 ; Deaver v. Rice. 4 Dev. & E. 431 ; U. S. 
 V. Gratiot, 14 Pet. 526; Turner v. Bacl'ielder, 
 5 Sliepl. 257 ; 'Wliitcomb v. Tower, 12 Met! 
 487; Thompson v. Spinks, 12 Ala. 155. 
 (4) Butterfield v. Baker, 5 Pick. 522. 
 
 (a) The maxim applies in this, as in other cases, " id certum est, quod cerium reddi potest " 
 Smith V. Fyler, 2 Hill, 648. 
 
 A demise at will, in consideration of services rendered annually to a religious society " as 
 foresinfrer .ind orpraiiist," is not within the Pennsylvania act of 1772, for iancertfiinty in the 
 rent, Hohly v. German, &c,, 2 Barr, 293. See Glasgow v. Ridgeley, 11 Mis. 34. 
 
 (6) Chancellor Kent considers this the most judicious mode of reservation in lono- lease? 
 on account of the fluctuating value of money. He mentions the case of the N. Y.°Univer- 
 sity, whose annual income is limited by law to 40,0,00 bushels of wheat. 3 Kent, 369. See 
 Yan Rensselaer v. Jewett, 5 Denio, 135; v. Gallup, lb. 454; Tayl. L. & T. 7. 
 
 "Where the rent reserved is one-half of the crop, this entitles the landlord to one-half the 
 straw. Rank v. Rank, 5 Barr, 211. 
 
 Where the rent of land leased for the cultivation of sugar is payable iu a portion of the 
 crop, it will be presumed, in the absence of any express stipulation, that the suo-ar is to be 
 delivered in the usual mantier, that is, in hogsheads or barrels, and the lessee cannot claim 
 any allowance for the cost of the ho;;shead3 or barrels. Wilcoxen v. Bowles 1 la Ann 
 R. 230. 
 
 (c) Tiie owner of land rented it to raise a crop of corn. Before the crop was gathered, 
 the owner sold it, and tlie purchaser turned a number of hogs into the field. Held, this 
 was a trespass to the lessee. Rodgers v. Lathrop, 1 Smith, 347. 
 
 If A mtike a parol agreement with B to clear and sow the land of B for the crop, and be- 
 fore harvest B cmivey the land to C, with notice of such contract, C will be bound by it 
 Dewey v. Bellow,s, 8 N. H. 278. 
 
 Rent may be reserved in labor, as well as produce. And, if a tenant agrees to pay in 
 this way by the month, when he ceases to labor, his title comes to an end, without notice 
 to quil. M'Gee v. Gibson, 1 B. Mon. 105. 
 
 Where a tenant agreed to cultivate and bag the hop crop in pnyment of the rent; held 
 such crop belonged to the landlord. Kelley v. Weeton, 2 Appl. 232, 
 
228 KENT. [CHAP. XTI. 
 
 7. So, where a rent, is reserved in money, but the lessor reserves a 
 right to take a portion of the produce at a certain valuation, in lieu of 
 money, he acquires no property until he has elected and actually ta- 
 ken the produce; and, upon the leasee's death, the right of election 
 ceases, and the whole existing produce vests in the administrator, leav- 
 ing the lessor, in case of insolvency, only the rights of a general credi- 
 tor. So, where a lease provided that, in case of non-payment of rent, 
 the lessor should have all the crops, to dispose of as he pleased ; held, 
 until delivery of the crops, or possession taken, in payment of the rent, 
 they remaint'd the property of the lessee, liable to he sold by him or at- 
 tached by his creditors.(l) 
 
 8. The contract between the parties may be of such a nature as to 
 make them joint oumeis of the crop or produce. (a) 
 
 9. A rented a farm from B upon the following terms : A was to 
 give B one-half of every thing that was made, to carry all the crops to 
 market, and pay B one-half of the proceeds. A made a crop of tobac- 
 co, and assigned in writing all his interest therein to C, who was to 
 have the crop prepared for market, and sold, and to pay over toB one- 
 half of the net proceeds. The tobacco was left in the possession of B's 
 agent, and A retained possession of no part thereof, after his ac^ree- 
 ment with C. Held, the contract between A and B created the relation 
 of landlord and tenant, and vested in each a joint interest in the crop; 
 that the sale to 0, if effectual, could only constitute him a tenant 
 in common with A ; and that B could not, therefore, maintain replevin 
 against A. (2) 
 
 10. The defendant entered into a contract with A, in writing, not 
 -under seal, '• to Lt" to A a certain farm, to commence on the Jst of 
 April, ana continue from year to year for five years, or so long as the 
 parlies should agree and be satisfied, reserving to either party the right 
 to terminate the contract by giving one month's notice in writing, the 
 produce of the farm " to be equally divided by weight or measure." Held, 
 although this gave to A an mterest in the land, and a right to occupy it 
 while lie continued in the performance of the contract ; yet, it did not 
 -constitute a lease, but A was a quusi tenant at will while the contract 
 continued, and the defendant and A were tenants in common of the 
 •growing crops, and of the produce of the farm before severance. (3) 
 
 10 a. Contrary to the doctrine above stated, (sees. 4, 5,) it has been 
 held in Vermont, that where stock and farming utensils worth $1,000, 
 were leased with the land, with a provision that they should remain the 
 property of the lessor, and be security for the rent and covenants, as 
 also other articles of the same kind and value, which might be substi- 
 tuted for, or added to them; held, a valid contract, and that the lessor 
 had a good title to the property leased, and all purchased with its avails, 
 or those of the products of the farm, to the amount of $1,000.(4) 
 
 10 b. Held, also, that the property thus on the farm, to the amount 
 
 (1) Wnit, Ac, 1 Pick. 100 ; Munsell v. Ca- 
 rew, 2 (Jusli. 50. 
 
 (2) Perrallv. Kent, 4, Gill, 209. 
 
 (3) Aiken v. Smitli, 21 Term, 172. 
 (4j Pari8 v. Tail, 18 Term. 277. 
 
 (a) A landlord, entitled to one-half of the crops, when divided, cannot maintain trespass 
 njiain^-i the tenant tor taking the hay which the landlord had in his possession, but which 
 had never been divided. IJriggs v. Thompson, 9 Barr, 338. 
 
CHAP. 2VI] KENT. 229 
 
 of $1,000 in tbe whole, could not be attached by the creditors of the 
 lessee, but that the right of the lessor extended only to tiiat amount, 
 and could not extend, under the terms of the lease, to the excess of 
 property over that value, nor to property acquired by the lessee from 
 the avails of his individual means.(l) 
 
 10 c. The creditors of the lessee, having attached and sold the stock 
 and farming utensils on tbe farm, a part of which consisted of property 
 placed upon the farm by the lessor at the commencement of the term, 
 and the remainder of which was property purchased by the lessee, in 
 place of stock, &c., sold by him, with the consent of the lessor : held, 
 in absence of all proof of fraud, that the lessor was entitled to recover 
 against the attaching creditors, to the amount of $1,000, and interest 
 from the time of the taking.(2) 
 
 10 d. So it has been held in the same State, that a lease of land, re- 
 serving rent, and which provides that all the crups are to be the 
 property of the lessor until the rent is paid, is valid, and will entitle the 
 lessor to hold such crops against the creditors of the lessGe.(3) 
 
 10 e. A leased land to B for two years, reserving rent, B executing 
 at the same time a promissory note for the first year's rent. The lease 
 provided that the lessor was to have entire control and ownership 
 of all the crops until the rent of each year was paid. A indorsed 
 the note to C, and delivered to him the lease as security. Held, 
 would hold the crops raised the first year, as security against one who 
 attached them, as the property of B, and became the purchaser of them 
 upon the execution sale.(4)(a) 
 
 (1) Paris V. Vail. 10 Verm. 277. r (3) Smitli v. Atkioa, 18 Verm. 4G1. 
 
 (2) lb. (4) lb. 
 
 (a) In connection witii tliesomewliat contradictory doctrines stated in the text, (sees. 4-10,) 
 it may he mentioned, tliat in many of tlia Stales express statutory provisions liave given 
 the landlord a claim or title to the produce of the land which he would not otherwise have. 
 Thus, in Missouri, Tennessee, Illinois, Arkansas, Ohio, (it seems,) Iowa, Mississippi and 
 Alabama, the landlord has a lien upon the crop for rent, usually for a specific time after it 
 falls due. In Vir{;inia, Kentucky, Alabama, Mississippi, Delaware, New York, Pennsyl- 
 vania, he has the same lien upon the tenant's goods on the hind. The word property is also 
 sometimes used. In Maryland, he has a lien on the crop for rent, if payable in produce. 
 In Delaware, if the rent is payable in produce of a certain kind, the lessor has a lien upon 
 this amount of the crop; and if sold on execution, tlie purcliaser succeeds to the tenant's 
 lialiility for rent and good husbandry, and tlie crop is still liable to distres.s. But see Bryan 
 V. Buckholder, 8 Humph. 561. In New York, the tenant may dischiirge the lien by giving a 
 bond with surety for tlie rent. If the landlord claim and receive more rent than is due, 
 he is liable to double damages. Tenn. St.s. 1825, ch, 21; Misso. Sts. 377; 6 Watts, 134; 
 Dela. Sts. 1829, 3G6-7 ; 1 N. J. L. 187 ; Aik. Dig. 357 ; 1 N. Y. Rev. Sts. 746; 6 Yerg. 
 267; 4 Griff. 671; 3, 404; 1 Ky. Pvev. L. 639; Md. L. 1831, ch. 171 ; Illin. Sts. 1842, 3, 
 142; Martin. 5 W. & S. 220 ; Clay, 506; Hardeman w. Sliumate, 3 Port. 398; Bromley?;. 
 Hopewell, 2 Harr. 400 ; Thomp.son w. Spin Its, 12 Ala. 155; De]iham V.Harris, 13, 465; 
 Iowa Code, ch. 82, sec. 1290; Va. Sts. 1840, 1, 77; Tifft v. Verden, 11 S. & M. 153; 
 Porraan v. Proctor, 9 B. Mon. 124. 
 
 The following are some of the leading miscellaneous decisions in construction of these 
 statutes: — 
 
 In Virginia, if an officer take the goods of the tenant without satisfying the le.ssor's claim, 
 the measure of damages in a suit by the laiter is not the value of the goods, but the amount 
 of rent — the (brmer exceeding the latter. Crawford u. Jarrett, 2 Leigh, 630. The land- 
 lord's lien, for a year's rent, on the goods and ciiattels of his tenant, does not protect them 
 Irom an execution, except where they are in or upon the premises. Geiger v. Harman, 
 3 Gratt. 130 
 
 In Tennessee, an action lies by the landlord against a purchaser of the crop, but not till 
 he lias recovered a judgment against the tenant for the rent. The landlord has a lien even 
 agiiinst a sub-lessee, who has paid the original tenant. Ballantine v. Greer, 6 Yerg. 267; 
 Eutlege V. Walton, 4, 458. 
 
230 RENT. [CHAP. XTI. 
 
 11. By the English law there are three kinds of rent, viz. : rent-service, 
 rent-charge, and rent-seek. And this division has been recognized in New 
 Yorii ; although in that State a statute has done away with all distinc- 
 tions as to remedies.{l) 
 
 (1) Cornell v. Lamb, 2 Cow. 652 ; 3 Kent, 368-9. (As to the rent called rack-rent, see 
 Simpson v. Clayton, 6 Scott, 469.) 
 
 Under the act of 1840, in North Carolina, which gives to a landlord, whose rent is to be 
 paid in apart of the crop, a certain interest in the crop; if the tenant retains possession, and 
 the whole crop is levied upon as his property, the landlord may bring an action on the case 
 against the officer^ but not trespas.s— haviiiK neither property nor possession. Peebles v. 
 Lassiter, 11 Ired. 13. An execution against tlie tenant gives a lien upon the crop from its 
 teste, paramount to any claim of the landlord under a subsequent transfer for the rent. 
 Deaver v. Rice, 4 Dev. & B. 431. 
 
 In New York, where a sheriff, having in his hands an execution against a tenant, pre- 
 vious to a sale receives a notice from the landlord that rent is due to him, and requiring the 
 sheriff to levy the amount of the rent and pay the same to the landlord; the payment of 
 the money collected by the sheriff into court will not be a bar to a suit against him by the 
 landlord for the amount of such rent. Acker v. Ledyard, 8 Barb. 514. 
 
 Where an execution creditor, as well as the tenant, admits' that there is a certain sum as 
 rent due the landlord, the slieriff cannot discharge himself from liability to the landlord, by 
 paying the money into court, in a suit in which the landlord is not a party. lb. 
 
 Where an offence was committed against the New Tork statute, prohiliiiting the removal 
 of goods from demised piemises, to avoid the payment of rent, (2 Rev. Sts. 503, sec. 17,) ao 
 that the landlord's right to sue for the penalty imposed was oerfect, before distress for rent 
 was abolished by the act of 1846, (p. 369 ;) held, his right of action was not taken away 
 by the latter statute. Conley v. Palmer. 2 Comst. 182. 
 
 Only one penally can be recovered, and all who assist may be sued together. lb. 
 
 In Pennsylvania, a sheriff, who sells land on execution which is subject to arrears of 
 ground-rent, and distributes the fund to other persons, is personally liable to the owner of 
 the ground-rent. Mather t;. MeMichael, 1 Harris, 301. 
 
 So, though he .stipulates in the conditions of sale, that unless the claim for ground-rent 
 is presented before he parts with the purchase-money, the arrears will be paid by the 
 purchaser. lb. 
 
 The preference of a landlord for one year's rent is not confined to the rent for the year 
 immediately preceding the execution, although a new year has commenced, for which the 
 rent accrued has been paid ; nor does it make any ditfereuce that the year's rent due ac- 
 crued under a former lease, which has expired. Richie v. McCauley, 4 Barr, 411; Parker's 
 Appeal, 5 Barr, 390. 
 
 Where the property of a tenant is levied on upon the premises, the landlord is entitled 
 only to the rent due at the time of the levy, out of the proceeds of the sale. Nor can he 
 set off the rent becoming due after the levy, against the tenant's book account against him, 
 for which credit is asked, as a deduction from the rent, in a feigned issue between the 
 landlord and the execution creditors, to try the amount of rent due. Case v. Davis, 3 
 Harris, 80. 
 
 Wliere the tenant was to pay taxes, the landlord is not entitled to the amount of taxes 
 paid by him after the levy. lb. 
 
 In Maryland, arrears of rent, of which the sheriff had notice by a due warrant of distress, 
 before sale, cannot be retained for the use of the landlord by the sheriff out of the proceeds 
 of the goods of a stranger levied upon, while on the demised premises, under a writ of at- 
 tachment, to compel an appearance at law ; the same goods having been duly condemned, 
 and afterwards sold hy fieri facias, under the judgment of condemnation. Fisher v. Johnson, 
 6 Gill, 354. 
 
 In Kentucky, under the act of 1843, a tenant, after entering upon the premises, cannot 
 defeat his landlord's lien upon his property by mortgaging it. Beckwith t;. Bent, 10 B. Mon. 95. 
 
 The act of 1843, in Missouri, " concerning landlords and tenants in St. Louis county," 
 gives no lien, unless the rent be due and certain ; but wliere a, certain rent has been re- 
 served for a house, and additional premises are rented at an uncertain r,3nt, the whole rent 
 is not thereby rendered uncertain. Glasgow v. Ridgeley, 11 Mis. 34. 
 
 As the converse of the landlord's lien, referred to in the text, in some oases the tenant 
 may acquire a lien upon the land against the landlord. Thus, he sliall have such lien in 
 Kentucky, where he has been compelled to pay taxes upon the land beyond or against his 
 contract. In Maryland, New Jersey and New York, the tenant is allowed to deduct the 
 amount of such taxes from his rent. 2 Ky. Rev. L. 1364; 3 Md. L. 121 ; 1 N. Y. R. S. 
 419; 4 Griff 1274. As to special remedies in case of landlord and tenant, see Ward v. 
 Wandell, 10 Barr, 98 ; MoCaskle v. Amarine, 12 Ala. 17. 
 
CHAP. XTI.] 
 
 KENT. 
 
 231 
 
 12. Rent-service, the only one known to the common law, and the 
 one chiefly in use in the United States, is thus defined :(1) "where a 
 tenant holds his lands by fealty or other services, and a certain rent." 
 The name service was applied to this rent, because it was a substitute 
 for the feudal services, which in early times the tenant paid to his 
 lord. To a rent-service the power of distress was inseparablv incident. 
 {-Injra, s. 54.) 
 
 13. A rent-charge is a rent granted out of lands by deed. Such rent 
 is not in itself subject to be enforced by distress, but is usually charged 
 expressly with this right, and hence derives its name of rent-charge. 
 It is said that rent-charges, though of great antiquity, were against the 
 policy of the common law, inasmuch as they were commonly for the 
 benefit of younger children, and rendered the grantor less competent 
 to perform his feudal services, while they did not subject the grantee 
 to such services. Hence, a i-ent-charge is against common right. But 
 where a rent-charge is granted for valuable consideration, — as in case 
 of partition between parceners, or in lieu of dower ; it is said the owner 
 may distrain, of common right. 
 
 14. A section of the statute of uses transfers to the cestui que use of a 
 rent-charge the legal seizin and possession of such rent.(2) 
 
 15. A rent-seek, or barren rent, is one, for recovery of which by dis- 
 tress, at common law, no power is given either by law or by agreement. 
 It does not differ from a rent-charge, except in this particular. Being- 
 connected with the power of distress, a rent-charge is regaided as an 
 interest in, or specific portion of, the land — bound by a judgment, and 
 subject to execution ; while a rent-seek has none of these properties. 
 Where a lessee assigns, reserving rent to himself, the excess over that 
 reserved to the lessor is said to be a rent-seck.{3) 
 
 16. A fee-farm rent is a perpetual rent reserved on a conveyance in fee- 
 simple. It is said that in England, since the statute of quia emptores, — 
 by which tenure was to be always of the chief lord, instead of the im- 
 mediate donor, — a fee-farm rent is impracticable, because a grantor in 
 fee retains no reversion, which is essential to a rent. It seems, however, • 
 that such reservation, accompanied by a power of distress and re-entry 
 on non-payment, might make a good rent-charge, and, in the United 
 States, though unusual, it would undoubtedly be legal and valid. In 
 Massachusetts, a rent of this description is sometimes known by the 
 name of quit-rent{a) or rent-charge, and in New Jersey and New York 
 as a rent-charge. In Pennsylvania it is termed a ground-rent, and is 
 said to be a very common species of inheritable estates. In that State, 
 the statute quia emptores is not in force ; and a ground-rent is, therefore, 
 as at common law, a rent-service, and not a rent-charge, as in England 
 
 (1) Litt. 213. 
 
 (2) Co. Lit. 143 b; 3 Cruise, 187; Lit. 
 252; IngeraoU v. Sergeant, 1 Whart. 352; 
 Cornell v. Lamb, 2 Cow. 652. 
 
 (3) Cornell v. Lamb, 2 Cow. 652 ; People 
 V. Haskins, 7 Wend. 463 ; Techte v. Brown- 
 ell, 8 Paige, 212; Wollaston v. Hakewill, 3 
 Man. & G. 297. 
 
 (a) It is said (Marshall v. Conrad, 5 Call, 364) that quit-rents, in England, were rents 
 reserved to the king or a proprietor on an absolute grant ot waste land, for which a price in 
 gross was at first paid, and a merely nominal rent reserved, as a feudal acknowledgment of 
 tenure ; and that, inasmuch as no rent of this description can exist in the United States, 
 where a qmt-rent is spoken of, some different interest must be intended. See Sneed u. 
 "Ward, 5 Dana, 187. 
 
232 
 
 RENT. 
 
 [CHAP. XTI. 
 
 since the statute. la a late case it is said by the court, in their very 
 learned and elaborate opinion, that, before the statute quia emptores^ a 
 rent-charge could exist only where one man granted to another and 
 his heirs a yearly sum charged on the land, with the right of distress; 
 but this statute made a fee-farm or ground-rent a tent-charge, by con- 
 struing the rtservation hy the grantor into a promise or grant by the 
 grantee.{a) In ISTew York, this view of the subject is not adopted; but 
 eyevj rent is a rent-charge, where the landlord has no rpversionary 
 interest.(l)(6) In Ohio, such a thing is hardly known as a rent- 
 charge. (2) 
 
 17. Seizin of a rent can be had only by receipt of the whole or a 
 part of it, except in case of a conveyance to uses, which, by the opera- 
 tion of the statute of uses, gives a seizin immediately, without any 
 receipt.(3) 
 
 18. A rent can issue only from corporeal hereditaments, or, as Lord 
 Coke says, an inheritance that is manurable or maynorahle ; because 
 these alone are subject to distress ; and incorporeal rights, being always 
 granted originally by the crown, are created for particular purposes, 
 foreign from the payment of rent, which would therefore be contrary 
 to the intention of the grant.(-i) 
 
 ] 9. A rent cannot be reserved from a rent. Thus, if one lease lands 
 
 (1) Co. Lit. 143 b, n. 5 ; Adams v. Buck- 
 lin, 7 Pifk. 121; Farley v. Craig, 6 Halst. 
 262 ; 1 Whart. 360 ; Ingersoll v. Sergeant, 1 
 Whart. 337 ; Lit. 217 ; (and see Marshall v. 
 Conrad. 5 Call, 364 ; Cornell v. Lamb, 2 Cow. 
 652 ; Kenege v. Elliot, 9 Watts, 262 : Penn. 
 
 St. 1840. 249 ; &overnor3, &c. v. Harrild, 2 
 Man. & G. 713, n; Flower v. Hartopp, 5 
 Beav. 476.) 
 
 (2) Walk. 265. 
 
 (3) 3 Cruise. 188. 
 
 (4) Co. Lit. 47 a ; 142 a ; Gilb. 20-22. 
 
 (a) Where land, on which a perpetual rent has been reserved, is conveyed either by in- 
 denture or deed-poll, to be held "under and subject to the payment of the .said rent, as the 
 same shall accrue, forever," the grantee is liable for the rent, only so long as the freehold 
 remains in him. and not to indemnify his grantor lor the payment of rent accruing after he 
 has conveyed the premises. Walker v. Physick, 5 Barr, 193. 
 
 The payment, by an assignee of land, of a ground-rent which accrued while occupied by 
 him, does not raise the presumption of payment of a judgment for the ground-rent against 
 his assignor. Wills v. Gibson, 7 Barr, 154. 
 
 , A purchaser of land sold on execution is not liable for a ground-rent accruing between 
 the sale and the sheriff's deed. Thomas v. Connell, 5 Barr, 13. 
 
 A conveyance reserving a ground-rent to the grantor, with a covenant to convey in fee 
 simple absolute on payment of a certain sum, is an executed contract. Sahl v. Wright, 6 
 Barr, 433. 
 
 In an action of covenant brought by the grantee of a ground-rent against the grantor, 
 after the grantor has sold the land out of which it issues; it is not necessary to notify the 
 vendee as terre-tenant; and the sale of the whole lot on execution on the judgment divests 
 the title of such vendee, as well as of the defendant. Charnley v. Hansbury, 1 Harris, 16. 
 
 A took a lot on ground rent, and contracted with B to give him a deed on the perform- 
 ance of certain conditions; B was put in possession, subject to the ground-rent, and ful- 
 filled the conditions ; and A. afterwards purchased the ground-rent. It seems, such purchase 
 did not merge the ground-rent in fee, nor enure to the benefit of B. lb. 
 
 Where ten mts in common, one of whom held in trust, joined in a conveyance, reserving 
 a ground-rent, the trustee having no power to make such conveyance, the grantee, who, at 
 the time of the conveyance, knew of all the facts relative to the title, although mistaking 
 the legal effect of the deed creating the trust, cannot, by tendering a reconveyance, recover 
 back the ground-rent paid by him. Kerr v. Kitchen, 7 Barr, 486. 
 
 (6) A "sixth sale," or "quarter sale," reservation, contained in a lease in fee, is void; 
 aliitr, in a lease for years or for lives. Overbagh v. Patrie, 8 Barb. 28. 
 
 Where the payment of such sixth sale, or quarter sale, is made a condition subsequent, 
 the condition is void. lb. 
 
CHAP. XYI.] 
 
 RENT. 
 
 233 
 
 for life, reserving rent, and then grant this rent, reserving rent; the 
 latter reservation is qoid.(l) 
 
 20. Bat rent may be reserved, upon a lease of the vesture or herb- 
 age of land ; because the beasts feeding there may be distrained. So, 
 upon a lease of a remainder or reversion ; because, when become an 
 estate in possession, it will be subject to distress, and it is a tenemeut.{2) 
 
 21. Upon a lease to commence iii futuro, rent may be reserved im- 
 mediately; because, when the lessee takes possession, the lessor may 
 distrain for the arrears.(3) 
 
 22. The preceding remarks, as to the kinds of property from which 
 a rent cannot legally be reserved, are to be received with some quali- 
 fications. As a mere matter of contract, the reservation of a return or 
 compensation for the use of any kind of real estate is binding, and may 
 be enforced by action. But, unless the property is of the description 
 above pointed out — first, there can be no distress ; and second, by a 
 grant of the reversion, the rent will not pass, not being incident thereto. 
 It is said, however, that the rent reserved upon a lease of tithes will pass 
 with the reversion. At common law, a reservation of rent, upon a lease 
 for life of incorporeal property, is for all purposes void ; no action of 
 debt" will lie for it. And whether St. 8 Anne, 14, applies to this kind 
 of property, seems doubtful. (4) 
 
 23. Rent may be reserved upon every conveyance, which either 
 passes or enlarges an estate. It is usually reserved upon a lease. (5) 
 
 24. Where several lands are let by one conveyance, distinct lents 
 reserved, and a right of re-entry upon the whole provided for non-pay- 
 
 -ment of the rent of one; the reservations create several tenures, de- 
 raises, reversions and rents, and an entry upon one parcel for non-pay- 
 ment of the rent of another is illegal and void. (6) 
 
 25. And a third person may purchase the reversion of one of the 
 parcels, and maintain ejectment for non-payment of the rent of that 
 parcel. (7) 
 
 26. But, if the rent be at first reserved in gross or entire for the 
 whole of the lands leased, and the rent of each parcel afterwards desig- 
 nated separately- — -as, for instance, for A, B and C £15, viz. : £.5 for A, 
 £,0 for B, and £5 for C ; the latter sums will be regarded as mere valua- 
 tions, and for non-payment of one the lessor may re-enter upon the 
 whole.(8) 
 
 27. Upon the same principle, if tenants in common join in making a 
 lease upon condition ; as they have several estates, the demise, the 
 condition, and the rent will also be construed as several. (9) 
 
 28. Where a statute provides for re-entry on the land, and a sale of 
 the lessee's right in such lease, upon non-payment of rent ; the entry 
 must be made upon the whole land, without regard to any sub-leases 
 of a part.(10) 
 
 29. A rent-service can be reserved only to the owner of the land, or 
 
 (1) 2 Rolle Abr. 446. 
 
 (2) Co. Lit. 47 a. 
 
 (3) 2 Rolle Abr. 446. 
 
 (4) Windsor v. Gover, 2 SauB. 302 ; Co. 
 Lit. 47 a ; lb. n. 3 : 44 b, u. 3 ; 47 a, n. 4. 
 
 (5) Co. Lit. 144 a; Gilb. 22. 
 
 (6) Winter's case, 2 Eolle Abr. 448; Tan- 
 field V. Rogers, Cro. Eliz. 340 ; Lee v. Arnold, 
 
 4 Leon. 27. See TrVoUaston v. Hakewill, 3 
 Man. k G. 297 ; Pateraon i). Lang, 6 Beav. 
 590. 
 
 (7) Hill's case, 4 Leon. 187. 
 
 (8) KTiight's case, 5 Rpp. 54. 
 
 (9) Knight's case. Moo. 202. 
 
 (10) Hart v. Johnson, 6 Ohio, 88. 
 
234 RENT. [CHAP. XYL 
 
 his legal representatives after bis death, or to a party who is privy 
 to the lease, as to one of two joint-tenants, who join in leasing by in- 
 denture ; because it is a recompense for the use of the land, and should 
 therefore belong to him from whom the land passes. If the lease is to 
 commence after the death of the lessor, the rent may be legally re- 
 served to his heirs, who wilPtake it, not as purchasers, but by descent, 
 as incident to the reversion. And hence the lessor may release the 
 rent during his life.(l) 
 
 30. In such case, the law is strict in requiring the use of the word 
 heirs. Thus, where a father, and his son and heir apparent, joined in 
 making a lease, to commence from the father's death, and reserved the 
 rent to the son ; held, the reservation was void, and the son had no 
 right to distrain for the rent, after the death of the father.(2) Upon 
 thfe same principle, at common law, if a reversioner assigned over his 
 estate, the assignee could not avail himself of any covenant or condi- 
 tion in the lease. The lavy upon this subject has already been con- 
 sidered, in treating of the assignment of estates for years.(a) 
 
 31. Where the rent is reserved to no one in particular, it shall be 
 payable to the lessor during his life, and after his death shall pass with 
 the reversion ; and any doubtful word shall be taken in that sense 
 which will best answer the nature of the contract. Thus, if the lessor 
 is a tenant in special tail, and reserves the rent to himself, his heirs and 
 assigns; the rent, upon his death, shall pass to the heir in tail. (3) 
 
 32. Lord Coke says, that if a lessor reserve rent generally, without 
 showing to whom it shall go, it shall go to his heirs. But, in the sen- 
 tence immediately preceding, he says, that if the rent be reserved to 
 him, and not to him and his heirs, the rent shall determine by his 
 death (•i)(A) 
 
 33. How far an express reservation may control the legal dispo- 
 sition of a rent, seems to be somewhat doubtful. It is said, that where 
 the law particularizes the persons, the agreement of parties prevents the 
 construction of law, and, if the reservation is special, and to improper 
 persons, the law follows the words. But yet, a rent reserved to the 
 lessor and his assigns will terminate with his death. So, if the lessor, 
 being owner of the inheritance, reserves the rent to himself and his ex- 
 ecutors ; or if, having himself only a leasehold, he reserves the rent to 
 his heirs; in either case, the rent will cease at his death: because the 
 representatives to whom it is limited, having nor eversion, cannot take 
 the rent incident thereto, and the other class, to whom it is not limited, 
 cannot take it, for the want of such limitation. But if, upon a lease 
 made by the owner in fee, the rent is reserved to himself, his executors, 
 administrators, and assigns, yearly, during the term ; inasmuch as the 
 
 (1) Lit. 346 ; Co. Lit. 47 a, 143 b ; 214 a n. | (2) Gates v. With, Hob. 130. 
 1; Gilb. Rents, 61; 2 Rolle Abr. 447; Sach- (3) Cotlier j;. Merrick, Hard. 89. 
 everell ». Froggatt, 2 Saun. 370. ' (4) Co. Litt. 47 a. 
 
 (a) See oh. 15. 
 
 (6) It has been recently held, that where rent is reserved generally to be paid quarterly 
 during the term, the lease does not terminate on the death of tlie lessor; but tlie rent is 
 payable to his heirs, if he dies intestate, who may maintain an action of debt on the lease 
 to recover the same. Jaques v. Gonld, 4 Gush. 384. 
 
CHAP. 2VI.] RENT. 235 
 
 latter clause indicates a clear intent that the rent should not cease with 
 his death, it will pass with the reversion to his heirs, or to a devisee.(l) 
 
 34. Where the owner of a fi'eehold estate, as lor instance a tenant 
 j)our autre vie, to him and his heirs, assigns his whole estate, leaving no 
 reversion in hirnselt' and reserves a rent to himself, his executors, ad- 
 ministrators and assigns,which the lessee covenants to pay accordingly ; 
 the rent, upon the lessor's death, will pass to his personal representa- 
 tives, notwithstanding a provision that, on non-payment, he and his 
 heirs might re-enter ; for the heirs would be mere trustees for the ex- 
 ecutor,(2) 
 
 35. If a tenant for life and the reversioner join in a lease, reserving 
 rent generally, it will go to the former during his life, and then to the 
 latter.(3) 
 
 36. Where a tenant for life, with subsequent limitations, leases, under 
 a power to ledse, reserving rent to those in reversion or remainder, it 
 has been doubted what disposition the law would make of the rent after 
 his death : because the lessee comes in under the original conveyance 
 creating the power, and therefore a reservation of the rent to the heir 
 of tenant for life, or the reversioner, or remainder-man, they not being 
 the personal representatives of the tenant, would be void. Bat it has 
 since been settled, that such reservation is good, and that a remainder- 
 man, being a privy in estate, may distrain for the rent. la such case, 
 the most clear and sure way is to reserve the rent yearly during the 
 term, and leave the law to make the distribution, without an express 
 reservation to any person. (-1) 
 
 37. With regard to the persons to whom rent may be reserved, sub- 
 stantially the same remark may be made, that was made with reference 
 to the property out of which rent may issue. A reservation to other 
 persons than those above designated, though invalid as technically a 
 rent, may be good as a contract. Thus, if the lessee covenant to pay 
 the debts of the lessor, as rent, he becomes liable as a trustee, but no 
 distress lies against him. (5) 
 
 88. From what has been said, it appears that rent is incident to the 
 reversion. Hence, by a general grant of the latter, the former will also 
 pass ; though not the converse. The rent may be separated from the 
 reversion, but there must be a clear inteniion, or a necessary implication, 
 to that effect, in which case a subsequent grant of the reversion does not 
 pass the rent. By a grant of the reversion, either absolute or condi- 
 tional, the grantee becomes entitled to rents which fall due subse- 
 quently, and may maintain an action therefor, unless paid before notice 
 of the sale to the vendor, in virtue of the assignee's privity of estate 
 with the tenant. The assignor cannot maintain such action. Other- 
 wise, with rents already due ; and, although these be expressly assigned, 
 the grantee cannot sue for them in his own name. An assignee of the 
 reversion will be entitled to the whole rent of the current quarter, not- 
 
 (1) Cother v. Essex, Hard. 95; Co Lit. 47 
 a, and notes 8, 9 ; "Wooton v. EdvTin, 12 Rep. 
 36;* 1 Ventr. 161; Sacheverell u. Froggalt, 
 2 Saun. 367, and notes. 
 
 (2) Jenison v. Lexington, 1 P. Wms. 555. 
 
 (3) Co. Lit. 214 a. 
 
 (4) Chudleigti'a case, 1 Rep. 139 a; Har- 
 oourt V. Pole, 1 And. 273 ; 2 Sauti. 369, n 4. 
 See Lock v. De Burgh, 6 Eng. L. & Kqu. 65. 
 
 (6) Bge V. Ege, 5 "Watts, 134. 
 
 * Marginal note. " This case will hardly be held for law at this day." 
 
236 
 
 RENT. 
 
 [CHAP. XVI. 
 
 withstanding a parol agreement for apportionment. (See ante, eh. 14, 
 sec. 68.) 
 
 3^). A, and B his wife, lease land jointly owned by them, reserving 
 rent. A dies, having devised the reversion to B. B marries C and 
 di'es, and then C dies. The heirs of C shall not have the rents 
 accruing after his death, upon the ground of their being separated 
 by the devise from the reversion, and therefore vesting absolutely 
 in C.(l)(a) 
 
 4U. Eent in arrear (as has been stated, sec. 38,) is a chose in action, 
 not by law assignable, and upon which an assignee cannot sue in his 
 own name. In Delaware, a statute provides, that such rent shall not 
 be assignable with the reversion, {2) 
 
 41. With regard to the time lohen rents are payable, it is said, if there 
 is no express stipulation, they are payable at the end of a year.(3)(&) 
 
 (1) S.impson V. Grimes, '7 Blackf. 176; 
 Peck V. Northrop, 17 Conn.. 217; Burden v. 
 Thayer, 3 Met. 76; Condit v. Neighbor, 1 
 Green, 83; Miller!) Stiigner, 3 B. Mimr. 58; 
 Plinn V. Caiovv, 1 Man, & G. 589; Childcrs v. 
 Smith, 10 B. Mon. 235; Gibbons v. Dilling- 
 ham, 5 Jing. 9; Beach D. Barons, 13 Barb. 
 305. 
 
 (2) Dela. St. 1829, 370; Demarest v. "Wil- 
 lard, 8 Cow. 206. 
 
 (3) Colev. Sury, Lat, 264; Shuny ti. Brown, 
 3 Bulstr. 329; 3 Kent, 374; 3 Cruise, 194. 
 See Hopkins!). Helraore, 8 Ad. & bill. 463; 
 Allen V. Culver, 3 Denio, 284; Boyd v. Mc- 
 Combs, 4 Barr. 146. 
 
 (a) Where the owner of lands leased them for years, and g^ave the lessee the right to 
 make certain improvements, upon obtaininp; authority from the legislature or city counsel, 
 and also reserved a right of entry and distress; and afterwards sold his reversion, and the 
 purchaser recovered the premises for non payment of rent; held, the right to enter, and 
 make and hold the improvements, passed to the purchaser. City of Baltimore v. White, 2 
 Gill, 444. 
 
 A purchaser of land at sheriff's sale is entitled to rent from the day of sale. Stayton v. 
 Morris 4 Harring. 224. 
 
 Where land thus sold is in possession of a tenant, the purchaser has a remedy by distress, 
 or attachment to recover rent against a person occupying by actual demise; and he may re- 
 cover from any occupant a reasonable compensation, in the action for use and occupation, 
 lb. Such purchaser is not liable for a ground-rent, accruing between the time of sale and 
 the lime of taking the deed. Thomas v. Connell, 5 Barr. 13. 
 
 Where a lessor assigns all his real estate in trust for the payment of his debts, the trustee 
 is the proper person to bring an action for rent accruing subsequent to the assignment. 
 Ryerss v. Farwell, 9 Barb. 615. 
 
 Where a surety of a lessee, by a separate covenant, guaranties the payment of the rent 
 and the performance of the covenants of the lease, such separate covenant passes to the 
 grantee of the reversion, and enables him to maintain an action against the surety in his 
 own name for a breach of his covenant. Allen v. Culver, 3 Denio, 284; Peck v. Northrop, 
 17 Conn. 217. 
 
 {b) More especially, in case of a lease for one year. Menough, 5 Watts k S. 432. Lease 
 for three years, "at the rent of $800, yearly," which was to be paid .semi-annually. Held, 
 an annual rent; and tliat the sum of $400, paid after six months, must be considered as a 
 portion of such annual rent. Irving !>. Thomas, 6 Shepl. 418. 
 
 Where a lease contains a stipulation for a rent in kind, without specification of the day 
 of payment, it is payable at the expiration of the year; and an assignment of the rent by 
 an order on the tenant, accepted by him, will not pass the right to the rent, as against the 
 purchaser from the sheriff's vendee of the landlord's estate, under a judgment prior to the 
 lease. Boyd v. McCombs, 4 Barr, 146 
 
 Payments made by a tenant to his landlord on account of rent, generally, will, in the ab- 
 sence of any direction or agreement, be applied by law on the rent due at the time, and 
 not on the rent tlien accruing. Hunter v Ostc-rhoudt, II Barb. 33. 
 
 Where, as between lessor and lessee, the right existed to quarry and take away granite 
 stone, and a payment was made, under an agreement that the same should be applied to 
 the quarry rents thereafter to become due, and the lessor retained the money; held, he 
 could not set up, in opposition to the application of such payment of rent, another claim 
 
CHAP. XVI.] RENT. 237 
 
 But usage will control this presumption, and render them payable semi- 
 annually or quarterly. In the city of New York, rents are made paya- 
 ble qLiarterly. 
 
 42. And this legal implication will be controlled by any express 
 agreement. 
 
 43. If the rent is made payable annually during the term, the first 
 payment to begin two years after, the latter clause shall prevail. (1) 
 
 44. If rent is reserved to be jjaJd at two certain p'eriods, an equal 
 portion of the whole shall be paid at each. (2) 
 
 4.5. If rent is made payable at two certain times, or within thirteen 
 weeks thereafter, the latter clause is for the benefit of the tenant, and 
 the rent is not due till the end of the thirteen weeks. Hence, if the 
 lessor were a tenant for life and die before this time, his executors can- 
 not sue for the rent. But if it were merely provided that, unless the 
 rent were paid within thirteen weeks from the time fixed, the lessor 
 might re-enter; this would be only a dispensation of the entry, and 
 the rent would be due at the appointed day. And the extension of 
 I time above mentioned is granted, only during the continuance of the 
 contract, and for the instalments ol rent prior to the last. The last in- 
 stalment is paj'able on the day specified, upon which the lease itself 
 terrninates.(3) 
 
 46. It has been stated that a rent, before it is due, is incident to the 
 reversion, and, therefore, real estate, But after it is due, it is personal 
 estate. In the former case, as has been seen, (sec. 88,) it passes to a 
 grantee of the reversion. So, upon the death of the landlord, it gqes 
 to bis heir. But in the latter case, it does not thus pass; and, upon 
 the landlord's death, goes to his executor or administrator. It seems, 
 at common law, neither the heir nor executor of a lessor could recover 
 rent after bis death, which was due in his lifetime ; but Statute c2 Henrv 
 VIII., c. 37 (3 Bufi; St. 297,) provided otherwise.(n) 
 
 (1) lb. 
 
 (3) 2 RoUe's Abr. 450. 
 
 (2) Clan's case, 10 Rep. 127; Glover 
 
 Arclier, 4 Leon. 247 ; Barwick v. Foster, Cro, 
 Jae. 233, 310; Bigfiin j). Bridge, 3 Leuu. 211; 
 Morris v. Killin, 3 Keb. 534. 
 
 as for rubble stono, though connected with the quarry, 'due from the lessee to him. Giles j), 
 Comstock, 4 Ciimst. 270; Emery t). Owings, 6 Gill, 191. 
 
 (a) Rent falling du=i after the lessor's death, has been called a diattd real Green v. Mas- 
 sie, 13 Ulin. 363." In Pennsylvania, a tenant may bequeath, s'S personalty, any rent or other 
 periodical payment which is due. Park & J. 467. In New York, a purchaser of tlie land 
 cannot claim rent for a year prior to the purcliase; but only from tlie next preceding 
 quarter-day; unless it be otherwise agreed. Ruckman v. Astor, 3 Kdw. 373. It has been 
 held in Maine, that all the rents and income of an estate, wliicli have accumulated, and not 
 so disconnected as to become personal property, pass by a conveyance of the land. Wins- 
 low V, Rand, 29 Maine, 362. 
 
 Where, by a lease in perpetuity, the lessee covenanted to pay all taxes that might be 
 therea'ter a.ssessed upon the premises, or upon the lessor, his heirs, &c., l>y any act of the 
 legislature, (or and in respect of the said premises, or any part thereof; held, tlie tenant 
 was not liable, under this covenant, to pay to the landlord the amount of a tax on the rents 
 reserved in the lease, which the latter had been compelled to pay under an act pas.sed May 
 13, 1846, entitled "an act to equalize taxation ;" such tax being a tax on rents issuing out 
 of the granted premises, properly declared by the act to be for the purpose of taxation ol per- 
 sonal estate. Van Rensselaer v. Dfennison, 8 Barb. 23. « 
 
 An administrator cannot, by a bill in equity, procure a sum due for rent of land of the 
 intestate, accruing, after his death, from a creditor, to be set off against a judgment obtained 
 by such creditor against himself as administrator; for the administrator has nothing to do 
 
238 RENT. [CHAP. XVI. 
 
 47. Eent is said to pass prima facie to the heir, unless the lessor had 
 a mere chattel interest. Hence, if the executor claims it, he is bound 
 to prove his title.(l) 
 
 48. Eent, in general, is not due till the last minute of the natural 
 day oij which it is made payable. Hence, if the lessor die during that 
 day, the rent passes to his heir. This rule applies, however, only to 
 leases by owners in fee, or under a power. Where a lease is made by 
 a mere tenant for life, if he die at any time during the day when the 
 rent is payable, it passes to his executors. Though, for the benefit of 
 the lessee, he has till the last instant of the day to pay the rent, yet, it 
 is said, as soon as that day begins, he is at his peril to take care that it 
 be paid. And more especially does the principle apply, where the 
 tenant for life dies after sunset of that day; because he is bound then 
 to pay, under penalty of forfeiting his lease after demand. (2)(a) 
 
 49. Iq case of a lease by tenant for life under a power, it has even 
 been held, that where the tenant had received the rent before sunset 
 on the day when it was payable, his executors should pay it over to 
 the remainder-man. This decision, however, has been doubted. (8) 
 
 50. At common law, there could be no apportionment of rents as to 
 time, either in law or equity. Hence, when a lessor, tenant for life, 
 died before rent day, the rent was lost. But the Statute 11 Geo. 2, ch. 
 19, provides otherwise. (See ch. 17, s. 28, supra, s. 82, n. b.) And in 
 New York, New Jersey, Michigan, Missouri and Delaware,(Zi) statutes 
 provide, that if a tenant for hfe, lessor, die on the rent day, his execu- 
 
 (1) 1 Cruise, 195-7 ; 2 Ky. Rev. L. 1.^49 ; 
 Williamson v. Richardson, 6 Mon. 595; Bur- 
 den V. Thayer, 3 Met 76. 
 
 (2) Duppa 0. Mayo, 1 Saun. 287, u. 17; 
 Southern v. Bellasis, I P. Wms. 179; Straf- 
 
 ford V. "Wentworth, 1 P. "Wms. 180; Preo. in 
 Chan. 555 ; Dunn v. Di Nuovo, 3 Mann. & G. 
 105, 
 
 (3) Rockingham v. Penrice, 1 P. Wms. 
 178. 
 
 with the realty of his intestate, unless his estate has been declared insolvent! Bullock v. 
 Sneed, 13 S. A: M. 293. 
 
 Where an administrator leases lands of the deceased, the tenant cannot resist pay- 
 ment of the rent on tlie ground that the premises were sold to pay a debt of the intestate, 
 if the tenant occupied the premi.ses until the end of tlie term. Life v. Secrest, I Smith, 319. 
 
 Where a testator left his estate to remain undivided until the death of his wife, and the 
 income, in the meantime, to be divided between her and her son and daughter, equally, 
 and at her death the estate to be divided between the son and daughter; held, before the 
 death of the widow, the daughter's husband could not distrain for rent due the estate; and 
 that the executor only could do so. Reid o. Stone}', 1 Strobhart, 182. 
 
 A devisee of one wlio has granted land in fee, subject to rent, cannot maintain ejectment 
 for rent in arrear, whicli became payable in tlie lifetime of the testator, but only for such as 
 has accrued since the will took effect in his favor; and, if lie bring ejectment, uniier the 
 statute, in iSTew York, for rent which became due since his title as devisee accrued, he must 
 show that there was no sufficient distress to pay such rent at the time of bringing the ac- 
 tion. It will not be sufficient to sliovv that the property on the premises was inadequate to 
 pay that rent, together witli other rent in arrear, which accrued during the testator's life- 
 time. Tan Rensselaer jj. Hayes, 5 Denio, 477, 
 
 If the lessor leave more heirs than one, tlie rent is apportioned among them, and the ten- 
 ant is bound to pay each his share. Crosby v. Loop, 13 Illin. 625 ; Cole v. Patterson, 26 
 Wend. 456. 
 
 (a) If a lease for years, which terminates by the death of the !es.sor, contains a covenant, 
 on the part of the lessee, to pay the rent reserved, and for such further time as he may hold 
 the premises, and he holds over after the deatli of the lessor; he will be liable to pay the 
 rent sulisequently accruing. Jnques v. Gould, 4 Gush. 38-t. 
 
 (6) Tenant (or life, or upon any contingency. In this State, if rent have been paid in ad- 
 vance, so much as applied to that part of the term which is destroyed by the lessor's death 
 shall be refunded. 
 
CHAP. XTI.] 
 
 RENT. 
 
 239 
 
 tors may recover the whole rent ; if before, a proportional part of it. 
 In Missouri, Kentucky, (a) Delaware and New York, where one is en- 
 titled to rents depending on the life of another, he may recover thena, 
 notwithstanding the death of the latter. In Delaware, Virginia, Mis- 
 souri and Kentucky, it is specially provided that a husuand, after the 
 death of his wife, may recover the rents of her lands.(l)(i) 
 
 51. Rent, before the appointed day of payment, is not debilum in 
 prasenti, solvendnm in futia-o, but is a contingent claim, liable to be 
 wholly defeated by many intervening acts or events.(2)(c) 
 
 52. For the recovery of rents, the law has provided several remedies. 
 
 53. The first is a distress. At common law, this was applicable only 
 to a rent service; but it has been extended by statutes to the other kinds 
 of rents ; and, also, to the executors or administrators of the proprietors, 
 after the determination of their leases.(3) 
 
 54. Distress is the seizure of a tenant's cattle or other personal prop- 
 erty upon the land, for non-payment of rent, for the purpose and with 
 the right of selling them to obtain payment. 
 
 55. It is said(-i) there never has been a process of distress for rent 
 in Massachusetts, and probably the right does not exist. The latter 
 remark is true of the other New England States, and the States of 
 Alabama, Mississippi, North Carolina and Ohio.(i) In Kentucky, a 
 distress lies only for pecuniary rent, which is actually due.(5)(f) 
 
 56. A reversion is necessary to the remedy of distress. Hence, if a 
 lessee assign, reserving rent, he cannot distrain, unless it is so agreed. 
 Otherwise, where he underlets.(6)(/) 
 
 (1) 3 Kent, 376 ; Misso. St. 315 ; 1 N. J. 
 Rev. St. 186-7 ; 1 N. Y. Rev. St. 747 : I Vir. 
 Rey. C. 156 ; 2 Ky. Rev. I.. 1351 ; Dela. St. 
 1829, 365. See infra, o. 17, sec. 28. 
 
 (2) "Wood V. Partridge, 11 Mass. 493 ; 
 Bank, &o. v. "Wise, 3 Watts, 402. 
 
 (3) 3 Cruise, 197. 
 
 (4) 4 Dane, 126; Wait, <fco., 7 Pick. 105; 
 Aik. Dig. 357- 4 GriOF. 1143; 3, 404. 
 
 (5) Owen v. Boyle, 9 Sliepl. 47 ; Mayor, &c. v. 
 Pearl, 11 Humph. 249; Howard o. Dill, 
 7 Geo. 52. 
 
 (6) Ege V. Ege, 5 "Watts, 134. 
 
 (a) Anotlier statute provides, tbat where a lessor, having a life estate or other uncertain 
 interest, dies before the rent is duo, it sliall be divided between his e.xecutor or adminis- 
 trator, and the heir, devisee, reversiouer or remainder-man. A similar provision in Virginia. 
 1 Ky Rev. L. 668 ; 1 Virg. Rev. 0. 166. la North Carolina, the common law rule is re- 
 cognized. Gee V. Gee, "2 Dev. & B. 113. 
 
 (6) A similar statute to those above mentioned exists in Arkansas. Rev. St. 519. By 
 St, 4 & 5 Wm. 4, eh. 22. where any lease determines on the death of the lessor, though not 
 strictly a tenant for life, or on expiration of the life or lives for which he was entitled, a 
 proportion of the rent shall be recoverable by him or his representatives. 1 Steph. Comm. 
 244. The provision as to apportionment does not apply, wliere the death of a party does 
 not end his estate ; or as between his heir and executor. Browne v Amyot, 3 Hare, 173. 
 
 (c) If a rent falls due alter delivery of a writ of eltgit to the officer, but before inquisition, 
 he is not entitled to it. Sliarp. v. Kej', 8 Mees. & W. 379. 
 
 (d) In New York, it has been recently abolislied. Sts. 1846, 369. This act does nothing 
 more th-m change the remedy, leaving the obligation of the contract unimpaired, and a sub- 
 stantial remedy still existing; and is not lialjle to any constitutional objection. Guild D. 
 Rogers. 8 Barb. 502. See Williams v. Potter, 2 Barb. '316, 
 
 (e) Under the Kentuclcy Statute of 1748, giving damages in double the amount of the 
 goods distrained, where a distress is made before tlie rent falls due; to entitle tlie party to 
 recover such damages, tliere must have been a sale under tlie distress before the rent be- 
 comes due. Fry v. Breckinridge, 7 B. Mon 31. 
 
 (/) Numerous cases are Ihund in the books, relating to the remedy of eatress; but, as it is in 
 the United States, to a great extent, superseded by other forms of action, only a few of the 
 later decisions need be cited. 
 
 A distress for rent does not lie where the tenant's contract ia to deliver a certain number 
 of bushels of wheat, corn, oats, &,c., for each acre of ground cultivated in those kinds of 
 
240 RENT. [CHAP. XYI. 
 
 57. A lease, or grant of a rent-charge, or conveyance in fee, re- 
 grain ; nor can the landlord in suoli case claim rent out of tlio proceeds of a sale, on another 
 person's execution of the tenant's goods. Bowser v. Scott, 8 Blackt; 86. 
 
 A tenant contrscted lo pay annually, for tlie rent of certain real estate, $96, in Indiana 
 scrip. Held, the remedy by distress did not lie on such contract. Puroell v. Thomas, 7 
 ■ Blackf 306. 
 
 Under the statutes of Mississippi, an equity of redemption, and any limited interest of the 
 tenant, is liable to be distrained, and to be sold in satisfaction of the rent due from him. 
 Prevvett v. Dobbs, 13 S. & M. 431. 
 
 The soods of a stranger found on demised premises are liable to be distrained, unless spe- 
 cially exempted by tlie common law, or by statute. Stevens v. Lodge, 7 Blackf! 594. 
 
 Goods were mortsraged liy a tenant, and left in the tenant's possession, by an agreement 
 in tlie mortgage. Held, the facts that the mortgage was recorded, and that the landlord 
 had made no objection to the goods remaining on the premises, were no evidence that the 
 goods were on the premises with the landlord's consent, lb. 
 
 It seems that, before the statute of New York abolishing distress for rent, a landlord 
 might distrain for rent after administration granted on the estate of the tenant, although be 
 could not before, and after the death of the tenant. Hovey v. Smith, 1 Barb. 372, 
 
 A landlord, by accepting administration of the tenant's estate, waives his right to dis- 
 train, lb. 
 
 A distress for rent can be made only in the day time, between sunrise and sunset, that 
 the tenant may have opportunity to tender the rent. lb. Fry v. Breckeuridge, 7 B. 
 Mon. 31, 
 
 A landlord, in order to distrain, may open the outer door in the ordinary way. Where, 
 therefore, the door of a stable whs kept closed by a padlock attached to a movable staple, 
 and the owner and other persons usually opened the door by pulling out the staple ; held, 
 a distress upon goods in the stable was legal. Byan v. Shilcock, 8 Eng, Law and Eq, 503, 
 QucBre, whether a distress is void when the outer door is improperly broken. lb, 
 
 A landlord has no authority to break open, forcibly, a door which is barred or bolted, for 
 the purpose of levying a distres,<!, though the propei'ty be fraudulently deposited in the house 
 to prevent a distress. Dent v. Hancock, 5 Gill, 120, 
 
 When the relation of landlord and tenant existed to the end of the year 1843, the rent 
 Was in arrear, and the landlord, in 1844, had rented the premises to another person, but the 
 tirst tenant had locked up a quantity of tobacco in a barn on the premises, which the land- 
 lord, by breaking into the barn, had taken as a distress; held, the fact that the first tenant 
 was not in pos-session when the distress was levied, would not make the entry for the pur- 
 pose of a distress lawful, lb. 
 
 Although, 10 levy a distress, a landlord, for the purpose of making it, and not acting in 
 conformity to the statute, is not authorized to break open and enter the door of a barn wliich 
 is barred or bolted, with a view to prevent from without an entry thereat ; yet, if the door is 
 simply shut or laehed, with the ordinary means of raising the lach left on the outside, an 
 entry is lawful; and. if a door so bolted or barred is forcibly broken open by a person not 
 acting under the authority or sanction, or at the instance, of the landlord or his bailiff, the 
 person required to make such distress is authorized to enter for that purpose at the door 
 thus tbrcilily broken open, lb. 
 
 The right of distraining is lost by a surrender of the term, although with the surrender 
 there is a stipulation to pay rent. The Pennsylvania statute of 1836, sees, 83 and 84, relat- 
 ing to execution,s, does not protect a landlord in such case, and a surrender, after a levy of 
 an execution against the tenant on his property found on the demised premises, destroys 
 the right of the landlord to such property by distress, by the statute or otherwise, Greider's 
 Appeal, 5 Barn, 422, 
 
 But a surrender of the premises after distress does not avoid such distress. Nichols ft 
 Du.senbury, 2 Comst, 283, See Webber v. Shearm.in, 2 Denio, 362, 
 
 Tlie Kentucky statute of 1842, concerning the action of replevin, does not restrict a tenant, 
 who has been distrained upon, to his remedy against the landlord; and heninysuethe 
 officer wiio served the distress warrant ahso. Powell v. Triplett, 6 B, Mon, 420, 
 
 An officer, in making a distress for rent under a landlord's warrant, does not act in his 
 official capacity, but merely as the bailiff of the landlord; and the landlord is in effect the 
 distrainor. Moulton v Norton, 5 Barb. 286. 
 
 A sheriff, therefore, is not responsible for the acts ofhts deputy, lb. 
 The legislature of New York, in making it necessary to employ certain officers to serve 
 such warrants, did not make the service of them an official act of such officers, lb. 
 
 To justify in mal«ng a distress, the officer serving the warrant must go back 6f it, and 
 show an actual demise and rent due. lb. 
 
 In trespass against the sheriff, by one whose goods have been taken on a distress warrant, 
 the landlord is incompetent to testify on behalf of the defendant, on account of iuterest| 
 
CHAP. XVL] RENT. 241 
 
 serving rent, usually contains a condition, (a) that if the rent shall not 
 be paid when due, the lessor or grantee may re-enter, and either de- 
 termine the lease, or hold till he shall be satisfied, or receive the profits 
 in satisfaction. (ft) In the first case, the entry absolutely defeats and 
 determines the lessee's estate ; in the second, the lessor is entitled to the 
 profits of the land for his own use, until the rent be paid — the object 
 of such provision being merely to hasten payment ; and in the last, the 
 profits shall be applied in payment of the rent, and when paid, or after 
 tender upon the land of what remains due, the lessee shall have the 
 land restored to him. A court of equity, however, makes no distinc- 
 tion between the two last mentioned cases, but compels the lessor to 
 account for the surplus received from the land, after paying the rent 
 and charges. Where the lessor enters to take the profits, he acquires 
 no freehold, but an interest in nature of a distress, which on his death 
 passes to the executor, not to the heir, though expressly reserved to 
 the latter. And a proviso for such entry is not strictly a condition, 
 which, as will be seen hereafter, must determine the whole estate ; but a 
 
 there being an implied contract on the part of the landlord, to indemnify the person to whom 
 he directs his warrant, if he had no authority to distrain. Lord v. Brown, 5 Denio, 345. 
 
 In trespass, where the defendant justities under a distress warrant, for rent in arrear, and 
 the plaintiff held under a lease, such lease must be produced by the defendant; and it will 
 not be sufficient for him to show that the plaintiff had recognized the person who issued 
 the distress warrant, as assignee of the lessor, and had paid him rent prior to the accruing 
 of that for which the distress was made. lb. 
 
 See further Kidgway v. Stafford, 4 Eng. L. & Equ. 453 ; Nichols v. Dusenbury, 2 Comst. 
 283 ; Moulton v. Norton, 5 Barb. 286 ; Stone v. Matthews, 1 Hill, 428 ; Butts v. Edwards, 
 2 Denio, 164; Delaware Rev. Sts. ch. 120, (where distress lies for any rent which may be 
 reduced to a certainty, but is limited to two years ;) New Jersey Sts. 1851, 347. 
 
 (a) In Georgia, a statute provides, that when the rent becomes due and is unpaid, the 
 lessor may re-enter. It seems, no condition in the lease is necessary. Prince, 687. See 
 Tan Rensselaer!). Holbrook, 1 La. Ann. 180. But this is contrary to the general rule. 
 Keneo:e v. Elliott, 9 Watts, 258. So, in Vermont, ejectment lies for non-payment of rent, 
 without demand or re-entry. But the suit may be stopped by a payment into court. Verm. 
 Rev. St. 216. In Maine it is held, that in a suit by a lessee upon the covenants in the 
 lease, the defendant cannot set up as a defence a process of forcible entry sued out by him, 
 upon which no judgment has been rendered, to prove an entry for breach of condition. 
 Wheeler v. Hill, 4 Shepl. 329. In New York, the landlord may re-enter after fifteen days' 
 notice. Sts. 1846, 369. A suit lies witliout entry, Lawrence v. Williams, 1 Duer, 585. 
 
 In Massachusetts it is held that the court has authority, by the common law, to stay proceed- 
 ings in a writ of entry brought to enforce a forfeiture, designed to secure the payment of 
 rent, and incurred by accident or mistake, upon the tenant's bringing the amount of the 
 rent, interest and costs into court, for the demandant. Atkins v. Chilson, 11 Met. 112. 
 
 A lessee incurred the forfeiture of his term by tendering a quarter's rent, through mistake, 
 a day or two before it was due, and omitting to pay it on the quarter day. The lessor had 
 refused to receive the rent for several previous quarters, and had an action pending against 
 the lessee, to recover the demised premises, on the ground of another alleged cause of for- 
 feiture. After failing in that action, the lessor brought a writ of entry against the lessee to 
 recover the premises, on the ground of the forfeiture by non-payment of the aforesaid quar- 
 ter's rent. Held, the proceedings in this last action should be stayed, on the lessee's paying 
 to the lessor, or bringing into court for his acceptance, the full amount of the rent in arrear, 
 with interest thereon and costs. lb. 
 
 In the same State, it is now enacted, (Sts. 1847, 440,) that, after fourteen days' notice, the 
 landlord may bring a summary process for possession. But payment, or tender, before 
 judgment, prevents a forfeiture. 
 
 In Missouri, if; by the terms of a lease, rent is to be paid on a certain day, and, if not 
 paid within ten days thereafter, the lease to be forfeited, a tender before the day the rent is 
 due will not prevent a forfeiture. Illingworth v. Miltenberger, 11 Mis. 80. 
 
 (6) Where it is provided, first, that in case of the non-payment of rent, the lease shall 
 cease and determine, and afterwards that the landlord may re-enter; an entry is necessary to 
 restore his title. Stuyvesaut v. Davis, 9 Paige, 427. 
 
 Vol. I. 16 
 
242 
 
 RENT. 
 
 [CHAP. XVI. 
 
 limitation to the lessor on failure of payment, and upon payment back 
 again to the lessee.(l) 
 
 58. For the purpose of distress, no previous demand of the rent is 
 necessary, or, if expressly required, it may be made after the day 
 when the rent falls due.(a) But an entry for breach of condition, if 
 made before such demand, is tortious. It is said, that the condition 
 is in derogation of the grant, and that the tenant is to be presumed to 
 be residing on the premises in order to pay the rent, for the preserva- 
 tion of the estate, unless the contrary appears, by the feoffor's being 
 there to demand it and actually making a demand, and by the tenant's 
 wilful default.(2) 
 
 59. But if the lease provides that the lessor may enter " without 
 further notice or demand," when the rent is due, no demand is neces- 
 sary.(3)(6) 
 
 59 a. Sometimes the clause of re-entry expressly provides that it 
 shall be peaceable. Upon this point the following case has recently 
 arisen in Massachusetts. By the Revised Statutes, (p. 184, sec. 1,) entry 
 into lands and tenements must be made peaceably. A lease provided, 
 that upon breach of any covenant the lessor might enter and expel the 
 lessee by force, if necessary. Held, a legal provision, and that under 
 it, the lessor could not use such force as would constitute a breach of 
 the peace, but only what would sustain the plea of "moUiter ?ntmMs,"(4) 
 
 (1) Lit, 327 ; Co. Lit. 203 a ; lb. ti. 2 & 3 ; 
 Jemmott; C00I7, 1 Lev. 170; T. Ray. 135. 
 158 ; Wartenby v. Moran, 3 Call, 424 ; Far- 
 ley V. Craig, 6 Halst. 270-1. See Western, 
 &c. V. Kyle, 6 Gill, 343. 
 
 (2) Co. Lit. 144 a; M'Murphy j). Minot, 4 
 N. H. 251 ; Gilb 173. See 4 Dane, 127. 
 
 (3) Fifty, &c. V. Howland, 5 Cusli. 214. 
 
 (4) Fifty, &o. V. Howland, 5 Cusli. 214. 
 
 (a) Taking a distress is a legal demand where the rent is reserved in money, and in many 
 cases where it is payable in kind ; but not in a case where tenants had contracted to pay 
 rent in iron, and were to furnish iron drawn according to order, and could not know when, 
 nor how much, ror wliat size of iron to tender. Hesler v. Pott, 3 Barr, 179. 
 
 If a lease, in addition to the reddendum and a covenant to pay rent, provide, that in case 
 there is no suffirient distress, or any covenant is broken, the lessor may re-enter; he cannot 
 thus re-enter, where there is a sufficient distress. Van Rensselaer v. Jewett, 5 Denio, 121. 
 See 4 Dane, 127. 
 
 By a perpetual lease in fee, executed in 1794, reserving an annual rent, the lessee cove- 
 nanted to pay the rent on the first day of January of every year, and it was provided, that 
 if such rent remained unpaid for twenty-eight days, the lessor might prosecute to recover 
 the same, or collect it hy distress and sale ; and, if no sufficient distress could be found, or if 
 either of the covenants should not be performed, then it should be lawful for the lessor to re- 
 enter. &c. Held, the lease did not make distress a condition precedent to re-entering, nor 
 was there an implied or express agreement, that the lessor should not re-enter, if there was 
 sufficient distress upon the premises. Van Rensselaer u, Snyder, 9 Bard. 302. 
 
 {6i A lease contained a covenant, in the usual form, by the lessee, to pay all rates or 
 taxes, and a proviso for re entry upon a breach. Held, non-payment in reasonable time of 
 a poor rate, duly as.sessed, allowed and pulilished, justified a re-entry, without showing 
 previous demand or notice. Also, if the covenant was to pay on dematid, a demand on the 
 premises of tiie tenant's son was sufScient. Havis v. Burnell, 5 Etig. L. & Kqu 417, 
 
 lease in fee, there was a reservation of rent, among other tilings, of one 
 
 Wl; 
 
 day's service with carriage and horses, payable at a particular day in each year; held, 
 no demand of performance was necessary, before bringing an action" for a default, [Wliit- 
 tle.sey, J„ dissenting.] Van Hensselaer «; Gallup, 5 Denio, 454, 
 
 L'-asp conditioned that if the rent shall be in arrear, or upon the lessee's failure to per- 
 form and observe any covenant in the lease, the les.sor may at any time while the defiiult 
 continues re-enter and repossess the premises The lease also contained a covenant, that 
 the lessee should not occupy the buildings or suffer them to be occupied for dwellings or 
 any unlawful purpo.se. Held, such covenant ran with the land, and bound tiie estate in the 
 5anils of sub-tenants, and an unlawful use Ijy them worked a forfeiture. Wheeler v. Earle, 
 
 Cush 31. 
 
CHAP. XVI.] RENT. 248 
 
 60. In the creation of rent- charges, it is usual to reserve a right of 
 entry, by way of use, which, as incident to the rent, becomes executed 
 by the statute of uses, as a legal estate. Thus, lands are conveyed to 
 A, to the use, intent and purpose that B may receive out of them a 
 certain annual sum or rent-charge ; and to the further use. &c., that if 
 the rent be in arrear for a certain time, B or his assigns nifiy enter and 
 receive the profits till satisfied. When the rent becomes in arrear, the 
 use springs up from the seizin of A, and ceases with the payment. 
 If the rent-charge is assigned, the right of entry passes along with 
 it.(l) 
 
 61. The common law imposes very strict terras upon a lessor, in re- 
 gard to the demanding of rent ; requiring that it be done upon the 
 land, at the most public and notorious place, such as the front door, 
 or, if there is no house, at the gate of the land, and before sunset of the 
 day when the rent falls due, that the money may be counted. In New 
 York, it is said these rules are in force, unless dispensed with in certain 
 cases by statute. So in Ohio. In New Hampshire, it has been ques- 
 tioned whether they are adopted in all their strictness; but late cases 
 decide, that the demand must be at the day when the rent falls due, 
 in the afternoon, a sufficient time before sunset to allow counting of the 
 money, and upon the land. In New Jersey, they are held inapplicable, 
 where the tenant denies his holding, or forbids and prepares to resist a 
 distr ss ; or where, by the condition of re-entry, the lessor is merely to 
 hold, till paid from the profits. The condition will be saved, either by 
 a tender upon the land, that is, a readiness to make a tender, or a per^ 
 sonal offer to the lessor, off the land.(2)(a) 
 
 (1) Gilb. SY. 
 
 (2) Jackson V. Kipp, 3 Wend. 230 ; Coon 
 V. Brickett, 2 N. H. 164; Parley v. Craijr, 6 
 Halat. 262; 3 Kent, 374; 1 Saun. 287, n. 16; 
 
 Boyd 0. Talbert, 12 Ohio, 212; Sperry v. 
 Sperry, 8 N. H. 477 ; De Lancey v. G-arnier, 
 12 Barb. 120. 
 
 (a) It hag been held in Vermont, that where a rent is merely nominal, as, for instance, an 
 ear of corn annually, non-payment is no ground of forfeiture. People, &o. v. Soc}', &c., Paine, 
 652. So, also, that a tender may be made on the day on whicli the rent falls due, at a late 
 hour in the evening. Thomas v. Hayden, (Windsor Co., July term, 1846, cited by Kellogg, 
 J.,) 19 Verm. 587. The strict rule as to a demand of rent has been recognized by the Su- 
 preme Court of the United States. Connor v. Bradley, 1 How. 211. In Maine, a lease pro- 
 vided, lliat the lessor might enter and without process or notice expel the tenant, if he 
 should fail to pay rent. The lessor gave notice to one claiming under the tenant, but not 
 on the land, nor when any rent was due, that he should look to him for the rent. Held, 
 not sufficient to terminate the lease. Gage v. Smith, 2 Shepl. 466. A lease provided, that 
 if the rent should be unpaid for a year after it should become due, the lessor might re-ent6r, 
 and all the right of the lessee should become extinguished. The rent wus demanded on the 
 day pretixed, but was not paid. In the course of the year the arrears of rent were tendered 
 to the lessor. Held, the lease was not forfeited. Jones v. Read, 15 N. H. 68. 
 
 By a grant made in 1813, a yearly rent of wheat, hens, and one day's service, was re- 
 served to the grantor, payable on the 1st day of February in each year ; and the grantee 
 covenanted to pay the same "at the times and in the manner aforesaid," There was also a 
 proviso, that if the rent remained unpaid for twenty-eight days, the grantor might prosecute 
 ordi.strain for such rent; and a further proviso, iliat if no sufficient distress could be found, 
 or if either of the covenants should be broken, the grantor, his heirs, &o., might re-enter. 
 Held, the grantor had a right to re-enter in two events: 1. If the rent retnained unpaid for 
 twenty-eight days, and no sufficient distre.s3 could be found; and, 2. Incase the grantor 
 demanded the rent on tlie very day it became due, at a convenient time before sunset, and 
 at the particular place where it was made payable, or, if no place was specified in the lease, 
 then at the most notorious place on the premises demised, and llie grantor failed to pay the 
 same. Held, also, that a demand made at the expiration of twenty-eight days from the day 
 the rent became due was insufficient. Van Rensselaer v. Jewett, 2 Oomst. 141. 
 
244 
 
 RENT. 
 
 [CHAF. XTI, 
 
 62. An action of debt lies, upon a lease for years, for rent. And 
 leases usually contain a covenant, upon which the action of covenant 
 may be brought. At common law, debt does not lie for rent, upon a 
 lease for life. Otherwise, by St. 8 Anne, c. 14. Similar acts have been 
 passed in New Yoi'k, Delaware, Virginia, Kentucky, Missouri and 
 Illinois. In Illinois, in case of a lease for life, and an occupation with- 
 out any special agreement for rent, the owner, bis executors, &c., may 
 recover the rent, or a fair satisfaction for use and occupation, in debt or 
 assumpsit.'yV) " 
 
 63. In addition to the remedies above named, there is the action of 
 debl{a) or assumpsit for use and occupation., where the letting is not by 
 deed. This action is specially provided in New York, New Jersey, 
 Delaware, Indiana, Arkansas and Missouri ;(6) and any unsealed agree- 
 ment for a certain rent may be used as evidence of the amount to be 
 recovered. In Alabama, this action lies, by statute, even upon a lease 
 by deed, if no certain rent is agreed upon. But in Massachusetts it is 
 held, that assumpsit will not lie in case of a sealed lease, even upon an 
 express parol promise to pay the rent; in Pennsylvania, that it will 
 not lie against the assignee of a sealed lease; in Maine, upon any 
 written ]ease.(&) Nor will it lie where the tenant entered as a trespasser. 
 And though assumpsit lies for rent, yet, as it issues from the realty, 
 a bond given for rent, reserved merely by parol, is no extinguishment 
 ofit.(2Xc) 
 
 (1) Co. Lit. 47 a, n. 4 ; 1 N". T. Rev. St. 
 147; 1 N, J. St. 186; 1 Yir. Rev. 0. 155; 
 2 Ky. Rev. L. 1354: lUiii. Rev. L. 675; 
 Misso. St 376; Dela. Rev. Sts 421. 
 
 (2) 1 N. Y. Rev. St. 748 ; 1 N". J. St. 187 ; 
 Ind. Rev. L. 424; Ark. Rev. St. 52&; Misso. 
 St. 377 ; Dela. St. 1829, 365; Grant v. Gill, 
 2 Whart. 42 ; Guriii v. Seovil, 4 Day, 228 ; 
 Aik. Dig. 357 ; Codman v. Jenkins, 14 Mass. 
 93; Stoekett ti. Watkiri.s, 2 Gill k J. 326; 
 Cornell v. Lamb, 20 John. 407; Lloyd v. 
 
 Hoogh, 1 How. 153; Gagew. Smith, 2 Shepl. 
 466; Blume v. M'Olurker, 10 Watts, 380. 
 See Marseilles v. Kerr, 6 Wliart. 500 ; Scott 
 V. Hawsman, 2 McL. 180 ; Bailey v. Camp- 
 bell, 1 Scam. 112; "Whitney v. Cochran, lb. 
 210 ; BaDentine v. M'Dowell, 2, 28 ; Stephens 
 V. Lynn, 8 Carr. & P. 389 ; Green v. London, 
 &o. 9. 6 ; Drury, Sec. v. Chapman, 1 (^arr. k 
 K. 14 ; Gibson ■s. Kirk, 1 Ad. & El. N. S. 
 850. 
 
 (a) Where it is provided, that the rent, if not paid at the appointed time, is to be re- 
 covered in an action of debt, no forfeiture can be claimed for non-payment. De Lancey ». 
 GaNun, 12 Barb. 128. 
 
 (6) It is said to have been long in use in Virginia. Lloyd v. Hough, ] How. 153, In 
 Delaware, it lies against one who entered under a contract to purchase. Rev. Sts. ch. 
 120. In Maine, thoush the rent is reserved 6?/ deed. Sts. 1853,35. See Pindergast v. 
 Toung, 1 FoHt. (N. H) 234. 
 
 (c) So, the right of distress is not extinguished, by taking a bond and warrant of attorney 
 for the rent, at tiie time of giving the lease, as collateral security. It would be otherwise 
 with a judgment upon the agreement to pay rent. But if A and B hire by parol from 0, a 
 bond from A alone for the whole rent discharges B. Howell v. Webb, 2 Pike, 360. An 
 action for use and occupation may be maintained, though the tenant has quit the premises, 
 if his contract still remains in force. Westlake v. De Grave, 25 Wend. 669. So, without 
 actual occupancy Stier v Surget, 10 S. & M. 1.54. See Gilholey i>. Washington, 4 Comst. 
 217. It does not lie without a contract, express or implied. De Toung «. Buchanan, 10 
 Gill & J 149. As where the tenant considered the property his own. Johnson v. Beau- 
 champ, 9 Dana, 1£8. A demise must tie shown, or evidence offered of a tenancy. Ward 
 V Bull, 1 Branch, 27 1 If, under color of a void sealed instrument, a party occupies with 
 the assent of the owner, an action for use and occupation will lie- if without such 
 as.sent, an action of trespass. Anderson v. Critcher, 11 Gill & J. 450. The action for use, 
 &c., lies, where one has occupied under a contract of sale, which has been rescinded. 
 Howard «. Bhaw, 8 Mees. & W. 118. Not where the possession is tortious. Lloyd v. 
 Hough, 1 How. 153. Nor for the use of premises sold at execution or a trust sale, from 
 
CHAP. XVI.] 
 
 RENT. 
 
 245 
 
 64. A, an exeeator, leases land of the deceased by parol, for one 
 year. The will was afterwards set aside, and the plaintiff, an heir, 
 having been appointed administrator, brings assumpsit against the 
 lessee fur rent. Held, the action would not lie ; for if A wa.s author- 
 ized bj the will to lease, the contract was with him individually, and 
 either he or his representative must enforce it; if not authorized, the 
 lessee had made no contract with the plaintiff, but, as to him, was a 
 trespasser.(L) 
 
 6 ). Although a lessor may at his election sue or distrain for rent, or 
 enter for non-payment of it by virtue of the condition, yet he cannot 
 do both, and the bringing of a suit or making a distress will be held a 
 waiver of the condition, because it affirmeth the rent to have a continu- 
 ance. But, it is said, he may receive the rent and acquit the same, 
 and yet enter for condition broken. But if he accept a rent due at a 
 day after, he shall not enter, (for the prior breach,) because the acquit- 
 tance for this raises a presumption that all other instalments have 
 been paid. Recovery upon a covenant for rent is no bar to a subse- 
 quent distress. (2) 
 
 (1) Boyd V. Sloan, 2 Bai. 311. See Brown- 
 ing V. Haskell, 22 Pick. 310 : 1 How. 152 ; 
 Picket V. Breckenridge, lb. 297. 
 
 (2) Co. Lit. 211 b, 373 a; Jaokaon v. 
 
 Sheldon, 5 Cow. 448; STewman v. Butter, 8 
 •Watts, 51 ; Prindle ;;. Anderson, 19 Wend. 
 391. 
 
 the time of the sale till the redemption of the estate; except on contract between the 
 parties for rent. Tbe only remedy is by ejeetmunt, and an action for mesne profits, O'Don- 
 nell «. McMnrdie, 6 Humph. 134. Proof of occupation by the defendant of the premises 
 during the time declared for, his acknowledgment of the lease, and an offer by him, on a 
 certain discount being made by the plaintiff, to have judgment entered for the balance, 
 ■will support the action. O'Connor v. Tynes, 3 Rich, 276. 
 
 A leased premises to B for a year. Before the end of tlie year, A, with the consent of 
 B, leased the same to C for the year following, and rented a part of the same to B, 
 ■who occupied a part of the year, and abandoned the premises. Held, B was liable to 
 for use and occupation of the portion rented by him, and, as he hired for no specific 
 time, C might sue for such rent before the end of the year. Cooke v. Norriss, 7 Ired, 213. 
 Whether the right to recover for use and occupation, given in New York by 1 Rev. Sts. 
 748, sec. 26, is not limited to the period of actual oooupaney, qucere. Cloves v. Willough- 
 by, 7 Hill, 83 
 
 Upon tlie ground that assumpsit for use and occupation will not lie, where the defendant 
 has neither occupied uor held the premises during the time for which the recovery is 
 sought; where the plaintiff demised to the defendant certain premises for a term, which the 
 latter abandoned after occupying for a time, and the plaintiff gave the defendant notice that 
 he should let them for the best terms he could, and hold him responsible for any de- 
 ficiency, and then leased to another, who occupied for the remainder of the term, but 
 became bankrupt and failed to pay ; held, the action would not lie against the defendant, 
 for the time during which such other person occupied. Beach v. Gray, 2 Denio, 84. 
 
 A lessor may maintain "debt for use and occupation" against the assignee of his lessee, 
 under a demise by writing not under seal. McKeon v. Whitney, 3 Denio, 452; Moffatt v. 
 Smith, 4 Comst. 126, 
 
 So, it seems, a landlord may recover upon an msimul computasseat, though the evidence 
 be of an accounting concerning rent secured by deed. Cartledge «. West, 2 Denio, 377. 
 
 But, where the tenant is assisinee of the lessee, under an a,ssignmeiit for benefit of 
 creditors, and the promise, upon the accounting, was to pay the rent when the defendant 
 should receive funds from the assigned property ; there must be proof that he has received 
 such funds, lb. 
 
 The common count in debt for use and occupation is good ; and, in such count, it is 
 not necessary to allege the character in which the plaintiff snes, whether as assignee of 
 the reversion, or otherwise. Armstrong v. Clark, 17 Oliio, 495. 
 
 Ill an action of debt for use and occupation, a plea that the plaintiff is grantee of the 
 reversion, and that before any part of the rent had accrued, the defendant, by deed, 
 assigned the premises to A, and put him in possession, is bad on demurrer, as amounting 
 to the general issue. lb. 
 
246 EBNT. [CHAP. XYL 
 
 66. It is said that, though the lessor receive part of the rent, he may 
 re-enter for the residue.(l)(a) 
 
 67. Statute 4 Geo. II. provided, that a lessee should have restoration 
 of his land, on paying the rent, &c., in six months from judgment against 
 him; or, if he paid before judgment, that the proceedings should be 
 stayed.(2) (See p. 241, n. a.) It is said, in New Hampshire, though 
 this statute is not expressly adopted, the principle of it is in force.(3) 
 
 68. In Illinois, Missouri, New York and New Jersey, where a half 
 year's rent is due, and there is a right of re-entry, an ejectment may be 
 brought without demand ; and, if execution be levied before the arrears 
 and c'osts are paid, the lease is avoided, unless the judgment be reversed 
 for error, or the tenant, or, in New York, any party interested, obtain 
 relief in Chancery, by a bill filed in six months from judgment. But he 
 may stay the suit by a tender, before final judgment. _ In Missouri, New 
 Jersey and New York, a mortgagee of the lease, not in possession, may 
 avoid the judgment within six months, by paying the rent, costs and 
 charges, and performing the agreements of the lessee. Substantially the 
 same provisions are made in Arkansas. In New York, the landlord shall 
 account, on settlement, for all that he has made from the land, or might 
 have made but for his wilful default.(4) In Kentucky and Delaware,(5) 
 the law so far favors the claim of rent, that a landlord, upon making 
 oath that his tenant is likely to leave the county before rent day, may 
 have a process of attachment before the rent is due. 
 
 69. In some cases, Chancery will lend its aid for the recovery of 
 rent ; but only where there is no effectual remedy at law. (5) Nor will 
 it change the nature of the rent, so as to create a liability, unless there 
 is fraud in preventing a distress. 
 
 (1) Tb. n. 1. 
 
 (2) See Pennant's ease, 3 Rep. 64, 65 ; 
 Noy, 7. 
 
 (3) Coon V. Brickett, 2 N". H. 163. 
 
 (4) 2 K T. Eey. St. 505-7 ; Illin. Rev. L. 
 
 676; Mis30. St. 377; 1 N. J. R. C. 189-90; 
 Ark. Rev. St. 520. 
 
 (5) 2 Kv. Rev. L. 1353 ; Del. St. 1829, 
 365-6. 
 
 (a) See supra, eh. 15, see. 66. In New Hampshire, a conctitiori of re-entry is waived, 
 even after entry, by acceptance of tlie rent in arrear wlien the entry was made. Coon 
 ir. Brickett, 2 N. H. 163. Otherwise in New York, unless the rent not only was rpceived, 
 but accrued, after forfeiture. 3 Cow. 230. In this State, the distinction l^as been taken, 
 that where the tenant does an act, or is chargeable with an omission, which authorizes the 
 landlord to re-enter merely, any affirmation by the latter will revive the lease ; but it is 
 otherwise where tlie lease lias become absolutely void. Smith v. Saratoga, &o., 3 HilJ, 508. 
 The receipt of rent accruing after forfeiture is a waiver. After a re-entry, an action lies 
 for rent accruing before forfeiture. But for subsequent rent, an action for mesne profits is 
 the remedy. Where a lease reserves the right of re-entry, tlie lessor to have the Innd "as 
 if the indenture had never been made ;" held, covenant would stilt lie for the rent accrued 
 before entry. Hartshorne w. Watson, 4 Bing. N. 178. See Doe ». Rees, lb. 384. 
 
 [b) Where trustees, by authority of an net of assembly, sold and conveyed land, reserving 
 In the deed a ground-rent, to be paid to the proprietor of the land, when he should be as- 
 certained, and the proprietor of the land afterwards filed a bill against the purchaser to re- 
 cover the ground-rents ; and the answer showed that they were unpaid ; held, the statute 
 of limitations was no bar. Mulliday v. Machir, 4 Gratt. 1. 
 
 A bill in equity to recover rent, brought by an assignee of a lessor against two separate 
 grantees of different portions of the premises, conveyed to them by the lessor, to whom 
 the rights of the lessee had been assigned; is multifarious. Cliilds t. Clark, 3 Barb. Cli. 62. 
 
 A leasee cannot maintain a bill, to compel his lessor and a claimant of the premises to liti- 
 gate their rights to the rent, where the evidence tends strongly to show that the lessee "b- 
 tained possession by collusion with the claimant, and for his benefit, in order to prejudice 
 the lessor. Williams v. Halbert, 7 B. Men. 184. 
 
 In such case, the claimaut cannot maintain a cross bill, to try a purely legal right to tha 
 premises. lb. 
 
CHAP. XTI.] 
 
 RENT. 
 
 247 
 
 70. Lease in perpetuity, with a condition and covenant, that upon 
 every sale the lessor's consent should be obtained, with the right of 
 pre-emption to him ; and, if afterwards sold to another, that one-tenth 
 of the price should be paid to the lessor. A sale having taken place, 
 and the purchaser having entered ; held, the lessor had a claim at law 
 for one-tenth of the price; and, as the transaction was a restraint and 
 fine upon alienation, Chancery would not interfere for his relief(l) 
 
 71. Pending a suit against the tenant to enforce forfeiture of the 
 lease, the landlord cannot maintain a bill in equity, as upon a subsist- 
 ing lease.(2) 
 
 72. With regard to the estates which may be had in a rent, they are, 
 in general, the same with the estates in land already described. Thus, 
 a man may be tenant in fee, in tail, for life or for years, of a rent- 
 charge. A rent-service, being incident or annexed to the land itself or 
 the reversion therein, is of course subject to the same limitations and 
 dispositions as the reversion ; and a rent-charge, though not thus inci- 
 dent, may be held in the same ways as the lands themselves. 
 
 73. In some cases, where a peculiar form of reservation has been 
 adopted, the question has arisen, whether the rent should be a fee-sim- 
 ple or only a chattel interest. Thus, where rent was reserved to the 
 lessor, his heirs and assigns ; one sum for a certain number of years, 
 then a larger sum for another term of years, and anew valuation to be 
 afterwards made at the end of successive long terms, and the rent fixed 
 accordingly, to be paid forever ; held, this last clause imported that the 
 rent first fixed should be perpetual, being subject to increase, but not 
 to diminution ; and that the rent was a fee-simple, not a succession of 
 chattel interests, passing to executors.(3) 
 
 74. In case of an estate pour autre vie in a rent, there could be 
 no general occupancy after the owner's death, living the cestui que vie ; 
 because, from the nature of things, no entry could be made upon it, and 
 the terms of the grant made no provision for such occupancy. Hence, at 
 the death of the tenant for life, the rent terminated. But if the rent 
 is limited to one and his heirs, for his life and the lives of others, his 
 heirs shall hold upon his death, as special occupants, by nomination 
 and by descent. So, if the limitation is to executors, it seems to be 
 now settled, although anciently doubted, that the executors may take 
 as special occupants. And it is presumed that the same rules upon 
 this subject apply to rents, which have already been stated in regard 
 to lands themselves.(4) (See ch. 4.) 
 
 75. Rents are subject to curtesy. And seizin in law is suf&cient to , 
 give curtesy in a rent-charge, being often the only possible seizin. 
 And, it seems, there shall be curtesy, even though the rent were 
 granted to the wife, the first payment to be made at a future time, 
 which did not arrive before her death ; because the grant was imme- 
 diate, though the payment was future.(5.) If a woman makes a gift in 
 tail, reserving rent to her and her heirs, marries and has issue, and the 
 
 (1) 3 Cruise, 199 ; Livingston v. Stickles, 8 
 Paige, 398. See Prestons v. McCall, 1 Gratt. 
 121. 
 
 (2) Stuyvesantv. Davis, 9 Paige, 427. 
 
 (3) Farley w. Craig, 6 Halst. 262. 
 
 (4) Salter v. Boteler, Vaugh. 199' Smar- 
 
 tle V. Penhallow, 1 Salk. 189; Bovples v. 
 Poore, t^ro. Jao. 282 ; Low v. Burron, 3 P 
 Wms. 264, and n. ; Bulier v. Cheverton, 2 
 Rolle Abr. 152. Supra, ch. 4. 
 (5) Go. Lit. 29 a. 
 
248 
 
 RENT. 
 
 [CHAP. XTI. 
 
 donee dies without issue, and then the wife dies ; the husband shall not 
 have curtesy in the rent, because it has terminated by act of God, and 
 no estate in it remains. But if a man be seized in fee of a rent, and 
 make a gift in tail general to a woman, who marries and has issue, and 
 the issue die, and the wife die without issue, the husband shall be 
 tenant by the curtesy of the rent, because it remains.(l)(a) 
 
 76. Eents are subject to dower, as has been already stated, (ch. 8,) in 
 reference to a rent-service. A rent-charge is also subject to dower. 
 But a personal annuity is not. And if a widow sue the heir for her 
 dower in a rent-charge, he cannot defend, upon the ground that he 
 claims the provision to an annuity, since he can so elect only by bring- 
 ing a writ of amimty.{2) In regard to dower, however, as well as cur- 
 tesy, a distinction is made between a rent-charge de novo, and one 
 already in esse, in which an estate of inheritance is created.(3) 
 
 77. Thus, where a rent de novo is granted to a man and the heirs of 
 his body, and he dies rt'ithout issue, his widow shall not be endowed — 
 the rent being absolutely determined by his death. It is otherwise, 
 where a remainder is limited upon the estate tail. In such case, for the 
 purpose of dower, the rent shall continue against the remainder-man. 
 
 78. And if a rent already in esse be entailed, the widow shall be en- 
 dowed, though the husband die without issue. 
 
 79. A remainder in a rent-charge may be limited upon a life-estate, 
 or upon an estate tail, even though the rent be created "denowo;" and, 
 therefore, without the remainder, there would be no reversion in the 
 grantor.(4) 
 
 80. A rent de novo may be created in fuiuro : because such grant of 
 a new right has not the effect of putting a precedent estate in abey- 
 ance, which, it has been seen, is against the policy of the law. But a 
 rent in esse is subject to the same rule in this respect with the land 
 itself, because there was a precedent estate in it ; and such grant, 
 dividing the title, produces an uncertainty as to the legal owner.(5) 
 
 81. A rent de novo may be limited to cease for a time, and then 
 revive. Thus it may be limited to one and his heirs, and, if the grantee 
 die leaving a minor heir, the. rent to cease during his minority. In 
 such case, if the widow sue the tenant for dower, she shall have execu- 
 tion when the heir comes of age.(6) 
 
 82. So a rent may cease for a time, for reasons independent of the 
 original limitation, and afterwards revive, when those reasons cease to. 
 exist. 
 
 83. Lands, leased by trustees, were by an act of the legislature con- 
 firmed in fee to the tenants, they paying a certain rent to the trustees, 
 and all taxes upon the value of the land over and above the rent. By 
 a subsequent act, the lands were taxed like other lands, and the legis- 
 lature assumed the payment of the rent to the trustees. Afterwards, 
 the lands ceased to be taxed. Held, the rent, originally payable by 
 
 (1) Co. Lit. 30 a. 
 
 (2) Co. Lit. 32 a; lb. 144 b. 
 
 (3) Cliaplin v. Chaplia, 3 P. Wms. 229. 
 
 (4) 3 Cruise, 203. 
 
 (5) Gilb. 60. 
 
 (6) Pitz, Abr. Dower, 143 ; 
 ca. 6. 
 
 JeDk. Cent. 1, 
 
 (a) So if a rent de novo be granted in tail, and cease with failure of issue, it is still subject 
 to curtesy. Co. Lit. 30 a, n. 2. 
 
CHAP. XTII.] RENT— DISCHARGE AND APFORTIONMENT. 
 
 249 
 
 the tenants to tbe trustees, revived ; that the true construction of the 
 latter act was, that the rents should be paid from the taxes, only while 
 such taxes were laid ; that the rents could not be discharged without 
 the assent of the trustees, and their acquiescence in receiving them from 
 the government was only an adoption of that mode of payment, not a 
 waiver of any payment.(I) 
 
 8-4. The statute of uses is applicable to rents. Thus, if a rent charge 
 be limited to A in trust for B, the statute executes the use in B. And 
 if there be also a clause of distress, and a covenant to pay the rent to 
 A to the use of B, the right of distress will vest in B, as incident to 
 the rent ; but the covenant will not, being merely collateral. (2) 
 
 85. But a use upon a use, in rents as well as lands, is not executed 
 by the statute. Thus, where one conveyed lands, to the use and intent 
 that certain trustees should have a rent-charge in fee, and then the rent 
 to be to the use of A in tail-male, remainder over; held, the widow of 
 the issue of A was not dowable, he having only a trust.(3) 
 
 86. Where a person is once seized of a rent, he cannot lose his right 
 merely by non-user or failure to receive it, or even by an adverse claim 
 and receipt of it by another man, and an attornment to him. Eent 
 being a mere creature of the law and collateral to the land, the right 
 always carries with it the possession. The maxim is " iiemo redditum 
 alterius, invito domino, percipere aut possidere potest." The owner of a 
 rent may, however, consider himself disseized, and bring an action ac- 
 cordingly, at his election, for the purpose of more speedy and effectual 
 redress.(4) 
 
 87. A rent is not forfeited by an attempt to convey a greater interest 
 in it than the owner possesses, because he can pass only his own 
 title.(5) 
 
 CHAPTER XVII. 
 
 RENT— DISCHARGE AND, APPORTIONMENT. 
 
 1. General rule — no apportionment as to 
 
 time. 
 3. Eviction by landlord or third persons ; 
 from the whole or a part of the 
 premises. 
 6. What is an eviction. 
 12. What is not an eviction. 
 16. Loss by act of God, &c. — total or 
 
 partial : loss by fire ; debt and 
 covenant. 
 
 26. Purchase of the land by landlord — 
 
 effect upon a rent service. 
 
 27. Apportionment by transferor the land. 
 29. Lease by tenant for life. 
 
 33. Rent-charge — when extinguished and 
 
 when not. 
 37. When apportioned. 
 
 1. Rent-service being a retrihuiion for the use of land, the general 
 principle is, that, if by any means the tenant is deprived of the land, 
 as by quitting or assigning the premises, with the lessor's consent, or 
 
 (1) Adams v. Bucklin, 7 Pick. 121. 
 
 (2) Cook V. Herle, 2 Mod. 138. 
 
 (3) Chaplin v. Chaplin, 3 P. Wms. 229. 
 
 (4) Edward Seymor'a case, 10 Rep. 97 a; 
 
 Co. Lit. 323 b; Gilb. Ten. 104; Lit. 588- 
 9, 237, 240. 
 
 (6) Co. Lit. 251 b. 
 
250 
 
 KENT— DISCHARGE 
 
 [CHAP. xvn. 
 
 by eviction under a paramount title ; his obligation to pay rent ceases.(a) 
 Eviction will not discharge the liability for rent previously due, 
 even though payable in advance, and though, before the quarter for 
 which it was payable in advance expires, a mortgage on the estate is 
 foreclosed, a sale made, and the tenant attorns to the purchaser. But 
 it has been doubted, whether rent could be recovered in such case for 
 a period sabsequent to eviction. If eviction take place at any time 
 before the appointed day of payment, there will be no apportionment, 
 but the whole rent will be discharged.(l) It has been intimated that, 
 if the lessee has derived a substantial benefit from the use of the estate 
 for a part of the term, he may be liable on a quantum meruit. The 
 case is compared to that of a charter-party, where the whole contract of 
 affreightment is not fulfilled, but the goods have been carried to an 
 intermediate port.(2) 
 
 2. Where a lessee covenants to pay rent in advance, it may be, paid 
 at any time during the day on which it is payable, and, if evicted by 
 paramount title on that day, he is discharged. (3) 
 
 3. Eviction may be effected, either by the landlord himself without 
 title, or by a third person under a paramount title. And, where it 
 applies to the vjhole land, an eviction in either of these modes has the 
 same effect of discharging the rent. Bat where the tenant is evicted 
 from only a part of the land — if by a stranger, the rent shall be appor- 
 tioned — if by the lessor himself, the whole will be discharged(4)(i) 
 
 (1) ailb. 145; "Wood v. Partridge, 11 
 Mass. 493 ; M'Blderry v. Plannagan, 1 Har. 
 &G. 308; Giles D. Comstock, 4 Conist. 270. 
 See Bordman v. Osborn, 23 Pick. 295 ; also 
 ante, ch. 15, sec. 72. 
 
 (2) Pitohburg:, &o. v. Melven, 15 Mass. 270. 
 
 (3) Smith V. Sliepard, 15 Pick. 147. 
 
 (4) 3 Kent, 376; Dyett v. Pendleton, 8 
 Cow. 727 ; Co. Lit 148 b ; Lewis v. Payn, 4 
 Wend. 423 ; Zule v. Zule, 24 Wend. 76. 
 
 (a) It has been held, that no action can be maintained upon the covenant to pay rent, 
 unless the defendant was let into full possession of the premises. Holgate v. Kay, 1 Oarr. 
 & K. 341. 
 
 But, in covenant for rent against an assignee of the lessee, he cannot show, under a plea 
 denying that the lease is the deed of the lessee, that the premises, at the date of the lease 
 and assignment, were possessed adversely to the lessor; it being conceded that there was 
 no title paramount to the plaintiff's. Nor can he offer such proof^ under a plea that the 
 lessee's title did not pass to him, as alleged. University, &c. v, Joslyn, 21 Term. 52. If the 
 defendant has been excluded by adverse possession, existing at the time of the demise, and 
 continuing afterwards, he must plead it specially. lb. A plea, alleging that, prior to the 
 execution of the lease, certain persons entered and expelled the plaintiff, and continued 
 their possession to the day of the demise, and then occupied adversely ; but not alleging the 
 eviction to be under a paramount title, or that the defendant, or any one under whom he 
 claims, is connected with the adverse title ; is bad. lb. 
 
 In an action for use and occupation, eviction before the rent fell due is a good defence 
 under the general issue. Prentice v. Elliott, 5 Mees. & "W. 606. 
 
 In covenant for rent, the plea of eviction by title paramount must allege, that it was by 
 title existing before the demise, and that there was an actual entry by the eviotor. Naglee 
 V. Ingersoll, 7 Barr, 185. 
 
 {b) So, wiiere an absolute purchaser of land is evicted from only a part of it, this is no 
 ground for rescinding the whole contract. Simpson v. Hawkins, 1 Dana, 305. 
 
 One who, by fraudulent representations, is induced to become a lessee of an entire lot, of 
 which the lessor only owned a part, may, after the discovery of the fraud, enter into pos- 
 session, and occupy during the term, and, in an action by the lessor for the rent, may recoup 
 the damages he has sustained by means of the fraud. Whitney v. Allaire, 4 Denio, 554. 
 
 It has been held in England, that to an action against a lessee upon his covenants to 
 repair, not to assign, or commit waste, it is not a good plea, that the lessor allowed a stran- 
 ger to enter upon, and eject the tenant from, a part of the premises. Newton v. Allin, 1 
 Ad. &E1. (N. S.) 518. 
 
 The landlord cannot distrain for rent, where the tenant is kept out of one room in, the 
 building leased by a prior lessee, although the tenant has occupied during the whole terra. 
 French v. Lawrence, 7 Hill, 519. 
 
CHAP. XVILJ AND APPORTIONMENT. 251 
 
 4. As to the question, what shall constitute a part of the premises, 
 with reference to an eviction ; if the lessee retains merely certain 
 articles appurtenant to a building from which he is turned out, as, for 
 instance, the tools and machinery in a mill ; this is held to be an 
 eviction from the whole ; though, it seems, he would be liable upon a 
 quautum meruit for the use of the articles.(l) 
 
 5. The establishment of a right of common in the lands will not 
 operate, at law, as an eviction, to apportion the rent, not being a title 
 to the soil. But, it seems, there will be an apportionment in equity, 
 unless the laud be still fairly worth the rent reserved. (2) 
 
 6. There are some cases where, although there is no actual eviction, 
 yet the law will attach the same consequence to the acts done, viz., a 
 discharge of the rent — the tenant having lost the use of the land. 
 
 7. A leased a house to B for one year. B indorsed to A the note 
 of a third person, as security for the rent; occupied for two quarters, 
 for which he paid, and part of a third; at the end of which time he 
 removed, delivering up the key. A then let the house to C, and de- 
 livered her the key ; and afterwards sued the note in his own name, 
 and -obtained full satisfaction of the judgment. B brings assumpsit 
 against A, for money had and received. Held, he should recover the 
 amount of the note and interest, deducting the balance due for a part of 
 tne third quarter's rent : that A might be considered as B's agent in 
 procuring a new tenant, and thus responsible for the rent; or, if not, 
 as having ousted B from the house, or consented to an assignment of 
 the term to C, and accepted rent from her, which would discharge 
 B.(8) 
 
 8. If the tenant is in law evicted, before the rent day arrives, by a 
 mortgagee claiming under a mortgage prior to the lease, he is dis- 
 charged from the whole rent, notwithstanding, it seems, he afterwards 
 continues to occupy ; because, after the entry of the mortgagee, the 
 tenant was accountable to him.(4)(a) 
 
 (1) Fitchburp, &o. v. Molven, 15 Masa. 268. 
 
 (2) Jew V. Thirdwell, 1 Cha. Gas 31. 
 
 (3) Randall v. Rich, 11 Masa. 494. 
 
 (4) Fitehburg, &e. v. Melveu, 15 Masa. 268. 
 
 See Hemphill v. Eokfeldt, 5 "Whar. 214 ; Field 
 v. Swan, 10 Met. 112; Giles «. Comstock, 4 
 Comst. 4TG. 
 
 (a) If the mortgagee enters for a breaoli of condition, and threatens to expel the lessee un- 
 leaa he pay the rent to him, which the lessee agrees to do, and actually does ; thia is an 
 eviction. So in case of a claim under any other paramount title, and an attornment. And 
 if the mortgagee demands rent, and threatens to "put the law in force," the lesaee has a 
 good defence on the ground of payment, without pleading eviction, or nil Tialuit, to an action 
 for rent by tlie lessor. Smith v. Sliepard, 15 Pick. 147 ; Johnston v. Jones, 9 Ad. & Ell. 
 809. See Salmon -v. Mathews. 8 Mees. & W. 829; Morse v. Goddard, 13 Met. 177. 
 
 A, a mortgagee of leased lands, having a title paramount to that of B, tlie lessor, recov- 
 ered a judgment for possession, and entered under an execution, but left the lessee in posses- 
 sion. Held, A might recover rent accruing subsequent to such entry, but not before. Mass. 
 Ac, V. Wilson, 10 Met. 126; see Newall v. Wright, 3 Mass. 153. 
 
 Where a judgment creditor levied his execution upon real estnte, underlease and in the 
 occupation of the lessee, and, before the rent became due, entered claiming title, and threat- 
 ened the tenant to put him out unless he would yield possession and attorn ; whereupon 
 the tenant agreed, in writing, to hold under him; held, such entry and disturbance, 
 although not an eviction in a technical sense, were equivalent to an ouster, and the tenant 
 was not afterwards liable to the lessor for the rent, and might dispute hia title in an action of 
 assumpsit therefor. George v. Putney, 4 Gush. 35 1. 
 
 A, having taken a lease, procured B to become surety for the rent, and, to indemnify 
 him, executed a mortgage on certain lands, by which he provided that, if he failed " to pay 
 the whole or any part of the rent," B should have the power to sell the lands. A, alleging 
 
252 
 
 EBXT— DISCHARGE [CHAP. STII. 
 
 9. A leases to B a portion of his land ; afterwards conveys the whole 
 land to C in fee, reserviug rent; and then, for non-payment of rent by 
 B, accruing after the deed to C, enters and distrains. This is an evic- 
 tion of C, which suspends his whole rent.(l) 
 
 10. But where one having a paramount title made an entry upon 
 the lessor, before he gave the lease, but he refused to deliver possession,. 
 and the former then brought a real action, and recovered judgment 
 after tlie lease was made; held, such entry was no eviction, to bar -a 
 suit for the rent.(2) 
 
 11. A mere breach ofcQvenant by the lessor does not excuse from the 
 payment of rent, though the covenant is one, the performance of which 
 would increase the value of the premises ; as, for instance, a covenant 
 to repair. So, where a lessor in fee covenanted that the lessee should 
 have common of pasture and estovers from other lands of the lessor, and 
 afterwards approved the lands, thereby destroying the common; held, 
 this covenant could not be construed as a grant, and the breach was 
 no defence to a suit for the reit.(3)(a) 
 
 12. A mere entry upon the land by the landlord is simply a tres- 
 pass, and not an eviction which discharges the rent. So an action lies 
 for the rent, though the landlord has offered to let and advertised the 
 
 (1) Lewis V. Payn, 4 Wend. 423. 
 
 (2) Fletcher v. MoFarlane, 12 Mass. 43. 
 
 (3) Watts «. Coffin, 11 John. 495; Ether- 
 
 idge V. Osborn, 12 Wend. 529 ; Bryan «. 
 Fisher, 3 Blackf. 320 ; Hill v. Bishop, 2 Ala. 
 (N. S.) 320. 
 
 a failure on the part of the lessor to comply with the terms of the lease, refused to keep 
 the premises the full term, and to pay tho entire rent, and B became liable for the whole 
 rent. A having abandoned the possession, B compromised with the lessor, and gave the 
 lessor possession before the expiration of the lease. B then advertised to sell under his 
 mortgage, and A brought a bill in equity to enjoin the sale. Held, that A was not releiised 
 from the rent by the lessor's taking possession, and, the compromise being made by B in good 
 faith, although not'binding on A, and being miuiifestly to his advantage, that equity would 
 not restrain B from enforcing his legal rights under tlie mortgage. Destrehan v. Scudder, 
 11 Mis. 484. 
 
 The entry of the landlord on premises left by the tenant during the term, putting another 
 person in possession, and refusing to permit the assignee or agent of the tenant to occupy 
 during the residue of the term, constitute an eviction, whicli suspends accruing rent, but 
 not that wliich has fallen due before entry. Briggs v. Thompson, 9 Barr, 338. 
 
 (a) A sold land to B, with covenants against incumbrances, which were known to him, 
 and also covenants for quiet enjoyment; for which B was to pay ground-rent; and A 
 agreed to advance B money for building, for which the rent was to be increased. A grant- 
 ed the rent to 0, and the grant was recorded ; and, before the deed was delivered, B gave 
 notice to C, that A had failed to advance the money. Held, in an action by C against B 
 for the rent, as B had the above-mentioned covenants, he could not keep back the rent, 
 which was in the nature of purchase-money, though the mortgages were not satisfied and 
 the land was unproductive; that, as A had failed to advance, and C had notice, B could keep 
 back the part of the rent which was the consideration for the advance ; that, if C had paid 
 the whole purchase-money for the grant of the rent before notice, she would be protected 
 for the whole, or ^ro teto where part had been paid. Juvenal v. Jackson, 2 Harris, 619. 
 
 Unnecessary and tortious delay and negligence of a landlord, in making repairs during 
 the term, to the injury of the tenant, cannot be set up as an eviction, where the tenant con- 
 tinues in possession a year afterwards. Cram v. Dresser, 2 Sandf 120. 
 
 In an action of covenant lor rent, it appeared that, between the date of the covenant and 
 the time when the tenancy was to have commenced, the house was rendered unfit for use 
 by the wrongful act of the landlord, whereupon the tenatjt refused to take possession. — 
 Held, the landlord, was not entitled to recover. Cleves v. Willoughby, 7 Hill, 83. 
 
 Lessees of land, on one side of a river, with the ferry privilege belonging to the same, 
 acquired the land on the opposite side, and the right of ferry from that side, according to law, 
 by giving bond to the commissioners. In covenant against them on the lease for rent, they 
 pleaded that they had been evicted. Held, the facts did not sustain the plea. Huffv. 
 Walker, 1 Smith, 134. 
 
CHAP. XVII] 
 
 AND APPORTIONMENT. 
 
 253 
 
 premises, and thereby prevented applications for under-letting ; and 
 though they have been unoccupied.(l)(a) 
 
 13. It is said, the erecting by the landlord of a nuisance Vl^ou adjoin- 
 ing landwill not have the effect of eviction as to payment of rent.(2) 
 But an intentional, annoying and injurious interference with, or dis- 
 turbance of, the beneficial enjoyment of the premises, suspends the rent, 
 without any physical expulsion. So, if committed by the family of 
 the landlord. The fact th;it the premises leased are in an unhealthy 
 condition, if the tenant has entered, is no defence against a claim for 
 rent. If he take measures speedily to remove the cause of complaint, 
 he may claim a deduction for the expense. Otherwise, where he en- 
 tered knowing, or having opportunity to know, the facts.(3) 
 
 14. Where a very gross ami e.xcessive nuisance occurred upon the 
 premises themselves, by the breaking asunder of a privy therein, and 
 the tenant quit as soon as he could find other accommodations ; held, 
 he was not liable afterwards for use and occupation. (4) 
 
 15. The accidental spreading of a poisonous substance over a pasture 
 leased, whereby cattle died, vvas held not to discharge the rent. (5) 
 
 15 a. A landlord may erect a building on a lot adjoining him, though 
 it darkens the windows of the building on the lot demised. Such erec- 
 tion is not an eviction, if it is a ground of damages.(6) 
 
 15 b. A leased the lower part of a house to B, and afterwards the 
 upper part to C. B used his part for purposes of prostitution, accom- 
 panied by drinking, noise and riot, of which gave A notice. A de- 
 nied all knowledge of such use. C having quit the premises leased to 
 him; held, in an action for rent, the above facts were no defence; 
 that it was no more the duty and right of the landlord than of any 
 other person, to abate the nuisance of a bawdy-house.(7) 
 
 15 c. A landlord himself occupied the room over the premises leased, 
 as a grocery store, the drippings from which rendered the leased pro- 
 perty unfit for use ; whereupon the tenant abandoned them to the les- 
 sor. Held, he was no longer liable to pay rent.(b) 
 
 16. In the cases above mentioned, the tenant is deprived of his land 
 by the fault of the lessor ; consisting either in a wrongful entry made 
 by himself, a wrongful use of other land, or in convening a defective 
 title, which is afterwards defeated by third persons. But there are 
 other cases of a different sort ; where the tenant loses his land or build- 
 ings, wholly or in part, by inevitable accident or irresistible force. 
 Upon this point, the following distinctions seem to be established, though 
 not with the perfect clearness that might be desired. 
 
 17. Where the tenant is deprived of the use of the leased premises, 
 he is discharged from any mere legal liability resulting from his lease 
 
 (1) Wilson V. Smith, 5 Terg. 319 ; Ogilvie (4) Cowie v. Goodwin, 9 Carr & P. 318. 
 V. Hull, 5 Hill, 52. (5) Sutton v. Temple, 12 M. & W. 52. 
 
 (2) 3 Kent, 371. (B) Palmer); Wetmore, 2 Saridf. 316. 
 
 (3) Co lien v. Bupont, 1 Sandf. 260; West- (7) G-illiooly J). Wasliiiigton, 3 Sandf. 330. 
 lake V. De Grave, 25 Wend. 669. (8) Jackson v. Eddy, 12 Miss. 209. 
 
 (ffl) As to the effect of an eviction, by tbe taking of tlie premises for public uses, see ante, 
 oh 15, sec. 72 & n. Where a statute autliorized the widening of a street, providing com- 
 pensation to land-owners by application to a judicial tribunal ; held, that a party who took 
 a lease of land subsequently to the statute, being evicted, had no remedy upon the covenant 
 for quiet enjoyment. Frost v. Earnest, 4 Whar. 86. 
 
25i RENT— DISCHARGE [CHAP. XTII. 
 
 and occupancy, such as waste. But if he has expressly covenanted or 
 agreed to pay rent, he still remains liable, as before, to an action of 
 covenant^ or an action oi debt.{l) 
 
 18. Thus if an army enter and expel the tenant, he is still bound 
 for the rent.(a) So, if a bouse is blown down, or accidentally burned,(6) 
 
 (1) Padine v. Jane, 1 Rolle's Abr. 946 ; AUeyn, 26 ; Sty. 47. See Bigelow v. Collamore, 
 6 Cush. 226. 
 
 (a) One of the earliest eases upon this subject arose from a tenant's being driven from his 
 land, in tlie reign of Charles I., by Prince Rupert and his soldiers. And the action was not 
 covenant, but debt. The reservation was held to make a covenant in law. Paradine v. Jane, 
 AUeyn, 26. 
 
 In South Carolina, a loss by the dangers of war has been held a good defence. Bayly v. 
 Lawrence, 1 Bay, 499. So, it has been held, that, under tlie plea of no rent in arrear, a 
 lessee may prove that the house has been rendered almost untenantable by a storm, and 
 that the landlord had notice to repair. And, in such case, it seems the rent may be appor- 
 tioned. Ripley v. Wightman, 4 McC. 447. 
 
 In a lease for years of a mill driven by water, it was stipulated, that if the premises, or 
 any part thereof, should be destroyed or damaged, during the term, by fire or other unavoid- 
 able ca.sualty, so as to be rendered unfit for use and habitation, the rent reserved, or a part 
 thereof, according to the nature and extent of the injury, should be suspended or abated, 
 until the premises should be put in a proper condition for use by the lessor. In an action 
 for rem, the lessee offered to show that the water-wheel had been in use for several years 
 previous to the lease, and had frequently been out of order and repaired ; that, during the 
 term, it broke down, when going at its ordinary rate of speed ; and that upon examination 
 it was found to be so rotten, old, out of repair, and worn out, as to be almost worthless, and 
 not worth repairing; but no evidence was offered to show that the condition of the wheel 
 was owing to any special cause, or sudden event, or any accident other than as above men- 
 tioned. Held, the facts stated would not entitle the lessee to a suspension or abatement of 
 the rent. Bigelow v. Collamore, 5 Cush. 226. 
 
 In Pennsylvania, seizure and eviction hy public enemies is no defence to an action for rent, 
 though it discharges the obligation to give up the premises in repair. Pollard v. Sliauffer, 1 
 Dall. 210. 
 
 Where a building is torn down by public authority, if the act is unauthorized, it is a tres- 
 pass; if authorized, the authority was equally well known to both parties. In either case, 
 only the balance of rent accruing subsequently can be deducted on this account, as for fail- 
 ure of consideration. Noyes v. Anderson, 1 Duer, 342. 
 
 {b) The destruction of leased premises by fire, as would naturally be expected, has given 
 rise to more questions and distinctions than any other form of accidental or providential loss. 
 The general rule is, undoubtedly, as stated in the text; but not adopted without doubt and 
 discussion, and often qualified or modified by the circumstances of partieuhir cases. The 
 practical importance of the subject is much diminished, by the almost uuiversal custom of 
 expressly excepting loss by fire from the covenant in leases to pay rent. 
 
 It has been lield that an agreement to give a lease, generally does not bind the party to 
 give a lease, providing, that if the premises shall be burned or rendered untenantable, the 
 rent shall cease till they are rebuilt or repaired. Eaton v. Wliitaker, 18 Conn. 222. 
 
 "Where, after a destruction by fire, the lessor, entered, took away certain articles, and 
 made various uses of the property; held, the tenant was still bound for the rent. Belfour 
 9. Weston, 1 T. R. 310. 
 
 An upper floor of a house was occupied, at a rent payable quarterly. Pending a quarter, 
 the house was burnt, and rendered untenantable. Held, the landlord' might still recover, in 
 an action for use and occupation, at least the amount of rent up to the time of the tiie, from 
 the preceding quarter day. Parker v. Gibbins, 1 Gale & Dav. 10. 
 
 So, it has been held, that a tenant from year to 3'ear is liable for use and occupation, 
 though the premises be burned. Izon v. Gorton, Bingh. N. 501 ; Voluntine v. Godfrey, 9 
 Verm. 186. It seems, if the house is rebuilt, the tenant might claim it. lb. But where 
 the third story of a house was leased for a term, the house burnt and rebuilt, and a tender 
 made to the tenant of his part, who refused to lake it; it was left to the jury to decide, in 
 an action for rent, whether "the old law was too severe," and whether the facts showed an 
 eviction. Law Rep., Feb., 1841, p. 390. 
 
 And where, a long time after a loss by fire, the tenant brought ejectment against the land- 
 lord for the house, rebuilt where the former one stood; upon ilie ground of lapse of time, 
 and that the landlord, though not bound to rebuild, and legally entitled to the rent, had not 
 enforced his claim ; it was left to the jury to consider, whether the plaintiff had not waived 
 
OHAP. XTII.] 
 
 AND APPORTIONMENT. 
 
 255 
 
 although the lessee covenanted to keep the premises in repair, casual- 
 ties by fire only excepted ; his covenant to pay rent will bind him 
 during the term.(l) (See ch. 15.) 
 
 19. The general rule above stated is founded upon the consideration 
 that a lease for years is a sale for the term, and, unless there are express 
 stipulations, the lessor does not insure against inevitable accidents, or 
 any other deterioration ; and that losses by fire generally arise from the 
 carelessness of tenants, which it is the policy of the law to restrain. (2) 
 
 20. The rule above stated is the prevailing one at law. But in 
 equity it has been held, that a loss by fire as eflectuallj^ discharges the 
 rent, as an eviction by title ; and, although the landlord may maintain 
 an action at law, that equity will restrain it by injunction, until the 
 house is rebuilt; especially where he was insured. But neither land- 
 lord nor tenant is bound to rebuild, unless it is so expressly agreed. (3) 
 
 21. But it is further said, that there is no general rule in a court of 
 equity to relieve in such a case. It will afford relief only under parti- 
 cular circumstances. In late English cases, Chancery has refused to 
 interfere; and Chancellor Kent regards this as the settled doc- 
 trine.(4)(a) 
 
 22. Where a tenant is deprived, by act of God or inevitable acci- 
 dent, of a part only of the premises leased, it seems there will be no 
 apportionment of the rent. The earliest case upon this point, was one 
 in which a man hired land and a flock of sheep together. The whole 
 flock having died, it was contended that the rent should be apportioned ; 
 but the question was not decided. (5) Where a mill was carried away 
 hj ice, it was held, that the tenant was still bound to pay rent, partly 
 on the ground, that this was only a partial destru<:tion of the property 
 leased — a fishery and other valuable rights being still left.(6) If a part 
 of the land is surrounded by water, or swept by wild-fire, there shall 
 be no apportionment. But if a part of it be covered or surrounded by 
 the sea, tlie rent shall be apportioned, because the tenant loses the use 
 of the land, with very slight chance of regaining it.(7) 
 
 23. The complainant hired a store in Boston for three years, coven- 
 
 (1) Monk V. Cooper, 2 Ld. Ray. 1477 ; 
 Hallett V. Wylie, 3 Jolin. 44 ; Lamott v. Steretl, 
 1 Harr. & J. 42 ; Taverner, Dyer, 56 a ; Car- 
 ter V. Cummins, 1 Cha. Cas. 84; White v. 
 Molvneux, 2 Kelly, 124. 
 
 (2') Fcjwler v. Bott, 6 Ma.ss. 67 ; 3 Kent, 
 373-4; Cline v. Black, 4 McC. 431; (which 
 case treats the English rule on the subject 
 as doHMtful. And see Brown v. Quilter, 
 Ambl. 621.) 
 
 (3) Treat, of Equ. lib. 1, ch. 5, sec. 8; 
 
 Brown v. Quilter, Amb. 619 ; Steele v. 
 Wright, 1 T. R. 708: Gates v. Green, 4 Paige, 
 355. 
 
 (4) IT. R. 710; Fowler «. Bott, 6 Mass. 
 68 ; Hare ■;;. Groves, 3 Anst 687 ; Holtpzaf- 
 fell D. Baker, 18 Yez 115; White v. Moly- 
 neux. 2 Kelly, 124. 
 
 (5) Taveiner's case, Dyer, 55 b ; Hart v. 
 Windsor, 12 Mees. & W. 68. 
 
 (6) Ross);. Overton, 3 Call, 268. 
 
 (7) 1 RoUe's Abr. 236. 
 
 his right to the premises at the time of the fire ; and they found for tlie defendant. Doe v. 
 Sandham. 1 T. R. 7 10 ; Baker v. Holtpzoffell, 4 Taun. 45. 
 
 In a suit for rerjt of premises destroyed by fire, evidence that the property was insured, 
 and the Inndlord received the insurance money, or that he received money for loss of the 
 property, out of a general relief fund, is not a defence Magaw v. Lambert, 3 Barr, 444. 
 
 But if a landlord take possession of the ruins of his premises destroyed by fire, lor the 
 purpose of re-building, if without the consent of his tenant, it is an eviction ; if with his assent, 
 it is a rescission of the lease ; and In either case the rent is suspended. lb. 
 
 (a) So, wliere there is a covenant to pay rent and repair, with express exception of casu- 
 alties by fire, the lessee is liable for rent, though the premises be burned and not rebuilt 
 after notice; nor will equity restrain a suit therefor. Ward v. Bull, 1 Branch, 271. 
 
256 
 
 RENT— DISCHARGE 
 
 [CHAP. XVII. 
 
 anting to pay the rent and leave the premises in good repair at the end 
 of the term, and the lessor reserving a right to enter and make im- 
 provements. The front part of the land was taken and the front wall 
 of the building cut off by the city, in order to widen the street. Held, 
 the term was not thereby ended, nor the tenant discharged from his 
 covenants to pay rent.(l)(a) 
 
 24. Lease of three rooms and a landing upon a canal, with a front of 
 200 feet, and a covenant to pay rent while permitted to occupy. The 
 rooms being burned, held, there was no discharge, but only a propor- 
 tional abatement of the rent, unless the rest of the property was sur- 
 rendered. (2) 
 
 24. a. A leased store was burned, the whole rent having been paid 
 in advance, and the lessor rebuilt and leased to others. Held, the lessee 
 might recover so much of the rent as applied to the period since the 
 new lease.(3) 
 
 26. Where a lessor, in a lease of several buildings, covenanted to 
 repair in case of damage by fire, and the lease provided, that in case of 
 such damage, the rent for the buildings thereby rendered untenantable 
 should cease while they remained untenantable; held, the covenants 
 were independent, and the neglect of the lessor to rebuild did not ex- 
 cuse the non-payment of rent for the buildings which were unin- 
 jured. (4) 
 
 26. A purchase, by the landlord from the tenant, of his whole in- 
 terest, will discharge or extinguish the rent. But a purchase on con- 
 dition, or of a part only of the tenant's interest, will not extinguish, 
 but merely suspend, the rent ; which,- upon the termination of the par- 
 ticular estate purchased, or performance of the condition, and the resto- 
 ration of the land to the tenant, will revive. So, if the landlord pur- 
 chase only a part of the lands, the rent will be extinguished propor- 
 tionably lor these only, but still continue for such part of the lands as 
 are retained by the tenant. So a landlord may release a part of the 
 rent, and the rest will remain. (5) But if the rent be payable in some 
 indivisible thing, as a horse or a hawk, a purchase by the landlord of 
 part of the land extinguishes the whole rent. On the other hand, if the 
 return to be made is some act for the public benefit — as to repair a road, 
 or keep a beacon — such a purchase will not extinguish the rent, even 
 in part. A descent of part of the tenancy to the owner of the rent will 
 not extinguish it, though indivisible.(6) 
 
 27. Although formerly doubted, it is now settled, that a rent-service, 
 being incident to the reversion, may be apportioned by transferring a 
 part of the latter, with which the rent will pass, without any express 
 mention of it. So the rent itself may be apportioned by devise.(7) Thus, 
 one having a rent of £10 may devise £6, part thereof, to A, B and G 
 
 (1) Patterson v. Boston, 20 Pick. 159. 
 
 (2) Willard v. Tulman, 19 Wend. 358. 
 
 (3) Wardu. Bull, 1 Branch, 271. 
 
 (4) Allen v. Culver, 3 Denio, 284. 
 
 (5) 3 Cruise, 206-7 ; Grourdine v. Davis, 1 
 Bai. 469 ; Lit. 222 ; 18 Tin. Abr. 504. 
 
 (6) Gilb. 165; 1 lust. 149 a; Gill). 166. 
 
 (7) 3 Cruise, 211. 
 
 (a) Where a statute authorized the widening of a street, providing compensation to land- 
 owners by application to a judicial tribunal; held, that a party who took a lease of land 
 subsequently to the statute, being evicted, had no remedy upon the covenant for quiet ea- 
 jojment. Frost v. JSarnest, 4 Whar. 86. 
 
CHAP. XVII.] 
 
 AND APPORTIONMENT. 
 
 257 
 
 severally, to each a third. In such case each devisee (and, it seems, 
 the heir at law also) may have a separate remedy for his rent.(l) 
 
 28. A rent-service may also be apportioned, by an assignment by 
 act of law ; as where a legal process is levied upon a part of the re- 
 version, or where the widow of the landlord recovers one-third of the 
 reversion for her dower. So in case of the death of a landlord, each 
 of several heirs may sue separately for his portion of the rent.(2) 
 
 29. At common law, if a tenant for life, having underlet the land, 
 died before the rent fell due, neither his executor, nor the reversioner, 
 nor remainder-man, could recover a proportional part of it. Tlie 
 former could not, because his only claim would be for use and occupa- 
 tion, which would not lie upon a sealed lease ; nor the latter, because 
 the rent did not accrue in his time.. St. 11 Geo. II. ch. 19, s. 15, pro- 
 vides, that in such case the executors, &c., may recover rent for the 
 time that the tenant occupied, pro rata ; and, if he died upon the rent- 
 day, the whole amount. But this act applies only where the lease 
 ends with the death of tenant for life. If it does not thus terminate, 
 the rent goes to the person in reversion or remainder.(3)(a) 
 
 30. In equity, this statute has been held to extend to a tenant in 
 tail dying without issue. 
 
 31. Thus, where such tenant, having leased for years, died without 
 issue a short time before rent-day, and the whole rent was paid to the 
 remainder-man ; held, the executor of tenant in tail might maintain a 
 bill against the remainder-man, for such part of the rent as accrued be- 
 fore the tenant's death ; upon the grounds, that the case was within 
 the equity, though not the words, of the act ; and, where equity finds 
 a rule of law agreeable to conscience, it pursues the sense of it to 
 analogous cases; and also (and chiefly) that, the tenant not having 
 been legally bound to pay the rent to any one, the payment should be 
 applied to the benefit of those equitably entitled to the respective pro- 
 portion s.(4) 
 
 32. It has been said of the foregoing case, that it seems rather to be 
 a decision what the statute ought to have d-one, than what it has done. 
 But it was at the same time held, that, where one occupied from year 
 to year, under the guardian of an infant tenant in tail, inasmuch as the 
 lessee was in under no lease or covenant, but merely an implied con- 
 tract, he could not raise an implication that he was to occupy rent free. 
 
 (1) Oollins ti. Harding, 13 Rep. 57; Gilb. 
 113; Ards «. Walking, Cro. Eliz. 637, 651; 
 Daniels v. Rioliardson, 22 Pick. 565. See 
 Salmon v. Mathews, 8 Meea. &, W. 827; 
 Crosby v. Loop, 13 Illln. 625. 
 
 (2) Campbell's case, 1 Eolle's Abr. 237 ; 
 
 Montague v. Gay, 17 Mass. 439 ; Cole v. Pat- 
 terson, 25 Wend. 456. 
 
 (3) Jenner v. Morgan, 1 P. Wms. 392 ; 3 
 Cruise, 213.; Perry v. Aldrich, 13 N. H. 343. 
 
 (4) Paget V. Gee, Ambler, 198. 
 
 (a) The statute of apportionment, (4 Wm. IV, o. 22,) does not apply as between the exe- 
 cutor and lieir of a tenant in fee. Been;. Beer, 9 Eng. L. & Bqn. 468. 
 
 In Delaware, Tent may be apportioned between tenant for life and remainder-man. Rev. 
 Sts. ch. 120. So in Iowa. Code, 1851, oh. 82. 
 
 The plaintiff, a teaanipour autre vie, leased the land during the life of the cestui, at an 
 annual rent, payable on the 1st of April in each year. The cestui died October 15th. Held 
 the lessee was not liable for rent to the plaintiff from April to October; the statute of Geo. 
 XI. not authorizing an action by the plaiutiff. Perry v. Aldrich, 13 N. H, 343. 
 
 Vol. I. 17 
 
258 
 
 RENT— DISCHARGE 
 
 [CHAP. XYII. 
 
 and, the whole amount having been paid to the receiver, the portion 
 acuraing before the infant's death was awarded to his executors.(l)(a) 
 
 33. In case of a rent-charge, if the owner of the rent purchase any 
 part of the land from which it issues, the whole rent is extinguished. 
 The reason of this distinction between a rent-service and a rent-charge 
 is, that, while the former, consisting originally in feudal services, was 
 favored bj' the law, and not allowed to be detached from any lands 
 held by tenants ; the latter is against common right, of no public ben- 
 efit, and issuing out of every part of the land, so that the law will 
 enforce it only according to the original contract.(2) 
 
 34. But if the grantor of the rent, after such purchase, make a deed 
 to the grantee, reciting the purchase, and authorizing the grantee to 
 distrain for the rent upon the remaining land ; this amounts to a new 
 graut.(3) And, if a part of the land come by descent to the owner of 
 the rent, the latter shall be apportioned according to the value of the 
 remaining land. (4) If the owner of a rent-charge, issuing out of three 
 acres of land, release one of them from it, the whole is discharged. 
 But if, being entitled to a certain sum, he release a part of that sum, 
 the balance remains. It is said, that in the latter case he deals with 
 the rent, which is his own ; and in the former with the land, which is 
 another's.(5) 
 
 35. In Pennsylvania, as has been stated, (ch. 16,) a. ground-rent, reserv- 
 ed upon a conveyance in fee, is a rent-service. Hence, if the owner 
 release a part of the land from it, the remaining land shall be still 
 
 (1) Vernon v. Ternon, 2 Bro. R. 659 : 
 Hawkins v. Kelly, 8 Ves. 308. 
 
 (2) Co. Lit. 147 b; Glib. 152. 
 
 (3) Co. Lit. 147 b. 
 
 (4) Lit. 224; Gilb. 156. 
 
 (5) 18 Yin. Abr. 504; Gilb. 163; Co. Lit. 
 148 a; 3 Vin. Abr. 10, 11; Far.ey «. Craig, 
 6 Halst. 262. 
 
 (a) Held, in a late case, that the act providing for an apportionment of rent does not 
 apply to unwritten leases from year to year. Markley, 4 My. & C. 484. 
 
 The principle of apportionment may be applied to the tenant, as well as the landlord. 
 Where a lessee assigns part of his interest, the rent may be apportioned, and the lessor 
 may sue the assignee in covenant for bis proportion. Tan Rensselaer v. Bradley, 3 Denio, 
 135. 
 
 In an action against the assignee of a part of the demised premises for rent, the plaintiff 
 may declare against him as assignee of a specified part, in which case his recovery will be 
 limited to tliat part; or ha may declare for the whole, and leave the defendant to take issue 
 on tlie assignment by plea or evidence. Van Rensselaer v. Jones, 2 Barb. 643. 
 
 The rent must be apportioned according to the value of the part held by him compared 
 with the whole. And, if there is no proof of the relative value, the premises will be pre- 
 sumed to be of equal value, and the rent should be apportioned according to quantity. lb. 
 
 But, generally, the apportionment of rent among several assignees must be according to 
 value, and not quantity, or number of acres. (Whittlesey, J., dissenting.) Van Rensselaer 
 V. Gallup, 5 Denio, 454. 
 
 A severance of the occupation of demised premises, the rent being paid to the lessor by 
 the respective tenants, is not a severance of the conditions of the lease, and a breach by 
 one works a forfeiture of the whole lease. Clarke v. Cummings, 5 Barb. 339. 
 
 In Michigan, (Rev. Sts. 265.) one in possession of land, from which a rent is due, is liable 
 for a proportional part, though he has only a portion of the land charged. 
 
 "With regard to the principle on which rent is to be apportioned as to tme, the following 
 case occurred in Pennsylvania: 
 
 The Bedford Springs were leased for a term, commencing April 1, at an annual rent, pay- 
 able September 1, which was the conclusion of the watering season. In applying the pro- 
 ceeds of the tenant's good,«, sold on execution, to the lien of the landlord ; held, the rent 
 should be apportioned according to the interval between tl e commencement of tbe current 
 year and the day of payment, not on the basis of the whole year. Anderson, &c., 3 Barr, 
 218. 
 
CHAP. XVII.] 
 
 AND APPORTIONMENT. 
 
 259 
 
 proportion ably chargeable ; more especially if the release has aa express 
 saving of such liability .(1) 
 
 36. It is said to be a common practice in England, for the owner of 
 a rent-charge to join in conveying that part of the land, which it is 
 agreed to discharge from the rent, with a proviso in the deed, that the 
 rest of the land shall still remain liable. But since this operates as a 
 new grant, the rent will be postponed to any prior incumbrance on the 
 land. Sometimes, where the owner of the lands conveys a part of 
 them, the grantee of the rent-charge covenants not to distrain or enter 
 upon the part conveyed. But, it seems, this might discharge the 
 whole rent.(2) 
 
 '67. A rent-charge may be apportioned either by act of parties or act 
 of law. Thus, if the owner assign a portion of it to another, each shall 
 hold his respective share, and be entitled to his remedy. The reason 
 of the rule is, that the whole land remains liable as before, and that the 
 policy of the law, having allowed this kind of rent, will not prevent 
 a distribution of it among children. Anciently, to effect such appor- 
 tionment, the tenant was obliged to attorn to the assignee ; after which, 
 he could not complain of being subjected to two suits instead of one. 
 And, although the practice of attornment is now for the most part done 
 away, yet, as the tenant may avoid any suit by punctual payment, the 
 rule still prevails. So, a part of a rent-charge may be taken by legal 
 process, which will effect an apportionment.(3) 
 
 38. If a part of the lands, from which the rent issues, descend to the 
 owner of the rent, the latter shall be apportioned, inasmuch as the 
 party acquires the land by act of law, and not by his own act.(4) 
 
 39. The feoffee of a husband grants a rent-charge to the wife. The 
 husband dies, and one-third of the land charged is assigned for dower. 
 The rent shall be apportioned, and not issue wholly from the residue.(5) 
 
 (1) Supra, oh. 16; IngersoU v. Sergeant, 1 
 Whan. 337. 
 
 (2) 3 Cruise, 209; Butler v. MonDings, 
 Noy, 5. 
 
 (3) Gilb. 163; 18 Yin. Abr. 504; Farley 
 
 V. Craig, 6 Halst. 262-273; 
 5 Mees. & W. 255. 
 
 (4) Lit. 224; Gilb. 156. 
 
 (5) Co. Lit. 32 b, n. 3. 
 
 Rivis V. Watson, 
 
260 
 
 WASTE. 
 
 [CHAP. xvm. 
 
 CHAPTER XVIII, 
 
 WASTE. 
 
 1. Importance of the subject. 
 
 2. American doctrine. 
 
 3. Definition. 
 
 4. Voluntary or permissive. 
 6. Felling timber. 
 
 10. American law. 
 12. Waste of buildings. 
 
 19. Loss by fire. 
 
 20. Disturbance of the soil — mines, &o. 
 23. Conversion of the land. 
 
 26. Heir-looms — destruction of. 
 26-59. Permissive waste — repairs. 
 30. Act of God. 
 
 33. Amount of waste. 
 
 34. Who punishable for — tenant for life, 
 
 &.C. — Statutes of Marlbridge, &e. 
 36. Ecclesiastical persons. 
 39. American doctrine. 
 41. Who may sue and be sued for. 
 56. Waste by third persons. 
 58. Action on the case for. 
 60. Injunction and other equity prooeed- 
 
 ine;s. 
 68. Property in timber cut, &c. — who has; 
 
 contingent remainders, &o. 
 76. Cutting of timber by order of Court. 
 80. Lease without impeachment of waste, 
 
 &c. 
 92. Special provisions as to waste in the 
 
 United States. 
 
 1. In" treatiDg of estates for life and for years, many incidents or 
 qualities have been noticed which are common to both estates. It 
 remains to consider another subject, of much importance, the principles 
 of law pertaining to which are for the most part alike applicable to 
 tenant for life and tenant for years. This is the subject of luasie. Lord 
 Coke says, "it is most necessary to be known of all men."(l) 
 
 2. Chancellor Kent remarks,(2) that the American doctrine on the 
 subject of waste is somewhat varied from the English law, and is more 
 enlarged and better accommodated to the circumstances of a new and 
 growing country. So it is said, in this country, no act of a tenant 
 amounts to waste, unless it is or may be prejudicial to the inheritance, 
 or to those who are entitled to the reversion or remainder.(3) But, 
 inasmuch as the English doctrine remains wholly applicable in some of 
 the States, and in the rest has undergone very partial cbange, this 
 doctrine will be first stated, and then qualified by an account of such 
 alterations as the statutes or judicial decisions of the respective States 
 have introduced. 
 
 3. Waste is the destruction of such things on the land, by a tenant 
 for life or for years,(a) as are not included in its tem,porary profits. 
 
 (1) Co. Lit. 54 b. 
 
 (2j 4 Kent, T 6 ; Kidd v. Dennison, 6 Barb. 9. 
 
 (3) Pynchon v. Stearns, 11 Met. 304. 
 
 (a) In some eases the term is applied to other tenants than for life or years; as. for in- 
 stance, to an adverse claimant in possession. Thus it is held, that where a defendant in 
 an ejectment suit has been in possession for many years, claiming in fee, in his own right, 
 and in hostility to the plaintiff, he should, until legally evicted, be permitted to remain in 
 the full etijoynient thereofi to the extent that he would be were no adverse claim set up; 
 subject to the restriction, that he shall not commit a permanent and lasting injury to the 
 inheritance ; and the cutting down of such trees as it is necessary to cut down for the regu- 
 lar clearing up and improvement of the lot, so as to put it in proper farming condition, ac- 
 cording to the rules o( good husbandry, is not waste; but, should the defendant continue to 
 cut down timber or other wood, so as to encroach upon what should be left and preserved, 
 as necessary for repairs offences and other erections, and for Srewood, it seems he would 
 be guilty of waste, and, upon application, would be restrained and punished. The People 
 V. Davison. 4 Barb. 109. 
 
 So, under & contract of sale, giving time for payment of the purchase-money, the purchaser 
 
CHAP. XVIII.] 
 
 WASTE. 
 
 261 
 
 In other words, it consists in such acts as tend to the permanent 
 loss of the owner in fee, or to destroy or lessen the value of the in- 
 heritance.(l)(a) 
 
 4. \Y aste is either voluntary or permissive ; the former consisting in 
 some positive act, the latter in mere neglect or omission. (&) 
 
 5. Of voluntary waste, there are various kinds. 
 
 6. The first and perhaps principal kind, is the felling cf timber trees; 
 which, although the tenant has a qualified property in them for shade 
 and shelter, and for the masts and fruit — he lias no right to cut ddwn, 
 more especially if it is bad husbandry to do so, and no pretence of its 
 being done for estovers. But he may cut coppices and underwoods, ac- 
 cording to custom, and at seasonable times. So the thinnings of fir 
 trees less than 20 years old belong to the tenant for life. He has, how- 
 ever, no property in the underwood, before it is cut; and therefore 
 cannot have an account of what was wrongfully cut by a preceding 
 tenant.(2) 
 
 7. Where the timber is included in a lease, the lessee may have tres- 
 pass against the lessor for felling the trees, and the lessor luaste against 
 the lessee. And, if a stranger fell them, each may have his own ap- 
 propriate action. The landlord cannot have trespass. When the trees 
 are expressly excepted, the lessor has an implied power df going on 
 the land to fell them, and may sue the lessee for any injury done to 
 them. So he may maintain trespass against a stranger. Where the tim- 
 ber is neither expressly included nor excluded, it would seem that the 
 tenant has the right to have it continued, but no right to cut it down, 
 unless waste is expressly authorized. (3)(c) 
 
 (1) 1 Swift, 517-8. 
 
 (2) Co. Lit. 53 a; Rich. Liford's case, 11 
 Rep. 48 b; Pigot i). Bullock, 1 Ves Jan. 479; 
 t N. H. ni ; Eiiigeley v. Rawliiig, 2 Coll. 
 275 ; Edge v. Pemberton, 12 Mees. & W. 187. 
 See 5 Mees. & W. 11. 
 
 (3) 11 Rep. 48 a; Pom fret k. Rioroft, 1 Saun. 
 322, n. 5 ; Poster v. Spooner, Cro. Eliz. 18 ; 
 Heydon v. Smith, Godb. 173 ; Jackson v. Ca- 
 tor, 5 Tes. 688. 
 
 to have possession in the mean time, and the privilege of converting the timber into lumber 
 for the purpose of payment ; the court will not grant an injunction to prevent him from 
 cutting timber, there being no allegation nor proof that the land would not be an adequate 
 security for the money, without the timber. Van Wyck v. Alliger, 6 Barb. 507. But where 
 A and B entered into a contract for an exchange of lands, and subsequently passed' the 
 deeds of conveyance and dehvered possession, before which time, and after the contract of 
 sale, A committed waste on the land sold by him ; held, B might maintain an action on the 
 case against him. Marsh v. Current, 6 B Mon. 493. 
 
 (a) According to this definition, the term waste does noi per se import anything wrong or 
 unlawful; because it may, under certain circumstances, be lawfully committed. Thus, as 
 will be seen, a particular tenant may hold the land " without impeachment of waste ;" that 
 is, with the privilege of committing waste. The word, however, is more generally used in 
 the different sense of an unauthorized or illegal destruction of timber, &o. According to the 
 latter meaning, we should say, " for a tenant to out timber, &o., is waste ;" according to 
 the former, " a tenant cannot lawfully commit waste by cutting timber, &o. (See ch. 1, 
 sec. 74, n.) 
 
 (6) As to the distinction between them, see Martin v. Gilham, 7 Ad. & Ell. 540. 
 
 (c) A lessor covenanted, that the lessee should have as much firewood as she should de- 
 sire from a certain tract of land; and then cut most of the wood thereon, and converted it 
 to his own use. Held, a breach of the covenant. Lovering v. Lovering, 13 N. H 513. 
 
 A lease contained the following clause : "All the timber in the southeast corner, of 
 about five acres, suitable and proper for fuel, to be left, and not cleared." Held, the corner 
 land specified was not excepted from the lease, but the clause amounted to an agreement 
 not to cut the timber thereon ; and, therefore, although the lessor could not maintain tres- 
 pass lor injury to the real estate in cutting the timber, he could maintain trespass de bonis 
 
262 
 
 "WASTE. 
 
 [CHAP, xviir. 
 
 8. Timber trees are those used for luilding, and the question is one 
 of local usage.{a) Thus, where birch trees were used in a certain county 
 for buildings of a mean kind, it was held waste to fell them. So horse- 
 chesnuts and pines. But it is also waste, to cut those standing in de- 
 fence of a house, though not timber, as, for instance, willows, beech, 
 maple, &o., or to cut trees for fuel, where there is sufficient dead wood ; 
 or to stub up a quickset thorn fence. So it is waste, to lop timber 
 trees, and thereby cause them to decay ; or to destroy or stub' up the 
 young germins or shoots ; or to cut down fruit trees growing in the 
 garden or orchard; but not those growing elsewhere.(l) 
 
 9. It is said, in places where timber is scant, it may be waste to cut 
 such trees, as are not commonly reckoned to be timber. On the other 
 hand, upon a similar principle, it has been held not to be waste, in 
 Massachusetts, to cut oaks for firewood, these trees being very abund- 
 ant, and commonly used for this purpose. But it is waste, to cut tim- 
 ber-trees and exchange them for firewood, especially if the latter might 
 be otherwise obtained.(2) So, in a bill against a tenant, for waste of 
 timber, it is no justification, that firewood and timber were furnished 
 by him for the farm, from other premises; but, in account decreed 
 against him for such waste, he may be allowed in mitigation for what 
 he so furnished. So, where a condition in a lease is, that the tenant 
 shall not cut off wood and timber, except for firewood and fencing, 
 and he cuts off timber for other purposes, he cannot escape forfeiture, 
 by showing that he has not cut off more than would have sufficed for 
 his firewood and fencing timber, and that he obtained the latter from 
 other land ;(3) nor can he set up as a defence, that he has farmed the land 
 more beneficially than the lease required. (4) And, where trees are cut 
 for no purpose connected with the immediate improvement of the land, 
 and sold off the land, without intending to apply the proceeds to such 
 improvement, waste is always committed, and the defendant has no 
 right to recoupe for improvements which he might have made at some 
 other time.(5) So, in North Carolina, though a tenant for life of land 
 entirely wild may clear as much of it for cultivation as a prudent 
 owner of the fee would, and sell the timber that grew on that part of 
 
 (1) Dyer, 65 a ; Co. Lit. 53 a ; Cumberland's Sarles, 3 Sandf. Ch. 601 ; Simpson v. Bowden, 
 case, Moore, 812; Jackson v. Brownson, 7 33 Maine, 549; Greber v. Kleckner, 2 Barr, 
 Jolin." 234; Chandos v. Talbot, 2 P. Wms. 209. 
 
 606 ; Rex v. Minohin, 3 Burr. 3308. (3) Clark v. Cummings, 5 Barb. 339. 
 
 (2) Padelford v. Padelford, 1 Pick. 152; (4) Ballitt i). Musgrave, 3 Gill, 31. 
 Richardson J). York, 2 Shepl. 216; Sarles v. (6) Ibid. 
 
 asportatis for carrying away the wood, after it had been severed. Schermerhorn v. Buell, 4 
 Denio, 422. 
 
 While the general rules relating to waste are controlled by previous formal agreements 
 of the parties, the reversioner cannot claim a forfeiture, if he has assented to the act either 
 before or after it was committed. Clemenoe v. Steere, 1 R. I. 272. 
 
 So, the receipt of rent, after the tenant has incurred a forfeiture by cutting timber, is a 
 waiver of the forfeiture. Camp v. Pulver, 5 Barb. 91. 
 
 (a) So, where it is the custom of husbandry in the vicinity to sell off hay from farms, it is 
 not waste to do so. But the removal of bog-grass from a farm, where it has usually been 
 foddered on the farm, is waste. Sarles v. Sarles, 3 Sandf. Ch. 601, 
 
 The question of waste is said to depend on the custom of farmers, the condition of the 
 land, the demands of good husbandry, the situation of the country, and the value of the 
 timber. MoCuUough v. Irvine, 1 Harr. 438 ; Morehouse v. Cotheal", 2 N. J. 521. 
 
 Cutting hoop-poles is waste, unless this is the ordinary mode of managing the farm. Cle- 
 mence v. Steere, 1 R. I. 272. 
 
CHAP. XVIII.] 
 
 "WASTE. 
 
 263 
 
 the land, yet it is waste to cut down valuable trees, not for tlie pur- 
 pose of improving the land, but for the purpose of sa]e.(l) 
 
 10. With regard to the cutting down of timber, in several of 
 the States, {supra, s. 2,) the strict rules of the English law are 
 not adopted. Thus, in Massachusetts, (Statutes of 1854, 72, 73,) 
 where a widow, there being no issue, elects to take half the real 
 estate, consisting of wild or woodland, she may clear and improve 
 it. In Vermont,(a) New York, and Ohio, if the land is wholly wild 
 and uncultivated, the tenant may clear a part of it for cultivation, 
 leaving, however, enough for the permanent use of the farm, which is 
 a point of fact for the jury; and consistently with good husbandry. 
 So, in North Carolina, the tenant may clear sufficient land to furnish 
 support for his family; and a dowress may cut timber to make into 
 staves and shingles, if this is the common and only beneficial use of 
 the land. So, in New Hampshire, the consumption of necessary fuel 
 at the residence of the widow, cut from the dower-land, she not resid- 
 ing thereon, is not waste. So, in Maine, it is not waste to cut wood 
 for necessary fuel and repairs. So, in Pennsylvania,(6) Virginia and 
 Tennessee, tenants in dower have been allowed to clear wild lands, not 
 exceeding (in the former State) a just proportion of the whole tract. 
 It has already been stated, that ia several of the States a widow is 
 not dovvable of wild lands, for the reason that they would be of no 
 benefit to her, as the clearing of them would be waste.(2) (See ch. 9, 
 s. 12.) 
 
 11. In Tennessee, the lessee of a mine, with liberty to smelt ore, 
 may cut timber sufficient for this purpose. And a widow may cut 
 timber on one part of the land to fence another, though the reversions 
 of the respective parcels belong to different heirs. Her rights are not 
 to be affected by any arrangement among third persons, to which she is 
 not a party. This last point has also been decided in Massachusetts. (3) 
 ■ 12. In relation to buildings, waste may be committed, either by pull- 
 ing them down, or suffering them to remain uncovered, whereby the 
 timbers rot. But, unless they do rot, these acts do not constitute waste. 
 If uncovered before he came in, the tenant does not commit waste by 
 suffering them to fall ; but he has no right to pull them down. If he 
 have done or suffered waste, but repaired before action brought, this is 
 a good defence, but must be pleaded specially, not proved under the 
 plea " quod r'on fecit vastum.^\i) 
 
 (1) Da^is V. Gilliam, 5 Ired. Bq. 308. 
 
 (2) Walls. Intro. 278; Jackson v. Brown- 
 son, 7 John. 227 ; Parkins v. Coxe, 2 Hayw. 
 339; Ballentine V. Poyner, 2 Hayw. 110; 
 Hastings v. Crunckleton, 3 Yeates. 261; N. 
 H. Rev. St. 329; Pur, Dig. 221 ; Pindlay v. 
 Smith, 6 Munf. 134; Croucli v. Puryear, 1 
 Rand. 258; Owen v. Hyde, 6 Terg. 334; 
 
 Hickman v. Irvine, 3 Dana, 123 ; 2S Wend. 
 115; Me. Rev. St. 393; Allen v. McCoy, 8 
 Ohio, 418 ; Childs v. Smith, I Md. Oh. 483. 
 
 (3) Wilson V. Smith, 5 Yerg. 379 : Owen 
 V. Hyde, 6, 334; Padelford v. Pade'lford, 7 
 Pick 152. See infra, s&e. 20. 
 
 (4) Co. Lit. 53 a, and n. 3. 
 
 (a) In this State, it is laid down generally, that cutting wood to fit the land for cultivation 
 is not waste, if good husbandry require it, and the inheritance be not injured; even though 
 the timber be sold and consumed elsewhere. Hough v. Birge, 11 Yerm. 190. 
 
 (6) In this State, the court remark upon the distinction between the condition of things 
 in England, where "every part of every tree will bring cash," and in the United States, 
 where lands are in great measure valueless, till cleared ; and they come to the conclusion, 
 that, if a prudent owner would clear off the timber, and if such clearing raises the value of 
 the land, it ia no waste. Givens v. McCalmont, 4. Watts, 463 ; Owen v. Hyde, 6 Yerg. 334. 
 
264 
 
 "WASTE. 
 
 [CHAP. XTIII 
 
 13. The right to cut timber for repairs does not depend upon the 
 obligation to repair. Thus, if a house be ruinous when leased, the 
 tenant may, though he is not bound to, cut timber for repairs. So, 
 even where the lessor has covenanted to repair, or where the lease is 
 without impeachment of waste, for the house only.(l) 
 
 14. Lord Coke says, it is waste to build a new house, (meaning, 
 probably, with timber cut upon the land;) and to suffer it to be wasted is 
 a new waste. And, if the tenant suffer the house to be wasted, and 
 then fell timber to repair it, this is double waste.(2) (See sec. f 7.) 
 
 15. It is waste to convert a dwelling-house into a store or ware- 
 house, because the safety and permanency of the building are thereby 
 endangered. So, to convert two chambers into one, or the converse; 
 or a hand-mill into a horse-mill.(3) 
 
 16. It is waste to pull down a house, though a new one be built, if 
 the latter is smaller than the former. Otherwise, if the former house 
 fall down, and a smaller one is built. To build a larger one, in this 
 case, with timber from the land, is waste. But not to abate a new 
 house, which has never been covered. (4) The removal of a building 
 erected by the tenant, and not affixed to the freehold, is not waste, nor 
 tearing down a barn so dilapidated that there is danger of its falling 
 upon the cattle.(5) ISTor the erection of a new outhouse, with timber 
 from the farm, in place of one which had become ruinous. (6) 
 
 17. It is waste to reiiiove anything attached to the premises, either 
 by the lessor or the lessee, unless removable upon the principles of the 
 law of fixtures, which have been already explained.(7) {Supra, ch. 1.) 
 
 18. It is said, with particular reference to the alteration of buildings, 
 that the strictness of the law in relation to waste has been carried to an 
 unwarrantable extent ; and that the cases are very discordant. In a 
 modern case in England, the opening of a new door in a building was 
 held to be no waste, unless it impaired the evidence of title. la a 
 recent case in this country, where the lessee of " a store and cellar" 
 raised the store from one to two feet, and finished off a victualing cellar, 
 for which purpose the cellar had never before been used ; held, this, of 
 itself, would be waste, but, as the lessor had covenanted that the lessee 
 might "repair, alter, and improve," this was a permission to make the 
 alterations.(8) 
 
 19. At common law, a tenant for life was not liable for loss by fire, 
 whether accidental or negligent. But such loss was hel(T to be waste,, 
 under the Statute of Grloucester. A later statute, however, 6 Anne, c. 
 31, ss. 6, 7, exempts all tenants from liability for accidental fire, unless 
 it arises from some contract wiih the landlord. (a) A general covenant to 
 
 0) Co. Lit. 54 b. 
 (2 1 Co. Lit. 53 a, b. 
 
 (3) Douglass V. Wiggins, 1 John. Cb. 435 ; 
 Co. Lit. 53 a, n. 3. 
 
 (4) Bro. Abr. Waste, 93; Co. Lit. 53 a, 
 and n. 4. 
 
 (5) Clemence v. Steere, 1 R. L 272. 
 
 (6) Sarles v. Sarles, 3 SandK Ch. 601. 
 
 (7) Co. Litf. 53 a. 
 
 (8) Young V. Spencer, 10 Barn. & Or. 146 ; 
 Hasty V. Wheeler, 3 Fairf. 436-7 ; Doe v. 
 Jones, 4 Barn. & Ad. 126. 
 
 (aj A testator devised to A, for life, a house and other real estate, " he committing no 
 manner of waste, and keeping the premises in good and tenantable repair." In July, 1837, 
 A entered into pos.session, and in November, 1844, the house was totally destroye'l hy an 
 accidental fire. In 1845, A was found lunatic by inquisition, and the lunacy was dated 
 from the 1st of Ctetober, 1843. Upon pelitioa in lunacy of the remaiuder-men, who were- 
 
CHAP. XVIII.] 
 
 "WASTE. 
 
 265 
 
 repair binds the tenant to rebuild in case of fire. Hence, it has be- 
 come usual specially to except such loss.(l) (See supra ch. 17.) 
 
 20. It is waste to dig for clay, gravel, lime, stone, &c., except for re- 
 pairs or manurance. So also to open a new mine (unless in case of a 
 lease of all mines in the land) or clay-pit ; but not to work one already 
 opened, or to open new pits or shafts for working the old veins ; be- 
 cause they could not otherwise be wrought.(a) If mines are expressly 
 mcluded in the lease, and there are open ones, these only are embraced. 
 But if there are no open ones those unopened will pass.(2)(6) 
 
 22. Where certain saltworks were devised for life, subject to the 
 payment of large legacies : held, the devisees might, to any extent, use 
 the sidt, and the woodland used by the testator for fuel, in carrying on 
 the \voi-ks.(3) 
 
 22. But, it is said, the tenant cannot take timber, to use even in 
 mines that are open. (4) 
 
 2'6. Anciently, the conversion of one kind of land into another, {c) as, 
 for in.^^tance, of pasture into arable, was waste, because it not only 
 changed the course of husbandry, but tended to obscure the title. 
 But, it has been said, that the pasiure must have been such imme- 
 morially, and not merely hng before; and, in the improved state of 
 agriculture in modern times, the old rule may be considered as greatly 
 relaxed, if not wholly obsolete. Thus, converting meadows into pasture 
 is not waste, unless detrimental to tlae inheritance, or contrary to the 
 ordinary course of good husbandry. So, a tenant does not commit 
 waste, by opening a way over meadow-land, for his convenience, dig- 
 ging drains by the side thereof, and carrying on earth for the purpose 
 of making the way passable ; or by erecting houses on such land, 
 where there were none before, and digging cellars for them, and raising 
 the ground about them; or by carrying quantities of earth upon the 
 low and wet parts of such land ; if the occasional breaking up of 
 land is a judicious and suitable mode of cultivating it, the cost of 
 levelling small, and if, after deducting such cost, the land over 
 
 (1) 1 Cruise, ISY ; Chesterfield v. Bolton, 2 
 Com. R. 626; Pasteur v. Jones, Cam. k Nor. 
 194; Bullock v. Dommitt, 6 T. R. 651; 1 
 Bibb, 536. See Cornish v. Strutton, 8 B. 
 Mon. 586. 
 
 (2)Co Lit. 53b, 54b; Saunders' case, 5Rep. 
 12. See Whitfield v. Bewit, 2 P. Wms. 240 ; 
 
 Raine v. Alderson, 4 Bing. N. E. 702; V. S. 
 V. Gear, 3 How. 120; Ferrand v. Wilson, 4 
 Hare, 388 ; Owings v. Emery, 6 Gill, 260. 
 
 (3) Findlay v. Smith, 6 Munf. 134. (See 
 supra, sec. 11.) 
 
 (4) Co. Lit. 53 b, n. 1. 
 
 also committees of the per.son and estate; held, the lunatic's estate was liable, under the 
 terms of the condition, to reinstate the house; and a reference was directed, as to what 
 amount ought to be expended in rebuilding, and out of what fund the expense should be 
 paid, with liberty to the next of liin to take a case to Jaw, upon the construction of.the con- 
 dition. Skingley, 3 Bng. Law and Eq. 91. 
 
 (a) Whether this can be done after they have been abandoned, qu. See Viner v. 
 Vaughan, 2 Beav. 466. 
 
 (6) Where certain land was held by copyhold tenure, and, from time to time before the 
 tenant came in po.s36ssion, there being no proof at what periods, large masses of stone fell 
 from cliffs above, and had become partially imbedded; held, they belonged to the lord, with 
 the soil, and the copyholder had no right to remove them. Dearden v. Evans, 5 Mees. & 
 W. 11. 
 
 (c) Tlie impoverishment of fields, by constant tillage from year to year, is waste. Sarjes 
 «Sarles, 3 Sandf. Ch. 601. 
 
 So, suffering pastures to be overgrown with brush, where it would not be suffered by a 
 man of ordinary prudence. Clemence v. Steere, 1 R. I. 272. 
 
266 
 
 "WASTE. 
 
 [CHAP. XVIII. 
 
 which the way was mafle, and on which the houses were built, 
 would, in case of their removal, be equally (or more) valuable for agri- 
 cultural purposes, including ploughing and laying it down to grass, as 
 if it had not thus been changed and built upon. Bat where, in the 
 creation of the estate, there was an express prohibition against plough- 
 ing land unfit to be ploughed. Chancery will interpose by injunction to 
 prevent it.(l) 
 
 2i. If a tenant, by an act of good husbandry, produces consequences 
 of injury which could not reasonably be foreseen, he shall not be held 
 guilty of waste. Thus, where a tenant diverted a creek into a swamp, 
 whereby the trees were killed, and the lessor lay by twenty years, 
 during which a new and better growth sprung up ; held, no forfeiture 
 of the lease for waste.(2) 
 
 25. It is waste, in England, to detroy heir-looms ; as, for instance, to 
 destroy so many deer, fish, &c., as not to leave enough for the stores.(3) 
 
 26. Permissive waste consists chiefly in suffering buildings to decay. 
 But, if they were ruinous when leased, the tenant is not bound to re- 
 pair, though justified in cutting timber for that purpose, because the 
 law favors the maintenance of houses.(a) And, in Massachusetts, he 
 may cut timber trees, and sell them to procure boards for repairs, if 
 this course be economical and beneficial to the estate.(4) 
 
 27. Chancery will not decree that a tenant for life repair, nor appoint 
 a receiver for that purpose; for this would be productive of harassing 
 suits and expensive depositions.(5) 
 
 28. If a tenant covenants to repair, and does not, waste will not 
 lie.(6) 
 
 29. It has been held in South Carolina, that a tenant for life is lia- 
 ble for one-fourth the expense of repairs, to be estimated by commis- 
 sioners. (7) 
 
 30. For waste caused by act of God, or enemies, the tenant is not in 
 general responsible, as where a house falls by a tempest. But, if merely 
 unroofed, he is bound to re-cover it before the timbers rot. So, it is not 
 waste to remove timber thrown down upon pasture land by a tempest, 
 especially where it is valueless. And, where the timber is of value, if 
 its prostration upon pasture land prevents the full enjoyment of the 
 life estate, the tenant should be permitted to remove it upon such terms 
 as may be deemed by the court equitable.(8) 
 
 31. Where the bank of a river, or a wall of the sea, is destroyed by 
 a sudden flood, the tenant is not liable. Otherwise, where the current 
 is so moderate that he might by due diligence preserve the bank, or 
 where the injury happens by the ordinary flowing and reflowing of the 
 tide.(9) 
 
 (1) Co. Lit. 53 b; Dyer, 31 a; Gunning v. 
 Gunning, 2 Show. 8; 1 Swilt, 511-8 : Keep- 
 ers, &o. V. Alderton, 2 Boa. & P. 86; Worsley 
 V. Stewart. 4 Bro. Pari. Ca. 317 ; Clemenoe 
 V. Steere, 1 R. I. 272 ; Pynchon v. Stearns. 
 11 Met. 304. 
 
 (21 Jackson v. Andrew, 18 John. 431. 
 
 (3) Co. Lit. 58 a. 
 
 (4) Co. Lit. 53 a, 54 b ; Loomis v. Wilbur, 
 5 Mas. 13. 
 
 (5) Wood V. Gaynon, Amb. 395. 
 
 (6) Co. Lit. 54 h, 11. 1. 
 
 (7) Smith V. Poyas, 2 Dea. 65. 
 
 (8) 2 Rolle's Abr. 820; Co. Lit. 53 a; 
 Houghton V. Cooper, 6 B. Mon. 281. 
 
 (9) Co. Lit. 53 b; Dyer, 33 a; Griffith's 
 case. Moo. 69. 
 
 (a) But it is waste to tear them down, and he is liable even if torn down after he leaveB 
 them and without his consent. Clemence v. Steere, 1 E. I. 272. 
 
OHAP. XVIII.] 
 
 WASTE. 
 
 267 
 
 32. It seems, waste may be of so small value, as not to be a proper 
 subject of legal inquisition. But Lord Coke says, trees to the value of 
 three shilhngs and four pence hath been adjudged waste, and many 
 things together mny make waste to a value. It is said, it ought to be 
 to the value of iOd. at least.(l) 
 
 83. Where the lessee of a meadow, containing three lots, ploughed 
 it into a garden, and built upon it, and a verdict was rendered against 
 him for three farthings damage, one farthing for each lot ; judgment 
 was given for the defendant.(2)(a) 
 
 34. With respect to the persons who are liable for the commission 
 of waste, there seems to be no little confusion in the books. Lord Coke 
 says, that at common law a tenant for life was not prohibited from waste, 
 "unless expressly restrained from committing it. Mr. Cruise limits this 
 remark to the case where lands were granted to a person for life, and 
 assigns as the reason, that the grantor had power to impose such terms 
 as he thought proper. Chancellor Kent says, that, at common law, a 
 prohibition against waste would lie only against a tenant holding bij act 
 of law. It is said, the Register contains five several writs of waste ; two 
 at the common law, for waste done by a dowress or a guardian ; and 
 three by statute, for waste done by tenant for life, for years, and by the 
 curtesy. But it is added, some have thought that, at common law, waste 
 did not lie against tenant by the curtesy. In Connecticut, it is held 
 that, at common law, waste would lie only against a dowress, guardian, 
 or tenant by the curtesy. In Delaware, tenant by the curtesy, or in 
 dower, is expressly made liable for waste. But Lord Coke says, waste 
 does not lie against a guardian in socage. (8)(6) 
 
 So. Two early English statutes made provision for the punishment 
 of waste committed by avy tenants for lite or for years. Statute of Marl- 
 bridge, 52 Hen. III., c. 24, authorized the action of waste, and gave 
 full damages; and the Statute of Gloucester, 6 Edw. I., c. 5, extended 
 the penalty to a forfeiture of the place wasted, and treble damages (4) 
 
 36. Ecclesiastical persons, bishops, parsons, &c., seized of landsy«?'e 
 ecdestce. although having a fee-simple qualified, are placed, in respect to 
 waste, under the restrictions of tenants for life. They may cut timber 
 or dig stone for repairs of the church or parsonage, or sell them to raise 
 money for this purpose; but, for anything beyond this, they are liable, 
 in England, to a writ of prohibition, or ecclesiastical censure, or in- 
 junction in. Chancery, and to the last named process in the United 
 States, (5) 
 
 (1) Co. Lit. 53 a; lb. n. 10. 
 
 (2) 2 Bos. & P. 86. 
 
 (3) 1 Cruise, 123 ; 4 Kent, VT, ^9, 81 ; Co. 
 lit. 54 a, and n. 11 ; 1 Swift, 519; Jefferson 
 V. Durham, 1 Bos. & P. 120-1; Scott v. Lenox. 
 2 Brock. 57 ; Dela. Rev. Sts. 293. 
 
 (4) 3 Bl. Comm. 14. By St. 3 & 4 Wm. 4, 
 eh. 27, the writ of waste is abolished. 
 
 (5) Hioh. Lilord's case, 11 Rep. 49 a; Stock- 
 man «;. Whitlier, Rolle's R 86; Aekland v. 
 Atwell, 2 Rolle's Abr. 813 ; Strachy v. Fran- 
 cis, 2 Atir. 217. But see Jefferson v. Dur- 
 ham. I B. & P. 105. 
 
 (a) Where a man is found gnilty of waste as to part of the premises on which he is charged, 
 it amounts to a verdict of acquittal as to the residue. Morehouse v. Cotheal, 2 N. J. 521. 
 
 Tlie verdict in an action of waste is good, if it do not specify the exact extent of the 
 premises wasted. A mere designation of each place wasted, where there are several, will 
 not be sufficient. lb. 
 
 (6) At common law, a guardian, by committing waste, forfeited his trust; a widow had 
 a keeper set over her. 2 Inst. 300. 
 
268 
 
 WASTE. 
 
 [CHAP. XVIII. 
 
 87. So, also, an injunction lies against the widow of a deceased rec- 
 tor, and an action on the case against one who has resigned, or the rep- 
 resentatives of one deceased, by the successor, for dilapidations, or even 
 a neglect to repair.(l)(a) 
 
 3 i. In Maryland, if the rector commit waste, he forfeits treble dam- 
 ages to the vestry.{2) 
 
 89. Chancellor Kent observes, that the provisions of the Statute of 
 Gloucester may be considered as imported by our ancestors, with the 
 whole body of the common and statute law then existing, and appli- 
 cable to our local circumstances. It has been expressly re-enacted in 
 New Jersey, New York(6) and Virginia, and adopted in North Caro- 
 lina, Pennsylvania, Maryland, Massachusetts and probably other States. 
 In Pennsylvania, a recent statute provides, that the tenant, in case of 
 permissive waste, shall, before decree of forfeiture, be directed to repair; 
 in default of which he forfeits the place, with treble damages.(3) 
 
 40. In Ohio, a tenant in dower, for voluntary or permissive waste, 
 forfeits the place wasted, but the statute does not give treble damages. 
 Tenant by the curtesy does not forfeit. In Delaware, the action of 
 waste is limited to three years. It lies for waste committed without 
 written license.(4) 
 
 41. In Massachusetts,(c) Maine and Michigan, the penalty is, in 
 general, forfeiture, with damages.(5) But in Massachusetts, a tenant, 
 against whom an action is pending for recovery of land, and who com- 
 mits waste thereon, is liable to treble damages.((i) In Maine, the Stat- 
 ute of Gloucester has been held not to be in force, nor does the action 
 of waste lie against a dowress. Perhaps, for actual waste, an action on 
 the case would lie. Tenant by the curtesy is liable for waste. (6) 
 
 (1) Hoskina v. Peatheratone, 2 Bro. 552 ; 
 Joneaw. Hill, Carth. 224; Jones v. Hill, 3 Lev. 
 268 ; Radcliffe v. D'Oyly, 2 T. R. 630. 
 
 (2) 2 Md. L. 426. 
 
 (3) 4 Kent, 80-1 ; 1 N. J. L. 209 ; 1 Virg. 
 227 ; 1 N. C. Rev. St. 609; Bright v. Wilson, 
 Cam. & N". 26 ; Carver v. Miller, 4 Mass. 
 563 ; White v. Wagner, 4 Harr. & J. 
 
 391; Padelford v. Padelford, 1 Pick. 152 
 Saokettw.Sackett, 8, 309; Penn.St. 1840,217, 
 
 (4) 2 Chase, 1316; Walk Intro. 326, 329 
 Dela. Rev. Sts. 441, 293. See 3 Harring. 9, 
 
 (5) Mass. Rev. St 630. See St. 1841, 187 
 Mifih. Rev. St, 265 ; Me. lb. 393. 
 
 (6) Smithu.PoUausbee, 13 Maine, 273; Me, 
 Rev. St. 567. 
 
 (a) Where a rector was cutting down timber on the glebe lands, and had sold some, and 
 applied the money for necessary repairs of the rectory and other houses on the lands, he 
 was restrained, at the suit of the patron of the rectory, from cutting any timber, except to 
 be used for the purpose of repairs, and from selling or disposing of any timber then or here- 
 after to be cut. The Duke of Marlborough v. St. John, 10 Rng. Law & Kq. 146. 
 
 It seems, it is only by way of indulgence, under special circumstances, as, for instance, 
 where there is timber on an outlying part of the glebe, so far distant as to make it not 
 worth while to bring the timber to the place where repairs are to be done, that a rector 
 would be allowed to sell timber, even for the purpose of defraying the expense of neces- 
 sary repairs with the proceeds. lb. 
 
 (6) Chancellor Kent says, (4 Comm. 81, n. a,) the writ of waste, as a real action, is there 
 essentially abolished ; but an action of waste substituted, with the same penalty. 
 
 (c) Whether, in Massachusetts, the English law of forfeiture, with treble damages, was 
 ever in force, see 3 Dane, cli. 78, art. 11, see. 2 ; art. 13, sees. 3, 4, 5 ; art. 14 ; Jackson, 340 ; 
 Padelford v. Padelford, 7 Pick. 152 ; Sackett v. Sackett, 8, 309. 
 
 (d) But such damages can be recovered only in the manner provided by the statute. 
 They cannot be made an item of charge by a mortgagor against a mortgagee, in an account 
 stated between them by a master, upon a bill to redeem. Boston, &o. v. King, 2 Cush. 400. 
 
 The provision of the Revised Statutes, giving damages for waste, to be recovered in a 
 real action for the land itself, supersedes the common law remedy ; and the claim need not 
 be specilically set forth. Raymond v. Andrews, 6 Gush. 265. 
 
csAr. xviii] 
 
 WASTE, 
 
 269 
 
 42. In Khode Island, tlie action of waste is still in use for recovery 
 of the freehold estate wasted.(l) 
 
 43. In Indiana, (2) a widow forfeits the place wasted to the immediate 
 reversioner or remainderman. But, for negligent waste, she is merely 
 liable in damages. A statute requires her to keep the estate in repair. 
 In New Hampshire and Vermont, a widow is made liable to an action, 
 for strip or waste done or suffered. In Maryland, at the suit of a de- 
 visee or his guardian. In Wisconsin, a widow is required not Lo do 
 or suffer waste, and to keep the premises in repair, and is liable to dam- 
 ages to the next owner of the inheritance, for breach of this require- 
 ment. So, in general, a remainder-man may sue for waste by a particular 
 tenant.(3) 
 
 44. In Illinois,(3) awidowforfeitsto the immediate reversioner, having 
 a freehold or inheritance, where she wantonly or designedly commits 
 or suffers waste. But, for negligent or inadvertent waste, the claim is 
 for damages only. In both cases, the remedy is an action of waste* 
 If she marry again, the husband is liable with her for waste done by 
 her before, or by him after marriage, 
 
 45. In Connecticut, until a recent period, there was no statute 
 against waste by a tenant for years, and, it is said, few actions of waste 
 are brought. A tenant for lite, holding hy act of party^ might commit 
 waste or authorize another to do it, witliout incurring any liability. 
 But, by a late act, all particular tenants for life or for years, though 
 holding by act of party, are forbidden to commit waste, with a saving 
 of vested rights. The Statutes of Marlbridge, and of Gloucester, are 
 not in force ; but the provisions of the former are adopted as to tenants 
 in dower and by the curtesy, upon the ground of general reasonable- 
 ness. (5) (a) 
 
 46. In Kentucky,(6) the Statuteof Marlbridge is re-enacted — "'farm- 
 ers shall not make waste, nor sale, nor exile of house, woods and 
 men," &c., without license. For such waste, they shall yield full dam,' 
 ages, and be punished by amercemerd grievously. But a subsequent 
 chapter of the Revised Laws provides an action of waste, giving for- 
 feiture and treble damages, according to the Statute of Gloucester. It 
 has been held, that a reversioner cannot recover the land from a tenant 
 in dower, for waste, by ejectment. 
 
 47. Only the immediate reversioner in fee, of an estate for life, can 
 maintain an action of waste. Hence, during the continuance of an in- 
 termediate life-estate between such reversioner and the party who com- 
 mits waste, the latter is not liable, and, if he die before the intermediate 
 tenant, the action is forever gone. In Kew York, this rule has been 
 changed by statute ; but the reversioner recovers, without prejudice to 
 the intervening estate. In North Carolina, an action lies at the instance 
 
 (1) Loomis V. Wilbur, 5 Mas. 13. 
 
 (2) Ind. Rev. L 210-U. 
 
 (3) 1 Verm. L. 159; N. H. L. 189; Term. 
 Rev. St 291; Md. L. 407 ; Wise. Rev. St, 
 335; ch. 62, sec. 37. 
 
 (4) Illin. Rev. U 237, 625. 
 
 (5) 1 Swift. 89. 519; Moore i;. Elliswortli, 
 3 Conn. 487; Crockery Pox, 1 Root, 323; 
 Ro.se t). Hayes, lb. 244; Conn. St. June 6, 
 1840, p. 28. 
 
 (6) 2 Ky. Rev. L. 1530; Robinson v. Mil' 
 ler, 2 B. Monr. 287. 
 
 (a) "Where a widow suffers the estate assigned for her dower to need repairs, tlie court 
 will order it into possession of the next owner, for a sufficient time to malco the repairs, 
 unless she gives security. Conn. Sts. 189. 
 
270 
 
 WASTE. 
 
 [CHAP, xvm. 
 
 of him in whom the right is, against all tenants committing the waste. 
 In Pennsylvania, a trustee in fee of the legal estate may maintain an 
 action of waste against an equitable tenant for life.(l) 
 
 48. Tenant for life is liable to an action, for waste committed by 
 him, though he have since assigned his estate.(2) 
 
 49. Lord Coke says, that an heir cannot have an action of waste for 
 waste done in the life of his ancestor, nor a parson, &c., in the time of 
 the predecessor. So if tenant for years, having committed waste, die, 
 an action of waste does not lie against the executor, &c. But in Vir- 
 ginia, Kentucky, North Carolina, Delaware, Wisconsin, New Jersey, 
 New York, Michigan, Maine and Massachusetts, statutes provide, that 
 the heir may sue for waste done in the time of his ancestor.(a) And 
 in Massachusetts, Maine and Michigan, an action for waste survives 
 against executors, &c.(3) 
 
 50. In order to sustain the action of waste, the reversion must con- 
 tinue in the same state as when the waste was done ; for, if the rever- 
 sioner grant it away, or lease it for years, unless it be '' in futuro," the 
 waste is dispunishable, even though he take the whole estate back 
 again. The same effect is produced, though he grant the reversion to 
 the use of himself and his wife and of his heirs. The action of waste 
 consists in privitt/.{i) 
 
 51. If tenant by the curtesy or tenant in dower assign his or her 
 estate, and waste be done by the assignee, the heir may have an action 
 of waste against either of such tenants, and recover the land from the 
 assignee. In New York, it is provided, that the action may be brought 
 against the assignee. In Delaware, the assignee of a tenant is liable. 
 And, if the heir have also assigned, the action lies in favor of his as- 
 signee, against the assignee of the tenant, because the privity is de- 
 stroyed. In other cases, the action shall be brought against him who 
 did the waste, for it is in nature of a trespass.(5) 
 
 52. If a tenant, after assignment, continue to take the profits, he is 
 liable for W'aste.(6)(6) 
 
 53. Lord Coke says, a wife, holding an estate by survivorship, shall 
 be punished for waste done by the husband in his life, if she agree to 
 the estate, though there hath been variety of opinions in our books. 
 
 (1) Co. Lit. 53 b, 218 b, T). 2 ; Paget's ease, 
 5 Rep. 16 b; Bray v. Tracy, Cro. Jac. 688; 1 
 N. T. Rev. St. 750 ; 1 N. C. do. 609 ; Wood- 
 man V. Good, 6 M. & S. 169. 
 
 (2) 1 Cruise, 90. 
 
 (3) Mass. Rev. St. 630 ; 1 Virg. Rev. C. 
 217 ; 2 Ky. Rev. L. 1530-1 ; 1 N. C. Rev. St. 
 610 ; 1 N. J. R. C.209 ; 2 N. Y. R. S. 334; 
 
 ificb. Rev. St. 496-7 ; Me. lb. 568 ; Dela, 
 lb. 293. 
 
 (4) Co. Lit. 53 b, 54 a. 
 
 (5) Co. Lit. 54 a; Bates v. Shraeder, 13 
 John. 260 ; 2 N. T. R. St. 334 ; Dela. Rev. St.- 
 293. 
 
 (6) Co. Lit. 54 a; 1 Vir. R. C. 277; 1 N. 
 J. do, 209-10; 2 Ky. R. L. 1530-1 ; 1 N. C. 
 Rev. St. 609. 
 
 (a) A feme sole claimed certain land by virtue of a location thereof) made to her by the pro- 
 prietors ; and, after her intermarriage with A, he entered upon the land, under the location, 
 and continued in po.ssession thereof, after her decease, as tenant liy the curtesy. Her heirs 
 conveyed their reversionary interest to B, vfho sued A in an actien of waste. Held, A could 
 not defeat the action, by showing that the location of the land was so defective, tliat it 
 would not bar the proprietors, nor persons claiming under tliem ; but tliat he was estopped 
 to deny the title under which he entered. Morgan v. Larned, 10 Met. 50. 
 
 (b) In Massachusetts, it is held; that neither an action of waste, nor an action on the case 
 in the nature of waste, lies in favor of an assignee of tlie reversion against a tenant in dower, 
 for waste done by her assignee. Foot v. Dickinson, 2 Met 611, 
 
CHAP. XTIII.] 
 
 WASTE. 
 
 271 
 
 54. But an action of waste does not lie against the husband of a 
 woman, tenant for life, after her death — the former having committed 
 waste during her life; for he was seized only in her right, and she was 
 tenant of the freehold. Otherwise, if she was tenant for years, because 
 the term vested in him. So, the assignee of the estate of the husband 
 is liable for waste, because his seizin and possession are several, and he 
 is strictly a tenant for the life of the husband. (l)(a) 
 
 55. If tenant for life assign on condition, and the grantee do waste, 
 and the former re-enter for condition broken ; the action of waste lies 
 against tlie grantee, and the place shall be recovered. (2) 
 
 56. Although the statute of Marlbridge prohibits only farmers from 
 committing waste, yet a tenant is responsible for the waste, by whom- 
 soever done, the law regarding him as having power to prevent it, 
 while the landlord has no such power, not being on the land. The 
 reversioner looks to the tenant, and he bas a claim over, in trespass, 
 against the wrong doer himself. Only the act of God, of the public 
 enemy, or of the lessor himself, will excuse the lessee. He is like a 
 common carrier.(3) 
 
 57. Lord Coke says, even an infant, and baron and feme, shall be 
 punished for waste done by a stranger. But, although the reversioner 
 may hold the tenant liable for waste done by a stranger, he may also, 
 at his election, bring an action on the case against such stranger, for 
 any injury in its nature permanent — as, for instance, digging up the 
 soil. The action of waste lies against a lessee only .(4) 
 
 58. The action of eatrepemeni or waste is said to be in great degree 
 superseded by an action on the case in nature of waste, which has the 
 advantage of being maintainable by any other reversioner, as well as 
 the owner in fee. The measure of damages is the injury to the inheri- 
 tance. The Eevised Statutes of Massachusetts, Maine and Michigan, pro- 
 vide this remedy, at the election of the party injured. In Maine, the 
 demandant in a writ of entry may recover for waste in such action. (5) 
 
 59. It is said that, except under special circumstances, there is no 
 remedy for permissive waste, after the tenant's death, either in law or 
 equit}'. It has also been held, that the action on the case would not 
 lie for permissive waste. But this decision has been doubted. (6) 
 
 60. Chancery will interpose, by iiijunction,{b) to prevent waste or re- 
 
 (1) Co. Lit, 54 a; Davis v. Gilliam, 5 Ired. Randall ». Cleaveland, 6 Conn. 328. (See 
 Equ. 308. Wilford v. Rose, 2 Root, 20.) 
 
 (2) lb. (5) lCruise,124; 4 Kent, 81. (See 6 Conn. 
 
 (3) 1 Cruise, ]24; 4 Kent, 11 ; White v. 328;) Mass. Rev. St. 630; Mich. Rev. St. 490; 
 Warner, 4 Har. & J. 373. Me. lb. 610-11, 568. 
 
 (4) Co. Lit. 54 a; Rosa v. Gill, 4 Call, 252 ; (6) Turner v. Buck, 22 Tin. 523 ; 4 Kent, 
 
 78. 
 
 (a) A, and B his wife, being seized for their joint lives and that of the survivor, C took 
 A's estate, and, living A, permitted wa.ste. A having died, held, B could not have an action 
 on the case against C. Bacon v. Smith, 1 Ad. & Ell. (N. S.)345. Actions for waste may be 
 brought by, as well as against, husband and wife. In an action of waste by a husband and 
 wife, against the alienee of tlie husband's interest in liis wife's land, the declaration alleged, 
 that tl)e reversion in fee was in the wife. Held, if this declaration was defective, in not 
 alleging tliat tlie reversion was in the husband and wife, the defect was cured, after verdict 
 by the statute of jeofails. Dejarnatte v. Allen, 5 Gratt. 499. 
 
 (6) In a bill for waste, a single clear instance of waste, committed intentionally, is suffi- 
 cient to entitle the complainant to a continuance of the injunction, and to a decree for an 
 account. Sarlea v. Sarles, 3 Sandf. Ch. 601. 
 
172 
 
 WASTE. 
 
 [CHAP, xvm, 
 
 quire security against it, upon application of the owner in fee, notwith- 
 standing there is an intermediate reversion. So, also, upon application 
 of a remainder-man for life, though there are intermediate limitations 
 in tail, and to trustees to preserve contingent remainders ; because, 
 although the plaintiff, even when his estate vested, would have no in- 
 terest in the timber, yet he would have the benefit of the mast and 
 shade. 
 
 61. So an injunction lies by the landlord against a sub-tenant, or 
 in favor of an unborn child. In a suit against a tenant for life and her 
 under-tenant, where a decree is made for an account against botli ; the 
 master may, if the tenant for life request it, ascertain what amount shall 
 be made up to her by the under-tenant.(l) 
 
 62. Chancery will interpose to prevent waste, "pendente lite" before 
 any act committed, if a party manifests his intention, and asserts a right, 
 
 (1) 1 RoUe Abr. 377, pi. 13 ; Moor, 554; 
 1 Hov. on Frauds, 226, eh. 7 ; Perrot!;. Per- 
 rot, 3 Atk. 94 ; Worsley v. Stewart, 4 Bro, 
 Pari. Ca. 377 ; Livingston v. Eeynolds, 2 
 
 Hill, 157 ; Lanpworthy D. Chadwick, ]3Conn. 
 42. See Hilton i;. Granville, 1 Cr. & Ph. 283; 
 Sarles V. Sarlea, 3 Sandf. Ch. 607 ; Brigga v. 
 Earl, &o., 8 Eng. L. & Equ. 194. 
 
 Where there is a privity of title as between tenants for life, or years, and the reversioner) 
 it is not necessary to show irreparable injury or destruction to the estate. George's, io. i'- 
 Detmold, 1 Maryland Ch. Decis. 371.- 
 
 But, as between strangers or parties claiming adversely, both in trespass and waste, the 
 injury must be shown to be irreparable. lb. 
 
 The mere allegation, that the defendant is selling timber of the complainant, without further 
 averment as to some peculiar value of the timber for some particular purpose, has been 
 held not sufficient to warrant an injunction. Hatcher v. Hampton, 7 Geo. 49. 
 
 It is not necessary for a landlord to prove his title to the premises, to sustain an injunction 
 against his tenant, for cutting and carrying away timber. Parkers. Raymond, 14 Mis. 535. 
 
 Where the chief object is an injunction against future waste, it is of purely equitable cog- 
 nizance, and the court, to prevent multiplicity of suits, when waste lias been committed, 
 will direct an account and satisfaction for past injuries. lb. Rodgers v. Rodgers, 11 Barb. 
 695. 
 
 A bill in equity was filed by tenants in fee, alleging that the defendants, confederating 
 together, entered upon their land, cut down large quantities of wood, quarried large 
 quantities of Umestone, are continuing to cut down wood and quarry stone, and design to 
 Iremove the same ; and that they have instituted actions of trespass quare clausum fngil 
 for the said acts, which are now depending ; but not that the trespass was to the destruction 
 of the inheritance, or the mischief irreparable, nor stating such facts, as would show tliat the 
 apprehension of further acts of trespass was well founded ; nor charging insolvency in the 
 defendants. Held, an injunction would not be granted upon such a bill, to restrain fiirther 
 acts of trespass or waste. Hamilton v. Ely, 4 Gill, 34. 
 
 A bill charged with particularity that A, who was insolvent, claimed certain lands, as the 
 purchaser, at an irregular sale of a tax collector, wljose deed he had ; that A was threaten- 
 ing to commit trespasses and waste; that he and others, acting avowedly under his autho- 
 rity, were making preparations with a view to their comniission ; that the complainants 
 had been disturbed in the enjoyment of their property, and were likely to be more seriously 
 interrupted ; and that they were thus prevented from making the profit from their estate 
 which otherwise they would. Held, Chancery might gi'ant an injunction to stay trespass 
 and waste, and might remove the cloud from the complainant's title, and direct the cancella- 
 tion of the deed, especially as the deed in form was prima facie valid. Lyon v. Hunt, 11 
 Ala. 295. 
 
 Instances of the interference of Chancery for the purpose of enjoining waste, are as fol- 
 lows. Where a mere trespasser digs into and works a mine. So where a trespasser, in col- 
 lusion with the tenant, attempts to cut timber. So where there is a dispute concerning 
 boundaries, and one party is about to cut ornamental or timber trees. So where one in pos- 
 session under articles is proceeding to cut timber. So where lessees are taking from a man- 
 or, bordering on the sea, stones of peculiar value. In short, in all cases of timber, coals, 
 ores and quarries, where the party is a mere trespasser, or exceeds his limited rights; upon 
 the ground, that the acts are or may be an irreparable damage. 2 Story, (Equ.) 244-5, 
 sec. 929. 
 
CHAP, svni.] 
 
 "WASTE. 
 
 273 
 
 to commit waste.(a) So, after a decree for the sale of mortgaged 
 property. 
 
 63. The Chancery remedy is limite i to cases, in which the title is 
 clear and undisputed. (1) 
 
 6i. In Rhode Island, a writ of esirepeinent, being in the nature of an 
 injunction, it seems, may be issued by tlie court or a judge, after notice 
 to the adverse party, and the giving of a bond by the applicant. In 
 Delaware, one having a lien upon land may liave an injunction or 
 writ oi estreiv'ment. So this writ lies, pending an ejectment. In Penn- 
 sylvania, a writ lies to restrain waste by tenant for life.(2) 
 
 (55. In A[aryland,{&) provision is made by statute for the interference 
 of Chancery in case of waste. In Virginia, this is the only remedy. 
 The action of waste is never brought.(3) 
 
 66. In New Jersey, (4) a statute provides for a writ of waste out of 
 Chancery, against a tenant for life or other term. The judgment is for- 
 feiture, and treble damages. 
 
 67. In Massachusetts, equity jurisdiction of waste is given to the 
 Supreme Court; and they may stay waste by an injunction. (c) The 
 same process is provided against an owner of land who commits, or 
 threatens or prepares to commit, waste, after the land has been attuched. 
 A similar provision in Maine. In New Yorl-:, the Supreme Court 
 has Chancery jurisdiction to enjoin against waste, where it is actually 
 commenced or threatened. The injunction may be granted against one 
 who colludes with the tenant to commit waste. (5) 
 
 68. Although an owner in fee cannot sue for waste, if there is an 
 intermediate estate, yet, where timber is cut down by the tenant, the pro- 
 
 (1) Gibson v. Smith, 2 Atk. 182 ; Kane v. 
 Tanderharjjli. 1 .Tohn. Clia. 11; Smitli v. 
 Poyas, 2 Des3. 66 ; Storm v. Mann, 4 John. 
 Clia. 21; Tessier?;. Wise, 3 Bland, 60; Wil- 
 liams, lb. 215. See Stewart v. Cliew, lb. 
 441; Murdock, 2, 461; Hough v. Martin, 2 
 Dev. & B. 379. 
 
 (2) R. I. St. 1836, 910; Dela. St. 1843, 
 
 541-8 ; Dela Rev. Sts. 293; Penn. Sts. 1849, 
 472. 
 
 (3) 1 Md. L. 599 ; Rob. Prac. SCO. 
 
 (4) 1 N. J. L. 209. 
 
 (5) Mass. Rev. St. 631-2; Me. Rev. St. 
 569 ; Wilbur v. Wilbur, 7 Met. 249 ; Rod- 
 gers V. Rodgers, 11 Barb. 595 
 
 (a) In Virginia and Kentucky, if a tenant commit waste after a suit brougl t aga'nst him, 
 the sheriff shall keep the land. In Maine and Massachusetts, such tenant Ibrieits treble 
 damages. In N"ew Jersey, the court will not grant rules to stay waste, in trespass qu. claus. 
 1 Vir. Rev. C. 277 ; 1 Smith, 138 ; Leeds v. Doughty, 6 Halst. 198 ; Mass. Rev. St. 630; 2 
 Ky. Rev. L 1531. Similar provisions in New York to those in Virginia, &c. ; 2 Rev. St. 
 336. In Wisconsin, waste may be stayed pending a suit. Rev. St. 581. 
 
 Where land is sold on execution, the purchaser takes possession, and such land is re- 
 deemed; the owner is not entitled to rent or damages for waste before the redemption, but 
 is entitled to rent for the time he was wrongfully kept out of possession after redemption. 
 Kannon v. Pillow, 7 Humph. 281. 
 
 Where a partyclaimsaright to land, by virtue of his adverse possession, without deed or an 
 execution, he may maintain an action of waste, or trover, or an action on the case in the nature 
 of waste, against the execution defendant, for cutting timber during the fifteen months subse- 
 quent to the sale, while he remains in possession; but not trespass, or replevin in the cepit. 
 Rich V. Baker, 3 Denio, 79. 
 
 (b) It is no objection to the jurisdiction of the Court of Cliancery of Maryland, to stay 
 waste by a dowruss, that the remedy should be sought on the equity side of the county court, 
 Childs V. Smith, 1 Maryland Ch. Decis. 483. 
 
 (c) Tills jurisdiction applies only to oases of technical waste ; not to trespasses which a 
 court with full Chancery powers might enjoin. Attaquin v. Fish, 5 Met. 140. So in Maine. 
 The jurisdiction there attaches, only where there is privity of estate. Leighton v. Leighton, 
 32 Maine, 399. 
 
 Vol. I. 18 
 
274 
 
 "WASTE. 
 
 [CHAP. xvni. 
 
 perty in it vests immediately in the owner of the inheritance at that 
 time, and he may seize or maintain trover or replevin for it, or compel 
 an account of its proceeds, if sold. The tenant has an interest in the 
 timber while it remains standing — it is a part of the inheritance ; but 
 this interest is immediately forfeited by the wrongful act of severing 
 it.(l) 
 
 69. Land was conveyed to the use of A, for life, remainder to the 
 use of his first and other sons in tail ; remainder to B for life, with hke 
 remainder to his sons. B has a son, living A, who had none, and A 
 severs timber from the land. Held, the son of B should have trover 
 for the timber, although he could not have waste, on acount of the in- 
 termediate estates ; and the chance of A's having a son, who would 
 take the inheritance before the son of B, was a mere possibility, liable 
 to be defeated by a feoffment of A, and which did not interfere with 
 this action. (2) 
 
 70. Where there are intermediate limitations of the kind above-men- 
 tioned, and the immediate owner of the fee brings a bill in Chancery, 
 for an account of timber cut down and sold ; the court will not turn 
 the plaintiff round to an action at law, the case being one which pecu- 
 liarly calls for a discovery ; nor will it order the money, paid into 
 court, to be put out for the benefit of unborn heirs, who may after- 
 Avards have a title paramount to that of the plaintiff.(i3) 
 
 71. The same rule applies, {ante, sec. 68,) where the timber is severed 
 by accident; as, for instance, by a storm. (4) 
 
 72. But, where there are trustees to preserve contingent remainders, 
 Chancery will not allow a severance of the timber, by collusion be- 
 tween the tenant and the immediate owner in fee, to the injury of un- 
 born heirs.(5) 
 
 73. Nor will it allow a tenant for life, who also has the first vested 
 estate of inheritance, to take advantage of his own wrong in commit- 
 ting waste, to the pi-ejudice of intermediate contingent remainders, 
 although at law he would undoubtedly have power to do it. 
 
 74. A was tenant for life, remamder to his first and other sons in 
 tail, remainder to B for life, with like remainder to her sons, estates to 
 trustees to preserve, &c., remainder to A in fee. A had no son ; B 
 had one, who died very young. A commits waste, after which, B has 
 another son. Held, A could not have the timber cut down ; nor the 
 administrator of B's son, deceased, because he was dead at the time the 
 waste was done ; nor the other son of B, because his estate was liable 
 to be defeated by A's having a son ;(a) and therefore, that the money 
 received for the timber should be paid into court.(6) 
 
 75. This having been done, upon the subsequent death of A, and a 
 hearing of the respective parties who claimed the money, viz., the ad- 
 ministrator of B's son, B's second son, and the executor of A : held, 
 
 (1) Mores 1). Wait. 3 Wend. 104; Bulkley 
 V. Dolbeare, 1 Conn. 232 ; Bewick v. Wliit- 
 field, 3 P. Wms. 267 ; Rieliardson v. York, 2 
 Shepl. 216; Railroad V. Kidd, 1 Dana, 250. 
 
 (2) Uvedalei;. Uvedale, 2 Kolle Abr. 119. 
 
 (3) "Whitfield V. Bewitt, 2 P. Wms. 240 ; 
 Lee V. Alston, 1 Bro. Rep. 194; lb. 3, 37. 
 
 (4) Newcastle v Vane, 2 P. Wms. 241. 
 
 (5) 1 Cruise, 128. 
 
 (6) "Williams v. Duke of Bolton, 3 P. "Wms, 
 268. 
 
 ffi) A better reason seems to have been, that he was born after the waste was com- 
 mitted. 
 
CHAP. XVIII.] -WASTE. 275 
 
 that, inasmuch as the settlement had been wrongfully disturbed by A, 
 the money should be restored to the same course which it would have 
 followed had no such act been done ; that B should have an interest 
 for life, remainders in tail, and a reversion in A, according to the set- 
 tlement.(l) 
 
 76. A Court of Chancery sometimes orders the cutting down of tim- 
 ber, upon land held by a tenant for life, for the purpose of paying 
 debts and legacies charged upon the inheritance. 
 
 77. Devise to the testator's wife for life, remainder to A in fee, on condi- 
 tion of his paying legacies at certain appointed times; in default of 
 which payment, remainder over. A filed a bill in equitj^, averring 
 his desire to cut timber for payment of the legacies, and that the widow 
 and the subsequent remainder-man connived to prevent him, in order 
 that his estate might be forfeited by breach of condition, although he 
 offered indemnity for any damage. The court allowed the pra3'er, 
 upon his making satisfoction for breaking the ground, &c., and referred 
 it to the Master to determine how much was needed for the object, and 
 which part of the timber could best be spared. (2) 
 
 78. So also, where timber is decaying, a court of chancery will order 
 it to be cut, for the benefit of a remainder-man in tail, or a remainder- 
 man for life, without impeachment of waste — especially if such remain- 
 der-man represents himself as in necessitous circumstances. And the 
 proceeds shall be paid over to him, and no part of them to the tenant. 
 But enough timber must be left for repairs and botes, all damages com- 
 pensated, and the act done under direction of the Master. And the 
 right shall not extend to trees standing for defence and shelter of the 
 house, or for ornament.(3) 
 
 79. In Maine and Massachussetts, a.nj person, seized of a freehold, 
 or of a reversion in fee or in tail, in wood-land, may petition the court 
 to have the wood cut and sold, and the proceeds invested for the bene- 
 fit of parties interested. If the property is likely to deteriorate, the 
 court shall grant such petition, and appoint trustees for the manage- 
 ment of the business.(4) 
 
 80. Leases for life, from very ancient times, have usually contained 
 the clause, "absque impetitione vastV — without impeachment of waste. 
 And it seems to be now settled, that such clause not only authorizes 
 the -tenant to cut timber without incurring the statutory penalty, but 
 vests the property of it in him, when cut or blown down. So, also, it 
 entitles him to the materials of a building blown down. In other words, 
 it gives him, in this respect, the rights of an owner in fee. But if the 
 timber is cut by a stranger, it belongs to the reversioner.(a) 
 
 81. The words " without impeachment of any action of waste" would 
 merely exempt the tenant from liability to suit. The phrase " with full 
 
 (1) Powlett V. Duchess of Bolton, 3 Tes. t (3) Aspinwall v. Leigh, 2 Vern. 218; Be- 
 juii. 374; Williams «. Dulce, &c., 1 Cox, 72; wick v. Wliitaeld, 3 P. Wms. 267. 
 
 (Dare v. Hopl<in3, 2 Cox, 110.) (4) 1 Smith's St. 134 ; Mass. Rev. St. 
 
 (2) Olaxtoa v. Claxton, 2 Vern. 152. I 806-7. 
 
 (a) 'VVhera one had a power to lease without impeachment of waste, and a proviso was 
 inserted in a lease made by him, that the lessee should pay bo much an acre for ploughing 
 pasture or using the land contrary to the covenants; to an action for the penalty, held, it 
 was no defence, that the clause in the lease amounted to a license to commit waste. Bring- 
 loe V. Goodson, 8 Scott, 71. 
 
276 WASTE. [CHAP. XTIir. 
 
 liberty to commit waste " is sometimes used. And voluntary luaste is 
 often expressly excepted; in which case it has been held, that wilful 
 waste is not excused. It has been suggested of late, that the exception 
 applies only to houses, and not to timber ; but a late case has decided, 
 that where' decaying timber is cat down by order of court, this clause 
 entitles the tenant only to the interest of the purchase-money. So, 
 where there is a remainder-man for life without impeachment of waste, 
 limber cut during a prior estate vests, not in him, but in the owner of 
 the fee.(l) 
 
 82. A lessee for years, holding under tenant for life without impeach- 
 ment of waste, may lawfully commit waste. But the tenant for life 
 cannot transfer his power, so that it may be exercised after his own 
 death ; nor, where his estate is in remainder, subject to a prior life 
 estate, Avithout the power, will any agreement between the two tenants 
 for life be sustained, for committing waste before the former estate ter- 
 minates.(2) 
 
 83. A tenant for life, without impeachment of waste, is not permitted 
 to commit malicious waste, to the destruction of the estate. This is 
 sometimes called equttuhh waste ; and a court of chancery will not only 
 prevent it by injunction, but compel restitution after it is committed. (a) 
 
 (1) 4 Kent, 17; Co. Lit. 220 a; Lewis 
 Bowled' case, 1 Rep. 82 b ; Bulkley v. Dol- 
 beare, 1 Conn. 232 ; Pyne v. Dor, 1 T. R. 55 ; 
 Aston V. Aston, 1 Ves. 265; 1 Cruise, 131; 
 "Wickliara v. Wickhani, 19 Ves. 419; Pigot 
 V. Bullock, 1 Tes. jun. 479. See Tollemacho 
 
 V. Tollemaclie, 1 Hare, 456 ; Briggs n. Earl, 
 &c., 8 Urig. L. & Equ. 194. 
 
 (2) Bray v. Tracy, W. Jones, 51 ; 1 Cruise, 
 133 ; Robinson v. Litton, 3 Atk. 210 ; Gartli 
 V. Cotton, 756. » 
 
 (a) Tlie power is considered inequitable, and therefore Cliancery controls it; but still witii 
 reference to the prt-sumed intent of the party creating it. Marker v. Marker, 4 Eng. L. & 
 Equ. 95. 
 
 Relief is granted, where a tenant cuts down timber, for the sake of the profit to be derived 
 from a sale, upon the same principles on which an injunction is granted to stay wliat is 
 called equitable waste. Kidd v. Dennison, 6 Barb. 9. 
 
 Where the whole of a farm when leased for a rent, is in a wild and unsettled state, with 
 the exception of a few acres, the parties will be held to have intended that the lessee should 
 be at liberty to fell part of the timber, in order to fit the land fur cultivation ; but this right 
 will not authorize the lessee to destroy all the timber, and thereby irreparably injure the 
 premises, or permanently diminish their value ; nor to cut trees for the profit to be derived 
 from a sale ; nor, just before tlie expiration of his lease, to cut down timOer, upon the pre- 
 text of gradually clearing up the land and preparing it for cultivation. lb. 
 
 So, where a widow has dower assigned to her in land, the reversion of which is divided 
 among several, she has in general, a discretionary right to get wood for repairs, firewood, 
 &c., from what part of the land she pleases; but, it seems, that, in an extreme ca.se, when 
 slie acts out of mere caprice and partiality, with a view to favor one at the expense of the 
 other, equity might interfere. Dalton v. Dalton, 7 Ired. Eq. 197. 
 
 Tenant for life, dispunishable for waste, had power to lease for 21 years, certain ancient 
 pasture lands, which she afterwards, before any lease, had converted into garden allotments 
 in a manner amounting to waste. The leasing power provided against "any fine, premium, 
 or foregift being taken for the ranking thereof," and that "none of the lessees should be, 
 by any clause, or words therein contained, authorized to commit waste, or exempted from 
 punishment for waste." In a lease reciting this power, the tenant for life demised, Deoem- 
 i)er 13th, 1845, for 21 years from the 1st of July last, reserving a rent payable hiklf-yearly, 
 January 1st, and .July 1st, 1846. Tlie lessee covenanted not to break up any of the pasture ' 
 land demised, " except for the purpose of carrying out the allotment system " introduced by 
 the tenant lor life. Held, such reservation of rent did not amount to a fine, premium, or 
 foregift. Hopkinson v. Ferraud, 6 Eng. L. & Eq. 404; also, that the exception in the cove- 
 nint did not amount to a license or authority to the lessee, to commit waste by carrying out 
 the allotment system; and, if any implication could be made so as to construe tiiat exception, 
 as implying a permission by the lessee to do anything, it could not be infi-rred that it perniit- 
 tjd hi.n to do more than to carry out the allotment system during the Ufi3 of the tenant for life, 
 so far as she had power to permit it, and not otherwise. lb. 
 
CHAP. XVIII.] 
 
 WASTE. 
 
 277 
 
 84r. A, upon the marriage of his son, settled an estate upon himself 
 for iife, without impeachment of waste, remainder to the son for life, 
 &c. Afterwards, having taken a dislike to his son, A caused the house 
 to be injured, bj tearing off fixtures of various kinds, to the value of 
 £3,000. The court ordered an injunction, and also that the damage 
 be repaired.(l) 
 
 85. Ciaancerj will also restrain such tenant from cutting down tim- 
 ber, serving for shelter or ornament to a mansion-house, or not fit to be 
 felled — such as young saplings, or trees standing in lines, avenues, or 
 ridings in the park, wiiether planted or natural. («) 
 
 86. But, if such waste has been actually committed, Chancery will 
 not decree satisfaction for it to the remainder-man. (2) 
 
 87. The clause "without impeachment of waste" does not justify 
 what the law terms double waste.{b) Therefore, where- an estate for life, 
 with this right, is devised to be sold, the proceeds to be invested in 
 other land, to be settled in the same way ; the tenant cannot commit 
 waste on the former, because he may do it upon the latter, and this 
 would be double waste.(3) 
 
 88. Where a limited power to commit waste is annexed to an estate 
 for life, the tenant will be restrained from exceeding such power; but 
 it will be liberally construed. 
 
 89. Devise to one for life, with power to cut down such trees as four 
 persons named should allow. These persons having died ; held, the 
 power remained, and the Court of Chancery would regulate its exer- 
 cise, and refer to the Master the question what trees could properly be 
 cut.(4-) 
 
 90. A, having by will devised land to his wife for life, made this 
 codicil — "whereas by my will my wife cannot cut any timber — now, 
 during widowhood she may cut timber for her own use and benefit at 
 seasonable times," &c. Held, the wife was not restricted to the cutting 
 of timber for her own use or for estovers, but might cut any kind of 
 timber, though not saplings or sticks fit only for paling.(5) 
 
 91. While a lease may contain clauses authorizing the commission 
 of waste ; it may on the other hand contain covenants on the part of 
 the lessee against it. Thus, if a lessee covenants not to cut, destroy, or 
 take off ixiore wood, &c., than is actually used on the farm, and to make 
 
 (11 Vane v. Ld. Barnard, 2 Tern. 738. 
 See Kidd v. Dennison, 6 Barb. 9. 
 
 (2) Downsliire v. Sandys, 6 Yes. 108 ; 
 Paukington v. Packington, 3 Atk. 215 ; As- 
 ton V. Aston, 1 Tes. 264; O'Brien v. O'Brien, 
 Amb. 107 ; Tamworth v. Ferrers, 6 Ves. 419 ; 
 Bay V. Merry, 16 Ves. 375; Kolt v. Somer- 
 
 ville, 2 Abr. Eq. 759 ; Cousett v. Bell, 1 T. 
 & Coll. Cha. 569. 
 
 (3) Plymouth v. Archer, 1 Bro. E. 159 ; 
 Burges v. Lamb, 16 Ves. 174. 
 
 (4) Hewitt V. Hewitt, Amb. 508 ; Hewett 
 V. Hewett, 2 Eden, 332. 
 
 (5) Charaberlyne v. Dummer, 1 Bro. R. 
 166 ; Chamberlyno v. Dummer, 3, 549. 
 
 (a) Several persons, entitled successively to life estates limited in strict settlement, became 
 bankrupt, and their assignees cut down timber left for ornament and shelter. Upon a bill 
 filed on behalf of A, the then first tenant in tail in existence, who was an infant, the 
 assignees were ordered to bring the money into court, whicli, with tlie accumulations, 
 amounted to £26,133 2s. \0d. Two of the tenants for life died without issue ; A attained 
 twenty-one, and, being still the first tenant in tail, and entitled to the first estate of inherit- 
 ance, presented a petition for payment to him of the fund and the accumulations, wliioh 
 were ordered to be transferred to him. . Lushington v. Boldero, 8 Eng. Law and Eq, 265. 
 
 (6) This phrase is sometimes used in a different sense. Sec. 14. 
 
27S ESTATE AT "WILL [CHAP. XIX 
 
 no waste, sale or destruction ; it will be waste for him to out wood to 
 be used in burning bricks for sale.(l) 
 
 92. In most of the States, special provision is made by statute against 
 wanton injuries to land, buildings, trees, &c., by persons without title ; 
 and, more particularly in the Western States, against the act of firing 
 woods and prairies, belonging either to the party himself, or to an- 
 other. 
 
 CHAPTER XIX. 
 
 ESTATE AT WILL AND AT SUFFERANCE. 
 
 1. Estate at will — defiDition. 
 
 2. Incidents. 
 
 3. Estate from year to year — notice to 
 
 quit. 
 5. Estate at will — whether assignable, 
 Ac. 
 
 6. How terminated. 
 18. Notice to quit, and summary process 
 
 to eject. 
 22. Estate at will — how affected by the 
 
 statute of frauds. 
 27. Tenant at sufferance. 
 
 1. An estate at will, is where one man lets land to another, to hold 
 at the will of the lessor.(2)(a) 
 
 (1) Livingston v. Reynolds, 26 "Wend. 115. | (2) Lit. s. 68 ; 4 Kent, 109. 
 
 (a) In Iowa, (Code, 1851, eh. 78, sec. 1208,) possession of a tenant is presumed to be at 
 will. 
 
 An estate at the will of the lessee is at the will of the lessor also ; and vice versa. Cheever 
 V. Pearson, 16 Piek. 271 ; 1 Cruise, 190. See 1 G-ill & J. 360. The right to enter upon, 
 use and possess the land of one, at the pleasure of another, is a lease at will, even though 
 no rent is reserved, if the case shows some other adequate consideration. Cheever v. Pear- 
 son, 16 Pick. 271. So it is said, one placed on the land without any terms pre.scribed or 
 rent reserved, and as a mere occupier, is strictly a tenant at will. 4 Kent, 112. A occupied 
 land of B, under an agreement to pay rent; but neither the amount of it, nor the time of 
 occupation, was agreed upon. B having notified A to quit immediately, wliich he did; held, 
 an action for use and occupation would lie, without demand. Spaulding v. M'Osker, 
 7 Met. 8. 
 
 A lease made by an agent in his own name being void, a tenant entering under such a 
 lease is a tenant at will, and as such is entitled to notice to quit before ejectment will lie 
 against him. Murray v. Armstrong, 11 Mis. 209. 
 
 A parol agreement that one party should enter on the land of the other, dig ore, erect 
 buildings, &e., and pay fifty cents a ton for all ore removed, amounts to a lease; but its 
 duration is to be determined by the jury, who are to say whether, upon all the evidence, it 
 was at will, or from year to year, under the instructions of the court as to what constituted 
 a lease for a year, and what a tenancy at will, Mooner v. Miller, 8 Barr, 272. 
 
 A joined his fence to B's in several places, part of B's fence being on A's land, and the 
 fence so joined was permitted to stand for seven years; then B, without notice to A, threw 
 down the fence. Held, in an action of trespass, that A was to be considered as tenant, and 
 entitled to notice after so long an acquiescence, and that B had no right to enter upon A'a 
 land, or from his own land to throw down A's fence. Shean v. "Withers, 12 B. Mon. 441. 
 
 A person entering and holding land under an agreement to buy it, is at least a tenant at 
 will. Jones v. Jones, 2 Rich. 542. 
 
 So, in case of occupancy under an agreement for a future sale or lease, the occupant is 
 tenant at will; his right is defeated by demand of possession, and his estate ceases, in 
 North Carolina, after three weeks' notice. If he disclaims the owner's title, this is a forfeit- 
 ure, and no notice is necessary. Love v. Edmondson, 1 Ired. 152. 
 
 A parish voted that A, B and others, have liberty to erect a seminary -house on the par- 
 
CHAP. XIX] AND AT SUFFERANCE. 279 
 
 2. At common law, such estate was at the will of both parties, but 
 neither could determine it wantonly and to the injury of the other. 
 Thus, the lessee was entitled to embkments, notwithstandinn- a determi- 
 nation by the lessor, though not after a determination by himself; and 
 the lessor to rent, though the lessee quit before rent-day. A tenant at 
 will is also entitled to estovers. So, it has been held that the manure 
 made upon the land belongs to him, and may be taken by his 
 creditors.(l)(a) 
 
 3. Estates at will, in the strict sense, have become almost extin- 
 guished under the operation of express statutes and judicial decisions. 
 At first, a lease for no certiiin time, reserving an annual rent, was con- 
 strued as for one year. By the modern English doctrine, the old estates 
 at will are treated as tenancies /rom year to year,{b) unless there is an ex- 
 
 (1) Cliandler v. Thurston, 10 Pick. 209-10; 4 Kent, 109-10; Staples v. Enaery, 1 Greenl. 
 201. 
 
 sonage land, &c., with liberty to remove it at plensure, and that they have the land from the 
 rood, &c., for a seminary-yard. Held, the vote gave an estate at will. Cheever v. Pearson, 
 16 Pick. 266. 
 
 After a verbal agreement by A to purchase the house of B, payment of the price and 
 possession taken, but before a deed was given ; the house was burned. A thereupon quit 
 the land, refused a deed tendered by B immediately after the fire, and brou<;ht a suit to 
 recover back the price, in which he prevailed. Held, A, while occupying the house, was a 
 tenant at will, and liable for use and occupation, but not after refusing the deed. Gould v. 
 Thompson, 4 Met. 224. Ejectment may be brought against a grantee, as landlord, where 
 the grantor has remained in possession since the deed was made. Hodges v. Gntes, 9 
 Term. 178. 
 
 But it has been held, that a deed of land in fee, with a clause that the grantor should 
 retain possession until a certain time, does not constitute the relation of landlord and tenant, 
 so as to give jurisdiction by sunnmary process for recovering possession, after the time has 
 elapsed. Sims v. Humphrey, 4 Denio. 185. 
 
 In Vermont, where one enters upon land under an agreement to buy it, which fails 
 without his fault, no action lies for use and occupation. Hough v. Birge, 11 Verm. 190. 
 Nor is he entitled to notice to quit. Wright v. Moore, 21 Wend. 230. 
 
 Where one whose land has been sold on execution remains in possession an uncertain 
 time, by consent of the purchaser, he is tenant at will. Nichols v. Williams, 8 Cow. 13. 
 See 1 Swift, 91; Watkina v. Holman, 16 Pet. 25 ; Stansbury v. Taggiirt, 3 McL. 451. 
 
 Where one took possession of land under an agreement to purchase, and thus became a 
 tenant at will, and upon his death his widow and devisee entered ; held, she did not become 
 a tenant at will, but her possession was adverse, and, being continued twenty years, gave a 
 legal title. Doe v. Rock, 1 C. & Mar. 549. 
 
 (a) In England, it seems, an outgoing tenant may sell or remove the manure. Roberts v. 
 Barker, 1 Cr. & Mees. 809. So in North Carolina, at any time before he quits. Smitliwiok 
 V. Ellison, 2 Ired. 326. See Goodrich v. Jones, 2 Hill, 142; Rinehart v. Olwine, 5 W. & S. 
 151 ; Law Rep. (Jan. 1854,) 481. But it is held in Massachusetts, that an outgoing tenant 
 at will of a farm has no right to remove the manure made thereon in the ordinary course 
 of husbandry, and consisting of the collections from the stable and barn-yard, or of com- 
 posts caused by the admixture of these with other substances taken from the farm ; and, if 
 he sell such manure, to be removed, to one having notice of the landlord's title, the pur- 
 chaser gains no property, but is liable in trespass to the landlord for removing the manure. 
 Otherwise, with manure made in a livery stable, or in any manner not connected with agri- 
 culture, or in a course of husbandry. Daniels u. Pond, 21 Pick. 367. The tenant has a 
 qualified possession of the manure, for the purpose of using it on the farm ; but a sale by 
 him vests the right of possession in the landlord. lb. ; ace. Lassell v. Reed, 5 Greenl. 222 ; 
 Middlebrook v. Corwin, 15 Wend. 169. 
 
 (6) It was formerly held, that a lease "from year to year, so long as both parties please," 
 created a tenancy for at least two years. But it has been recently decided, that a tenancy 
 from year to year lasts only so long as both parties please, and is determinable by either at 
 the end of any year by notice. Ring v. Argand, Cro. Eliz. 775 ; Doe v. Smarridge, 9 Jur. 
 781. See Doe v. Green, 9 Ad. & Ell. 658. 
 
 In South Carolina, the court of magistrates and freeholders have exclusive and final 
 jurisdiction of all oases of the holding over of tenants, and their judgment is final upon the 
 
230 ESTATE AT WILL [CHAP. XIX. 
 
 press grant or agreement to the contrary. With the same qualifica- 
 tions, a tenant from year to year has been held entitled to six months' 
 
 tenancy, the identity of the premises, and the expiration of the term and holding over of 
 the tenant. The failure of the tenant to malce a valid defence, such as tenancy in common, 
 gives the tenant no .ground lor an injunction to restrain the execution of a judgment of that 
 court. Leonard v. McCool, 3 Strobh. Eq. 44. 
 
 In Vermont, a tenancy by a parol lease for a term of years, which, under tlie Rev, Sts., 
 (ch. 60, sec. 21,) is at first an estate at will only, by the continuance of possession and pay- 
 ment of rent by the lessee for several years, (in this case three years,) becomes a tenancy 
 from year to year. BarJow w. Wainwright, 22 Vt. 88. 
 
 In such case, the tenant cannot, at any time during- the year, surrender the premises 
 against the will of the landlord, and thus excuse himself from the payment of rent. lb. 
 
 Nor is it any defence in assumpsit for use and occupation, that he abandoned the posses- 
 sion, lb. 
 
 Nor that the tenant, after having been in possession a few months, associated with him a 
 partner in the business carried on by him on the premises, no new agreement being made 
 with the lainilord. lb. 
 
 The parol agreement will still determine the amount of rent and the time of payment. lb. 
 
 The reservation of an annual rent is said to be the leading circumstance that turns leases 
 for unc rtain terms, into leases from year to year. 4 Kent, 112; Pope v. Garland, 4 Tou. 
 & Coll. 394. 
 
 The English rule of a tenancy from year to year is said to be, or to have been, in force in 
 New York, but not in other States. 4 Kent, lU. Thus, where one occupied 18 years, 
 and made improvements, but paid no rent, he was tenant from year to year. Jackson v. 
 Bryan, 1 John. 322. 
 
 In Indiana it has been held, that a tenant from year to year shall have six months' 
 notice But the Revised Laws provide, that there shall be only three months' notice, im- 
 mediately preceding tlie end o( the year. Jackson v. Hughes, I Blackf 427 ; Ind. Rev. 
 L. 5 1 S 
 
 In Massachusetts it was at first held, that a tenant at will was not entitled to six months' 
 notice, but only to rea-sonable notice. The point was afterwards left doubtlul, whether he 
 could claim any notice; but reasonable notice was finally held necessary. In one case, it 
 was held, that, though the tenancy was determined by the will of the lessor without notice, 
 yet the lessee still should have a reasonable time to remove his family and effects. 4 Kent, 
 211; Rising i;. Stannard, 17 Mass. 287; Coffin «;. Lunt, 2 Pick. 70; lb. 71 n. ; Ellis J). 
 Paige, 1 Pick. 49; ace. Polsom v. Moore, 1 Appl. 252. 
 
 In Maine, the statute of frauds is construed to make a parol lease strictly a tenancy at 
 will. Little V. Palister, 3 Greenl. 15. 
 
 In Pennsylvania, it .seems, if a tenant at will occupy more than a year, he becomes a 
 tenant from year to year, and is entitled to three months' notice. McDowell v. Simpson, 3 
 Watts, 129. See Cook v. Neilson, 10 Barr, 41. 
 
 A landlord may treat a tenant holding over, after a term, as tenant from year to year, or 
 as a trespasser, at his election. Hemphill v Elynn, 2 Barr, 144. 
 
 An estate created without writing, in New Hampshire, is only at will. Whitney D. 
 Lovett, 2 Post, 10. So, though receipts for rent indicate a tenancy Irom year to vear, or 
 month to month. lb. 
 
 In South Carolina, ii tenant from year to year, holding over after the expiration of hia 
 lease at an annual rent, is entitled to three months' notice to quit, ending at the expiration 
 of the year. Godard v. Railroad Co., 2 Rich. 346. 
 
 The acts of 1808 and 1817 have not altered the common law in relation to tenanoiea 
 from year to year, in respect to notices to quit. lb. 
 
 Lease to A and B, partners, for one year. During the year, B left the firm, and C came 
 in. The firm paid the rent reserved, and occupied for two years and three moLiths alter the 
 lea.se expired. Held, they became tenants from year to year, and were liable (or the rent 
 of the whole year on which they had entered. I'lartw. Pinnej', 1 Strobh. 250. 
 
 Lease for one year, the tenant giving hia note for the rent. He oceupied about two years, 
 waen the landlord demanded his note for the year's rent. The tenant refused to give it, or 
 pay the rent. Held, a tenancy from year to year, determinable by notice to quit, but that 
 the tenant had denied the tenancy by his refusal, and was liable to an ejectment without 
 notice.^ The State v. Stewart, 5 Strobh. 29. 
 
 In North Carolina it is held, that, where one takes possession of land by license of the 
 owner, lor an indeterminate period, without reservation of rent, he is not a tenant from 
 year to year, hut strictly a tenant at will, and not entitled to notice to quit. Doe v. Barker, 
 4Dev. 220. See Brown v. King, 5 Mel. 173; supra, ch. 2. 
 
 In Tennessee it has been held, that a parol lease for six years could not be construed into 
 a tenancy Irom year to year. Porter v. Gordon, 5 Terg. 100. 
 
CHAP. XIX.] 
 
 AND AT SUFFERANCE. 
 
 281 
 
 notice to quit, and the landlord to the same. The notice must end at 
 the end of the 3'ear ; and it has been held that, even though the pre- 
 mises be burned during the year, the rent does not cease without legal 
 notice (1) 
 
 4. But the rule of a half year's notice is not an inflexible one. Jus- 
 tice and good sense require that the time of notice should vary with 
 the nature of the contract and the character of the estate. Hence, 
 where lodgings(a) are hired, for instance, by the month, the time of 
 notice is proportionably reduced. And, where a lessor had previously 
 brought a suit for rent against the tenant, charging him by the month, 
 and prevailed ; this was held to be evidence of an understanding that 
 he held by the mcmth, and to regulate the time of notice.(2) 
 
 5. Tenant at will cannot assign, though he ma}' take a release ; but 
 a tenant from year to year, it is said, may assign. So a sale on execu- 
 tion of the title of a debtor, who has only an estate at will, will pass 
 no title to the purchaser upon which he can maintain ejectment. In 
 'New York and Missouri, estates at will and at sufferance are declared 
 to ba chattel interests, but not liable to be taken in execution .(3) 
 
 6. An estate at will may be terminated,{b) either by the lessor or 
 the lessee. The former may determine the tenancy : 1. By an express 
 declaration to that effect, either made on the land, or of which the 
 lessee has notice.(c) So by a demand of possession. 2. By any act of 
 ownership inconsistent with the tenancy, such as entering((^) and cut- 
 ting wood, carrying away stone, or making another immediate con- 
 veyance. In the case last named, the lessee is said to become a tenant 
 
 (1) Ellis V. Paige, 1 Pick. 46; Izon v. 
 Gorton, 5 Bing. N. 501 ; 4 Kent, 110-11 ; 
 "Webber v. Siiearman, 3 Hill, 547 ; Kings- 
 bury V. Collins, 4 Bingh. 202 See Alford v 
 Vlckery, 1 G. & Mar. 280; Doe v. Mizem, 2 
 Carr. & K. 56; Doe v. Gold win, 2 Ad. & El. 
 N. S 143 ; Doe v. Green, 9 Ad. & Ell. 6C8 ; 
 Atherstone v. Bostock, 2 Scott, N. 637. 
 
 (2) 4 Kent, 111-12 ; Coffin v. Lunt, 2 Pick. 
 70; Priiidle v. Anderson. 19 Wend. 391. 
 
 (3) Colvin V. Baker, 2 Barb. 206 ; 4 Kent, 
 112; N. T. Rtv. Sis. 722; Wi.sc. Rev Sts. 
 314; Braythwaite v Hitclicosk, 10 Mpcs. & 
 W. 494 ; Bigelow v. Finch, 11 Barb. 498. 
 
 (a) Lodgings are defined, in reference to letting and hiring, as part of a tenement. They 
 are held to require a written contract, as in any other case of agreement relating to lands. 
 Edge V. Stafford, 1 Cr. & J. 391. So, where one took a house, partly furnished, at a certain 
 rent, and the owner agreed to send in all other necessary furniture ; held, this agreement 
 related to an interest in land, and must be in writing. Meehelen v. Wallace, 7 Ad. & Ell. 49. 
 But a contract with the keeper of a hotel or boarding-house, for board and lodging, paying 
 separate prices for each, creates no tenancy, and gives the lodger no interest in real estate. 
 Wilson V Martin, 1 Denio, 602. But lodgers have the rights of tenants, sucli as tlie use of 
 the door-bell, knocker, skyliglit of the staircase, and water-closet. Underwood v. Burrows, 
 1 Carr. & P. 26. So, it ha"s been held, they cannot quit without notice. Rickett v. Tullick, 
 6 Carr. <k P. 66. 
 
 (6) A tenant at will has an estate, which must be terminated, before he will cease to 
 have a right of possession, begin to hold unlawfully, or be liable under the statute. Wheeler 
 V. Wood, 25 Maine, 287. 
 
 Trespass to try titles will not lie against a tenant at will, as a wrong-doer, till his tenancy 
 is determined. Jones v. Jones. 2 Rich. 542. 
 
 (c) The tenancy terminates instanter. But perhaps the tenant may enter to remove his 
 goods, without being a trospusser. Doe v, McKay, 10 B. & C. 721. 
 
 (d) When a landlord, having a right of entry upon a house which his tenant has just left, 
 finds the doors open and the liouse vacant, he may lawfully enter and keep possession, re- 
 move the furniture carefully, and store it safely at hand for his use. Rollins v. Mooers, 25 
 Maine, 192. 
 
282 ESTATE AT "WILL [CHAP. ZIX. 
 
 • at will or at sufferance to the landlord's grantee, who cannot treat him 
 as a trespasser before entry or notice to quit.(l)(a) 
 
 7. The old doctrine, as to terminating the estate by the acts of the 
 lessor, is still held to be in force, and not superseded by the statutory 
 provisions in relation to notice.{b) Thus, a sale and conveyance by the 
 lessor terminates the estate at will, and makes it atenancyat suffer- 
 ance, not subject to the statutory provision as to notice to quit.(2) 
 
 8. A, having leased to B at will, and the rent, payable quarterly, 
 being in arrear, gave written notice to quit, and leased to for years, 
 not notifying B of such lease. Held, C might immediately bring the 
 landlord and tenant process against B,(8)(c) 
 
 9. If a mortgagee enter, and notify the tenant of the mortgagor to 
 pay rent to him or quit, the tenancy is terminated.(4) 
 
 10. If a lessor at will becomes insolvent, the vesting order, and no- 
 tice thereof to the tenant, terminate the estate.(5) 
 
 11. On the other hand, the lessee may determine an estate at will, by 
 any act of desertion, or any act inconsistent with the tenancy ; as by 
 attempting to convey in fee, assigning, or committing waste. If he 
 assign, or make a lease, this amounts to a disseizin of the lessor, at his 
 election ; but it is held that the assignor, and not the assignee, is the 
 disseizor, though the landlord may sue the assignee. in trespass. And, 
 by committing waste, the lessee becomes a trespasser — it being a de- 
 termination of his estate. The action of waste does not lie against him, 
 nor is he liable in any form for mere permissive waste. (6)((i) 
 
 12. A tenant at will mortgages in fee, and the mortgagee enters 
 under a judgment upon the mortgage. The lessor may have trespass 
 against the mortgagee. (7) 
 
 13. A conveys land to B, but continues to occupy as his tenant at 
 will. C, a creditor of A, levies an execution upon the land himself, 
 enters, and A points out what part of the land he wishes to have levied 
 on, assists the surveyor, and gives no notice of B's title. Held, these 
 
 (1) 1 Cruise, 190-1 ; Keary «. Goodwin, 
 16 Mass. 1 ; Rising v. Stannard, 17, 288 ; 
 Howell V. Howell, 7 Ired. 496 ; Turner v. 
 Doe, 9 Mees. & W. 643. See Dorrell v. 
 Johnson, 17 Pick. 263; Davis v. Tliomas, 5 
 Eng. L. & Equ. 487. 
 
 (2) Benedict v. Morse, 10 Met. 223. 
 
 (3) Hildretli v. Conant, 10 Met. 298 ; Kelly 
 V. "Waite, 12, 300. 
 
 (4) Hill V. Jordan, 30 Maine, 367. 
 
 (5) Daviea v. Tliomas, 6 Eng.L. & Equ 487. 
 
 (61 Warner?). Page, 4Verm. 291; lUruiae, 
 191; Howell v. Howell, 7 Ired 496; Clian- 
 dler V. Thurston, 10 Pick, 209 ; Co. Lit. 57 a ; 
 Blunden 5). Baugh, Cro. Car. 302; Lit. 71; 
 Shrewsbury's case, 5 Rep. 13 b; Treat ?). 
 Peck, 5 Conn. 280 : Daniels v. Pond, 21 Pick. 
 367 ; Cooper v. Adams, 6 Cush. 87. 
 
 (7) Little V. Palister, 4 Qreenl. 209. 
 
 (a) But, where A conveys to B, and B to C, and A remains in possession, C may have 
 ejectment against him witliout notice, though B has received rent since the conveyance to 
 C. Jackson v. Aldrich, 13 John. 106. But a grantor, remaining in possession, is, like 
 other tenants at will, entitled to the crops. Sherburne v. Jones, 2 Appl. 70. In case of a 
 lease strictly at will, an entry by the landlord, and notice to quit given to the tenant, will 
 terminate the lease and revest possession in the landlord, though the tenant be not actually 
 turned out. Curl v. Lowell, 19 Pick. 25. 
 
 (6) It is said, tenancy at will seems still to retain its original character, except for the 
 purpose of notice ; and, with regard to this, it will be seen, that, in most of the United 
 States, specific statutory provisions have established a definite rule, which leaves no room 
 for construction or uncertainty. 
 
 (i) And if the tenant at will, having notice of such lease, enter and remove the crops, 
 he is liable in trespass to a purchaser from the lessee. lb, 
 
 (d) Nor a tenant from year to year. Torriano v. Young, 6 Carr. & P. 8 ; G-ibson v. 'Wells, 
 1 N. R. 290. In Indiana, in case of waste, no notice to quit is necessary. Ind. Rev. L. 620. 
 
CHAP. XIX.] AKD AT SUFFERANCE. 283 
 
 facts constituted a determination of A's tenancy, so that B migiit main- 
 tain trespass against C.(l) 
 
 1-1. The death of either landlord or tenant terminates an estate at 
 will.(2) 
 
 15. A distinction is made between a termination of the estate by 
 notice, and a termination in other modes, without notice. In the former 
 case, the tenant, it seems, becomes a trespasser by holding over, but 
 not in the latter ; as, for instance, by the death of the landlord, of which 
 the tenant is not notified. (3) 
 
 16. Where a parol letting is made for a particular object, the lessee's 
 estate will not extend beyond the time necessary for this purpose. 
 Hence, if the tenant is put upon the land to raise a crop, and absconds 
 before the crop is completed ; this determines his estate. (4) 
 
 17. Although a tenancy at will may be terminated by the landlord, 
 as above stated ; yet, as to third persons, while the tenant occupies, the 
 title is regarded as being in him. Hence, for any injury to the land, 
 which affects merely the interest of the tenant, as by treading down 
 the grass and breaking down a fence built by the tenant, the landlord 
 cannot maintain an action. (5) 
 
 18. In England, by a recent statute, and in New York,(a) Penn- 
 sylvania, New Jersey, Maryland, Indiana,(&) Connecticut, (applicable 
 to both written and parol leases,) New Hampshire, Vermont,(c) Maine 
 and Massachusetts, and probably other States, a summary process is 
 provided, by which a landlord may regain possession of land held by 
 a tenant at will, after notice to quit. In Indiana, the right to emble- 
 ments is saved. In most of these States, an accompanying provision 
 is made with regard to the time of notice requisite before commencing 
 the process referred to.{d) In New York and Maryland, one month's 
 notice is required; in Pennsylvania, Delaware, Massachusetts, In- 
 diana,(e) Michigan, Iowa, New Jersey, New Hampshire, three months' 
 
 (1) Campbell v. Procter, 6 Greenl. 12. ( (4) Chandler v. Thurston, 10 Pick. 209. 
 
 (2) 17 Mass. 284. (5) Little v. Palister, 3 Greenl. 6. 
 
 (3) lb. 287. ' 
 
 (a) In this State, an exception from the process referred to, ia where a term has still five 
 years to run. St. 1840, 119. 
 
 (6) In this State, if the tenancy is from year to year, there must be three months' notice 
 before the end of the current year, ending on the day when posssession began. Rev. St. 
 584. To maintain the process, the plaintiff must prove that he is the landlord of the de- 
 fendant, or claims under such landlord. Avery v. Smith, 8 Blackf 222. 
 
 (c) Summary process applies in Vermont to parol leases. St. 1842. Middlebury, &o. v. 
 Lawson, 23 Verm. 688. The lessee and the parties in possession, sub-tenants, adverse 
 claimants, &G., may be joined in suit. lb. The plaintiff recovers all rent due at the time of 
 judgment. lb. See Sts. 1850, 11; Hadley u Havens, 24 Verm. 520. 
 
 (d) The statute (summary, &c.) does not apply, where the tenancy ends by consent, as at 
 common law. Cooper ii. Adams, 6 Cush, 87. 
 
 (e) A notice to quit must be absolute. A notice demanding possession, and declaring 
 that, if possession is not given by a certain day, rent at a given rate will be claimed, is not 
 sufficient. Ayres v. Draper, 11 Mis. 548. 
 
 An unauthorized notice to quit has been held insufficient, though afterwards ratified by 
 the landlord. Doe v. Goldwin, 2 Ad. and Ell. (N. S.) 143. 
 
 Where a person is in possession in pursuance of an agreement for a purchase, and fails to 
 comply with his part of the agreement, ejectment will lie against him at the suit of the 
 vendor, without notice to quit. Baker n. G-ittings, 16 Ohio, 485; Brumfield v. Brown, 1 
 Blackf. 142 ; Powers v. Ingraham, 3 Barb. 576. But see Bedford v. Thomas, 6 B. Mon. 332. 
 
 Where the defendant in ejectment was in possession under a contract for title with a 
 third person, who was not shown to have any connection with the lessor or the plaintiff; 
 held, notice to quit was not necessary. Petty v. Doe, 13 Ala. 568. 
 
284 ESTATE AT WILL [CHAP. XIX. 
 
 notice; in Connecticut and Maine, thirty days.' In general, if the rent 
 is made payable at shorter intervals than the periods above named, the 
 
 If one who has entered as tenant, or quasi tenant, attempt to set up title under another, 
 he is not entitled to notice to quit. Meraman v. Caldwell, 8 B. Mon. 32. Bedford v. 
 Thomas, 6 B. Moo. 332. 
 
 On a sale of land on execution, the purchaser is entitled to immediate possession, and the 
 defendant in execution, being in possession, is not entitled to notice to quit. Snowdea v. 
 MuKinney, 1 B. Mon. 258. 
 
 Tiie service of a notice to quit is not in law an admission of a subsisting tenancy ; espe- 
 cially where such notice is served at the same time with a declaration and notice in eject- 
 ment, lb. Powers v. Ingraham, 3 Barb. 576. 
 
 Lease for five yeara, provided that either party may terminate it, if dissatisfied, by giving 
 the other six months' notice, and fulfilling all the other requirements of tlie lease till tlie 
 «nd of the six months; with an agreement in the lease, to pay the rent by boarding the 
 lessor and his family twenty-seven weeks each year between October and May. Held, the 
 notice must expire at the end of a year of the term. Balcer v. Adams, 5 Gush. 99. 
 
 If a tenant at will, whose rent is payable quarterly, quit the premises on a quarter day, 
 without three months' notice, he will be VvMe prima facie for another quarter's rent; and, 
 in an action therefor, the burden of proof will be on him, to sliow that the landlord had waived 
 the notice, whicli would be a bar to tlie action, or that he liad resumed possession under an 
 agreement which discharged the tenant from further liability for rent. Whitney j). Gordon, 1 
 Cush. 266. 
 
 The lessor of a store gave the tenant three months' notice to quit, and, at the end of that 
 time, upon the tenant's saying that it would be a great accommodation to him to remaia 
 longer, iu order to sell off liis goods, the landlord consented to his remaining. Having staid 
 sixteen days, the landlord commenced the statutory process to eject him. Held, the notice 
 had not been waived, and the action was maintainable. Babcock v. Albee, 13 Met. 273. 
 
 A landlord, to whom rent was payable monthly, gave notice to the tenant to quit ''for 
 the non-payment of rent." The same day, the tenant tendered him several months' rent; 
 but it did not appear whether the tender was before or after service of the notice. The 
 landlord said, ho did not wish to take the money, as the tenant had made repairs, and he 
 did not know the amount due; that the tenant need not quit, and, when he should come 
 again, he would ascertain the balance and settle. Six or seven weeks afterwards, tlie land- 
 lord brings a process of ejectment. Held, under the notice, tlie plaintiff could recover only 
 on the ground of non-payment of rent; that, if the tender was prior to the notice, the tent 
 was not in arrear; if subsequent to the notice, there was a waiver of the notice, and a 
 renewal of the tenancy. Turtle v Beau, 13 Met. 275. 
 
 If, after a notice to quit, the landlord receives rent for a period subsequent to its expi- 
 ration, the notice is waived. Collins v. Canty, 6 Cush. 15. See Whitney v. Swett, 2 Fost. 
 (N. H.) 10. 
 
 In Indiana and Kentucky (and this is undoubtedly the general rule) the relation of land- 
 lord and tenant must exist, to entitle a party to notice. lud. Rev. Sts. 585-6; Shackle- 
 ford V. Smith. 5 Dana, 237. 
 
 The rule, that six months' notice to quit must expire at the end of the year, does not ap- 
 ply as between vendor and vendee by executory contract. Landers v. Beauchamp, 8 B. 
 Mon. 493. 
 
 Where one enters under an agreement for a lease, which he refuses to accept, he may be 
 immediately ejected. But, if the landlord has received the rent monthly, according to the 
 original agreement, a month's notice is requisite Anderson v. Prindle. 23 Wend. 616. 
 
 The act, as to summary process, does not apply, where the landlord acquired his title 
 under the levy of an execution, and the occupant holds under an adverse title. Morrison 
 V. Tenney, 15 N. H. 126; Hovey w. Blanehard, 13, 145. 
 
 Where a tenant abandons the premises during an action of forcible detainer, and another 
 party intrudes, claiming for himself, the original tenant is not liable for rent accruing after 
 his abandonment. Newman v. Mackin, 13 S. & M. 383. 
 
 In all cases, where the landlord wishes to avail himself of the provisions of the Rev. Sts. of 
 North Carolina, (c. 31, sec. 51.) requiring bonds from tenants refusing to surreniler possession, 
 &c., he must not only state the lease, and that the term has expired, but must also set forth 
 in his affidavit, explicitly or in sucli a manner that the court may necessarily and fairly 
 draw the inference, that the tenant, after the term expired, had refused to surrender the 
 possession. Phelps v. Long, 9 Ired, 226. 
 
 Where the landlord obtains possession by summary proceedings, which are reversed on 
 certiorari, the tenant is not entitled to restitution, if his term has expired. Chretien ». Do- 
 ney, 1 Comst. 4 1 9. 
 
 A court of equity has not jurisdiction to stay summary proceedings, under the statute 
 of New York, (2 Rev. Sts. 511,) by a landlord to eject a tenant holding over after the ter- 
 
CHAP. XIX] AND AT SUFFERANCE, 285 
 
 time of notice is reduced accordingly. Where the rem is unpaid, only 
 seven days' notice is required in New Hampshire, if the rent is pa}^- 
 ble at shorter intervals than three months ; fourteen in Massachusetts ; 
 thirty in Maine.(l) 
 
 19. In Ohio, it is said, nothing is settled on the subject of notice. 
 In ejectment figaiust a tenant, there must be ten days' notice belore 
 commencement of the term at which the appearance is to be made; 
 and, in the process of forcible detainer, ten days' notice before suit 
 brought. It is intimated, that this is the only required notice to quit. 
 But the notice must expire before or at the time when the period des- 
 ignated ends. If the tenant enter upon a new one, he shall liold till 
 the end of it. The pay day or rent determines the length of the 
 period. (2) 
 
 20. In South Carolina, where there is a lease or demise in writing, 
 for one or more years, or at will, after a determination of the estate 
 and a written demand, the lessor, after ten days, may have a summary 
 process to obtain possession, against either the lessee, or his sub-ten- 
 ant.(H) 
 
 21. It is said that in New York, the statute, providing summary 
 process against tenants, does not provide for any notice to a tenant 
 fron year to year. Hence he may be tui'ned out without notice. The 
 act does not apply to a tenancy created by operation oflaw.{i) 
 
 ' 22. The resolutions of the courts, turning estates at will into tenan- 
 cies from year to year, though founded in equity and sound policy, are 
 said to be a species oi' judicial legidation ; and would seem to be opposed 
 by the English statute of frauds, which was long subsequent to the 
 introduction of this tenanc}', aud which declares "all leases, estates, or 
 uncertain interests in land, maile by parol, to have the force and effect 
 of estates at will only, and not in law or equity to be deemed or taken 
 to have any other or greater force or effect, excepting, however, leases 
 for not m(jre than three years, on which a rent is reserved, amounting 
 to two-thirds of the full improved value." "The English decisions," 
 
 (1) 4 Kent, 113 ; 1 Steph. 414-5 ; Iowa ' v. Tar'oox. 20 Conn. 510 ; Smith v. Rome, 31 
 Code, cli. 78, 3. 1209; Ind. Rev. Sts. 584; Maine, 212 ; Preble v. Hay, 32. 456 ; Falkner 
 Mass. Rev. Sta. 412, 628; Dela. Sts. 1829, ti. Beer.s, 2 Donf;. Ill; Cliamberlin j;. Brown, 
 285; 1 Ssvifi,, 91; N. H. L. 1831, 22-4; i lb. 120, n. ; Back v. BinniuKer, 3 Barb. 391 ; 
 
 Prindle v. Anderson. 19 Wend. 391 ; Conn. 
 St.s. 1H38, 399 ; Davis v. Tliompson, 13 Maine, 
 209; Wliilew. Bailey, 14 Conn. 271 ; Ander- 
 son V. Critclier, 1 1 G. & J. 450; Mich. Rev. 
 Sts 14; N. H. Rev Sts. 424; Me. Rev. fc^ts. 
 393; N. Y, Sts. 1S42, 293; 1849, 291; N. 
 J. Sts. 1839, 104; Me. .Sts. 1853. 35; Wood- 
 
 MrKcon V. Kincr, 9 Barr, 213; Sims v. 
 Humphrey, 4 Denio, 185; Cunningham v. 
 Goelet, lb. 7 1 ; Hohly v. German, &c., 2 Barr, 
 293. 
 
 (21 1 Md. L. 126; Walk. Intro. 280. 
 
 (3) Brev. Dig. 1 6. 
 
 (4) Nichols V Williams, 8 Cow. 13 ; Evert- 
 
 znan V. Ranger, 30 Maine, 18(; ; Quinebaug, ic. 1 son v. Sutton, 5 Wend. 281. 
 
 mination of his term. If the tenant has su.stained injury by the proeecdinjjs, he has an ade- 
 quate remedy at law, either by writ of restitution from the Supreme Court, or by action oti 
 the covenants of his lease. Smith v. Moffat, 1 Barb. 65. 
 
 Under the Misstjuri act concerning landlords and tenants, the landlord is entitled to hia 
 action for possession against the tenant, or other person in possession, and cannot be de- 
 prived of his remedy by a. transfer of pos.session, or by an abandonment by his tenant and 
 the intrusion of a stranger. Will v. Peter.s, 11 Mis. 395. 
 
286 
 
 ESTATE AT WILL 
 
 [CHAP. SIX, 
 
 Chancellor Kent remarks,(a) " have never alluded to this exception, but 
 have moved on broader ground and on general principles, so as to ren- 
 der the exception practically useless. "(1) The exception is .dropped in 
 the statute of frauds of Massachusetts, New York, Maine, New Hamp- 
 shire and Vermont, but retained in Missouri, Indiana, Georgia, South 
 Carolina, New Jersey, Michigan, and in North Carolina(6) and Pennsyl- 
 vania, (without reference to the amount of rent reserved.)(2) 
 
 23. In lUinoi-s, New York,(c) Alabama, Ehode Island, Tennessee, 
 Virginia,(3) and in South Carolina and Missouri, (4) as the general rule, 
 parol leases for more than one year are void for any longer term. 
 Similar provision is made in Kentucky. But it is there held, and such 
 undoubtedly is the settled general rule, that the statute does not render 
 the lessee a trespasser. The rent reserved may be the measure of com- 
 pensation for use and occupation, for which an action or a distress will 
 lie. And, it is said, one entering under a parol lease for five years, may 
 retain possession against any process known to the law.(5)(c^) 
 
 24. In Connecticut,(6) the only statutory provisions are, that no 
 action shall be brought ujDon a parol contract for the sale of lands, &o. ; 
 and that no lease shall be valid for more than one year, against any 
 but the lessor and his heirs, unless uritten, &c., and recorded. 
 
 25. In Massachusetts, the court, in one case, founded their strict con- 
 struction of the statute of frauds— differing from that given to the 
 Englisli statute — upon the consideration that the excepting clause con- 
 tained in the latter is wanting in the former.(7) But in another. Judge 
 Putnam strongly contends that this is an unauthorized construction. 
 According to him, the statute of frauds does not pretend to describe the 
 ■incidents of an estate at will ; but only provides that parol leases shall 
 have the effect of leases at will, — meaning the effect of such leases, as 
 construed b}^ judicial decisions. And he urges the adoption of the rule 
 established in these decisions, by weighty considerations of public 
 policjy as to agricultural tenants.(b) 
 
 26. In Virginia, leases of lands or lots, containing no stipulation to 
 the contrarjr, if made from year to year, terminate with the current 
 year. In a city, borough or incorporated town, three months', in the 
 country six months' notice is required before the end of the year. 
 
 (1) 1 Pick. 46; 4 Kent, 113-14. 
 
 (2) Purd. Di?. 681 : 1 Smith's St. 288-9; 
 1 Vt. L. 188 ;"N". IL L. 1829, 505; Mass. 
 Rev. St. 408; 1 K J. Rev. C. 151; Misso. 
 St. 284; Midi. L 116-17 ; Ind. Rev. L. 269 ; 
 Prince, 914; 1 N. C. Rev. St. 290; Bi-iles v. 
 Pace, 13 N. C. 279. 
 
 (3| 1 Brev. Dig. 372; Illin. Rev. L. 313; 
 S. C, St. Mar. 1817, p. 35; Ail<. Dig. 207; 
 R. I. L. 366 ; 1 Vir. Rev. 0. 15 ; Tenii. St. 
 
 1801, cli. 25 ; Porter v. Gordon, 5 Terg. 102; 
 2N. T. Rev St. 134. 
 
 (4) Misso. St. 117; Purd. Dig. 681. 
 
 (5) 1 Ky. Rev. L. 734; Roberts!). Tennel, 
 3 ilciu. 251 ; Calvert v. Simpson, 1 J. J. Mar. 
 548 ; 1 Swift, 260 ; Gudgell v. Duval, i J. J. 
 Mar, 230. 
 
 (6) Conn. St. 262, 350. 
 
 (7) 1 Pick. 46. 
 
 (8) 2 Pick. 72-5-8, .,. 
 
 (a) Tlie court in Massachusetts, as will be presently seen, {infra, sec. 25,) take a different 
 view. 
 
 (6) All parol leases for mining purposes are void. Briles v. Pace, 13 N". C. 279. 
 
 (c) Whether a parol lease for a year, to commence infuturo, is valid, see Creswell v. Crane, 
 7 Barb. 191; Young v. Dake, 1 Seld. 463. 
 
 (d) In New York, a parol lease for more than a year is void. But, if the rent is to be 
 paid niontljly, and tl'S tenant enters, the contract is in this respect a biudin" one. Priiidle 
 V. Anderson, 19 Wend. 391. So, a parol lease for four years has been held so far valid, as 
 to support a distress for rent. Edwards v. Clemons, 24 Wend. 480. 
 
CHAP. XIX] AND AT SUFFERANCE. 287 
 
 Where a time certain is fixed, no notice is necessary. In Maryland, it 
 is provided, that no conveyance of an estate for more than seven years 
 shall be valid, unless made in writing, sealed, &c. This seems to be 
 the only statute which bears upon the subject of estates at will. (I) In 
 Delaware, (2) every lease, which specifies no certain term, is for a year, 
 or from year to year, unless the property has been usually' let for a less 
 term. A tenancy will not be construed &s purely at will, " where it can 
 inuie or be construed as being from year to year;" but the former 
 requires three months' notice to quit. "A lease can be good only for a 
 year, unless made by deed. In case of a demise for one or more years, 
 unless the landlord or tenant give notice to determine three months 
 before the end of the term, it shall be renewed for one year. 
 
 27. Tenant at sufferance is one that comes into the uo.ssession of land 
 by lawful title, but holdeth over by wrong alter the determination of 
 his interest.(a) He has only a naked possession, and no estate which 
 he can transfer or transmit, or which is capable of enlargement by re- 
 lease ; for he stands in no privity to his landlord, nor is he entitled to 
 notice to quit ; and, independent of statute, he is not liable to pay any 
 rent. He is a wrong-doer, and holds by the laches of the landlord, who 
 may enter, using no more force than is necessary, (it seems,) and put 
 an end to the tenancy when he pleases, or biiug ejectment ; but, 
 before entry, cannot maintain trespass. In Ohio, it is said, though 
 such occupant is not liable to rent, as such, he might be liable in an 
 action for use and occupation. (3) 
 
 (1) 1 Maryl. L, 126 ; Ta. St. 1840-1, 76-7. 
 
 (2) Del. St. 1829, 28G, 368. Rev St. 366. 
 
 (3) 4 Kent. 115; Keay v. Goodwin, 16 
 Mass. 1, n, 282; Walk. 280-1; Mayo v. 
 Fletcher, 14 Pick. 525 ; Dancan v. BlachCord, 
 
 2 S. & R. 480; Overdeer v. Lewis, 1 Wa^tts 
 & S. 90; Clapp v. Paine, 18 Maine, 264; 
 Jones V. Muldrow, 1 Rice, 64. See Pender- 
 gast V. Voung, 1 Post. (N. H.) 234 ; Wheeler 
 V. \yood, 25 Maine, 287.* 
 
 * Upon the point, wljether the landlord is justified in using force to regain possession, 
 there seems to be some doubt. He undoubtedly thereby subjects himself to indictment for 
 breach of the peace, and the only question is, wlietljer the facts would furnish a justification 
 to an action of trespass against him. See 4 Kent, 118, n. & autljys. Beecher v. Parmelee, 
 9 Verm. 352. 
 
 In a late English case, it is held, that the landlord cannot regain possession by force. 
 Newton v. Harland, 1 Man. & G. 644 ; 1 Soolt, N. 474. And, it seems, such re-entry does 
 not terminate the estate. lb. In case of a lease for a year, soon after the end of the 
 year, the landlord removed the tenant's goods without notice. Held, he was not liable in 
 trespass, unless he used more force than was necessary, or committed wanton injljry. 
 Overdeer v. Lewis, 1 W, & S. 90. 
 
 In Maine, after the expiration of a written lease, no notice to the tenant is necessary for 
 the purpose of terminating tlie tenancy. Preble v. Hay, 32 Maine, 456. Under the statutes 
 of Maine, a tenant holding over by consent, after the expiration of the term, is a tenant at 
 will; and is liable for rent only so long as he occupies. Kendall v. Woore, 30 Maine, 327. 
 In Maine, where the occupant of land has holden, under a written lease, for one year, and 
 holden over for nearly two years, and neglected to pay any rent; his right of possession 
 will terminate in thirty days after written notice to quit, and he will be liable to the pro- 
 cess of forcible entry and detainer, under Rev. Sts. o. 28, sec. 5. Wheeler v. Cowan, 25 
 Maine, 283. 
 
 In Delaware, a tenant under a written lease, holding over, continues, without notice to 
 quit, to hold under its terms. Jackson v. Patterson, 4 Barring. 534. A tenant for years, 
 who remains in possession after the expiration of his lease, is liable for the same rate o( rent 
 as that reserved under his lease. Bakers. Root, 4 McLean, 572. Whether a tenant ac 
 sufferance in Massachusetts is liable to pay rent, qucere. Delano v. Montague, 4 Gush. 42. 
 At the expiration of a lease for a definite period, the lessor may bring ejectment, though he 
 has given notice to quit in three months. Evans v. Hastings, 9 Barr, 273. 
 
 (a) He is sometimes called tenant at will. 4 Kent, 114 n. 
 
288 
 
 ESTATE AT WILIi 
 
 [CHAP. SIX. 
 
 28. In New Jersey, it is held,(l) tbat, if a tenant for a fixed term 
 hold over with the lessor's consent, he becomes a tenant from year" to 
 year. This consent may be express or implied ; but it can be inferred 
 only from acts; not from mere silence and inaction. Thus, where the 
 lease was for a year, and the tenant held over ibr two years, held, 
 ejectment would lie against him without notice. 
 
 29. So in New York,(a) a tenant for a year, who holds over without 
 permission of the landlord, is liable to the summary process for ob- 
 taining possession, without having received a month's notice to quit. 
 He is not a tenant at sufferance within the statute. Although the 
 landlord's assent to his holding over may, it seems, be presumed 
 from mere lapse of time, yet it was held that three months and twelve 
 days was not a sufficient period for this purpose, more especially as 
 the landlord had endeavored to regain possession without suit. (2) 
 
 80. In case of a verbal lease for a certain term, the tenant agree- 
 ing to quit at any time within such term, if the premises shall be sold; 
 he becomes a tenant at sufferance by remaining in possession alter a 
 sale, and is liable to the landlord and tenant process without notice to 
 quit.(3) 
 
 31. So the sale of land, mortgaged with power to sell, divests the 
 mortgagor of all right and interest, and if be afterwards continue in pos- 
 sessicm, he is a tenant at suflerance.(4.) 
 
 32. It has been held, in Massachusetts, that under sec. 26, c. 60, of the 
 Eevised Statutes, a tenant at sufferance is not entitled to notice to quit, 
 but, if he hold possession unlawfully, by force, is immediately liable to 
 the process of forcible entry. (5) 
 
 33. After the expiration of a lease f )r years, the agent of the lessor 
 went upon the land, and cut trees by his order and for his use, but the 
 lessee continued to occupy, cut wood, and ploughed the land. The 
 tenant was notified to quit at the end of the term. In an action of 
 trespass against him for an injury to the soil ; held, the above notice, 
 though not requisite to determine the lease, showed the lessor's intent 
 in entering by his agent, and that such entry was sufficient to sustain 
 the action. (6) 
 
 34. Tenant at sufferance must be one who came to his estate by act 
 of party. If one coming to an estate by act of law hold over, he is an 
 intruder, abator, or trespasser. So, where one occupies land together 
 with the owner, he cannot be a tenant at sufferance ; for if there be no 
 agreement between them, the legal possession is in him who has the 
 right ; and if there is an agreement, this negatives a sufferance. {!) 
 
 35. By St. 4, Geo. II., c. 28, and 11 Geo. II., c. 19, if a tenant hold 
 over after demand and notice in writing to quit, or after he has himself 
 
 (1) Den V. Adams, 1 Halst. 99. 
 
 (2) Rowan v .Lytle, ]1 Wend. 616. 
 (3 1 Hollisj;. Pool, 3 Met. 350. 
 
 (4) Kinsley v. Ames, 2 Met. 29. 
 
 (6) lb. 
 
 (6) Dorrel v. Johnson, 17 Pick. 263. 
 
 (7) 4 Kent, 115; Jolinson v. Carter, 16 
 Mass. 446. In North Carolina, any particu- 
 lar tenant, holding over, comes under the 
 law pertaining to landlords. Montgomery ». 
 "Wymms, 4Dev. & B. 531. 
 
 (o) In this State, the summary profess is applied to tenancies at will and sufferance, to 
 cases of default in payment of rent, of discharge under the insolvent laws, and sale of the 
 tenant's estate on execution. Sts. 1849, 291. 
 
CHAP. XIX.] AND AT SUFFERANCE. 289 
 
 signified his intention to quit ; he is liable for double rent. These stat- 
 utes are substantially re-enacted in New York, Delaware, South Car- 
 olina, and Arkansas, (where 30 days are allowed,) but not generally 
 adopted in the United States.(l) In Illinois and Missouri, if tenant for 
 life or for years hold over after notice from the landlord, he is liable for 
 double the yearly value ; if after notice by himself of an intention to 
 quit, double the rent reserved. And, in Missouri, there shall be no re- 
 lief in equity.(2) 
 
 36. In New York, if guardians and trustees to infants, or husbands 
 seized "jure lixoris" or others having estates determinable upon lives, 
 hold over, they are trespassers, and liable for the full profits. There is 
 a similar provision in England, by St. 6 Anne, c. 18.(3) 
 
 37. The same process, in general, lies against tenants at sufferance 
 as against tenants at wiil.(a) Or the landlord may re-enter, without 
 force. (4) 
 
 38. In South Carolina a statute provides, that all written leases and 
 agreements shall terminate at the end of the time specified there- 
 in.(5)(6) 
 
 (1) 4 Kent, 115; Ark. Rev. St. 520; Dela. 
 St. 1829, 368 ; S. C. St. 1808; Reeves v. W- 
 Kenzie, 1 Bai. 497. See Robinson u. Lee- 
 royd, 1 Mees. & W. 48. 
 
 (2) Illin. Rev. L. 675 ; Misso. St. 376-7. 
 
 (3) 4 Kent, 115, 6. 
 
 (4) 4 Kent, 116. 
 
 (5) S. C, Mar., 1817, p. 35. 
 
 (a) In England, a similar process is provided by a late act, 1 & 2 Tict. 74. In Indiana, 
 the process does not apply to tenants at sufferance. 
 
 (6) In tlie same State, it is said, a tenant holding over after his lease expires, is liable for 
 double rent. 4 Kent, 117, n. In Indiana, the summary process provided against tenants 
 at will lies against a tenant for a term certain, without notice. Rev. St. 685-6. 
 
 YoL. I. 19 
 
290 
 
 USES AND TRUSTS. 
 
 [CHAP. XX 
 
 CHAPTER XX. 
 
 USES AND TRUSTS. USES PRIOR TO THE STATUTE OF USES. 
 
 1. Ongin. 
 
 3. Nature and definition of. 
 
 7. The three incidents of. 
 
 11. "Wlio miglit be seized to. 
 
 12. How distinguislied from legal estates. 
 23. Evils and mischiefs of, and statutes to 
 prevent. 
 
 1. Having treated of legal estates, we come now to consider equitable 
 estates, or uses and trusts.{u) At an early period a practice arose, in 
 England, of one person's conveying lands to another, with a private 
 agreement that the latter should hold the lands for the benefit and 
 profit, of the feoffor ; or of a third person. The practice did not become 
 general till the time of Edward III., when it was resorted to by the 
 churchmen to evade the statutes of mortmain, and enable them to re- 
 ceive the rents and profits of lands, which those statutes prohibited 
 them from receiving and holding in their own names. Such a convey- 
 ance, made nominally to one person, but for the benefit of another, 
 vested the legal estate in the former, and in the latter what the law 
 termed a use. 
 
 2. A use corresponds to \hQ fidei-commissum of the civil law. Under 
 that system, there were many persons whom the law did not allow to 
 be heirs or legatees. It became customary, therefore, for a testator, 
 Avho desired to make provision for such persons, to constitute by will 
 some capable person as his heir, adding a request that he would convey 
 the estate to the intended object of his bounty. The latter, however, 
 had only a jus precarium, or a right depending on courtesy and en- 
 treaty, and not a strictly legal claim. But, after the law had continued 
 in this state for several centuries, the Emperor Augustus first, and af- 
 terwards Justinian, introduced regulations which placed the fidei-com- 
 missum upon a legal foundation ; the former, by giving jurisdiction of 
 it to the consuls and the praetor, (who was thence c&\\gA fidei-coinmissa- 
 riits,) and the latter, by requiring an heir, supposed to be chargeable 
 with such trust, to take an oath that he was not, or else to execute it. 
 
 3. In the early age of uses, the party beneficially interested, called 
 cestui que use, like the Roman hceres fiduciarius, had no legal, but only a 
 precarious right. Bat at length, to protect the rights of the clergy, who 
 were chiefly interested in trust property, the clerical chancellors as- 
 sumed jurisdiction of the subject ; and, in the reign of Eichardll., John 
 Waltham, Bishop of Salisbury and Chancellor, ibr the first time issued 
 a writ of subpoena returnable in Chancery, whereby the party charged 
 with a trust was compelled to appear, and answer upon his oath the al- 
 legations made against him. This form of pioceeding, being contrary 
 to the spirit of the common law, became very obnoxious ; and, in suc- 
 cessive reigns, petitions against it were presented to Parliament, but 
 without success ; till, in the reign of Henry VI., it was provided, that 
 no subpoena should issue, until the party applying for it had given se- 
 
 (a) Legal estates may be described, as those which are fully recognised, protected and en- 
 forced in courts of law ; while equitable estates, for the most part, require an appeal to court! 
 of equity, or those having equitable jurisdiction. 
 
CHAP. XX.] 
 
 USES AND TRUSTS. 
 
 291 
 
 curity to pay, if he should fail in the suit, all damages and expenses in- 
 curred by the defendant. 
 
 ■i. Lord Bacon, in defining a use, says, "it is no right, title or inter- 
 est in law," — neither jus in re nor ad rem, neither an estate nor a de- 
 mand ; but something unknown to the common law, and for which 
 therefore it furnished no remedy. (1) 
 
 5. He proceeds to say, that a use is " dmninium fiduciarium" an 
 ownership in trust; and therefore a use, and an estate or possession, 
 differ rather in reference to the forum which takes cognizance of them, 
 than the nature of the thing, — one being in court of law, the other in 
 court of conscience. 
 
 6. A use was no property at law, because it arose from a mere decla- 
 ration, and not from livery of seizin, which was absolutely necessary to 
 create a freehold estate. Thus, it was very early held, that if A enfe- 
 offed B to the use of himself. A, the feoffer, should have nothing, at 
 law, against his own feoffment. So if the cestui que use entered upon 
 the land, the feoffee to use might have an action of trespass against him ; 
 while, if the latter entered and ousted the former, he had no remedy at 
 law, but his only redress was in Chancery. The cestui, although 
 usually in possession, was a mere tenant at sufferance, and, if he made 
 a lease, the lessee might plead that he had no estate in the land. (2) 
 
 7. Chancery at first interfered in favor of a cestui que use, only by com- 
 pelling the feofi'ee to pay over the profits to him. But afterwards it 
 proceeded to require, that the feoffee should convey the land to the 
 cestui, or such person as he should select; and also defend the title 
 against any adverse claimant. Hence it was said, that the three inci- 
 dents of a use Yieie pernancy of the profits, execution of estates, and defence 
 of the land. 
 
 8. It was still held, however, that the land was subject to all liabili- 
 ties and incumbrances in the hands of the feoffee, as if he were the only 
 party interested ; as, for instance, to dower and forfeiture. And the 
 cestui' s right in equity was held to be not issuing out of ihs land, like a 
 rent or right of common, but collateral to it ; and therefore not charge- 
 able upon the land, into whose hands soever it might pass, but only by 
 reason, and during the continuance, of confidence in the person and pri- 
 vity of estate. i^d) 
 
 9. Confidence in the person at first extended only to the original feof- 
 fee; and it was held, that even his heir, after his death, was not liable 
 to the use in Chancery, but could only be charged by a bill in Parlia- 
 ment. But, as early as the reign of Henry VI., it was settled that the 
 liability extended not only to the original feoffee, but to all who came 
 to the estate in the per, either without consideration, or having notice of 
 the use. Thus, an heir of the feoffee was charged with the use. So a 
 purchaser from the feoffee, if he either paid no consideration and had 
 no notice, or if he paid a consideration and Jiad notice. (4) 
 
 10. The requisition of privity of estate demanded, in order to a con- 
 tinuance of the use, that there should be not merely possession of the 
 same land, but a continuance of the same estate in that land, which was 
 
 (1) Chudleigh's case, 1 Eep. 140 a. 
 
 (2) 4 Edw. IV., 3; 1 Rep. 140 a. 
 
 (3) 1 Rep. 122 a; Dalamere v. Barnard, 
 Plow. 352 ; Dillon v. Eraine, Poph. 71. 
 
 (4) Keilw. 42 ; Bro. Abr. Feoffment al Use, 
 pi. 10; Chudleigh's, 1 Eep. 122 b; Gilb.178 
 -9; 4 Pick. 71. 
 
292 
 
 USES AND TRUSTS. 
 
 [CHAP. XX. 
 
 held by the original feo£fee. Hence, a person holding the land, but not 
 claiming in the per, even though he took with notice, was not charge- 
 able; as, for instance, a. disseizor, the lord holding bj escheat, a tenant 
 by the curtesy, or tenant in dower ; all of whom claimed by a title 
 paramount, and not the same estate with the feoffee.(l) 
 
 11. Any person, who was capable of taking lands by feoffment, might 
 also be a feoffee to uses. And even those who were legally disabled to 
 bind themselves, as infants and married women, if enfeoffed to uses, 
 would be compelled in Chancery to execute them ; because such per- 
 sons might inherit from a feoffee, and would then clearly be chargeable ; 
 and the execution of the use was deemed to be made hy the feoffor, 
 through his agent the feoffee. But a corporation could not. be seized 
 to uses ; not being subject to any compulsory Chancery process, and 
 being supposed, as a matter of course, to hold to its own use.(2) 
 
 12. It was remarked by Lord Bacon, "uses stmd upon their own 
 reasons, utterly differing from cases of possession ;" and the remark is 
 illustrated by the following rules and principles.(3) 
 
 13. A use being recognized only in Chancery, which was governed 
 to a great degree by the rnles of the civil law, it was held, conformably 
 to one of those rules, " ex nudo paclo nan oritur actio," — that no use 
 could be created without a good or valuable consideration ; for other- 
 wise it was donum gratuitum. Bat this principle seems to have been 
 applicable only to such conveyances as did not carry with them a 
 change of possession, such as a covenant to stand seized, or bargain and 
 sale, which were mere contracts. {4:) 
 
 14. In other particulars, also, a use was not subject to the rules of 
 the common law. Not being an estate, it was exempt from the burdens 
 and incidents of feudal tenure. Thus, it was not forfeitable for crimes. 
 For the same reason, it was not extendible by process of law ; and, being 
 neither a chattel nor hereditament, was not assets to the executor or the 
 heir. So there was neither curtesy nor dower in a use, because the 
 cestui had no legal seizin. (5) 
 
 15. A use, th'iugh held to be a mere right, was still, unlike other 
 chases in action, subject to alienation ; because, as no action at law lay 
 to enforce it, the mischiefs of maintenance could not arise from such 
 transfer.(6) 
 
 16. A use might be transferred by any deed or writing, and without 
 livery of seizin, of which, from its very nature, it was of course not 
 susceptible. 
 
 17. Contrary to the rule of the common law, a use might be declared 
 to a person who was no party to the deed which created it.(7) 
 
 18. St. 1 Eich. III. ch. 1 empowered a cestui to alienate the legal 
 estate without consent of the feoffee. This act was passed to prevent 
 feoffees from entering upon the land, after a transfer by the cestuis, 
 whicli had often previously been done.(8) 
 
 19. A use might be limited without those technical words of limita- 
 tion which are necessary in a common law conveyance. Thus, a fee- 
 
 (1) 1 Rep. 139 b, 122 a. 
 
 (2) Bac. Read. 58: 4 Kent, 286: Plow. 
 102. 
 
 (3) Bao. Law Tracts. 3 1 0. 
 
 (4) Bao. Read. 13 ; 4 Kent, 286, 
 
 (5) Co. Lit. 272 a; 
 3';4 b. 
 
 (6) Bac. Read. 16. 
 
 (7) Read. 14. 
 
 (8J 1 Cruise, 270. 
 
 1 Rep. 121 b; Co. Lit. 
 
CHAP. XX.] 
 
 USES AND TRUSTS. 
 
 293 
 
 simple would pass without the word heirs. So, a freehold might be 
 limited to commence in futuro ; or a contingent freehold remainder, 
 "upon a precedent estate less than freehold, because the freehold estate 
 of the feoffee was sufficient to support such remainder.(l) 
 
 20. A use might be so limited as to be revocable by the will of the 
 grantor, and give place to such new uses as he should appoint ; or it 
 might be so limited as to change from the original cestui que use to 
 another person, upon the happening of some future event; even though 
 the first limitation were in fee, and, therefore, in case ot a legal estate, 
 would preclude any further disposition. Thus, the limitation might be 
 to A and his heirs till B should pay him such a sum, then to B and 
 his heirs. The reason of this distinction was, that a legal estate, being 
 created by livery, could be defeated only by the corresponding act of 
 entry ; and a charge required a corresponding discharge ; while a use, 
 arising from a mere declaration, was subject to be changed in the 
 same way. (2) 
 
 21. A use was devisable, though lands at that time were not; and 
 this was one reason for the large number of limitations to uses. But 
 the devise of a use by a married woman was, in a very early case, held 
 void even in Ohancery.(3) 
 
 22. Uses, though differing in most points from legal estates, were 
 subject to the same rules of descent.(4:) 
 
 23. The doctrine of uses, as above described, although productive of 
 some convenience, in enabling persons to convey their lands with less 
 restraint and technicality than they could otherwise do, was found to 
 open a door for very great and serious mischiefs. Creditors were de- 
 frauded by secret conveyances ; husbands were deprived ot curtesy, 
 and wives of dower ; and titles became so private, variable and con- 
 fused, that it was difScult for a legal claimant of land to determine 
 against whom he should maintain his action. To remedy these and 
 the like evils, several successive statutes were passed, from the reign 
 of Edw. III. to that of Henry VII., subjecting uses to legal process for 
 the debts of the cestui, and to the feudal incidents and exactions of 
 wardship and relief, where the cestui died without making a will. (5) 
 These statutes, however, proved ineffectual to remedy the evils com- 
 plained of To avoid the feudal burdens consequent upon descent, 
 devises became mischievously frequent. At length, after an unsuccess- 
 ful attempt four years previously by the king, to procure the passage 
 of such a law, the statute of uses, — 27 Henry VIII. c. 10, — was enacted, 
 with the title of " an act concerning uses and wills." This act will be 
 considered in the next chapter. 
 
 (1) Shelley's case, 1 Rep. 101 a, 135 a. 
 
 (2) 1 Cruise, 368 ; Bro. Abr. Feoffment al 
 Use, 30: Bao. Read. 18. 
 
 (3) Bao. Read. 20; 1 Rep. 
 18 Edw. IV. 
 
 (4) Co. Lit. 14 b; Gilb. 17. 
 
 (5) 1 Cruise, 369. 
 
 123 b; Mich 
 
294 
 
 USES AND TRUSTS. 
 
 [CHAP. XXI. 
 
 CHAPTER XXI. 
 
 USES AND TRUSTS. STATUTE OE USES, CONSTRUCTION AND EPFJiOT 
 
 THEREOF. 
 
 1. Terms of the statute. 
 
 2. Adopted in tlie United States. 
 
 3. Instantaneous seizin of trustee. 
 
 4. Wiio may be seized to uses. 
 
 1. What estate may be held to uses. 
 
 9. Tiiere must be a cestui " in esse." 
 
 10. "What estate a cestui may take. 
 
 12. FeoBee and cesturi must be different 
 
 persons; construction, where they 
 are the same. 
 
 14. Exceptions to the rule. 
 
 15. There must be a use in esse. 
 
 16. Actual seizin vests in cestui. 
 
 1 7. Estate of feoffee will not merge. 
 
 20. Limitations to uses, how far subject to 
 
 common law rules. 
 22. Implied and resulting uses. 
 
 1. Statute 27 Henry YIIL, c. 10, called the Statute of Uses, and 
 referred to at the end of the last chapter, recites, that by the common 
 law, lands could not be passed by will, but only by livery of seizin; 
 but that divers subtle practices had been introduced, in the form of 
 fraudident conveyances and assurances, and of last wills, whereby heirs 
 were disinherited, lords deprived of their dues, husbands and wives of 
 curtesy and dower, and perjuries committed. The statute then pro- 
 ceeds to enact, that where any person was or should be seized of any 
 honors, manors, lands, tenements, rents, services, reversions, remainders, 
 or other hereditaments, to the use, confidence, or trust of any person or 
 body politic; the latter should have the legal seizin and possession, 
 nominally given to the former, and corresponding to the use, trust and 
 confidence held previously to the statute in lands so limited; and, 
 where lands were limited to several persons to the use of a part of them, 
 the latter alone should have the seizin and possession. 
 
 2. The English statute of uses is almost universally adopted in this 
 country. It is substantially re-enacted in Illinois, Missouri and South 
 Carolina. But in Ohio, it is said not to be in force.(l)(a) 
 
 3. Since this statute, and conformably to its intent, one person, taking 
 lands to the use of another, gains only an instantaneous seizin, which 
 subjects them to no incumbrances in his hands ; but the legal estate 
 vests immediately in the cesiin.{2) 
 
 4. The same persons may be seized to uses now, that could have been 
 so seized before the statute. 
 
 5. In England, the king or queen cannot be seized to uses. Thus, 
 where a man received a fine of lands to the use of the conusor, after 
 the former had committed treason; the cestui then conveyed to a third 
 person, and the conusce was afterwards attainted ; it was held, by very 
 distinguished lawyers, that the queen (Elizabeth) would hold the lands 
 
 (1) Illin. Rev. L. 130; Misso. St. 119; 2 I 2 Ohio, 339 ; Helfeinstine !;. Garrard, V, 270. 
 Brev. Dig. 313; Prencli v. French, 3 N. H. (2) 1 Cruise, 375; Brent's case, 2 Leon. 18. 
 256; Walk. Intro. 310; Thompson i). Gibson, 1 
 
 (a) In Virginia, it is said, under the statutes of 1792, a use is executed, only in deeds of 
 bargain and sale, lease and release, and covenants to stand seized. 1 Lom. Dig. 188. 
 Whether the statute is in force in Vermont, qu. 'WilUatou v. White, 11 Verm. 40. 
 
CHAP. XXI.] 
 
 USES AND TRUSTS. 
 
 295 
 
 The queen, however, relinquished 
 
 by forfeiture, clear of the use. 
 them to the cestui.{l) 
 
 6. Under the words of the statute, " any person or persons," a cor- 
 poration cannot be seized to uses, nor an alien. And where lands are 
 conveyed to a citizen and an alien to the use of another, the share of 
 the alien shall be forfeited.(2) 
 
 7. Under the word seized in this statute, a person may hold any es- 
 tate of freehold to uses. If the estate is less than a fee-simple, the use 
 will continue while the estate lasts, but no longer. Thus it is said to be 
 now settled, thongh formerly doubted, that a tenant in tail may be 
 seized to uses. If the use is in fee, it is a fee-simple, determinable upon 
 the death of the tenant in tail without issue. So, a tenant for life may 
 be seized to a use, which will terminate at his death.(3)(a) 
 
 8. Under the words of the statute, any kind of real property, Avhether 
 corporeal or incorporeal, in possession, remainder or reversion, may be 
 conveyed to uses, provided the estate is in the ownership of the grantor 
 at the time of conveyance. And, if the estate is a rent, it may be so 
 limited, though created de novo by the conveyance.(4)(J) 
 
 9. A use requires a cestui in esse, and cannot therefore take effect, if 
 limited to a person not in esse, or an uncertain person. (5) 
 
 10. A cestui may take any estate known to the law.(6) 
 
 11. All persons may be cestuis que use, who are capable of holding 
 lands at common law. Corporations are expressly named in the statute. 
 
 12. In general, the statute of uses is not applicable, unless the fe- 
 offee to uses and cestui are different persons. Where the same person 
 is both feoffee and cestui, he will never take by the statute, except there 
 be a direct impossibility or impertinency for the use to take effect by 
 
 (1) Pimb's case, Moo. 196 ; Co. Lit. 13 a, 
 n. 7. 
 
 (2) Bao. Read. 42, 57; King ti. Boys, Dyer, 
 2S3. 
 
 (3) Jenkins !J. Toung. Cro. Car. 231 j Read. 
 57 ; Plow. 557 ; Co. Lit. 19 b; 1 Cruise, 376; 
 Dyer, 186 a ; Crawley's case, 2 And. 130 ; 
 
 Fox V. Plielps, 20 Wend. 437 ; Payne v. Sale, 
 2 Dev. & B. 455. 
 
 (4) Yelverton v. Yelyerton. Cro. Eliz. 401 ; 
 22 Yin. 217 ; Read. 43. 
 
 (5) 1 Cruise, 380. 
 
 (6) lb. 
 
 {a) On the otiier band, if tlio pnrty seized to uses takes a fee, the cestui may do the same 
 without words of inheritance. Devise to A and B, and their heirs, to the use of C for life, 
 after his death, to the use of D and B, as tenants in conamon. Held, D and B took a fee- 
 simple. Knight V. Selby. 3 Man. & G. 92. 
 
 If one take ati estate in trust for another and his heirs, the legal estate of the trustee is 
 commensurate with the equitable estate of the cestui que trust, which is a fee simple. New- 
 hall V. "Wlieeler, 7 Mass. 189. 
 
 The trustee takes an estate large enough for the purposes of his trust, and no larger. 
 Norton v. Norton, 2 Sandf. 296, 
 
 In 17 94, A executed a deed to B and six others, as "trustees of Methodist Society; ha- 
 liendum to said grantees, in their capacity aforesaid of trustees;" the cestui que trust beiag 
 an unincorporated association. In 1848, B became the sole survivor of such grantees; his 
 title having never been extinguished, by any release or other act of his. After the grant, 
 the Society used and occupied the premises, for more than fifteen years, in support and fur- 
 therance of the object contemplated by the deed. In an action of ejectment, brought by B, 
 against members of the Methodist Society, assuming to act officially, it was held, 1. That 
 B and the other grantees had a freehold estate of such a duration as was necessary to eflfect 
 the purposes of the trust; 2. That the title of B had not been divested by the occupation 
 of the defendants, such occupation not having been adverse to B's title. Burrows v. Holt, 
 20 Conn. 459. 
 
 (b) Limitations in trust to preserve contingent remainders, when such trusts were legal, 
 were not executed by the statute of uses. Vanderheyden v. Craudall, 2 Denio, 9. 
 
296 
 
 USES AND TRUSTS. 
 
 [CHAP. XXI. 
 
 the common law. The words of the statute are, " seized to the use of 
 some other person."(l) 
 
 13. Hence the principle above stated, that the estate of the cestui 
 cannot exceed that of the feoffee, is inapplicable to this case. Thus, 
 where a conveyance is made to a man and wife, habendum to the use 
 of them and the heirs of their bodies ; they take an estate tail, as they 
 would if the words " the use of," had been omitted. It is not a use di- 
 vided from the estate, but the use and estate go together. It is no lim- 
 itation of the use, but a limitation of the estate. So, a conveyance to 
 one, to hold to him and his heirs, " to the use and behoof" of him and his 
 heirs forever, passes the fee by the common law; the words meaning 
 only "for his and their sole benefit," and indicating in how ample and 
 beneficial a manner the grantee is to take the estate, without return 
 of any service whatever to the grantor. The same construction is 
 given, in case of a conveyance to one and his assigns, habendum to him 
 and his assigns, to the only use and behoof of him and his assigns du- 
 ring his life ; or a conveyance to A, to hold to him and his heirs, to 
 the only use of them during the lives of B, C and D.(2) 
 
 14. But there are other cases of similar character, where a use is exe- 
 cuted by the statute, in order to satisfy the parties' intention. Thus, 
 where a conveyance is made to a person and his heirs, to the use of him 
 and the heirs of his body ; or where one covenants with another, that 
 he and his heirs will stand seized to the use of himself and the heirs of 
 his body ; or to the use of himself for life, remainder over in fee ; in 
 each of these cases, the use is executed by the statute according to the 
 limitation. (3) 
 
 15. Finally, there must be a use in esse, in possession, remainder or 
 reversion. (4) 
 
 16. It was formerly supposed that the statute of uses, being a mere 
 act of Parliament, transferred to the cestui que use only a civil seizin, or 
 seizin in law. But the well-established doctrine now is, founded upon 
 the words " shall be in lawful seizin, estate and possession to all intents, 
 constructions and purposes in the law," that the ac^waZ possession of the 
 land vests in the cestui.{5) 
 
 17. By virtue of a saving clause in the statute, where a feoffee to 
 uses previously had an estate in the same land, such estate shall not be 
 merged or destroyed by the conveyance to uses. It is said, the inten- 
 tion of that statute was not to destroy prior estates, but to preserve 
 them. (6) 
 
 18. And where land was first leased for years, and afterwards con- 
 veyed to the lessee and others in fee, to their use, to the intent that a 
 common recovery shall be had against them to the use of a stranger, 
 which was afterwards done ; held, although there was a temporary 
 merger till the recovery was suffered, yet, when this took place, it had 
 relation back to the conveyance, and restored the term for years.(7) 
 
 19. Upon the same principle, it seems, where the subsequent convey- 
 
 (1) Read. 63. 
 
 (2) Jenkins v. Young, Cro. Car. 230; Pyer, 
 ]86 a, n.; Meredith v. Jones, Cro. Car. 244; 
 1 ailb. Rep. 16-17 ; 2 Bootti's Cas. and Opin. 
 281; Wilson v. Chefahire, 1 M'Cord's Cha. 
 233. 
 
 (3) Read. 63 ; Sammes' case, 13 Rep. 56. 
 
 (4) Chudleigh's case, 1 Rep. 126 a. 
 
 (5) Co. Lit. 266 b ; Gilb. Uses, 230; Bliss 
 V. Smith, 1 Alab. (S. S.) 273. 
 
 (6) 1 Cruise, 385 ; Ferrers v. Fermor, Cro. 
 Jac. 643. 
 
 (7) Ferrers v. Fermor, Cro. Jac. 643; 1 
 Ventr. 195 ; Fountain v. Coke, 1 Mod. 107. 
 
CHAP. XXI.] 
 
 USES AND TRUSTS. 
 
 297 
 
 ance to uses, in England, is by lease and release, (a form not practiced in 
 the United States,) this lease, although prior to the release, does not 
 merge the old estate for years; although, by accepting it, the lessee ad- 
 mits the lessor's power to make a lease. The lease, being made ex- 
 pressly to enable the lessee to accept a release to uses, shall not be con- 
 strued as made to his own use ; and, if the old estate for years were 
 extinguished, it is revived by the release.(l) 
 
 20. The preamble to the statute of uses sets forth an intention to re- 
 store the ancient common law, and to extirpate such limitations and 
 conveyances as had grown up under the form of uses, inconsistent there- 
 with. Hence it was at first held, that, under that statute, uses must be 
 limited according to the rules of the common law ; so that no uses of 
 inheritance would be created, without the same technical expressions 
 required in common law conveyances. In other words, the estate in the 
 use, when it became an interest in the land under the statute, became 
 liable to all the rules of common law estates.(2) 
 
 21. But, on the other hand, the qualities, which had attended uses in 
 equity, followed them when they became an estate in the land itself. 
 The complex and modified interests annexed to uses were engrafted 
 upon the legal estate. Hence, the same departures from the common 
 law, in regard to the limitation of estates, have been allowed since the 
 statute as before. To these reference has already been made ; and they 
 will hereafter be more fully considered, under the titles of Remainder, 
 Powers and Devise. It is sufficient to state here, in general, that a fee 
 in a use may be limited upon a fee ; that a freehold estate may be made 
 to commence infuturo, without any preceding estate to support it ; and 
 that the part}' who creates the uses may reserve to himself a power of 
 revoking them, and appointing new uses in their place. It is said, that 
 in the two former cases, the uses, being limited to take effect upon the 
 happening of some contingency specified in the deed, come in esse by 
 act of God ; while in the latter case they arise by the act of man. Both 
 are future or contingent uses till the act is done; and afterwards, by the 
 operation of the statute, actual estates. (3) 
 
 22. Both before and since the statute of uses, if a person convey 
 land without consideration, and without anything to show a different 
 intent ; the conveyance is held to be made to his own use, and not that 
 of the grantee ; and such a use is executed by the statute, so that in fact 
 no estate passes from the grantor, but he remains seized as before. The 
 law will not presume that a man intends to give away his estate. Such 
 a use is called a resulting use.(4) 
 
 2y. It is said, that so much of the use, as the owner of the land does 
 not dispose of, remains in him. (5) Thus, in England, if he levy a fine 
 or suffer a recovery, without consideration, and without declaring any 
 uses, the whole estate remains in him as before, whether in possession 
 or reversion ; while, if certain uses are declared, he retains all that is 
 left of the old estate, after these uses are satisfied. So, if one convey 
 land to the use of such person or persons, and for such estate and es- 
 
 (1) Cook V. Pountain, Bac. Abr. Lease R. 
 
 (2) 1 Rep. 129 b; Corbet's case, 1 Rep. 
 87 b. 
 
 (3) 4 Kent, 289 ; lb. 290 ; Hopkins v. Hop- 
 kins, 1 Atk. 591 ; 1 Cruise, 393. 
 
 (4) Abbot J). Burton, 11 Mod. 182; Dyer, 
 14fi b. 
 
 (5) Co. Lit. 23 a, 271 a; Dyer, 166a; Arm- 
 strong V. Wolsey, 2 Wil. 19. 
 
298 
 
 USES AND TRUSTS. 
 
 [CHAP. XXI. 
 
 tates, as he shall appoint by his will, or to the use of himself and his 
 intended wife after marriage ; till such appointment is made, or till such 
 marriage occurs, the use results to him.(l) 
 
 2i. The use will result, according to the estate which the parties who 
 create or declare it had in the land, being bat a trust and confidence, 
 and therefore not subject to technical estoppels and conclusions. Thus, 
 if husband and wife join in a conveyance of her land, the use results to 
 her alone. So in case of joint tenants. So, if a particular tenant and 
 the reversioner join in the deed, each takes back his former respective 
 estate ; and, if the former declare uses and not the latter, a use results 
 to the latter alone. And if one having no interest in the land joins the 
 owner in the deed, nothing results to the former.(2) 
 
 25. If uses are declared, but to take effect from and after the death 
 of the grantor, a use results to him for life.(3) 
 
 26. A, in consideration of the marriage of B, his son, conveys to the 
 use of B, for life, remainder to B's wife lor life, remainder to B's first 
 and other sons in tail, remainder to the heirs male of the body of A. 
 Inasmuch as the estates to B, his wife and issue, may terminate before 
 A's death, a use results to him expectant upon such termination. (4) 
 
 27. But if an intermediate remainder is limited to trustees, in trust 
 to support contingent remainders, but to permit the grantor to receive 
 the rents and profits for life ; no use results to him.(5) 
 
 28. Where a use expressly declared is the same which would result 
 to the grantor, the declaration is void, and he takes a resulting use. 
 Thus, where a remainder is limited to the use of his own I'ight heirs, 
 he retains a reversionary interest, the limitation being void. (6) 
 
 29. Eesulting uses arise from those conveyances, vfhich operate by 
 a change of possession ; such as a feoffment, or, in the United States, a 
 grant. Substantially the same principles apply to those conveyances, 
 in which the owner nominally does not part with possession, and of 
 which the only one known in this country, is a covenant to stand seized. 
 In this case, so much of the use as is not expressly disposed of re- 
 mains in the covenantor, under the name of a use b}'' implication. 
 Thus, where one covenants with another, to stand seized to the use of 
 the heirs of his own body by a certain wife, as he can have no heirs 
 while living, a use by implication remains to him for life. So, if no 
 use arises for want of consideration or any other cause, a use by impU- 
 cation arises to the covenantor.(7) 
 
 30. ISTo use will result, where any circumstance shows a manifest 
 intent to the contrary. Thus, where a recovery is suffered, or a con- 
 veyance is made, to the intent or on condition, that the party receiving 
 the land shall make an estate limited in a certain way ; no use results, 
 because then he would be unable to make an estate, as provided for. 
 But, if this is not done in reasonable time, it seems, a use will result.(8) 
 
 (1) Co. Lit. 23 a, 271 a; Dyer, 166 a; 
 Clera'a case. 6 Rep. 17 b; Woodliffj;. Drury, 
 Cro. Eliz. 439. 
 
 (2) Beokwith'a case, 2 Rep. 58 a; Dyer, 
 146 b ; Davis v. Speed, Sliow. Caa. in Pari. 
 104; Roe V Popham, Doug. 24. 
 
 (3) Peniiay v. Harrell, 2 Tern. 370 ; 2 
 Pree. 258. 
 
 (4) Wills V. Palmer, 1 Cruise, 295. 
 
 (5) Tippin V. Coson, 4 Mod. 380 ; 1 Lord 
 Rsy. 33. 
 
 (6) Read v. Brrington, Cro. Eliz. 321; 
 Penwick v. Mitforth, Moo. 284; Slade's case, 
 2 Rep. 91 b. 
 
 7) Pibus V. Mitford, 1 Tent. 327. 
 (8) Hummerston's case, Dyer, 166 a, n. 9; 
 Winniugton's case, Jenis. Cent. 6 Ca. 44. 
 
CHAP. SXI.] 
 
 USES AND TRUST& 
 
 299 
 
 31. So, where the grantee is to make an estate to such person as the 
 grantor shall name, and it is stipulated that he shall be seized to no 
 other use than the one specified ; the grantee holds to his own use till 
 an appointment is made, or, if the grantor dies without making one, to 
 the use of his heirs. 
 
 32. As resulting uses depend upon intention, parol evidence is ad- 
 missible in regard to such intention. The statute of frauds, requiring 
 uses to be proved by some writing, is applicable only where third per- 
 sons are beneficially interested. (1) 
 
 33. No use will result, where an estate is expressly limited to the 
 grantor, with which a resulting estate would be inconsistent. 
 
 34. Thus it is said, if a feoffment in fee be made to the use of the 
 feoffor for life or for years, no use results, because the particular estate 
 would merge in the fee, if they were held by one person. Otherwise, 
 if it were an estate tail, and not for life or for years ; because that might 
 exist with the fee-simple.(2) 
 
 35. So, where one limits an estate to the use of himself for years, 
 remainder to trustees, remainder to his heirs ; no estate for life results 
 to him, because the term for years would merge therein. (3) 
 
 36. The doctrine of resulting uses applies only to conveyances in fee- 
 simple ; not to the creation of lesser estates in tail, for life or for years, 
 though made without consideration, or the declaration of any uses. 
 This distinction is founded partly upon usage, but chiefly upon the 
 principle, that the tenure, rent and liability to forfeiture, incident to 
 these lesser estates, constitute of themselves a sufficient legal considera- 
 tion. The same rule applies, where a tenant for life or for years assigns 
 his estate. And, even though he declares the use of part of the estate, 
 no use results to him for the remainder.(4) 
 
 37. A, a tenant for life, conveys to B, to the use of B for the life of 
 A and B, and, if B died, living A, remainder to C. B dies, living A ; 
 C enters, leases to D, and dies, living A. Held, there was no resulting 
 use to A, but D should continue to hold as special occupant, during 
 A's life.(5) 
 
 38. As a devise imports a bounty, it will always be to the use of the 
 devisee, unless a contrary intent is manifest, and no use will result to 
 the heirs of the devisor. But, where one is a devisee to uses, which 
 from any cause fail, a use results to the heir.(6) 
 
 (1) Roe V. Popharn, Doug. 25 ; Altham v. 
 Anglesea, 11 Mod. 214. 
 
 (2) Dyer, Ul b, n. 46. 
 
 (3) Adams v. Savage, 2 Salk. 619; Raw- 
 ley V. Holland, 2 Abr. Eq. 753 ; 2 2 Tin. 188, 
 pi. II. 
 
 (4) Bro. Abr. Feoffment al Use, pi. 10; 
 Dyer, 146 b ; Perk. 534-5. 
 
 (5) Castle v. Dod, Cro. Jao. 200. 
 
 (6) 1 Cruise, 300. 
 
300 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 [CHAP. xxn. 
 
 CHAPTER XXII. 
 
 TRUSTS.— EXPRESS TRUSTS. 
 
 1. Trusts in general. 
 
 3. Trusts in real estate. 
 
 4. Uses preferred to. 
 
 5. Classifications of trusts. 
 
 8. How created — use upon a use. 
 
 11. "Where the uses require a legal estate 
 
 in the trustee. 
 
 12. Intention of parties. 
 
 16. Trusts for married women. 
 24. Limitations with authority to mort- 
 gage, &c. 
 
 27. Trust ceases when the objects are 
 
 effected. 
 32. Or when the cestui alienates. 
 34. Lands subjected to payment of debts 
 
 — not necessarily a trust estate. 
 
 36. Wliere tlie estate is less than freehold 
 — a trust. 
 
 37. Express trust, how created — statute 
 
 of frauds, &o. — need not be declared^ 
 but only proved, by writing. 
 
 1. Teusts, in genera], constitute one of the most common relations 
 known to the law. It has been said that a trust exists, wherever one 
 person is managing the funds of another. A trust, technically speaking, 
 may be defined, as an equitable right, title or interest in property, dis- 
 tinct from the legal ownership thereof.(l.) 
 
 2. Where one person is in possession of property which he is bound 
 to deliver to another, and he fails to do so, equity raises an implied 
 trust, which is subject to the rules and principles of trust estates. What- 
 soever is the agreement concerning any subject, real or personal, though 
 in form and construction purely personal and suable at laAV only, yet 
 in equity it binds the conscience and raises a trust.(2)(a) 
 
 3. A trust, in relation to real estate, is a use not executed by the statute 
 of uses. Before this statute, a use and a trust -were substantially the 
 same thing, and the statute itself uses the words synonymously .(&) But 
 
 (1) Hulse V. Wright, Wright, 61 ; 2 Story 
 on Equ. 230 ; Crumplon v. Ballard, 1 Shaw, 
 N. S. 251 ; Garrard v. Lauderdale, 3 Sim. 1 : 
 
 Talbott W.Todd, 5 Dana, 199 ; Pooley i). Budd, 
 1 Eng. L. A Equ. 229. 
 
 (2) Wamburzee v. Kennedy, 4 Des. 47T. 
 
 (a) A testator devised to each of his five children a large amount of personal and real 
 estate, " subject to the payment of one hundred dollars" each, to A, when she should arrive 
 at the age of eighteen. Held, this payment was a trust to be performed by the children 
 respectively, and not a duty imposed upon the executor. Philips v. Humphrey, 7 Ired. 
 Equ. 206. 
 
 Such legacy is a lien on the property; and a purchaser of a portion of it, with notice, was 
 held liable to pay to A the proportion of her legacy, which the legatees and devisees of 
 whom he purchased were bound to contribute respectively, and had failed to do. lb. 
 
 Where a husband, by his will, gave the entire profits of all his estate to his wife during 
 her life, and entrusted to her the education and maintenance of hiS children, and provided, 
 also, for the maintenance and education of his children "out of the profits" of his estate; 
 held, the wife took an estate, coupled with a trust for the education and support of the 
 children; that the property was not liable for the debts of the wife; and that, if slie refused 
 to protect tlie same from being seized for her debts, it was the duty of the administrator of 
 her hushand to do so. Lucas v. Lockhart, 10 S. & M. 466. 
 
 A devisee, who accepts a devise charged with debts or legacies, is in equity a trustee, to 
 the extent of such charge, and equity will compel the execution of such trust. Mahar v. 
 O'Hara, 4 Gilm. 424. 
 
 (6) It is said, the word " trust" referred rather to the person in whom the confidence was 
 reposed; "use," to the party beneficially interested. 1 Steph. 329, n. 
 
 A deed to A, B, and 0, their heirs,»&c., in trust for the only proper use of the grantors 
 during life, and then for the use of their grandchildren, conveys the legal estate as an exe- 
 cuted use, and not a trust. Jonea v. Bush, 4 Harring, 1. 
 
CHAP. XXII.] 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 801 
 
 the judicial construction given to this act has rendered it inapplicable 
 to several cases, which will be presently mentioned ; and, in such cases, 
 the estate of the party beneficially interested is now termed, not a use, 
 but a trust. It is an estate, for the most part, recognized only by courts 
 of equity, and not by courts of law.(l) 
 
 4. In Massachusetts, before the Supreme Court had the Chancery 
 jurisdiction which it now possesses in relation to trusts, upon principles 
 of public policy, it was held that the court would, if possible, construe 
 a limitation to be an executed use rather than a trust.(2) 
 
 5. Trusts are either express or implied. The distinction between 
 these two kinds of trusts will be explained hereafter, in considering the 
 somewhat extensive subject of implied and resulting trusts. (See 
 ch. 23.) 
 
 6. Trusts are further divided into executed and executory. The former 
 are those "accurately created and defined by the parties," and are con- 
 strued like legal limitations. They are not subject to revocation. 
 Executory trusts are " where something remains to be done to com- 
 plete the intention of the parties, and their act is not final :" or where 
 the trustee has some duty to perform, requiring that the title remain in 
 him.(3) Executory trusts are construed liberally. (4:)(fl) 
 
 7. Lord Hardwicke seems to have rejected the distinction above- 
 mentioned, of executed and executory trusts; holding that an executed 
 trust is, in fact, a use executed by the statute, and that all trusts, from 
 their very nature, are executory, because they involve an obligation 
 ■upon the trustee, at some time or other, to convey the legal estate to 
 the cestui or for his benefit, whether the party creating the trust ex- 
 pressly so ordered or not. They are to be executed by subpoena.{5) 
 
 8. There are three direct modes of creating a trust. The first mode 
 is by limiting a use, or trust upon a use. In this case, the latter cestui 
 cannot take an executed use, because the statute requires that the 
 feoffee be seized of lands or tenements, which a use is not. Thus a con- 
 
 (1) 2 Tentr. 312 ; Ayer v. Aj'er, 16 Pick. 
 330; Fisher D. Fields, 10 John. 494; Bloiigh- 
 ton V. Langley, 2 Ld. Kay. 878; Watkitis v. 
 Holman, 16 Pet. 25; Conway, 4 Ark. 302 ; 
 Shoherv. Hauser, 4 Dev. & B. 96 ; Trotter v. 
 Blocker, 6 Por. 269; Kennedy v. Kennedy, 
 2 Ala. N. 572. 
 
 (2) Newhall v. Wheeler, 7 Maag. 198 ; 
 Davia J). Hayden, 9, 519; 2 Blackf. 198. 
 
 (3) 2 Story, on Bqu. 246-7, and n. ; Jer- 
 voiaev. Northamberland, 1 Jac. & Walk. 550; 
 Rycroft v. Chriaty. 3 Beav. 238; Berry v. 
 Williamaon, 11 B. Mon. 245 : Porter v. Doby, 
 2 Rich. Equ. 49; Schley v. Lyon, 6 Geo. 530. 
 
 (4) 1 Siory, 74, 247, 250. See Bunn v. 
 Winthrop, L John. Cha. 336. 
 
 (5) Bagaliaw v. Spencer, 1 Coll. Jurid. 
 413. 
 
 (a) The rule in Shelley's case does not apply to them. Porter v. Doby, 2 Rich. Equ. 119. 
 Of this nature are marriage articles, whicli are always construed liberally in favor of the 
 issue, for whose benefit they are chiefly designed. The same principle does not apply to 
 settlements in wills, which are a mere bounty. And equity will not enforce marriage articles 
 in favor o( volunteers, or other parties than the wife and issue or their representatives. But 
 if enforced for tlie latter, they will alao be enforced in favor of the former. See Neves v. 
 Scott, 13 How. 268. 
 
 A testator devised property to A in trust, to apply the proceeds to the maintenance of B 
 and C during life, and, on their decease, to the heirs of B. Held, an executory trust, and 
 that, on the death of B, the estate vested in his heirs as purchasers. Porter v. Doby, 2 
 Rich. Kqu. 119. 
 
 Where a trust is merely voluntary, and the transaction, on which it is based, is still exe- 
 cutory ; it is not a proper subject oi^ equity jurisdiction. Clarke v. Lott, 11 111. 105. 
 
802 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 [CHAP. XXIL 
 
 veyance or devise to A, to the use of B, in trust for or to the use of C, 
 gives C a trust, the legal estate being executed in B.(l)(a) 
 
 9. So, where there is an appointment to uses, under a power, or a 
 covenant to stand seized with one person to the use of another; the 
 cestui takes only a trust estate. 
 
 10. With regard to devises, it has been held, that, where there is no 
 necessity for the trustee's taking the legal estate, and the intention is 
 clearly otherwise, the above rule shall not be adopted. And, in one 
 case, this principle was extended even to a deed. (2) 
 
 11. A second mode of creating a trust, is the limitation of an estate 
 to one for the use of another, in such a way as requires that the former 
 should be in possession or receipt of the profits ; as where it is pro- 
 vided, that he shall take the profits and deliver them, to the cestui, or that 
 he s\\a\\ pay over the profits to him, or permit him to take the net rents 
 and profits, subject to a rent-charge, and with remainders over. A 
 provision that the cestui should take the profits, or even that the feoffee 
 should permit him to receive them, would make an executed use ; be- 
 cause, in order to carry it into effect, the trustee need not be in posses- 
 sion. But, in order to receive rents and profits for another's use, the 
 trustee must have the legal estate. If this is in the cestui, a mere 
 power in trust to the trustee is of no effect. A trust for the support 
 oi infants requires that the trustee he pernor of the profits.(3) 
 
 12. In case of a devise, whether the trustee or the cestui shall take 
 the legal estate, will depend upon the intention of the testator, as 
 appearing from the circumstances. If the trustee is to do any act 
 requiring a legal estate, it will vest in him, notAvithstanding he is to 
 permit the cestui to receive the rents and profits. Thus, where the 
 trustee is to pay annuities, or, after deducting taxes, repairs and expenses, 
 to pay over the surplus, or, to apply the rents and profits to the main- 
 tenance and education of a son ; the trustee takes a legal estate. (4) 
 
 12 a. Devise of land, to be sold, and the proceeds paid to certain 
 devisees ; held, the title vested in the heirs at law, in trust for the 
 devisees.(5)(/j) 
 
 (1) Marwood v. Darrill, Cas. Temp. Hard. 
 91; Whetstone v. Bury, 2 P. Wms. 146; 
 Att'y-Gen. v. Scott, For. 138; Hopldns v. 
 Hopkins, 1 Atk. 581 ; Venables v. Morris, 7 
 T. R. .S-t2, 438 ; Franoiscus v. Reigurt, 4 
 TVatts, 108; Doe v. Passingliam, 6 Barn. & 
 C. 305; Yander &c. v. Tales, 3 Barb. Cli. 
 242 
 
 (2) 1 Cruise, 304, cites Boteler v. Alington, 
 1 Bro. Rep. 72 ; Doe v. Hicks, 7 T. R. 433 ; 
 Curtis V. Price, 12 Ves. 89. 
 
 (3) Bro Abr. Feoffment al. Use, 52; 
 Broughton V. Langley, 2 Lord Raym. 873; 
 
 Wood V. Wood, 5 Paige, 114; 2 Pick. 460; 
 Franciseus v. Reigart, 4 Watts, 109; Ayer 
 V. Ayer, 16 Pick. 330; Wrotli v. Greenwood, 
 1 Home &,H. 389; Tilly j). Tilly, 2 Bland, 
 442. See Doe v. Bolton, 11 Ad. & El. 188; 
 Morton v. Barrett, 9 Shepl. 257; Stuart «. 
 Kissam, 3 Barb. 493 ; Upham v. Varney, 15 
 N. H. 462. 
 
 (4) Fearne's Opin. 422 ; Chapman v, Blis- 
 sett, For. 145; Sliapland v. Smith, 1 Bro. B. 
 75; Silvester v. Wilson, 2 T. R. 444; 
 MoCosker v. Brady, 1 Barb. Gh. 329. 
 
 (5) Burgln v, Clienault, 9 B. Mon. 285. 
 
 (a) It was once doubted whether this doctrine was adopted in Massachusetts. Thatcher 
 V. Omans, 3 Pick 528. The principle is roughly handled by Lord Mansfield in Goodright v. 
 Wells, 2 Dougl. 774. 
 
 (&) Where land is devised to trustees, in trust to sell, and apply the proceeds to certain 
 specified objects, without any limitation as to the continuance of the trust ; the title will 
 continue in the trustees until the land is sold, or until a court of equity, upon the applica- 
 tion of the beneficiary of the trust, or some person having a right to call the trustees to an 
 account, shall remove them. Duke, kc. v. Graves, 9 Barb. 595. 
 
 In an action of ejectment, brought by such trustees, the defendant, who shows no title, 
 cannot object that, by their delay in executing the trust, the plaintiffs are divested of the 
 title. lb. 
 
CHAP. SXII.] TRUSTS. EXPRESS TRUSTS. g03 
 
 13. And the same test of intention has been applied to a convey- 
 ance. 
 
 14. A conveys land to B, and D, selectmen of the town of IST., 
 habendum to them or their successors, iu trust for the use of N. for- 
 ever ; upon the condition, however, that, if A shall support himself 
 and indemnify the town against his support, the deed, as also a bond 
 conditioned for such support, to be void. Held, as the bond belonged 
 to B, C and D, not to the town, and as the deed was merely collateral 
 to the bond, such construction should be given to the former, as would 
 best effect its object, according to the presumed intention of the grantor; 
 and therefore B, C and D took a trust, not an executed use.(l) 
 
 15. A, holding a note and mortgage against B, devises them to C, 
 B's son, on condition that he allow B to occupy the land for life, and 
 npon the trust of supporting certain persons named. Held, this was a 
 trust, not an executed use, and that B had no legal life estate, liable to 
 be taken by his creditors. (2) 
 
 16. Where a cestui que trust is a married woman, and the provision 
 is made for her separate benefit, clearlj' and distinctly, the law usually 
 vests the legal estate in the trustee, and gives her only an equitable 
 interest, because this will best effect the object in view. No particular 
 form of words is necessary. (a) The husband may be himself a trustee 
 for the wife. 
 
 (1) Norton v. Leonard, 12 Pick. 152; 16 I (2) Merrill v. Brown, 12 Pick. 216. 
 Pick. 330. I 
 
 Wliere a will, valid on its face, conveys real estate in trust, and tlic objects aro clearly 
 defined, and are not, at the time the will takes effect, illegal, the trustees acquire a perfect 
 le^iil title; and, in an action of ejectment brought by them against a stranger and intruder, 
 without color or claim of title adverse to that of llie plaintiffs, the latter cannot be required, 
 in tl]e first instance, to make any further proof of title, than to prove the execution of the 
 will. They are not bound to sliow who are tlie cestuis que trust. lb. 
 
 If facts have transpired since tlie death of the testator, or any otiier circumstances exist, 
 by which the trust lias come to an end, it is incumbent on the defend;int to prove them. lb. 
 
 Wliere a testator devised all his real estate, in America or the West Indies, to trustees, in 
 trust to sell, dispose of, or otherwise convert the same into money, and apply tlie proceeds, 
 first in payment of his debts, and the residue in purchasing real estate in Scotland, to be 
 conveyed and settled for the uses and trusts expressed in a settlement or deed of disposi- 
 tion which he had executed of his estates in Scotland ; held, if tlie will was good and legal 
 on its face, to pass the title to the trustees, it was sufficient (or the purpose of an ejectment 
 brought by them, for a portion of the lands devised ; and that they were not bound to pro- 
 duce and prove tlie deed of disposition ref(3rred to in the will. lb. 
 
 (a) Devise to A and his heirs forever, in trust for B, afime covert, for life, and to such 
 uses as she, notwithstanding any coverture, shall appoint ; and, after her death, to the use 
 of lier heirs. Held, an equitable fee-simple in the first cestui que trust. Armstrong v. Zane, 
 12 Ohio, 287. See Blacklow v. Laws, 2 Hare, 49. 
 
 A, being the only son of his moiher, B, by her first husband, and B being his heir, da- 
 vised land to B, "to hold to her, her heirs and assigns, to be for the sole use of her, her 
 heirs, executors, administrators and assigns." The mother had a second husband, who was 
 intemperate and without capacity, and she lived apart from him, and supported herself by 
 labor. Held, she took the property to her own separate use, and it was not liable for the 
 husband's debts. Smith v. Wells, 7 Met. 240, 
 
 W conveyed land and slaves to L, in trust for his wife E during her life, and, after her 
 death, to her children, with power to E, by and with the consent of the trustee, to sell and 
 reinvest the proceeds upon the same trusts. L purchased a tract of land, stock and grow- 
 ing crops from A, and hired his slaves to assist in making the crop. In payment she gave 
 her notes, secured by mortgages on her trust property. Held, it was competent for her to 
 make this contract. Wayne v. Myddleton, 2 Kelly, 383. 
 
 A testator directed, that his daughter's share of his estate should be held in trust for her 
 use, during the joint lives of herself and her husband, and, in case of her husband's death, 
 the trust-money to be paid to her ; and, in case of her husband's surviving her, her share to 
 
SOi 
 
 TRTTSTS. EXPRESS TRUSTS. 
 
 [CHAP. xxir. 
 
 17. Thus, a mother, in considtixdion of love and good will for her 
 daughter, a married woman, conveys land to one "in trust, and for the 
 sole°use and benefit" of the daughter during her life. Held, a trust 
 estate.(l) 
 
 18. Devise in trust, for the equal use and benefit of the four sisters 
 of the testator, two of whom were femes covert, in fee, to be managed 
 as the trustees should think most for the interest of the parties. Held, 
 a trust. (2) 
 
 19. Devise to trustees and their heirs, in trust for a married woman 
 and her heirs ; and that the trustees should, from time to_ time, pay 
 and dispose of the rents to the said married woman, wii-hout the 
 intermeddling of her husband. Held, a trust, and not an executed 
 use. (3) 
 
 20. Devise of rents to a married woman for life, to be paid by the 
 executors into her own hands, without the intermeddling of her hus- 
 band. Lord Holt held, that the trustees took the legal estate. The 
 other judges thought otherwise.(4) 
 
 21. Devise to trustees and their heirs, in trust to pay several lega- 
 cies and annuities, and then to pay the surplus rents into the proper 
 hands of a married woman, and, after her death, that the trustees 
 should stand seized to the use of the heirs of her body. Held, during 
 her life, the trustees took a legal estate ; but, after her death, a use 
 was executed in her heirs.(5) 
 
 22. In such cases, it has been said, the trustees take the legal estate 
 by way of an executed use.(6) 
 
 23. A testator devised to his grand-children, the children of A, his 
 daughter, all his estate, to be equally divided between them at her 
 death. He also devised the use of the estate for the support of A 
 and her children, daring her life ; and, to carry into effect this pro- 
 
 (1) Ayer v Ayer, 16 Pick. 327. See 1 
 Home and H. 389 ; Stuart v. Kissam, 3 
 Barb. 493; Mass. St. 1852, 6T ; Porter v. 
 Bank, &o., 19 Verm. 410. See Stanton v. 
 Hall, 2 Ru3.s. & My. 175; Tyler v. Liike, 4 
 Sim. 144; Rogers v. Ludlow, 3 Sandi; Cli. 
 104'; Diekerson, 7 Barr, 255. 
 
 (2) Bas3 V. Seott, 2 Leigli, 356. 
 
 (3) Novill V. Saunders, 1 Ver. 415. 
 
 (4) South v. Allen, 5 Mod, 101; Bufih'!). 
 Allen, lb. 63 ; South V. AUeine, 1 Salk. 228. 
 
 (5) Say V. Jones, 1 Abr. Eq. 383 ; Say v. 
 Jones, 3 Bro. Pari. Oas. 113. 
 
 (6) Harton v. Harton, 7 T. R. 652. 
 
 be paid to her children. Held, the husband interposing no claim, that, as against other 
 legatees, her children were entitled at her death to interest accrued, but not reduced to 
 possession, during Ijer life. Tundt's Appeal, 1 Harris, 575. 
 
 In New York, a trust, authorizing the trustee to control, manage, sell and dispose of the 
 trust estate, and the income , and pay over the same to a married woman for her support and 
 maintenance; is substantially a trust to receive the rents and profits, and apply the same 
 to her use, within the statute of trusts, and is therefore valid. Campbell v. Low, 9 Barb. 
 5S5. 
 
 Where husband and wife convey land -belonging to her to a trustee, in trust to sell the 
 same for the use of the grantors; the land being unsold, the trustee is not entitled to hold 
 it, as against a subsequent 6o7ia;?d« mortgagee without notice, in satisfaction of debts due to 
 him from the husband, before the mortgage was executed. Siter v. McClanaohan, 2 Gratt. 
 280. 
 
 And parol evidence, in such case, is not admissible, to show that such was the agreement 
 at the time of making the deed of trust. lb. 
 
 So, the trustee, being also a prior mortgagee of tlie same land, cannot tack debts due him 
 from tlie husband to his prior mortgage, to the prejudice of the subsequent mortgagee. lb. 
 
 Contrary, it would seem, to the general rule, it has been held in South Carolina, that a 
 devise to a wife, " to be by her freely enjoyed to every intent and purpose, as her own in 
 every respect," did not create a separate estate in her. Wilson v. Bailer, 3 Strobh. Bq. 258. 
 
CHAP. XXri.] TRUSTS. EXPRESS TRUSTS. 305 
 
 vision, he appointed A and B trustees of the estate. Held, a trust 
 e state. (1) 
 
 24 A conveyance or devise to trustees and their heirs, in trust to 
 sell or mortgage, to raise money for payment of debts, passes the whole 
 legal estate to the trustees ; so that a subsequent limitation in trust 
 gives only an equitable interest to the cestui. 
 
 25. Devise to trustees, their heirs and assigns in trust, that they and 
 their heirs vshould first, by the rents and profits, or by sale or mort- 
 gage, raise money for payment of debts ; after which, to the trustees, 
 for five hundred years, without impeachment of waste, upon divers 
 trusts. After the termination of this term, devise to the trustees, their 
 heirs and assigns ; they to stand seized in trust to uses as follows : for one 
 moiety " I give and devise to the use and behoof of A for life," &c. 
 Held, A took only an equitable, not a legal interest ; because the 
 whole legal estate passed to the trustees, and would have passed even 
 without mention of their heirs, as necessary to the execution of the 
 trust ; and no legal remainder could therefore be limited upon it (2) 
 
 26. Conveyance to the use of trustees and their heirs, in trust to 
 sell, and with the proceeds purchase other lands, to be settled upon by 
 the grantors; with a proviso that, until a sale were made, the rents 
 should be received as before. Held, the use of the estate was executed 
 in the trustees, and that the proviso did not reserve any legal interest 
 or title to the gi'antors.(3) 
 
 27. But where the legal estate is vested in a trustee for the accom- 
 plishment of particular purposes, it will cease when those purposes 
 have been effected, and a use will be executed in the party who is next 
 beneficially, interested. This has been already seen in some of the ca- 
 ses relating to married women. (a) 
 
 28. Devise to trustees, in trust from the rents, &c., to pay two life 
 annuities; after payment thereof, in trust, from the residue of the rents 
 to pay to A a certain sum intrust. After payment of the annuities 
 and said sum, devise to B for life. The trustees were empowered to 
 grant building and other leases. Held, the trustees took the legal es- 
 tate for the lives of the annuitants, with a term in remainder sufficient 
 to raise the sum mentioned, subject to which B took a legal estate for 
 life.(4) 
 
 28 a. A husband conveyed to A, " her executors, administrators, 
 and assigns," all the estate which he had in the land of his wife, in vir- 
 tue of his relation as husband, in trust for the wife, "giving her full 
 power through her trustee to dispose of said property, collect rents, or 
 do any other matter or thing, relating to said property, without let or 
 hindrance" of the husband. Held, the trustee took an estatp for 
 the life of the wife only ; and that, on the death of the wife, living the 
 
 (1) Donalds v. Plum, 8 Conn. 447, r (4) Doe v. Simpson, 5 E. 162. See Doe v. 
 
 (2) Ba<fsliaHr v^ Spencer, 1 Coll. Jurid. Ellis. 4 Ad. & Kl. 582 ; v. Needs, 2 Mees. 
 
 3V8; Wright ii. Pearson, Fearne, 126. & W. 129. 
 
 (3) Keen v. Deardon, 8 E. 248. I 
 
 (a) So it is held, that where one is appointed trustee, by a marriage contract, for the soler 
 purpose of protecting the wife's property from the control of her husband, the trust is exe- 
 cutea immediately on the termination of the coverture, whether by her death or otherwise 
 and the property vests in her respresentatives. Liptrot v. Holmes, 1 Kelly, 381. 
 
 Vol. I. 20 
 
306 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 [CHAP. ssn. 
 
 husband, the trust, uot having been executed, ceased, and he was enti- 
 tled to his estate by the curtesy in the premises.(l) 
 
 29. A conveyance was made in New York, before the Eevised Sta- 
 tutes were passed, to A in fee, in trust for her daughter B, in fee, pro- 
 vided B did not die under age, and without issue; if she did, then for 
 the sole use of A in fee. A dies in the minority of B, leaving B her 
 sole heir. Held, the trust ceased with A's death, and the absolute es- 
 tate vested in B.(2) 
 
 30. Devise of a certain sum, to be for the separate use of A, the 
 daughter of the testator and the wife of B, for her life, free from the 
 debts of B. B died, and A married a second husband. The trust for 
 the separate use of A ceased with the death of B.(3) 
 
 31. Conveyance in trust, for the separate use of A for life, remainder 
 upon her death, to such child or children of A as may be then living, or 
 who shall marry or attain twenty-one years. Held, this created an ex- 
 ecuted trust, and a vested legal estate, in A's children on her death.(4) 
 
 31 a. Where the estate was not merely given in trust to the hus- 
 band, for the use and benefit of the wife, but for her separate use, there- 
 by creating a separate estate in her ; held, when the powers of the trus- 
 tee ceased by the limitation contained in the trust itself, he could no 
 longer hold the trust estate in his hands; and, if he died without trans- 
 ferring it to the cestui que trust, or disposing of it for her benefit or use, 
 the court should decree for her immediate possession. (5) 
 
 31 b. Where a trustee, under a deed of trust for the separate use of 
 a married woman, agreed by articles to convey the trust to A, in con- 
 sideration of certain sums to be paid for the maintenance of his cestui 
 que trust, and he subsequently conveyed the property to A, and took 
 a mortgage to secure a bond given for the purchase-money ; held, the 
 articles were merged in the conveyance and mortgage ; and the trustee 
 was entitled to recover the unpaid balance after the death of his cestui 
 que irust.{6) 
 
 31 c. A, having a long term in certain premises, conveyed them to a 
 trustee to receive the rents and profits, and apply them to the support 
 of B, during her natural life, and, after her death, to C, her heirs and 
 a-ssigns. Held, the trust ceased at the death of B, the residue of 
 the term then vested in possession in C, and the trustee could not after- 
 wards maintain ejectment against a stranger therefor.(7) 
 
 32. Upon a similar principle, a trust estate, created for the benefit of 
 the cestui, may be terminated or converted into a legal estate, ih c^m- 
 sequence of some act done by such cestui, which vests his interest in 
 third persons. 
 
 33. A testator devised property to trustees, to be applied to the sup- 
 port, &c., of A for life, as they should think proper ; the application 
 ibr his benefit to be at their entire direction ; and A to have no power 
 in any way to sell, mortgage, or anticipate the rents. A, being insol- 
 vent, made an assignment under the insolvent act to B. The Court of 
 Chancery decreed a conveyance of the land to B.(8) 
 
 (1) Norton v. Norton, 2 Sandf. 296. 
 
 (2) Dekay, i Paige, 40.?. 
 
 (3) Benson v. Benson, 6 Sim. 126. 
 
 (4) Spann !;. Jennings, 1 Hill's Cha. 324. 
 
 (5) Waring v. Waring, 10 B Mon. 331. 
 
 (6) Dinsmore v. Biggert, 9 Barr, 133. 
 
 (7) Nicoll V. Walworth, 4 Denio, 385. 
 (8J Green v. Spioer, Tam. 396. 
 
CHAP. XXII.] 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 30 
 
 34. Where lands are devised in trust, merely subjecting them to pay- 
 ment of debts will not vest a legal estate in the trustee. 
 
 35. Devise of real and personal estates to trustees and their heirs, 
 to the intent that they should first apply the per-sonal estate in pay- 
 ment of debts ; and as to the real estates, subject to debts, devise to A 
 for life, &c. Held, as there was nothing to show that the trustees were 
 to be active in the payment of debts, although convenience would so 
 suggest, they did not take the legal estate.(l) 
 
 36. The third case, in which the trustees take the legal and the ce,?- 
 tui ox\\y an equitable interest, is where the estate limited to the former 
 is hss than a fiieehold, and therefore not executed in the cestui by the 
 statute of uses ; which makes use of the word seized^ a word applicable 
 only to freehold estates.(2) 
 
 37. The English statute of frauds, (3 Cha. II., c. 3, sec. 7,) requires 
 all creations or declarations of trusts in real estate to be manifested and 
 proved by some writing signed by the party, or by his last will. Parol 
 trusts are contrary to the letter and spirit of the statute of frauds, and 
 are calculated to let in all the litigation, uncertainty and mischief 
 which that act intended to prevent.(3)(a) 
 
 38. It is said, that this statute did not extend to the Provinces, and 
 was never adopted in the State of Massachusetts.(4) But a similar pro- 
 vision has been made, it is believed, in nearly evei-y State in the 
 Union. (i) 
 
 39. In Ohio, before the statute of frauds, passed in 1810, a parol 
 trust was good. 
 
 40. In North Carolina, parol declarations of trust are valid.(5) So 
 also in some cases in Pennsylvania.(c) (See sec. 58.) But the declara- 
 tion must be made by the grantor of the estate. If made by the nomi- 
 nal grantee, it will be invalid, unless founded on the consideration that 
 
 (1) Kenrick v. Beauolerc, 3 B. & P. 115; 
 (Jenifer v. Beard, 4 Har. & McHenry, 73.) 
 
 (2) Bao. Read. 42 ; Dyer, 369 a. 
 
 (3) Per Sergeant, J., Graham ti. Donaldson, 
 5 "Watts, 452. See' Smitheal o. Gray, 1 
 Humph. 491 J Robson v. Harwell, 6 Geo. 
 
 589 ; Parker v. Bragg, 11 Humph. 212; Mil- 
 ler V. Gotten, 5 Geo. 341. 
 
 (4) Russel V. Lewis, 2 Pick. 508. 
 
 (5) Fleming v. Donahoe, 5 Ham. 256 ; Poy 
 V. J^'oy, 2 Hayw. 131. 
 
 (a) A declaration of trust need not be seaUd as well as signed. But it is held, that if such 
 declaration is unsealed, a consideration must be proved. Thompson v. Branch, 1 Meigs, 
 390. 
 
 (6) There-enactment, in 1813, of the New York act of 1801, for the incorporation of 
 religious societies, without re-enacting the statute of frauds, may be regarded as a modifica- 
 tion or amendment of the statute of frauds, so far as to make a use or trust, in favor of a 
 religious society, an exception to the provision of the statute of frauds, which required that 
 declarations of trust should be in writing. Voorhees v. The Presbyterian, &o., 8 Barb. 135, 
 
 Proof by parol, that the vendor of land and the agent of the vendee, by whom the pur- 
 chase was made, understood, at the time of the purchase, that it was made upon a certain 
 trust, does not show that the vendee himself so intended and understood the transaction, 
 and is insufficient to establish a parol trust. Harris v. Barnett, 3 Gratt. 339. 
 
 By the statute of frauds of Illinois, all trusts, except resulting trusts, to be valid, must be 
 created or evidenced in writing. Hovey v. Holoomb, 11 111. 660. 
 
 (c) A trust in real estate, coeval witia" a deed for the same, may be proved by parol. 
 Wetherellv. Hamilton, 3 Harris, 195. 
 
 A devise, made on the parol promise of the devisee, to hold the estate devised in trust 
 for herself and another, creates a valid trust. McKee v. Jones, 6 Barr, 425. 
 
 Where a mother, at the request of her son, devised her land to her daughter, to hold in 
 trust for herself and the son ; held, this created a valid trust, although made for the purpose 
 ■of avoiding the creditors of the son. lb. 
 
308 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 [CHAP. SXII 
 
 the purchase-money was paid by the cestui ; and in that case it is su- 
 perflaous, because a trust results by implication. (1) 
 
 41 . A trust, in order to be valid, need not be created by writmg, nor 
 at the time the land is purchased ; it is sufficient that there is any writ- 
 ten evidence of its existence, showing its creation or acknowledgment 
 even after the purchase ; as, for instance, a letter signed by the trustee, 
 and acknowledging the trust. But such acknowledgment must show 
 not only the existence, but the precise nature and terms of the trust, 
 And the trustee's own admission is said to be very weak evidence 
 of the trust.(2) 
 
 42. If the writing be lost, its contents may be proved by parol evi- 
 dence, as in other cases.(3) 
 
 43. A pamphlet, published by the trustee, was held a sufficient de- 
 claration of the trust.('±) 
 
 44. A written acknowledgment of a trust, created by parol, will 
 bind a purchaser from the trustee.(5) 
 
 45. A gives a bond to B to secure an estate for him, and B enters. 
 This is a sufficient creation or declaration of trust.(6) 
 
 46. A conveys land to B, and B gives back an unsealed writing, 
 stating that B \].a.d paid A a certain sum and taken a deed of the land, 
 and had agreed to let A "have the improvement or sell, provided he 
 should pay said sum in three years, and interest." The land was worth 
 more than the sum named. Held, the ^ or A paid should be construed 
 to mean hnt or advanced; that the effect of the agreement in regard to 
 a sale was, to authorize A to 7iegotiate for^uch sale, and an engagement 
 by B, he having the legal estate, to carry it into effect ; and that B held 
 in trust for A. (7) 
 
 47. A, by a covenant, authorizes B to convey his (A's) land, and 
 retain one-third of the money or property received for it as a compen- 
 sation for his services. B covenants to pay and deliver to A the other 
 two-thirds. Held, a good declaration of trust.(8) 
 
 48. An act of the legislature may operate as the creation or declaration 
 of a trust. Thus, the State of North Carolina having made provision 
 in public lands for the revolutionary officers and soldiers; held, an 
 equitable fee-simple in the lands thereby vested in the latter, and the 
 State became a trustee, with the usual liabilities incident to that 
 office. (9) 
 
 49. An admission of a trust by an answer in Chancery is sufficient 
 to bind a trustee.(a) 
 
 (1) Eisler v. Kialer, 2 Watts, 324. 
 
 (2) Forster v. Hale, 3 Ves. jun. 696; 
 Fisher v. Fields, 10 John. 495; Arms v. 
 Ashley, 4 Piclc. 71; Conwell v. Evill, 4 
 Blackf; 67; United, &e. v. Woodbury, 2 Shepl. 
 281 ; Duke, &o. v. Graves. 9 Barb. 595 ; 
 Brown V. Brown, 1 Strobli. Equ. 363. 
 
 (3) Orleans v. Chatham, 2 Pick. 29. 
 
 (4) Barrel! v. Joy, 16 Mass. 223. 
 
 (5) Jiutledge v. Smith, 1 M'Cord's Cha. 
 119. 
 
 (6) Orleans v. Chatham, 2 Pick. 29. 
 
 (7) Sdtuate v. Hanover, 16 Pick. 222. 
 
 (8) Armstrong v. Campbell, 3 Yerg. 201. 
 
 (9) Pinson v. Ivey, 1 Yerg. 296. 
 
 (a To affect one with knowledge of a secret trust, who was purchasing land from the 
 apparent owner, in wiiora the legal title was vested, it must be shown that lie was fully 
 aware of the precise terms of the trust before he completed his purchase. Indefinite and 
 uncertain admissions will not authorize the positive denials of the answer. Conner v. Tuck, 
 11 Ala. 794. 
 
CHAP. XXII.] 
 
 TRUSTS. EXPRESS TRUSTS. 
 
 309 
 
 50. A, in consideration of £80, made an absolute conveyance to B. 
 A brings a bill in equity to redeem. B, in liis answer, insisted that 
 the deed was absolute, but confessed that, after payment of the £80 and 
 interest, he was to hold in trust for A's wife and children. Held, this 
 was a legal declaration of trust.(l) 
 
 51. Where an execution was levied on rents and profits for a term, 
 and the creditor afterwards executed a written unsealed instrument, 
 reciting that the note on which the judgment was founded belonged to 
 another in part, and promising to pay him the rents and profits, or 
 allow him the use and improvement of the estate after satisfying his 
 own debt ; held, a sufiicient declaration of trust.(2) 
 
 52. Such declarations, however, must be under the party's hand, 
 and clear and explicit. Thus, letters addressed by a son to his father 
 and brothers, equivocal in their language, were held insufficient to 
 prove, that the former held an estate which he bought at a sale on exe- 
 cution against the father, in trust for the latter. So with loose accounts, 
 in which the father was charged and credited in connection with such 
 purchase.(3) 
 
 53. Parol evidence is admissible, to control or explain such ambigu- 
 ous declarations.(4) 
 
 54:. It has been held in the United States Court, that if a grantee, in 
 an account subsequently stated, credit the grantor with the proceeds of 
 sale of a part of the land, this raises a trust.(5) 
 
 55. A trust cannot be established by parol evidence, even though 
 this goes to confirm other written evidence, in showing the title to the 
 land not to be in the supposed trustee, or to rebut parol evidence, which 
 shows a fraudulent conveyance by such trustee. 
 
 56. A, the husband of B, conveys to C, her father, all his interest in 
 her land, for a nominal, but no actual consideration. C, being insolvent, 
 afterward re-conveys to B, taking her note ftir a small sum, with the 
 mutual intent to protect the land from creditors. The land is after- 
 wards taken by C's creditors. A, upon conveying to 0, gave him a 
 bond against exercising any control over B's estate. B always occu- 
 pied the land. Held, no trust was legally proved which would con- 
 stitute a valuable consideration for the deed of C to B, and that C's 
 creditors should hold the land.(6) 
 
 57. It has been held in Massachusetts, that the statute, establishing 
 Chancery jurisdiction of trusts, had no effect upon the prior statute 
 which excludes parol evidence of them. (7) 
 
 58. It is held, that where a transaction may be viewed as " ex male- 
 ficio" as where one purchases at sheriff's sale in trust for another, and 
 refuses to fulfil the trust ; the statute of frauds does not apply.(a) But 
 
 (1) Hampton v. Spencer, 2 Vern. 288. 
 
 (2) Arms v. Ashley, 4 Pick. 71. 
 
 (3) Steere v. Steere, 5 John. Chan. 1. 
 
 (4) lb. 
 
 (5) Prevost v. Gratz, 1 Pet. Cir. 365. 
 
 (6) Smith V. Lane, 3 Pick. 205. 
 
 (7) Black V. Black, 4 Pick. 234. 
 
 (a) So where lands were bid on at a sale under execution by one who professed to act as the 
 friend of the debtor, and this was understood by those present at the sale, who were there- 
 by prevented from i)ldding ; and the purchaser agreed in an instrument under seal, sent to 
 the debtor, to pay o£f the execution debts, and the other liens, and to pay debts due to him- 
 self, and then to convey the remainder of the lands to the debtor, or his heirs; and the 
 debtor released his title to the purchaser, who not only paid all the existing debts, but judg- 
 
310 
 
 TRUSTS. IMPLIES AND 
 
 rCHAP. XXIIL 
 
 where an execution plaintiff purchased the land sold, agreeing with 
 the defendant to reconvey on payment of his judgment, and took pos- 
 session, greatly improved the land, and occupied for ten years ; held, 
 he was not bound to fulfil the agreement.(l) 
 
 59. In cases of fraud, accident or mistake, it seems. Chancery will 
 interfere to enforce a parol trust. But, where A conveyed to B by an 
 absolute quit-claim deed, expressing a valuable consideration, it was 
 held in Chancery, that A could not prove by parol evidence, either 
 upon the principles of the common law or the statute of frauds, an 
 agreement by which B was to hold in trust for him, and subsequently 
 execute a writing to that effect ; and that B acknowledged the agree- 
 ment, and was solicitous to have it fulfilled, but by negligence, accident, 
 or some unaccountable cause of delay, the execution was delayed till B's 
 death. And, as the evidence went to show an express trust, it would 
 not sustain the claim of an equitable lien for advances of money.(2) 
 
 60. If a trustee executes a trust created by parol, he will be bound 
 by it.(8) 
 
 CHAPTER XXIII. 
 
 TRUSTS. IMPLIED AND RESULTING TRUSTS. 
 
 1. Implied trusts — not within the statute 
 
 of frauds. 
 
 2. How proved. 
 
 6. General classification of. 
 
 8. Distinction between an express and im- 
 
 plied trust. 
 
 9, Cannot contradict a deed. 
 10. Contract to convey land, 
 
 12. Purchase by one person with the money 
 
 of another; parol evidence, &c. 
 28. Cases not within the rule. 
 
 34. Aliens. 
 
 35. Rules in different States. 
 40. Purchase with trust money. 
 
 43. Election of cestui. 
 
 44. Conveyance without consideration. 
 49. Declaration of trusts in part. 
 
 53. Consideration to be determined after- 
 
 wards. 
 
 54. Trusts illegal, Ac. 
 
 55. Trusts failing or exhausted. 
 
 56. Trusts to be afterwards appointed. 
 
 57. Renewal of leases, &c., in trustee's 
 
 name. 
 
 64. Conveyance obtained by fraad. 
 
 65. Conveyance to a father in the name of a 
 
 child. 
 82. Conveyance to husband and wife, &c, 
 
 1. Implied trusts are those which arise or are created, not by ex- 
 press act or declaration of parties, but hy construction or implication of 
 law. These are not affected by the English statute of frauds, or by 
 the American statutes on the same subject, being in general specially 
 
 (1) Graham v. Donaldson, 5 Watts, 451-2. 
 
 (2) Dean v. Dean, 6 Conn. 285. 
 
 (3) Elliott V. Morris, Harp. Equity, 281. 
 
 inents obtained after the purchase against the debtor, and then conveyed some of the lots 
 to the heirs of the debtor; and the whole were finally divided between the heirs and 
 debtor; held, the lands were purchased and held in trust by the purchaser, and were sub- 
 ject to the debts of the debtor; and that the burden of debts, which before the division of 
 the lands would have been a common one, ought to be borne proportionably. Lytle v. Pope, 
 11 B..iIon. 291. 
 
CHAP. XXIII.] 
 
 EESULTING TRUSTS. 
 
 311 
 
 excepted from their operation, or, if not, held to be excepted by neces- 
 sary intendment ;(a) and may be created, since, as before that statute, 
 without any instrument in writing. They are usually called resulting 
 trusts.(l) 
 
 2. It is said, an implied trust is more difficult of proof, but, when 
 proven, has the same effect as an express one.(2) 
 
 3. It was said by Lord Nottingham, " the law never implies, the 
 court never presumes, a trust, but in case of absolute necessity. Other- 
 wise the Lord Chancellor might construe or presume any man in Eng- 
 land out of his estate."(3) 
 
 4. A distinguished commentator remarks, that this is too strong lan- 
 guage, and suggests the following substitute : 
 
 5. " A trust is never presumed or implied as intended by the parties, 
 unless, taking all the circumstances together, this is the fair and reasona- 
 ble interpretation of their acts and transactions."(4:) 
 
 6. Implied'trusts are : 1. Those which stand upon the presumed inten- 
 tion of the parties ; 2. Those independent of such intention, and 
 forced upon the conscience of the party by operation of law, as in case 
 of fraud or notice.(5) 
 
 7. It is remarked by the court in Pennsylvania, that in England 
 there are two kinds of resulting trusts : 1. Where a deed is made to 
 A, but the purchase-money is B's, the purchaser's ; in which case, a 
 trust results to B.(i) 2. Where trusts are expressly declared for a part 
 of the estate; and then a trust results for the residue. There are other 
 cases, where a specific lien is allowed, upon land purchased in part with 
 money withdrawn from a trust fund. But these are not, technically, 
 resulting trusts.(6) 
 
 8. The distinction between express and implied trusts has been thus 
 stated. A trust, which results to a purchaser hy operation of law, 
 must be a pure unmixed trust of the ownership and title of the land 
 or estate itself Where there is a mere interest in the proceeds, or a 
 lien upon the land as security, or a claim upon the money to be raised 
 by a sale or mortgage of it ; these are subjects of express agreement, 
 and require potential ownership in the trustee. They are too complex, 
 and partake too much of the nature of contracts, to belong to the class 
 of pure and simple trusts, the sole operation of which is to vest the 
 estate in the actual purchaser, in exclusion of the nominal grantee, and 
 not to regulate the equitable rights and interests of those, for whose 
 benefit the legal owner may be under a moral obligation to hold or 
 apply it. An implied trust seems often to partake of the character of 
 
 (l)Walk Intro. 311; Slaymaker i,. St. 
 John, 5 "Watts, 27 ; Hagthorp v. Hook, 3 
 Hayw. 5"! ; Neale v. Hagthorp, 3 Bland, 582 ; 
 Elliott v. Armstrong, 2 Blackf. 198; Jenisori 
 V. Graves, lb. 440 ; Holmes v. Trout, 1 
 McL. 9; Brooks v. Dent, 1 Md. Ch. 523; 
 HoUis V. Hayes, lb. 479; Stephenson v. 
 Thompson, 13 lUin. 186. 
 
 (2) Miami Ex. Co. v. Bank of United States 
 Wright, 249. 
 
 (3) Cook V. Fountain, 3 Swanst. 585 ; (1 J. 
 J. Mar. 3 ; 1 Bibb. 609.) 
 
 (4-) 2 Story's Comm. on Equ. 439. 
 
 (5) lb. 438. See 1 Lom. Dig. 200. 
 
 (6) Kisler v. Kisler, 2 Watts, 324; 2 Story, 
 443. 
 
 (a) The Rhode Island statute contains no exception, but this is implied. Hoxie v. Carr, 
 1 Sumn. 186-7. 
 
 (6) A pays with B's money, and takes a deed to himself: no trust results. A pays with 
 his own money, and takes the deed to B : this makes a resulting trust. (But see 2 Story, 
 445.) Blair v. Bass, 4 Blackf. 519 ; Foster v. Trustees, &c., 3 Alab. N. S. 302, 
 
312 
 
 TRUSTS. IMPLIED AND 
 
 [CHAP. XXIII. 
 
 an executed use, being saleable on execution and authorizing an eject- 
 ment against the trustee.(l) 
 
 9. In general it is said, no resulting trust can arise, in contradiction 
 to the terms of a deed. (2) 
 
 10. It has been already seen, (p. 30,) that equity regards money, 
 which has been agreed to be turned into land, as land. From this 
 principle arises an important class of implied trusts. After a written 
 contract for conveyance of land, and payment of the price, the holder, 
 until a conveyance is actually made, becomes a trustee for the other 
 party. So, a subsequent purchaser with notice from him. And such 
 purchaser must be joined in a suit for specific performanoe.(3) 
 
 11. After payment of the price, if the vendor and purchaser conspire 
 to protect the land from creditors of the latter. Chancery will give 
 relief.(4) 
 
 12. Where one person pays the money for the purchase of land, but the 
 conveyance is made to another, (as has been stated, sec. 7,) the former 
 has a resulting trust in the land. So, also, where a joint conveyance is 
 made to both, whether to hold concurrently or successively ;(a) and such 
 payment of the money may be proved by parol evidence.(5) 
 
 13. But the money must be paid before or at the time of the convey- 
 ance, in order to raise a resulting trust.(J) A subsequent advance of 
 money, either to the grantee or the grantor, may be evidence of a new 
 loan, or the ground of some new agreement ; but will not attach, by re- 
 lation, a trust to the original purchase ; for the trust arises out of the 
 circumstance, that the moneys of the real, not the nominal, purchaser, 
 formed at the time the consideration of that purchase, and became con- 
 verted into the land. (6) And the mere charging of a third person with 
 the price of the land, by the nominal purchaser, will not raise a trust for 
 the former.(7)(c) 
 
 (1) White II. Carpenter, 2 Paige, 238-9. 
 See Doe v. Rock, 1 C. & Mar. 549. 
 
 (2) Hoxie V. Oarr, 1 Sumn. 188. 
 
 (3) Davie v. Beardsham, 1 CLia. Ca. 39; 
 Aclierley t;. Vernon, 9 Mod. 78; Aster v. 
 L'Amoreux, 4 Sandf! 524; Stone v. Buokner, 
 12 S&M. 13. 
 
 (4) Foreytli v. Clark, 3 "Wend. 63'7. 
 
 (5) 2 Story, 443 ; 2 Tent. 361 ; Riddle v. 
 Emerson, 1 Vern. 109; Willisu. Willis, 2 Atk. 
 11; Lloyd v. Spillett, lb. 150; Sugd. on 
 Tend. 2, 152 ; 3 lias. 347 ; 2 John. Cha. 4 05 ; 
 Cox V. Grant, 1 Tea. 166; Baker ». Tiuing, 
 30 Maine, 121 ; Thomas i;. Walker, 6 Humph. 
 93; Murdoek v. Hughes, 7 S. & M. 219; 
 Coates s;. Wood worth, 13 Illin. 654; Liver- 
 more V Aldrioh, 5 Cuah. 431 ; Williams v. 
 
 Hollingsworth, 1 Strobh. Eq. 103; Mahorner 
 V. Harrison, 13 S. & M. 53; Stephenson v. 
 Thompson, 13 Illin. 186. See Work v. Work, 
 2 Harr. 316 ; Tarpley v. Poage, 2 Tex. 139 ; 
 Watson V. Le Row, 6 Barb. 481 ; Dudley t;. 
 Boaworth, 10 Humph. 9; Hollis v. Hays, 1 
 Md. Oh. 479 ; Llndsey v. Platner, 23 Miss. 
 576. 
 
 (6) Botsford V. Burr, 2 John. Cha. 409; 
 Hoxie V. Carr, 1 Sumn. 188 ; Seward v. Jack- 
 son, 8 Cow. 406 ; Foster v. Trustees, &o., 3 
 Alab. N". 302 ; 13 S. & M. 53 ; Smith v Sack- 
 ett, 5 Gilm. 534; Alexander^!. Tams, 13 Illin. 
 221 ; Perry v. MoHenry, lb. 227. But see 
 Harden v. Harden, 2 Sandf. Ch. 17. 
 
 (7) Steere v. Steere, 5 John. Ch. 19. 
 
 (a) This is said to be a clear result of all the eases, without a single exception. 2 Sugd. 
 
 (6) The claimant must have occupied a position originally, which would entitle him to be 
 substituted for the grantee. Alexander v. Tams, 13 Illin. 221 ; Perry v. McHenry, lb. 227. 
 
 (c) So where A agreed to convey land to B, upon his paying so much money at specified 
 times, and a part had been paid ; held, there was no resulting trust. Conner v. Lewis, 4Shepl. 
 268. But if A buys land and takes a deed in the name of B, B advancing the purchase- 
 money and taking A's notes therefor, with the agreement to convey to A upon being repaid ; 
 this may be considered aa a loan of the money, and a resulting trust to A. Page v. Page, 8 
 JN . U. 187. 
 
CHAP. XXIII.] 
 
 RESULTING TRUSTS. 
 
 313 
 
 14. It is not to be understood, that actual payment of money is neces- 
 sary to constitute a resulting trust. Any other valuable consideration 
 will undoubtedly have the same effect. Thus, the agreenient of one 
 person to form a settlement and commence improvements upon lands, 
 to be conveyed to another for his benefit, is a sufficient consideration to 
 raise an implied trust for the former.(l) 
 
 15. To constitute a resulting trust, the parol evidence of a payment 
 bj' the real purchaser must be clear and undoubted, especially after a 
 long time has elapsed ; of so positive a character as to leave no doubt 
 of the fact, and at the same time so clearly defining the trust, as that 
 the court may see what is requisite for its due execution. Evidence of 
 naked declarations, made by the nominal purchaser, is most unsatisfac- 
 tory, being so easily fabricated, and from the impossibility of contra- 
 dicting it. And, on the other hand, the implication resulting from this 
 fact, called by Lord Mansfield " an arbitrary implication," may be re- 
 butted by parol evidence to the contrary. (a) Before the statute of 
 frauds, a resulting trust might be controlled by a verbal declaration of 
 trust ; and, as this statute does not in any way affect implied trusts, the 
 old law remains unaltered. More especially is such evidence admissible 
 to rebut a resulting trust, where the purchase is made by a father, 
 partly in the name of his son, although the father, during his life, took 
 the profits of the land. But parol evidence is inadmissible to rebut a 
 resulting trust, arising from written instruments, unless the latter be 
 loose and ambiguous.(2) 
 
 16. It is said to be doubtful, whether parol evidence is admissible to 
 prove a resulting trust, against the answer of the trustee denying it. 
 And, in cases of this nature, the party claiming in opposition to the 
 legal title should not delay asserting his right, as a stale claim would 
 meet with little attention. (3) The lapse of twenty-six years has been 
 held to bar the claim of a resulting trust.(4) 
 
 17. It has been said, that the admission of parol evidence to raise a 
 resulting trust, where the consideration is expressed to be paid by the 
 nominal purchaser, and there is nothing in the deed which implies the 
 contrary, is limited to the life of such purchaser ; that even his own 
 confession cannot be proved by the testimony of a third person, but 
 must be made under a judicial examination upon oath, or by the party's 
 own answer in equity, which, after his death, of course cannot be had. 
 
 (1) Malin V. Malin, 1 "Wend. 625. 
 
 (2) Malin v. Malin, 1 Wend. 625 ; Liver- 
 more V. Aldricli, 5 Gush. 431 ; Finch i>. Finch, 
 15 Tes. 43 ; Lamplup-h v. Lamplugh, 1 P. 
 "Wms. Ill; IJoha. Clia. 59; 2, 416; Mc- 
 Guire V. McGower, 4 Des. Cha. 491 ; 2 Sug. 
 153; Bellaais v. Compton, 2 Tern. 294; 5 
 John. Ch. 1 ; Dorsey v. Clark, 4 Har. & John. 
 
 551; 3 Mas. 362; 3 Littell, 399; North 
 Hempstead v. Hempstead, 2 Wend. 109; 2 
 Sug. 158; Harrison v. Mennomy, 2 Edw. 
 Cba. 251 ; Carey v. Callau, 6 B. Mon. 44. 
 
 (3) 2 Sug. 154-5 ; Fisher v. Tucker, 1 
 M'Cord's Cha. 169-76 ; Elliott v. Armstrong, 
 2 Blackf. 198 ; Jenison v. Graves, lb. 440. 
 
 (4) Shaver v. Radley, 4 John. Cha. 316. 
 
 (a) B paid the purchase-money of an estate conveyed by a third person to A, who agreed 
 to convey it to B, subject to a mortgage ; and A and B afterwards agreed, that A should 
 raise additional money by another mortgage, and convey the estate to B, subject to the twa 
 mortgages. B subsequently accepted of A a deed of the estate subject to the two mort- 
 gages, the latter of which wag never in fact made. Held, the presumption of a resulting- 
 trust, rai.sed by tlie first agreement, was rebutted by the subsequent agreement, and the 
 acceptance of the deed. Livermore v. Aldrich, 5 Gush. 431. 
 
BU 
 
 TRUSTS. IMPLIED AND 
 
 [CHAP., XXIII. 
 
 But Mr. Sugden doubts the correctness of this opiaion, and refers to 
 some very late authorities against it.(a) Judge Story thinks, that any 
 declaration or confession made by the party in his life is sufficient 
 evidence. So, also, any expression or recital in the deed itself; a 
 memorandum or note made by the nominal purchaser ; papers left by 
 him, and discovered after his death ; and, it seems, his answer to a bill 
 of discovery. (1) 
 
 18. In New York, Kentucky and Indiana, parol evidence is received 
 against the answer of the purchaser denying the trust, and, it seems, 
 even after the purchaser's death. But such evidence shall be received 
 with great caution. (2)(6) 
 
 19. It has been held, that a resulting trust might be proved by evi- 
 dence merely circumstantial ; as, for instance, the poverty of the nom- 
 inal purchaser, and his inability to pay for the estate.(3) This, it seems, 
 must come in aid merely of other proof. ' 
 
 20. A resulting trust may be rebutted as to a part of the land itself, 
 or a part of the interest in the land. (4) 
 
 21. It has been said, that no trust will result, unless the party inter- 
 ested pay the whole consideration. This doctrine, however, seems to 
 have been overruled in England,(5) and, in Pennsylvania, a purchase 
 with trust-money, in whole or in part, gives to the owner of the money 
 a proportional interest in the land. So, in Kentucky, where slaves 
 were purchased by A, in part, with the money of B ; held, a trust re- 
 sulted to B pro tanto. So, where land is purchased by several persons, 
 and a joint deed received, a trust results in favor of each, to the extent 
 of the amount paid or secured by him. And, in enforcing specific 
 performarice, conveyances will be decreed to each, in like proportion. 
 And parol evidence may be admitted to show the amount so paid or 
 secured. (6)(c) 
 
 22. It is held in New York, that to constitute a resulting trust, the 
 transaction must vest an absolute title in the cestui, making the trustee 
 a mere conduit-pipe or channel to convey the estate to him. It is not 
 sufficient that, under a contract with the trustee, the cestui is to have a 
 
 (1) 2 Story, 444 n.; LloydV Spillett, 2 Atk. 
 150 a; 2 Sug. 156-7. 
 
 (2) Boyd V. M'Lean, 1 Johns. Ch. 5S2; Snel- 
 ling V. Utterbaek, 1 Bibb. 609; 4Blackf. 539. 
 
 (3) "Willis V. Willis, 2 Atk. 71. 
 
 (4) Benbow v. Townsend, 1 My. & K 506. 
 
 ■ (5) Crop v. Norton, 9 Mod. 235 ; Wray v. 
 Steel, 2 Ves. & Beam. 322, 355. 
 
 (6) Kisler v. Kisler, 2 Watts, 324; 3 Bibb, 
 15; Stioemaker v. Smith, 11 Humph. 81; 
 Pierce v. Pierce. 1 B. Mod. 433 ; Brothers v. 
 Porter, 6, 106. ' 
 
 (a) Particularly the case of Lench v. Lenoh, 10 Tes. 511, in which Sir Wm. Grant 
 remarked, that whatever doubts might have been formerly entertained on tlie subject, it is 
 now settled, that (after the death of the alleged trustee) money may be followed into the 
 land in which it was invested ; and a claim of this sort may be supported by parol evidence. 
 A devisee may claim on account of money paid by the testator. Mahornei;. Harrison, 13 S. 
 & M. 53. A resulting trust may be proved against heirs by parol admissions of the ances- 
 tor. Harder v. Harder, 2 Sandf. Ch. 17. 
 
 (6) In Indiana, the bill must be supported by two witnesses, or one with corroborating 
 circumstances. Blair v. Bass, 4 Blackf. 539. 
 
 (c) A bought land and paid one-third of the purchase-money, the remainder to be paid in 
 instalments. Before the instalments became due, A died, and his widow, out of her own 
 funds, paid the remaining two-thirds. The widow afterwards sold the land to B, and, after 
 her death, the heirs of A petitioned for partition, and the land was sold. Held, a resulting 
 trust arose in favor of those claiming under the widow, and they are not estopped from as- 
 serting their rights, by the setting off of dower to the widow at the partition. Thompson 
 V. Eenoe, 12 Mis. 157, 
 
CHAP. XXIII.] 
 
 RESULTING TRaSTS. 
 
 315 
 
 Ikh upon the estate, or a share in the proceeds of sale. Nor can 
 there be a resulting trust for a certain amount of moncT/. If the trust 
 results only in part, it must be /or a specified portion of the estate, so as to 
 make the parties tenants in common.(l) 
 
 23. But, in the same State, if a part only of the purchase-money be 
 paid by the cestui que trust, the land will be charged with the money 
 advanced, pro tanto.{2)(a) 
 
 24. It has been held, that where a partner buys real estate in his own 
 name with the partnership funds, without any previous agreement with 
 his co-partners, although the joint business is that of dealing in lands, 
 there is no resulting trust in favor of the latter. Hence, a note, given 
 by the former in his own name for such purchase, does not bind the 
 latter.(3) 
 
 25. But a contrary doctrine has been held in Pennsylvania, Arkan- 
 sas and Kentucky; and in equity, land purchased with partnership 
 funds and on joint account is held partnership property; and, though 
 the grantees be called in the deed tenants in common, parol evidence is 
 adrnissible to prove the facts, and rebut the very slight presumption 
 arising from this phrase.(4) 
 
 26. So, it has been held in Pennsylvania, that if A buy land in his 
 own name, under an agreement that B shall be equally interested with 
 him, they are tenants in common.(5) 
 
 27. Though the evidence shows that a part of the land conveyed was 
 intended as a gift; if a consideration was paid for another part, the 
 whole being included in one deed, which expresses a consideration gen- 
 erally ; there is a resulting trust for the whole.(6) 
 
 28. A grantor with warranty cannot set up a trust for himself, on the 
 ground of an interest in the purchase-money, as being the proceeds of 
 
 (1) White V. Carpenter, 2 Paige, 238. 
 
 (2) Botsford v. Burr, 2 Jolin. Clia. 410. 
 
 (3) Forsytli v. Clarlc, 3 Wend. 63Y ; Pitts 
 V. Waugb, 4 Mass. 424. 
 
 (4) Phillips V. Cramond, Whart. Dig. 580 ; 
 
 Hart V. Hawking, 3 Bibb, 506 ; Hoxie v. Carr, 
 1 Sumn. 182 ; 2 Wash. C. C. 441 ; McGuire 
 V. Ramsay, 4 Eng. 618. 
 
 (5) Stewart v. Brown, 2 Ser. & R. 461. 
 
 (6) Malin v. Malin,* 1 Wend. 653. 
 
 * This case relates to the notorious Jemima Wilkinson, called by lier followers " the 
 Universal Friend." They supposed that her peculiar character and office disqualified her to 
 hold property in her own name. The counsel who argued against the trust remarked, that 
 her followers were the only witnesses for the trust. "They believed they were testifying 
 in a controversy between their God and a, mortal ; and can it be supposed that they be- 
 lieved they sinned, when they obeyed the mandates of their Deity, uttered not from Sinai, 
 but from the mouth of their God 7" 
 
 (a) Where a party seeks the benefit of a purchase made for him in the name of a trustee, 
 who has paid the purchase-money, but to whom he is indebted for other advances, he shall 
 not be relieved, but upon payment of all the moneys due to the trustee. 1 Story Equ. 78. 
 A trust estate can be sold on execution, only whore the cestui might immediately and un- 
 conditionally claim a conveyance from the trustee; not where the latter would be first enti- 
 tled to a reimbursement of his expenses. Thus, where A purchased land, and the deed 
 was made to B, his daughter, who became liable for part of the consideration ; held, although 
 done expressly to protect from A's creditors, they could not take the land in execution ; 
 because B had a claim upon the land to the amount of her liability. The remedy must be 
 in equity. Gowing v, Rich. 1 Ired. 553. 
 
 So, where a person purchases land sold under execution, as the friend or agent of the 
 debtor, but in his own name, pays part of the purchase-money, and gives his own bond for 
 the remainder, the land cannot be levied on by a creditor of the debtor, without first in- 
 demnifying the purchaser. Heth v. Young, 11 B. Mon. 278. 
 
316 
 
 TRUSTS. IMPLIED AND 
 
 [CHAP. xxin. 
 
 sale of other land, in which the alleged trustee had only a life interest, 
 and of which the grantor owned the reversion.(l) 
 
 29. Where land owned by two persons is conveyed to a third, and 
 reconveyed to one of the grantors, the other grantor has no resulting 
 trust in the estate. 
 
 30. The wife of A owning lands in tail, they join in a conveyance 
 to B in fee, who reconveys to A in fee. More than a year afterwards, 
 A conveys to C. Upon a bill in equity by a creditor of A, to set 
 aside the last conveyance, as fraudulent against creditors ; held, no trust 
 could arise out of these conveyances for A's wife and children, and 
 that such trust was not legally proved by a declaration of it in the 
 answer to the bill, which could have only the weight of parol evi- 
 dence.(2) 
 
 81. The principle of a resulting trust, as arising from the payment of 
 the purchase-money by one, and a conveyance to another, is not appli- 
 cable, where one man buys land merely to benefit another, and admits, 
 that, if the latter will repay him the purchase-money, he will convey the 
 land;(a) or, where a man verbally employs an agent to purchase land 
 for him, bat pays no part of the price. These facts constitute a mere 
 conventional trust, or trust by contract, which is void unless proved by 
 writing. So, where a conveyance is executed conformably to a 
 written agreement, no resulting trust can be raised by parol evi- 
 dence.(3)( b) 
 
 32. A and B agree, by parol, to purchase land ; A to make the pur- 
 cha>!e, and B to pay one-half of the price and take one-half of the land. 
 This is a case within the statute of frauds, and no trust results to B.(4) 
 So, if A buy in his own name and upon his own credit, the stat- 
 
 (1) Squire v. Harder, 1 Paige, 494. 
 
 (2) Jones v. Slubey, 5 Har. & Jolin. 312. 
 
 (3) Doraey D Clarke, 4 Har. & John. 551 ; 
 
 St. John V. Benedict, 6 John. CIi. 111. See 
 London v, Pairolough, 2 Man. & Gr. 674. 
 
 (4) Parker v. Bodley, 4 Bibb, 102. See 
 Willink V. Vanderveer, 1 Barb. 599. 
 
 (a) The mere violation of a parol agreement, in relation to land purchased by one for the 
 benefit of another, will not raise an implied trust in favor of tlie latter, unless accompanied 
 with fraud or malafides. As, for instance, when one purchases at an execution sale, for the 
 benefit of the debtor. In such case, if there be fraud, the vendee will hold in trust for the 
 creditors, and also for the debtor, unless he was privy to the fraud. Robertson v. Robertson, 
 9 Watts; 36 ; Hains v. O'Connor, 10, 343, 320 ; Jackman v. Ringland, 4 W. & S. 149 ; M'Cal- 
 loch V. Cowber, 5, 427. See "Willink v. Vanderveer, 11 Barb. 599. If done to defraud cre- 
 ditors, a creditor may file a bill in equity to set aside the conveyance, so far as to satisfy his 
 Judgment. Jackson v. Forrest, 2 Barb. Ch. 576. "Where A procured a deed from B, upon 
 a promise to hold the land for C ; held, such promise might be proved by B ; and, if A had 
 sold the land, that C might recover the price paid from him. Miller v. Pearce, 6 W. & S. 97. 
 Where land was purchased at the land office by A in trust, and with the understanding that 
 he should deed to the two claimants B and C, to B all west of a certain road, and to C the 
 residue, and B furnished A with the necessary entrance money for his portion of tlie land, 
 prior to the purchase ; held. A, as trustee, was responsible to B for his portion of the land. 
 Russell V. Lode, 1 Greene, 566. 
 
 It has been held that a trust may result, where the purchase-money is advanced by a 
 third person as a loan or gift to the cestui Getman v. Getman, 1 Barb. Ch. 499. 
 
 Where a clerk in a store pilfers from his employer, and with the money purchases land, 
 he cannot be held as the trustee of the land for the benefit of his employer, so as to enable 
 him to compel a conveyance of the legal title. Campbell v. Drake, 4 Ired. Eq. 94. 
 
 (b) But where A paid for land, and B agreed to procure a deed for him, but took a deed 
 to himself; held, A might maintain a bill in equity against B. Pillsbury v. Pillsbury, 5 
 Shepl. 107. 
 
CHAP. XXIIL] 
 
 EESULTlNa TRUSTS. 
 
 317 
 
 ute of frauds is applicable ; and it cannot be proved by parol evidence, 
 that the purchase was made for another's benefit.(l) So, where a son 
 conveyed land to his father, nominally as a purchaser, but in reality as 
 a trust, to enable the father to raise money for the son by mortgage, and 
 the father died without raising the money ; held, though thq son had a 
 lien for the price of the land, parol evidence of the trust was inadmissi- 
 ble. Judge Story says, this case stands upon the utmo.st limits of 
 the doctrine of the inadmissibility of parol evidence as to resulting 
 trusts. (2) 
 
 33. A purchase by a third person at sheriff's sale, with the money 
 or on account of the judgment debtor, raises a trust for the latter.(3) 
 
 33 a. Where a judgment was recovered in the name of A, and with 
 his knowledge and consent, for the benefit of B, and an execution is- 
 sued thereon was levied on the land of the debtor, which was set off to 
 A ; held, the legal estate thereby vested in A, in trust for B, and A 
 was bound to relep.se his title to B, who might maintain a bill in equity 
 for such conveyance. B having brought his bill in equity, in the alter- 
 native, either for a conveyance, or for a compensation in damages, and 
 it appearing that A had previously sold and conveyed the land, and re- 
 ceived the purchase-money, and thereby disabled himself from making 
 a conveyance ; held, B was entitled to recover the amount of the pur- 
 chase-money and interest, or, at his election, a sum equivalent to the 
 present value of the land.(4) 
 
 33 6. A, finding himself insolvent, gave to his sureties, on a guar- 
 dian's bond, a note for the deficiency in his guardian account; they 
 sued the note, and obtained judgment and partial satisfaction, by levy- 
 ing on real estate and having it set off' to them jointly. After the levy, 
 &c., one of the sureties, B, paid the deficiency in the guardian's account. 
 Held, up to the time of that payment there existed a resulting, trust in 
 favor of A, the principal ; that the right to insist upon this trust was not 
 barred by the lapse of time, which bars the action for contribution ; and 
 that facts necessary to establish the trust might be shown by parol evi- 
 dence. Held also, that upon the payment by B, a new trust arose in 
 favor of the sureties themselves, in the proportions in which they had 
 contributed towards the deficiency, and the necessary expenses and 
 taxes.(5) 
 
 34. No tru.st shall result to an alien.(a) It would be a fraud upon 
 the rights of the State and the laws of the land. If the alien is to have 
 the proceeds of the land, after satisfaction of certain express trusts by 
 a sale, the surplus escheats, and may be reached in equity by the State. 
 So, if the alien is to have the rents and profits, the State may claim 
 them in equity. (6) 
 
 (1) Fowke V. Haughtier, 3 Marsh. 57. 
 
 (2) Letuan v. "Whitley, 4 Russ. 422 ; 2 
 Story on Eq. 442 n. 
 
 (3) Deatly v. Murphy, 3 Mar. 471 ; Denton 
 V. M'Kenzie, 1 Dessau. 2S9 ; Pegues v. Pe- 
 gue.s, 5 Ired. Equ. 418. 
 
 (4) Pea body v. Tarbel), 2 Gush. 226. 
 
 (5) Brooks v, Fowle, 14 N. II. 248. 
 
 (6) Phillips z. Cramond, "Whart. Difj. 580; 
 Leggett V. Duloois, 5 Paige, 114; 3 Leigh, 
 492. 
 
 (a) But, where there was n devise in trust to sell and divide the proceeds among certain 
 persons, some of whom were aliens; and a sale was accordingly made under a decree ; held, 
 the owner could not claim any part of tlie money. Du Hourmeliu v. Sheldon, 4 My. & G. 
 525. 
 
318 
 
 TRtTSTS. IMPLIED AND 
 
 [CHAP. SXIIL 
 
 35. In New York, where, as will be seen (cb. 26,) the whole doctrine 
 of uses and trusts has been fundamentally changed, no trust shall result 
 to a party who pays the purchase-money for land, except so far as to 
 make the land liable for bis debts existing at the time.(l)(a) 
 
 36. In Massachusetts, Maine and New Hampshire, (substantially) it 
 is provided by statute that no trust shall be valid without writing, "ex- 
 cepting such as m;(y arise or result by implication of law ;" and that no 
 trust shall be valid against a subsequent conveyance or seizure on legal 
 process, unless the purchaser or creditor had notice, express or im- 
 plied.(2) 
 
 37. It had been previously decided in Massachusetts, that payment 
 of the purchase-money of land raised no trust in favor of the party pay- 
 ing it, though the grantee gave him a bond to convey to his order. 
 Also, that there was in such case no fraud, which would render the 
 land liable to creditors of the real purchaser. Perhaps such a transac- 
 tion might constitute an unlawful conspiracy. (3)(a) 
 
 38. The Court in New Hampshire remark,(4) that Massachusetts is 
 the only State where resulting trusts have not been treated as excepted 
 from the operation of -the statute of frauds. In the same case they re- 
 mark, that the usual clause in deeds, acknowledging receipt of the con- 
 sideration, states only who paid the money^ not who owned it. The 
 ownership is a mere inference or presumption from the payment, and 
 therefore, on general principles, may be rebutted by parol evidence. 
 Besides, such clause is a mere receipt, which is always open to contra- 
 diction. And the evidence in question does not go to defeat the convey- 
 ance. Moreover, the statute of frauds provides, that no grant, assign- 
 ment, &c., of a trust hy any person, shall be valid without a writing. 
 But a resulting trust is a mere creature of the law. Hence, it is con- 
 cluded, that the statute would not apply to resulting trusts, even if 
 there were n9 excepting clause. 
 
 (1) 1 F. T. Rev. St. 728. 
 
 (2) Mass. Eev. St. 408; N. H. Rev. St. 
 244-5; Me. Rev. St. 374. See Mass. St. 1844, 
 289. 
 
 (3) Storer D. Batson, 8 Mass. 442; Jenney 
 V. Alden, 12 Mass. 375; Northampton, &o. v. 
 
 Whiting, lb. 104. 
 
 (4) Pritcliard v. Browc, 4 N. H. 399-400- 
 1 ; Page v. Page, 8, ]87, (holding that a re- 
 sulting trust may be either raised, rebutted, 
 or discharged by parol.) See Brooks v. Powle, 
 14 N. H. 248. 
 
 (a) Land paid for by A was conveyed to B, in order to secure it from A's creditors. A 
 took possession under a lease from B, and his creditors levied upon the land as A's property. 
 Held, they could not recover possession from B by writ of entry. Howe v, Bishop, 3 Met. 
 26. Whether, under" similar circumstances, B could have maintained his title as demandant, 
 A being in po.ssession, qu. That he could not. see Goodwin v. Hubbard, 15 Mass. 210. 
 
 It has been recently held, that a trust resulting by implication of law is not within the 
 statute of frauds of Massachusetts, (Rev. Sts. c. 59, sec, 30 ;) but may be proved by parol. 
 Peabody v. Tarbell, 2 Cush. 226. Also, that the Supreme Court has jurisdiction of implied 
 as well as of express trusts. Whitten v. Whitten, 3 Cush. 191. 
 
 If it appear on the face of a bill in equity, brought to enforce a trust, not arising by impli- 
 cation, and concerning land, that it vests in parol ; the statute of frauds may be relied on 
 Under a demurrer. Walker v. Locke, 5 Cush. 90. The following important case, recently 
 decided in the Circuit Court of the United States for the district of Massachusetts, may be 
 cited as illustrating the doctrine of resulting trusts, in connection with other important points 
 of equity jurisprudence. 
 
 A purchased at auction, from D, a lot of land, and, on the failure of A to comply with the 
 terms of sale, D entered and took possession, but, on application by A was enjoined from 
 making sale thereof A new arrangement was then made, by which D placed a warranty 
 
CHAP, xsm.] 
 
 RESULTING TRUSTS. 
 
 319 
 
 39. Similar observations have been made b}^ Judge Story.(l) He 
 remarks, in reference to a resulting trust, that the parol evidence does 
 not establish any fact, inconsistent with the legal operation of the words 
 of the deed ; but merely engrafts a trust upon the legal estate ; and that 
 the exception of resulting trusts from the statute of frauds is merely 
 affirmative. 
 
 40. Where property is given to one, in trust to buy lands for anoth- 
 er's benefit, and he does purchase lands, equity will presume that he 
 intended to act in pursuance of the trust. So where one covenants to 
 lay out money in lands, or pay it to trustees to be thus laid out. But 
 the mere fact of his buying land will not be sufiScientto create a result_ 
 ing trust in favor of the other party, without some other ground to pre^ 
 
 (1) Hosie V. Carr, 1 Sumn. 186-1. In 
 ilichigRn, even an implied trust is invalid, 
 against creditors and purchasers for conside- 
 
 ration and without notice. But registration 
 of tlie deed is sufficient notice. Eev. St. 261 
 
 deed in the hands of P, in escrow, agreeing that it should be rendered to A on a certain day, 
 provided, that by such day A had complied with certain terms of payment, A making a de- 
 posit of $1,000 as forfeit money. A then proceeded to build on said land, but, failing in his 
 means, was unable to comply with his agreement. D then tlireatened to sell the premises, 
 and A filed a second bill in equity to restrain the sale, and an injunction was granted, and 
 an interlocutory decree wa.s passed, that if A should perform his agreement before a certain 
 time, the injunction should stand continued, but otherwise should be dismissed. A failed to 
 perform his agreement, and the bill was accordingly dismissed. In the intermediate time, 
 iiowever, between the decree and the dismissal of tlie bill, A, having expended large sums 
 on the building, and exlvausted his resources, applied to E for aid to raise money to complete 
 the building, and discharge the debts. It was arranged between them, that an absolute 
 conveyance should be made by D to K, which was done, and on the same day A e.^ecuted 
 a release of all interest to E, to complete the title, excluding, in terms, " all claims and de- 
 mands made by, through, or on account of A, and also excepting any claim or demands ari- 
 sing out of any contract made by or with A," and admitting that A had no legal or equitable 
 right in the same. E then assumed the ostensible ownership of the property', and A was 
 employed in superintending the execution of the building, and procured securities to assist 
 in raising funds, and procured work to be done on his own account. E afterwards sold the 
 premises to K. A bill was then brought by A against E and K, setting forth, that, at the 
 time of making the absolute conveyance to E, although no paper to such effect was executed, 
 yet it was understood between B and A, that the premises were to be held by E, in trust 
 "for the benefit of A, and the conveyance was made absolute solely for the purpose of freeing 
 the premises from all claims by or through A, and that E was only to receive a remunera- 
 tion for any services which he might perform, and an indemnification for his expenses, and 
 then to reconvey the estate to A ; and wlso, that K was not a fonays& purchaser, for a valu- 
 able consideration, without notice. Held, the circumstances showed no sufficient motive, on 
 the part of A, to make an absolute and unrestricted conveyance, but were perfectly consis- 
 tent with the parol trust as set up by the bill; 2. as a decree in the equity suit was not a 
 dismissal upon the merits, it did not constitute an absolute bar to a future suit; 3. the re- 
 lease by A, though absolute in its terms, was indispensable to guard the property against 
 A's creditors, so as to induce capitalists to advance funds, and, therefore, was not inconsis- 
 tent with a parol trust, and the evidence showed E to be acting as A's agent ; 4. if E, know- 
 ing that A intended he sliould act as agent, did really intend to act for his own benefit solely, 
 the concealment from A of such purpose was a fraud in equity ; 5. This was a parol trust, 
 resulting Irom agency, and resting upon honorary obligations, and as such, equity would en- 
 force it; 6. It was not within the statute of frauds, being a resulting trust as to A, and a 
 trust as to E merely for his liabilities, compensation and expenditures; because it was a case 
 of agency, of constructive fraud, and of part performance ; 7. K was not a bona fide purchaser 
 without notice, because, even if uninformed of the actual state of the title and A's claim, he 
 had sufficient notice of the claim and controversy, to put him on inquiry, which was suffi- 
 cient notice in equity. 8. Though A might never have been able to fulfil his agreement with 
 E by discharging the incumbrances and remunerating him; yet this did not in equity ex- 
 tinguish A's rights, though it might furnish reason for foreclosing his right and ordering a 
 sale upon E's application. Jenkins v. Eldredge, 3 Story, 181. 
 
320 
 
 TBUSTS. IMPLIED AND 
 
 [CHAP. XXIII. 
 
 sume that the land was purchased with the trust-money. It has been 
 said, that the evidence of this fact must be clear.(l) 
 
 41. Hence, where the trustee had died after such purchase, leaving 
 no personal assets ; it was held that the party, claiming to be cestui 
 que trust, stood only on the footing of a simple contract creditor, and 
 had no lien upon the lands purchased. (2) 
 
 42. Where the trust money is identified, a trust will result, accord- 
 ing to some authorities, although the investment is not in pursuance, 
 but in violation, of the trust. But others hold, that in such case the 
 party interested has a mere lien.(3) 
 
 43. Where a trust results, in consequence of a payment of the pur- 
 chase-money of land, either by the cestui or another for his benefit, the 
 cestui may, at his election, claim the money instead of the land. (4) 
 
 44. Another case of resulting trust is this: Where land is conveyed 
 without consideration, express or implied, and no other distinct use or 
 trust is stated, a trust results to the grantor. But the consideration 
 may be either good or valuable. This rule is conformable to the an- 
 cient law of uses, by which the burden of proof was on the feoffee to 
 show a consideration, and not on the feoffor to show a trast, (for him- 
 self )(5)(«) 
 
 45. The doctrine of resulting uses first introduced the notion, that 
 there must be a consideration expressed in the deed, otherwise a trust 
 would result. But this rule as to implied trusts does not embrace 
 every voluntary conveyance, and the smallest consideration is suffi- 
 cient to prevent a trust from resulting to the grantor.(6) 
 
 46. Where a deed expressed the consideration of five shillings and of 
 natural love and affection ; held, this would bo sufficient to prevent any 
 resulting trust in favor of the grantor. But it is not conclusive, even 
 with the addition of the clause, " and other valuable considerations." 
 Thus, if the recitals of the deed show that it is made for the payment 
 of creditors, and that unless they are paid the deed shall be void ; a 
 trust results to the grantor, for the surplus over such pa3n"nent.(7) 
 
 47. There can be no resulting or implied trust between a lessor and 
 lessee, because the covenants in the lease are a sufficient legal consider- 
 
 (1) 2 Story, 451. 
 
 (2) Perry v. Plielips, 4 Yes. 108 ; Perry v. 
 Phelips, 11, 173. 
 
 (3) 2 Story, 457, and n. 
 
 (4) Phillips V- Cramoiid, 2 Wash. C. 441 ; 
 2 Story, 457, and n. 
 
 (5) Norfolk V. Bromie, 1 Ab. Eq. 381; 
 Preo. in Clia. 80 ; 2 Story on Eq. 440-1 ; Ba- 
 con on Uses, 317. 
 
 (6) Hacrthorp v. Hook, 1 Gill. & J. 296-7 ; 
 2 Story, 442. 
 
 (7) 1 Gill. & J. 296-7. 
 
 (a) It lias been held in Maine, that where an absolute conveyance purports to have been 
 made for a good or vsluable consideration paid by the g-rantee, the presumption of law is, 
 that the estate is held by him for liia own u«ie, and this presumption cannot bo rebutted by 
 parol evidence. Philijrooli v. Delano, 29 Maine, 410. 
 
 Mere want of consideration in a deed will not of itself alone raise a resulting trust. lb. 
 
 To a bill, charging that a person since deceased had made a conveyance to the father of 
 his wife, of a certain .described estate, without any consideration, but for the express pur- 
 pose of keeping the property safe for the u.se of his wife and children, and praying for a re- 
 conveyance of the land to the children, but containing no allegation of any declaration of 
 trust in the conveyance, or that any written declaration of trust had been made ; there was 
 a demurrer on the ground that parol proof was inadmissible in such case to establish a 
 trust The demurrer was sustained. lb. 
 
 It seems, it would not he necessary that such a bill should set forth the manner in which 
 the alleged trust was to be established by proof, and that the demurrer might have been 
 overruled, to admit any written evidence or declaration of trust to be introduced. lb. 
 
CHAP. XXm.] RESULTING TRUSTS. 321 
 
 ation. But there may be an implied trust between the assignor and 
 assignee of a lease.(l) 
 
 48. It is said, that, in case of voluntary settlements and wills, if there 
 is no declaration of the trust of a term, it results to the settler; other- 
 wise, where it is a settlement for valuable consideration, and in the na- 
 ture of a contract for the benefit of a wife or children. (2) 
 
 49. Where land is conveyed or devised to a trustee upon certain 
 specified trusts, the residue of the estate, which remains after those 
 trusts are satisfied, results to the grantor or his heirs.(3) 
 
 50. Devise to a trustee for ninety-nine years, in trust for the pay- 
 ment of certain debts, and an annual allowance to the sons of the tes- 
 tator, remainder to his eldest son for life, remainder to his first and 
 other sons in tail, and a like remainder to tlie second son. The speci- 
 fied debts having been paid, other creditors of the sons bring their bill 
 in equity, praying that the term may be attendant on the inheritance, 
 and held liable for their claims. Held, inasmuch as the trust of the 
 term was satisfied, the remainder of it resulted to the first son of the 
 testator.(4) 
 
 51. Devise of freehold, leasehold and copyhold to A, B and C, tenen- 
 dum, the freehold and leasehold in trust for A. Held, the copyhold 
 descended to heirs.(5) 
 
 52. Although the same technical words are not required to create 
 an estate by will as by deed, yet, when created, the same circumstances 
 will raise a resulting trust to the heirs of the devisor in the former case, 
 and to the grantor himself in the latter.(6) 
 
 53. There are several other distinct cases, in which a trust results by 
 operation of law. Thus, where land is conveyed for a consideration, 
 to be determined by the price for which the grantee shall sell it ; a 
 trust results to the grantor till such sale is made, in the same way as if 
 the grantee had been expressly empowered to sell the land for the 
 grantor's b€nefit.(7) 
 
 54. Where the legal estate in lands is conveyed, and trusts are an- 
 nexed to it which are either illegal or contrary to public policj^, the lat- 
 ter are void ; and either the donee will take the absolute estate, or the 
 whole trust result to the donor, as one or the other construction will 
 best suppress the illegal purpose. Thus, where slaves were conveyed, 
 in trust to permit them to live together, and be industriously employed, 
 and the donee to control their morals, &c. ; held, inasmuch as emanci- 
 pation or a qualified slavery is contrary to public policy, and as the 
 deed showed that the slaves were not to be the property of the donee, a 
 trust resulted to the donor.(8) Upon a similar principle, it has been 
 seen, (sec. 34,) no trust will result to an alien. 
 
 55. So, where the trusts or objects of a limitation fail or are 
 exhausted, a trust results,(9) 
 
 56. Where one conveys land to trustees for such uses and purposes 
 as he shall appoint, and fails to make an appointment, a trust results 
 to him and his heirs.(lO) 
 
 (1) Pilkington v. Bayley, 7 Bro. Pari. Ca. 
 383 ; Hutohins v. Lee, 1 Atk. 447. 
 
 (2) Brown v. Jones, 1 Atk. 191 ; 1 Cruise, 
 314. 
 
 (3) 2 Story, 442. 
 
 (4) 1 Cruise, 314 
 
 Vol. I. 21 
 
 (5) Stubbs V. Sargon, 2 Keen, 255. 
 
 (6) Stevens V. Ely, 1 Dev. Bq. 493. 
 
 (7) Prevost v. Gratz, 1 Pet. 367. 
 
 (8) StBTena v. Eiy, 1 Dev. Eq. 493. 
 
 (9) 2 Story, 443. 
 
 (10) Ktzg. 223. 
 
322 
 
 TRUSTS. IMPLIED AND 
 
 [CHAP. XSIIL 
 
 57. Where a trustee renews a lease in his own name, he shall hold 
 it for the benefit of the cestui que trust. It is said, if a mortgagee, 
 executor, trustee or tenant for life, having a limited interest, gets an 
 advantage by being in possession or behind the back of the party- 
 interested in the subject, or by some contrivance in fraud ; he shall 
 not hold the same for his own benefit, but hold it in trust.(l) 
 
 58. And this rule applies, although the trustee requested a renewal 
 for the cestui, before obtaining it for himself ; more especially where 
 the cestui \a an infant. The court will, in such case, order an assign- 
 ment of the lease to the infant ; an account of the profits since the 
 renewal ; and that the trustee be indemnified from the covenants in 
 the lease.(2) 
 
 59. A assigns to B a lease of land as security. Afterwards, for a 
 consideration expressed but not actually paid, A agrees to give up 
 one-half of the land to B. B takes possession, surrenders the old 
 lease, and takes a new and extended one. Held, the agreement to 
 give up the land appeared on the face of it to be procured by undue 
 influence, and by taking advantage of the former assignment ; that 
 the maxim, "once a mortgage always a mortgage," was applicable; 
 and that A should have the benefit of the new lease, on payment of 
 the amount due B.(3) 
 
 60. So where one partner, negotiating for a lease for the firm, re- 
 ceived a large sum of money from the lessor for himself; held, he 
 took it in trust for the firm.(4) 
 
 61. Upon the same principle, a purchaser with notice, from one 
 having only a limited interest in the property, becomes a trustee for 
 those beneficially entitled. 
 
 62. Thus, where A had a temporary right to certain slaves, the 
 ultimate property being in minor children, and B, having notice of 
 the title, purchased them from A ; held, B should be a trustee for 
 the children, Otherwise, with a purchaser from B without notice.(5) 
 
 63. If two parties are interested together, by mutual agreement in 
 writing, for the purchase of land, and a purchase is made accordingly ; 
 one cannot appropriate the benefit exclusively to himself, but any 
 private advantage makes him a trustee for the other. Whether the 
 same rule applies, where the agreement is parol, quoere.{Q){a) 
 
 64. Where a conveyance of land has been obtained by fraud, the 
 grantee is in equity a trustee for the grantor. So, any party, in 
 possession of land "by fraud, is in equity a trustee for the person 
 beneficially interested. (7) 
 
 (1) Holeridge v. Gillespie, 2 Jolin. Cha. 
 33-4. 
 
 (2) Keach v. Sandford, Sel. Gas. in Chy. 6 ; 
 Blewett V. Millett, 7 Bro. I'arl. 3G7 ; Killiok 
 V. Fleaney, 4 Bro. 161; James v. Dean, 11 
 Ves. 383 ; !Fitz<;ibbon v. Seanlan, 1 Dow. 
 261; Taster v. Marriott, Amb. 668; Owen 
 V. Williams, lb. 784; 5 Bro. Pari. 10. 
 
 (3) Holeridge v. Gillespie, 2 John. Olia. 30. 
 
 (4) Pawcett v. Whitehouse, 1 Russ. & My. 
 181. 
 
 (5) Vfam'ourzee v. Kennedv, 4 Dessms. 
 474; Phyfe v. Wardell, 5 Paige, 268. 
 
 (6) Flagg V. Mann, 2 Sumn. 487. 
 
 (7) 2 Atk. 150 : Brown v. Lynch, 1 Paige, 
 147 ; Perkins v. Hays, 1 Cooke, 166. 
 
 (a) One of several heirs entered upon the land, retained possession, received the rents, 
 built upon it, and took out a patent for himself and in trust for the others, and the land was- 
 taxed in their names. Held, no disseizin of the other heirs. Hart v. Gregg, 10 Watts, 189. 
 
CHAP. XXIII.] 
 
 RESULTING TRUSTS. 
 
 323 
 
 65. An exception to the rule of resulting trusts, in favor of the 
 partj who pays the purchase-money of an estate, is where a father 
 buys land, and takes a conveyance to his minor child.ia) Such trans- 
 action, founded upon the consideration of blood and affection, is held 
 an advancement to the latter, made in fulfilment of the parental obliga- 
 tion of support. In ordinary cases, from the payment of the price the 
 law presumes an implied trust in favor of the real purchaser, which, 
 however, may be rebutted by parol evidence. But, in this case, the 
 presumption is the other way, subject to be controlled by the same 
 kind of evidence. And though, during the child's infancy, the father 
 takes the profits, the law will intend that he does this as guardian ; or, 
 if there be a power of attorney, as agent for the son. So, if the father 
 occupy the land during his life, lay out money in improvements, devise 
 the estate to other parties, and by his will provide otherwise for the 
 son ; the latter shall still hold the land. So, although the son gave 
 receipts to tenants for the use of the father. An infant cannot be pre- 
 sumed to have been intended for a trustee.(l) In an early case, how- 
 ever, the extreme youth of the child was regarded as a reason for not 
 considering the purchase as an advancement (2) 
 
 &i^. Where the estate purchased by a father is conveyed to the 
 minor son and a stranger jointly, the law still construes it an advance- 
 ment for the child, more especially if the other grantee disclaims. In 
 such case, it is said, if the child should die before the other grantee, 
 the latter would then be a trustee for the father, and bound to re- 
 convey to him. And this would seem to be the object of joining him 
 in the deed, as well as the affording protection to the infant.(3) 
 
 66 a. The grantee of a farm, having mortgaged it for the price, lived 
 upon it 33 years, till his death. He did no labor upon the farm, but 
 his four youngest sons carried it on, and paid for it by their labor. 
 Held, a trust resulted in their favor.(4) 
 
 66 b. Where a father purchased tract A in his own nagie, with the 
 money of his son, and then agreed with him that the amount thus paid 
 should go into tract B, the possession of which was delivered to the 
 son by the father under a contract for a sale, paying a yearly sum to 
 the father for life ; and the son gave notice to his tenant of tract A, 
 who then paid rent to the fixther ; and the assessments were respectively 
 charged, and the son continued in possession of tract B; held, there 
 was evidence for a jury of a parol sale, which was not within the statute 
 of frauds.(5) 
 
 67. A father agreed with his minor son to give him his own earn- 
 ings, but the father occasionally received them, and, being then solvent, 
 purchased lands of equal value, himself paying the price, but taking 
 
 (1) Parish D. Rhodes, Wright, 339 ; Astreen 
 V. Flanagan, 3 Edw. 279 ; Phillips v. Gresa, 
 10 Watts, 158; Seawin v. Scawin, 1 T. & 
 Coll. Clia. 65 ; .Sljeats v Slceats, 2 Y. & Coll. 
 Clia. 9 ; Sidmouth v. Sidmouth, 2 Beav. 447 ; 
 Plunkett V. Lewis, 3 Hare, 316; Grey v. 
 Grey, 1 Chan. Gas. 296 ; Ford v. Katharine, 
 
 Pinch R. 341 ; Mumma v. Mumraa, 2 Vern. 
 19; Dennison v. Goehring, 7 Barr, 175. 
 
 (2) Binion o. Stone, Nels. Cha. R. 68; 
 .Jacltson V. Matsdorf, 11 John. 96; Sampson 
 V. Sampson, 4 Ser. & R. 333. 
 
 (3) Laraplagh v. Lamplugh, 1 P. Wms. 111. 
 
 (4) Harder v. Harder, 2 Sandf. Ch. 17. 
 
 (5) Lee v. Lee, 9 Barr, 169. 
 
 (a) So where one takes a conveyance in trust for his children, the trust will be enforced, 
 though he himself paid the price. Dennison r. Goehring, 7 Barr, 175. 
 
324 
 
 TRUSTS. IMPLIED AND 
 
 [CHAP. XXUI. 
 
 the deed in the son's name. The father occupied without rendering 
 any account, and afterwards became insolvent. Held, the land was 
 not liable to the father's creditors, the circumstances not justifying any 
 presumption of fraud, inasmuch as the receipt of the son's earnings 
 furnished an equitable consideration for the conveyance to him.(l) 
 
 68. But where a father, being indebted, buys and pays for an estate, 
 and the conveyance is made to his children, and, upon a bill in equity 
 by creditors of the former, the father and children deny any advance- 
 ment; this, with other slight circumstantial evidence, will be sufficient 
 to charge the land with the father's debts.(2) 
 
 69. Parol evidence is admissible, in such case, to rebut the presump- 
 tion of a resulting trust. 
 
 69 a. Where a father purchases land, and, for the purpose of defraud- 
 ing his creditors, has the conveyance made to a son; although no trust 
 thereupon results in favor of the father, yet, the fact of his having paid 
 the purchase-money, constitutes a good consideration for a subsequent 
 agreement between the grantee and the father and another son, for a 
 division of the land between the two sons ; and, where such division is 
 made and acted upon for several years, each son occupying his share, 
 and making expenditures in consequence of the division, and upon the 
 faith of it, the grantee will not be allowed to repudiate the agreement 
 and claim the whole land. (3) 
 
 70. The same principle has been applied to a purchase made by a 
 grandfather in the name of his grandson — the father being dead ; and 
 is also applicable, it seems, to a purchase made in the name of a natural 
 child, if described as the child of the purchaser; because there is an 
 obligation on the parent to provide for such children. So, also, to the 
 case of an adopted child, or a nephew. (4) 
 
 71. After the emancipation of a child from parental custody and 
 support — as b}' bis coming of age, marriage, advancement, &c. — a pur- 
 chase by the .father in his name will not, in general, be deemed an ad- 
 vancement, but will create a trust for the father. But the emancipation 
 or advancement must have been complete, and not merely partial. A 
 child having only a reversion expectant on a life estate, will be con- 
 sidered as unadvanced ; and, even if he have been advanced, this will 
 make no difference, if the father consider him as unadvanced. A pur- 
 chase in the name of a child of full age, however, is to be considered as 
 of equivocal effect, to be determined hy the actual occupancy of the 
 land during the father's life. If t,he father occupy, it will be considered 
 as a trust for him ; if the son, as an advancement.(5) 
 
 72. The principle above stated, m.aking a transaction which would 
 ordinarily create an implied trust, as between parent and child an ad- 
 vancement, is applicable, not only where payment of the purchase- 
 money by the former is the ground of the trust, but also where he 
 conveys property to trustees, declaring the trusts only in part. 
 
 73. A father, by deed, reciting his wish to provide for himself during 
 
 (1) Jenney v. Alden, 12 Mass. 315. 
 
 (2) Doyle v. Sleeper, 1 Dana, 531. 
 
 (3) Proseus v. Molutyre, 5 Barb. 424. 
 
 (4) Ebrand v. Dancer, 2 Cha. Oa. 26 ; 
 Lloyd V. Read, 1 P. Wras. 608; Fearne's 
 Opin. 327 ; Astreen v. Flanagan, 3 Edw. 
 
 -219 ; Currant v. Jago, 1 Coll. Cha. 261. See 
 
 McDaniel v. Zelf, 8 Humph. 58 ; Wait v. Day, 
 4 Denio, 439. 
 
 (5) Finch R. 341 ; Elliott v. Elliott, 2 Cha. 
 Ca. 231 ; Pole v. Pole, 1 Ves. 16 ; Sug. on 
 Ven. 2, 166; Gilbert Lex Praeto. 211; 1 
 Cruise, 320. 
 
CHAP, XXIII.] 
 
 RESULTING TRUSTS. 
 
 325 
 
 bis life, and his family afterwards, conveys his property to his son upon 
 the trusts thereafter mentioned. He then declares trusts of a part of 
 the property for his wife, daughter and niece. The son maintained 
 the father many years. Held, there was no resulting trust for the 
 father.(l) 
 
 7-i. Where a father purchases land, and takes the conveyance to 
 himself and a son jointly, although it was formerly held that the law 
 would construe the transaction as an advancement to the son, it seems 
 to be now settled, that they shall take together, each a moiety of the 
 estate ; and, upon the father's death, his share will be held liable in a 
 Court of Chancery to his creaitors, more especially where the father 
 occupied the estate during his life, and it constituted the only assets for 
 payment of his debts. In making this decision, it was said by the 
 Court, that although " stare decisis''' should be their governing maxim, 
 yet the doctrine of advancement had been already far enough extended, 
 and ought not to be adopted in this case ; where the form of convey- 
 ance showed a clear intention, on the part of the father, to be a joint 
 owner of the estate. A fortiori the same principle would apply, in case 
 of a limitation to the father for life, remainder to the son in fee.(2) 
 
 75. The principle of the above-mentioned case has been questioned 
 by very high authority ; unless the case proceeded on the ground of 
 fraud.(3) 
 
 75 a. Where a deed was taken in the name of a son, the purchase- 
 money paid by him and his father, and the proportion which each paid 
 was uncertain, the court refused to establish a resulting trust in favor 
 of the father.(4) 
 
 76. It seems, parol evidence is not admissible to prove a trust for 
 the father. The trust ought to appear upon very plain and coherent 
 and binding evidence.(5) 
 
 77. No subsequent declaration by the father will be sufficient to 
 raise a trust, where it is clear that an advancement was -originally in- 
 tended. Thus, a devise by him will be of no effect.(6) 
 
 78. But, it seems, such devise to a third person, accompanied by a 
 devise of other lands to the son, will put the latter to his election. (7) 
 
 79. Where the conveyance is proved to have been made by the 
 father for a special purpose ; as, for instance, to sever a joint tenancy ; 
 a trust will result to him. (8) 
 
 80. Some distinction, in relation to this subject, has been suggested 
 between sons and daughters. But it is shrewdly remarked, that, while 
 daughters are less frequently advanced, they are also much less suit- 
 able for trustees, than sons.(9) 
 
 81. It is said, the presumption of advancement to a child ought not 
 to be frittered away by nice ref3nements.(10) In a leading case upon 
 
 (1) Cook V. Hutchinson, Keen, 42. 
 
 (2) Scroop V. Scroop, 1 Cha. Ca. 27 ; Stile- 
 man V, Ashdown, 2 Atk. 417. 
 
 (3) 2 Sag. on Yen. 170. 
 
 (4) Baker v. Vining, 30 Maine, 121. 
 
 (5) 2 Sug. on Ten. 166-8. 
 
 (6) Woodman v. Morrell, 2 Free. 32; * 
 Mumma tt Mumma, 2 Vern. 19. 
 
 (7) 2 Sug. on Ven. 169. 
 
 (8) Baylis v. Newton, 2 Yer. 28 ; Jackson 
 V. Matsdorf, 11 John. 96. 
 
 (9) Sug. on Ten. 172. 
 
 (10) 2 Story, 446. 
 
 * But in this case, the bill in equity of the father, claiming the land, was itself held to 
 disprove a trust. 
 
326 
 
 TRUSTS. IMPLIED AND 
 
 [CHAP. XXIII. 
 
 this subject,(l) Ch. J. Eyre remarks, that the relation of a child rebuts 
 a resulting trust, as a circumstance of evidence ; but that it would be a 
 more simple view of the matter, to regard a child as a purchaser for 
 valuable consideration, upon the same principle by which the considera- 
 tion of natural love and affection raised a use at common law. This 
 construction would shut out evidence on the other side, the introduc- 
 tion of which is " getting'into a very wide sea." Thus, where a son is 
 provided for, the resulting trust is said not to be rebutted, though a 
 father is the only judge what shall be a provision. So, the conveyance 
 is termed a prima fade advancement. Hence, the principle has been 
 subjected to great uncertainty and variation. 
 
 82. A wife cannot be trustee for her husband. Hence, a purchase 
 in the names of the husband, the wife, and a third person, A, for their 
 lives and the life of the longest liver of them, gives to the wife an 
 estate for life, and after her death an estate to A, in trust for the exe- 
 cutors of the husband. So, where a man purchases an estate in the 
 names of himself, his wife and daughter, he cannot by a mortgage 
 bind the land after his own death, and during the lives of the wife 
 and daughter.(2) 
 
 83. It is suggested, however, that a purchase in the name of a wife 
 may be fraudulent against creditors. But, it seems, the St. of 13 Eliz. 
 is not applicable to such case, because the husband might give her the 
 money which is paid for the land, and therefore creditors are not 
 harmed. It seems actual fraud is necessary to avoid the transaction.(3) 
 
 84. If a husband purchase land in his own name with the money of 
 the wife, a trust results to her, as against his heirs at law or mere volun- 
 teers, but not creditors; and a purchaser from the husband will be 
 charged therewith.(4:) On the other hand, in case of a deed made to 
 the wife, the husband paying or securing the price, even with the ex- 
 pectation that it will be ultimately paid by her; although the law pre- 
 sumes an advancement, yet, if done to defraud his creditors, a trust 
 results to him, and the land is liable for his debts.(5) 
 
 84 a. Where a wife, acting under a power of attorney from her hus- 
 band, authorizing her, among other things, to receive and collect all 
 money and other property due to him, for her own use, purchased land 
 with money so received, and took a conveyance thereof to herself; and, 
 after the death of the husband, a bill in equity, alleging these facts, and 
 also that the husband never intended that such purchase should be a 
 provision for the wife, or her separate property, was brought by the 
 heirs at law of the husband against the widow, for a conveyance of the 
 land so purchased by her ; it was held, on demurrer to the bill, that, 
 upon the allegations therein contained, there was no resulting trust in 
 favor of the husband or his heirs.(6) 
 
 84 h. Certain land was bought for a wife, and the price paid partly 
 from the proceeds of her own real estate, to the sale of which she as- 
 sented only on condition the proceeds should be thus invested, and 
 partly by the husband. Held, the land was not liable to sale on exe- 
 
 (1) Dyer v. Dyer, 2 Coxe, 92. 
 
 (2) Kingdome v. Bridges, 2 Vern. 6T ; 
 Back V. Andrews, Preo. in Cha. 1 ; Back v. 
 Andrews, 2 Tern. 120; Jenks j). Alexander, 
 11 Paige, 619. 
 
 (3) Sug. on Ven. 171-2; 11 Paige, 619. 
 
 (4) Methodist, &c. v. Jacques, 1 Jolin. Cha. 
 450; Brooks v. Dent, 1 Md. C\\. 623. 
 
 (5) Guthrie W.Gardner, 19 Wend. 414; 
 Hopkins v. Carey, 23 Miss. 54. 
 
 (6) Whitten v. Whitten, 3 Cush. 191. 
 
CHAP. XXIV.] 
 
 EESULTINa TRUSTS. 
 
 327 
 
 cution against him, nor were the execution purchasers entitled in equity 
 to a conveyance.(l) 
 
 84 c. Where real estate was purchased and paid for in part with the 
 money or funds of the husband, and, with his assent, the conveyance 
 taken to a trustee, who simultaneously gave a mortgage on the estate 
 for the residue of the purchase money ; and also, with the husband's 
 assent, executed a declaration of trust that the premises were held to 
 the sole and separate use of the wife, subject to the mortgage ; held, 
 the rights of creditors not being in question, the declaration of trust 
 •was valid and binding upon the husband, and he had no interest in 
 such estate.(2) 
 
 8i d. If a husband sells his wife's land for his own benefit, under an 
 agreement with her to purchase other land for her of equal value with 
 that sold, and he afterwards, conformably to the agreement, makes such 
 purchase, and causes the vendor to execute the conveyance to his wife; 
 the lands so conveyed will not be subject in equity to the husband's 
 debts, contracted subsequently to his payment for the land, but before 
 the execution of the conveyance.(cS) 
 
 85. In case of a partition between two femes covert, tenants in com- 
 mon, and mutual releases made to their respective husbands; each holds 
 in trust for his wife. But, if only a pecuniary consideration is recited, 
 a purchaser without notice will gain the absolute title. (4) 
 
 CHAPTER XXIV. 
 
 TRUSTS. NATURE, ETC., OP A TRUST ESTATE. 
 
 1. Analogous to legal estates. 
 
 2. Alienation of. 
 
 3. Curtesy. 
 9. Dower. 
 
 16. Subject to debts. 
 27. Merger. 
 
 29. Aetion.s by and against tlie cestui, &c. 
 36. Conveyance of the legal estate, when 
 
 presumed. 
 39. Trust, how affected by lapse of time, 
 
 and the statute of limitations. 
 
 1. A TRUST being a use not executed by the statute of uses, it was 
 held, in some early cases, that trust estates were to be regarded as 
 identical in their incidents with uses prior to this statute. But a dif- 
 ferent doctrine is now settled. Although a cestui que trust has no legal 
 estate, yet, in the consideration of a court of equity, where only, for the 
 most part, his title is recognized, (a) he is the real owner of the land. 
 He has an equitable seizin of it, corresponding in all respects with the 
 legal seizin that is acknowledged in courts of law. In this respect, as 
 in many others, equity follows the law ; and it is said, if there were not 
 the same rules of property in all courts, all things would be, as it were. 
 
 (1) Williams v. Williams, 6 Ired. Bqu. 20. 
 
 (2) Martin v. Martin, 1 Comst. 473. 
 
 (3) Barnett v. Goings, 8 Blackf. 284. 
 
 (4) Weelis V. Hoas, 3 Watts & S. 520. 
 
 (a) Judge Story (on Equity, 2, 228) places trusts under the exclusive jurisdiction of 
 equity. 
 
328 
 
 TRUSTS. NATURE, ETC., OF 
 
 [CHAP. XXIT. 
 
 at sea, and under the greatest uncertaintv.(l) All the canons of descent 
 apply to trusts.(a) They are alieDable(&) and devisable. So they are 
 subject to the same classification — into inheritances, freeholds, and 
 estates less than freehold ; estates in possession, remainder and rever- 
 sion ; and estates several and undivided — with legal estates. The same 
 rule also applies to them as to entailments and perpetuities.(2) It has 
 been said, however, that though limitations of trusts cannot be carried 
 farther, in the way of perpetuity, than legal interests ; yet, it seems, 
 they may be more liberally expounded.{3) 
 
 2. Any legal conveyance or assurance by a cestui que trust shall have 
 the same effect and operation upon the trust, as it should have had 
 upon the estate in law, in case the trustees had executed their trust. 
 But, by a clause in the statute of frauds, universally adopted in the 
 United States, all grants and assignments of trusts must be in writing, 
 and signed by the party. And, it seems, the effect of an assign- 
 ment by the cestui que trust is not to change the estate of the trustee, 
 but only to pass to the assignee precisely the cestui's own interest in 
 the land. (4)(c) 
 
 3. A trust estate is subject to curtesy.{5) Thus, a man devised lands 
 to trustees ia fee, in trust to pay his debts, and convey the surplus to 
 his daughters, A and B, equally. A brings a bill for partition. 0, 
 the husband of B, being a defendant, alleges in his answer, that he 
 married B under the belief of her owning the legal estate ; that she 
 was in receipt of the profits at the time of marriage, and the trust was 
 
 (1) Nourse v. Finch, 1 Tea. 357 ; Watts v. 
 Ball, 1 P. Wms. 108; Shrepnel v. Vernon, 2 
 Bro. 271 ; Burgess v. Wheats, 1 Eden, 206 ; 
 2 Story, 236-7 ; Chaplin v. Chaplin, 3 P. 
 Wms. 234 ; Cudworth v. Hall, 3 Dess. Cha. 
 260 ; Cashborne v. Inglish, 2 Abr. Bq. 728 ; 
 Duffy V. Calvert, 6 Gill, 487. 
 
 (2) Co. Lit. 290 b, il 
 
 (3) Brailsford v. Heyward, 2 Dess. 293 ; 
 Walk. Intro. 340. 
 
 (4) 2 Cha. Gas. 78; Elliott v. Aranstrong, 
 2 Blackf. 198; Blake v. Foster, 8 T. R. 494. 
 
 (5j 1 Yir. Rev. C. 159; Alab. L. 247; 
 Clay, 169-70; Robison v. Codman, 1 Sumn. 
 128; 1 Story's Eq. 74. 
 
 (a) Where real estate was placed in the hands of a trustee, to bo conveyed to the ap- 
 pointee of A, or, on failure of an appointment, to her heirs, and she died vifithout making 
 one; held, as she had no legal title, the property could not be sold, in the ordinary course 
 of administration, under a license, for payment of her debts. Coverdale v. Aldrich, 19 Pick. 
 391. An heir of A having made a general assignment, for his creditors, of all his lands, 
 tenements, &c., goods, &c,, and all his right, title and interest in and to the same ; held, his 
 share in the above real estate passed thereby. lb. 
 
 (6) Where a cestui que trust, by a sealed instrument, "sold, assigned and transferred" to 
 A his "one-fourth interest in a house and lot," being the house and lot in which he had an 
 equitable interest; held, this was an executed contract, and conveyed all the interest of the 
 grantor. Rogers v. Colt, 1 New Jersey, 704. 
 
 (c) It would seem to be otherwise with a use, prior to the statute of uses. St. 1 Rich. 
 Ill, eh. 1, provided that the conveyance of one having a use should be good against the 
 feoffees to use. It will be seen (infra, sec. 23) that a sale on eoxmtion against the cestui has 
 the same effect. Where a conveyance was made to trustees, to receive the rents for the 
 uses of the cestui, during his lile, then to his heirs ; held, the cestui could neither aliene nor 
 pledge his interest, nor authorize the trustee to sell it. Tan Eps v. Tan Eps, 9 Paige, 237. 
 A conveyance made by the cestui is not illegal for maintenance, though the trustee sets up 
 an adverse claim. Baker v. Whiting, 3 Sumn. 476. 
 
 Where the grantor, in a deed of trust to secure a debt, gives a deed to the cestui que trust, 
 such deed passes only the equity remaining in the grantor after he made the deed of trust; 
 the legal title remains in the trustee. Brown v. Bartee, 10 S. & M. 268. 
 
 And if, on a sale of the land by the trustee, under the deed of trust, it is purchased by the 
 cestui que trust ; he will have the entire estate in the land; and a sale of the same land on 
 execution, issuing upon a judgment recovered against the grantor in the deed of trust, will 
 pass no estate. lb. 
 
CHAP. XXIT.] A TRUST ESTATE. 329 
 
 not discovered till after her death. Held, C was entitled to curlesy.(l)(a) 
 But, where land is given to trustees for the separate use of a married 
 woman, the husband is not entitled to curtesy. 
 
 4. Devise to trustees in fee, in trust to apply the rents and profits to 
 the sole and separate use of the testator's daughter A, for her life, with 
 a power of disposal and appointment to her. She having made no 
 appointment, her husband claimed to be tenant by the curtesy, on the 
 ground that the inheritance descended to her. Held, the whole legal 
 estate was in the trustees ; that, although A had the (equitable) inherit- 
 ance, she had no seizin in deed during coverture, and the husband had 
 no equitable seizin, and could not have possession or take the profits ; 
 that the testator had treated the wife as a feme sole, and neither in law 
 or equity was there any claim to curtesy.(2) 
 
 5. Money agreed or directed to be laid out in land may, in equity, 
 be subject to curtesy. 
 
 6. A woman devises to her daughter A £300, to be laid out by her 
 executors in land, which was to be settled to the use of A and her 
 children, remainder over. The money was never thus laid out. After 
 A's death and that of her issue, her surviving husband, by a bill in 
 equity, prays that the land may be purchased and settled on him for 
 life, or the interest of the money paid to him for life. Held, he should 
 have the interest of the money. (3) 
 
 7. It is said that, notwithstanding some opinions to the contrary, 
 the husband shall have curtesy in an equitable inheritance of the wife, 
 though the rents, &c., are to be paid to her separate use during cover- 
 ture. The receipt of them is a sufficient seizin. But, if a devise is 
 made to a wife for her separate and exclusive use, and with a clear and 
 distinct expression that the husband is not to have any life estate or 
 other interest, but that the same is to be for the wife and her heirs ; 
 Chancery will consider him as a trustee, and not allow any curtesy. (4) 
 
 7 a. Devise in trust to the use of the testator's daughter, to her sepa- 
 rate use, to be disposed of as she might think proper ; after the death 
 of her husband, the trust to terminate, and the daughter's title become 
 absolute. She died before her husband, leaving children. Held, the 
 husband was entitled to curtesy, whether the trust was determined or 
 not by her death. (5) 
 
 8. Since a trust itself is subject to curtesy, it seems to follow of 
 course that a legal estate, to which a trust is annexed, is not thus sub- 
 ject. It is said, that tenant by the curtesy cannot stand seized to a use, 
 for he is in by the act of law, in consideration of marriage, and not in 
 privity of estate. But, in equity, such tenant would be affected by the 
 use or trust. (6) 
 
 9. In England, there is, at law, no dower in a trust estate, whether 
 
 (1) "Watta V. Ball, 1 P. Wms. 108 ; Md 
 L. 701. 
 
 (2) Hearle v. Greenbank, 1 Tes. 298 ; lb. 
 3 Atk. 695 ; Cockran v. O'Hern, 4 W. & 
 Serg. 95 ; Jarvis v. Prentice, 19 Conn. 272. 
 
 (3) Sweetapple o. Bindon, 2 Vern. 536; 
 
 Cunningliam v. Moody, 1 Ves. 174 ; Dodson 
 V. Hay, 3 Bro. R. 404. 
 
 (4) 4 Kent, 31; Walk. 329; 3 Atk. 716; 
 Co. Lit. 29 a, n. 6 ; Cochran i). O'Hern, 4 
 Wattij & S. 95. 
 
 (5) Payne v. Payne, 11 B. Mon. 138. 
 
 (6) 2 Story, 234, n. 4. 
 
 (a) In Maryland (Md. L. 701,) curtesy is allowed in equities, but not to the prejudice of 
 any claim for the price of the land, or other lien. 
 
330 
 
 TRUSTS. NATURE, ETC., OF 
 
 [CHAP. XXIV. 
 
 the husband have himself parted with the legal title before marriage, 
 reserving only a trust ; or whether a trust estate has been directly- 
 limited to him by a third person. The same rule applies, where the 
 husband purchased an estate in the name of a trustee, who acknow- 
 ledges the trust after his death.(l) It has been said, that a trust does 
 not differ from a legal estate, except in regard to dower.{2) (See eh. 
 31, s. 4.) 
 
 10. This point was first settled in the 12th year of Ch. II, and has 
 been since, though with apparent reluctance, uniformly adhered to.(a) 
 The grounds of decision are said to have been, partly the universal un- 
 derstanding of the community, and corresponding practice of convey- 
 ancers, to depart from which would produce great confusion of titles, 
 and defeat the intention of numerous limitations ; and partly the phra- 
 seology of the statute of uses, which in its preamble recites, that by 
 means of uses women had been defeated of their dower ; which incident 
 must still belong to trusts, a trust being since the statute what a use 
 ■was before. (8)(6) 
 
 11. A distinguished English judge (Sir Joseph Jekyll) was of opinion, 
 that the rule of precluding a widow from dower in a trust was applica- 
 ble, only where the husband created the trust by some act of his own, 
 as by purchasing an estate in the name of a trustee, thereby showing 
 a clear intent to cut off the claim of dower ; and not where thp land 
 came to the husband by the act of a third person. The same judge 
 also held, that the widow sBould have dower, where a time is fixed for 
 the trustee's conveying the legal estate to the husband, but the latter 
 dies before such conveyance is made ; upon the principle, that what 
 ought to be done by a trustee, is regarded in law as actually done. (4) 
 
 12. These distinctions, however, have been since rejected, and the rule 
 against the right of dower in a trust estate held to be a universal one. 
 The cases, in which the above-named suggestions of Sir J. Jekyll were 
 made, are said to have turned upon their own peculiar circumstances, 
 and not to warrant any general conclusion.(5) 
 
 (1) Colt V. Colt, 1 Cha. R. 134 ; Botlomley 
 V. Fairfax, Free, in Ciia. 336 ; 1 Story on 
 Equ. (3d ed.) 74; Ray v. Ring, 5 Barn. & Al. 
 561 ; Hamlin v. Hamlin, 19 Maine, 141 
 Cooper V. Whitney, 3 Hiil, 95. 
 
 (2) Ambrose v. Ambrose, 1 P. "Wras. 321 
 Danibrth v. Lowry, 3 Hayw 68. 
 
 (3) Chaplin v. Chaplin, 3 P. "Wms. 235 
 Att'y Gen. v. Scott, For. 138. 
 
 (4) Banl^a v. Sutton, 2 P. Wms. 10S; 
 Fletcher v. Robinson, For. 139. 
 
 (5) Godwin V. Winsmore, 2 Atk. 526 ; 
 Forder v. Wade, 4 Bro. R. 625 ; For. 139. 
 See Knight v. Frampton, 4 Beav. 10 ; Hamb- 
 lin V. Hamblin, 1 Appl 141, adopting the 
 English rule. 
 
 (o) But, by St. 3 & 4 Wm. lY, ch. 105, see. 2, a widow may claim dower in equity from 
 any beneficial estate or inheritance in possession, except joint tenancy, in which she is not 
 dowable at law. 1 Steph. 349-50. 
 
 (6) Another reason of the distinction made between curtesy and dower in trusts is said 
 to be, that there had long been an understanding among the people, that a trust estate was 
 not subject to dower, and numerous conveyances and settlements had proceeded upon this 
 supposition. During coverture, a woman could not aliene without her husband • and 
 therefore it was not deemed necessary to obtain her concurrence in a transfer of the land. 
 Bat no one would purchase an estate subject to curtesy, without the assent of the husband. 
 Therefore, the allowance of dower would operate injuriously upon purchasers, while that of 
 curtesy would not, because they had provided against it. 2 Story, 237, n 1 • D'Arcv v 
 Blake, 2 Soh. & Lef. 387. 
 
CHAP. XXIV.] 
 
 A TRUST ESTATE. 
 
 331 
 
 13. But the widow of a trustee shall not have dower.(l)(a) 
 
 14. In the United States, the rule against allowing dower in trusts 
 has been extensively changed. In North Carolin.i, Virginia,(i) Illinois, 
 Indiana, Tennessee and Ohio,(c) a widow has dower in all equitable es- 
 tates. In Pennsylvania, generally, only in legal estates ; but she has 
 dower in a trust, by an immemorial usage, which has never been ques- 
 tioned. So, in Maryland, by statutc.(2) 
 
 15. In Ohio, equitable estates are enumerated, as "all the right, title 
 and interest, ice, held by bond, article, lease, or other evidence of 
 claim. "(rf) But while, in legal estates, dower is allowed of all lands 
 owned during coverture, in equitable estates it is limited to such as the 
 husband held at his death. (3) 
 
 16. By the English statute of frauds, and by the late St. 1 & 2 Vict., 
 c. 110, s. 11, trusts are made liable to the debts of the cestui que trusty 
 and declared to be assets in the hands of his heir. The contrary had 
 previously been held by the courts, in analogy to the old law of uses. 
 In North Carolina, equitable estates are declared to be personal assets ; 
 in Indiana, assets by descent in the hands of the heir. In Georgia and 
 South Carolina, a trust estate is assets by descent.(-i) 
 
 17. Land held in trust cannot be sold by the administrator of the 
 trustee, as assets. Nor is it bound by a judgment, even though con- 
 fessed, and for the purchase-money ;(e) nor can it be taken upon exe- 
 cution against the trustee.(5) 
 
 18. Although the aid of a court of equity is required, to obtain pos- 
 session of a trust estate after the death of the cestui, yet, when obtained, 
 it is legal, not merely equitable assets.(6) 
 
 (1) Eobison v. Codman, 1 Sumn. 121 ; 
 Cooper v. Whitney, 3 Hill, 101 ; Derush v. 
 Brown, 8 Ohio, 412. 
 
 (2) 1 Tir. E. 0. 159; lUin. R. L. 627 ; Purd. 
 Dig. 221; 1 N. C. Rev. St. 614 ; 2 S. & R. 
 554; Tnd. Rev. L. 209 ; Ten. St. 1823, 46 ; 4 
 GrifiF. 909 ; M'Mahan v. Kimball, 3 Blackf. 6. 
 
 (3) Walk.Intro. 312, 324; Smiley i;.Wrigbt, 
 2 Oliio, 507. See eh. 10, sec. 15. 
 
 (4) Bennet v. Box, 1 Cha. Gas. 12; 1 N. C. 
 Rev. St. 278 ; Ind. Rev. L. 276; Prince, 916 ; 
 2 Brev. Dig. 316. 
 
 (5) Robison v. Codman, 1 Sumn. 12) 
 Elliott u Armstrong, 2 Blackf. 198; 2 Story, 
 242 ; 4 J. J. Mar. 599 ; Williams v. Jnllerton, 
 12 Mel. 346; Wilhelm v. Tolmer, 6 «arr, 
 296. 
 
 (6) 2 Atk. 293. 
 
 (a) Five persons purchased land for the joint use of all, and agreed, in writing, that one 
 should take a deed, and pay over shares of the proceeds to the others. Upon a bill for 
 partition, held, the wife of the trustee had gained no inchoate right of dower. Castor v. 
 Clarke, 3 Edw. 428. 
 
 (6) Independently of a statutory provision, there would be no dower. Claiborne v. Hen- 
 derson, 3 Hen. & M. 322. 
 
 (c) Chancellor Kent says, this is said to be the rule as to trusts in New Jersey, Pennsyl- 
 vania, Maryland, Virginia, Kentucky, Mississippi, Ohio, Illinois and Alabama. 4 Kent, 45 ; 
 Clay's Dig. 157. In Kentucky, a transfer by the husband bars dower in equitable estates. 
 Lawson v. Morton, 6 Dana, 471. 
 
 (d) In Indiana, dower is allowed in property contracted for, in proportion to the price 
 paid. Rev. St. 238-9. 
 
 (e) A and others, who had liens upon real estate of a corporation, held for church and 
 school purposes, agreed to purchase the estate at sheriff's sale. It was accordingly purchased 
 by A, and conveyed to him by tlie sheriff, and he executed a declaration of trust, that he 
 would hold the same to sell and pay to himself and hia associates certain specified amounts, 
 any remainder of the proceeds of the sale to be paid to the use of the corporation. Held, A. 
 had such an interest in the estate as could be bound by a judgment against him ; and, on a sale 
 by a trustee appointed by the court, in the room of A, the share of the proceeds, formerly pay- 
 able to A, was to be paid to his judgment creditor, in preference to one to whom he had trans- 
 ferred the same by an assignment subsequent to the judgment. Drysdale's Appeal, 3 
 Harris, 457. 
 
332 
 
 TRUSTS. NATURE, ETC., OF 
 
 [CHAP. XXIV. 
 
 19. In Massachusetts, Pennsylvauia and Ohio, a trust estate cannot 
 be taken in execution by a creditor of the cestui. In Ohio, it may be 
 reached by a process in Chancery. It is held, that an equitable title to 
 laud, which is not complete and perfect, and especially an imperfect 
 equity of a complicated character, is not the subject of sale under exe- 
 cution. The creditor must resort to a court of chancery, in order to 
 reach such an equity. (1) . . 
 
 20. Trusts are liable to debts in North Carolina, Maryland, Virginia, 
 Kentucky,(a) Georgia, New Yorlc, New Hampshire and Indiana, more 
 especially, implied trusts.(2) 
 
 21. In Tennessee, where land has been sold under a deed of trust, it 
 is redeemable, as in case of sales on execution and chancery decrees. In 
 the same State, the English statutes, subjecting trusts to execution, are 
 held to be in force. Bat they are applicable only to trusts created by 
 or resulting from a conveyance, not to those which are merely constructive 
 or covenanted to be raised. Thus, the interest of one holding an obliga- 
 tion for land is not subject to execution. (3) 
 
 22. In New Hampshire, although the statute upon the subject pro- 
 vides only for levying executions upon estates in fee, it is the immemo- 
 rial usage to levy them upon lesser estates, and upon trusts. So, a de- 
 vise in trust, to permit the cestui to occupy and receive the income, 
 vests in him an interest which is liable to be taken on execution. It is 
 an executed use.(4) 
 
 23. In North Carolina, the statute, subjecting trusts to legal process 
 against the cestui, applies only to those cases where the estate is held 
 solely in trust for the defendant. A sale on execution passes not only 
 his interest, but the trustee's also. Hence, where there are other trusts, as,_ 
 for instance, to sell and pay debts, a sale on execution against the cestui 
 would injuriously affect third persons.(5) So, in New York, a trust is 
 not subject to an execution against the cestui, unless the trustee holds 
 the legal title as a clear simple trust, for the judgment of debtor alone.(6) 
 
 24. A married woman, for whose benefit a trust has been created, 
 even by herself before marriage, cannot, by her own act, subject the 
 estate to be taken on execution. 
 
 25. A woman, before marriage, conveyed her property, in trust for 
 herself, to her brother. The deed provided, that she and her future 
 husband should remain in possession, so long as they made a proper 
 
 (1) "Walk. Intro. 312 ; Russell v. Lewis, 2 
 Pick. 508; Merrill v. Brown, 12 lb. 216; 
 Ashliurst i;. Given, B Watts & S. 323; Hop- 
 kins V. Carey, 23 Miss. 54 ; Byrick v. Het- 
 rick, 1 Harr. 488. See Mathews v. Stephen- 
 son, 6 Barr, 496. 
 
 (2) 1 N. C. Rev. S. 266 ; 1 Tir. Rev. 0. 159 : 
 1 Ey. R. L- 443, 663 ; Prince, 916 ; 4 N. 
 H. 402-3; Ontario, &e. v. Root, 3 Paige, 
 418; Blair v. Bass, 4 Blaok£'539; Pool v. 
 Glover, 2 Ired. 129; Lynch v. Utica, &c., 18 
 
 Wend. 236 ; M'Meeheu v. Marraan, 8 Gill & 
 J. 57 ; Gowing v. Rich, 1 Ired. 553 ; Upham 
 V. Varnev, 15 N. H. 462 ; U. S. Dig. 1848, 
 127. 
 
 (3) Tenn. St. 1823, 23; Shute v. Harder, 1 
 Terg. 1. 
 
 (4) Pritohard v. Brown. 4 N. H. 402-3; 
 Upham V. Tarney, 15 N. H. 462. 
 
 (5) Harrison v. Battle, 1 Dev. Eq. 537 ; Da- 
 vis V. Garrett, 3 Ired, 459. 
 
 (6) Ontario, &o. v. Root, 3 Paige, 478. 
 
 (a) In this State, the trust estate is liable in Chancery. And, pending a suit against the 
 heir of the cestui for a debt due from the latter, the estate cannot be sold upon an execu- 
 tion against the heir himself. Gillispie v. Walker, 3 B. Men. 505. A cestui, who is not 
 party to a sale of the estate on execution, may be relieved in equity, after discharging the 
 equitable claims of the purchaser. Cassiday v. M'Dauiel, 8 B. Mon. 519. 
 
CHAP. XXIT.] 
 
 A TRUST ESTATE. 
 
 833 
 
 use of the property, and that, whenever they should use it improperly, 
 it should be at the trustee's disposal. The husband and wife were 
 always in possession. They joined in giving a note, in settlement of a 
 claim against him; upon which judgment was recovered, and her in- 
 terest in the estate sold on execution, the creditor having notice of the 
 trust. The purchaser, being the judgment creditor, brings an action 
 of trespass to try title ; held, Chancery would restrain such action by 
 an injunction. (1) 
 
 26. Where a trustee hy Ms own act transfers the estate, the cestui may, 
 at his election, hold him answerable. But, where the alienation takes 
 place by a decree against the trustee, the only remedy of the cestui is 
 by a resort to the adverse claimant, and the property in his hands.(2) 
 
 27. A trust merges in the legal estate, when both become united in 
 one person, because a man cannot be trustee for himself 
 
 27 a. Where a trustee of land for the use of his children devised to 
 them all the residue of his estate ; held, the legal estate in such parcel 
 was vested in the children, either under the residuary devise or by 
 descent, and that their equitable estate was merged therein. (3) 
 
 28. But the rule is applicable, only where the legal and equitable 
 estates are co-extensive and commensurate. If the former is an abso- 
 lute, and the latter only a partial estate, there will be no merger, be- 
 cause it might be an injury to the party. (4) So, where a trustee is one 
 of the beneficiaries of the trust, he takes a legal estate to the extent of 
 his interest.(5) 
 
 29. How far a cestui que trust may support or defend against an ac- 
 tion for the land, as between himself and the trustee, or himself and a 
 third person, upon the strength of his equitable title, seems to be a 
 point unsettled in England, and with us variously decided in the differ- 
 ent States. Lord Mansfield held, that the cestui que trust might main- 
 tain ejectment, if the trust was clearly proved, but not otherwise ; 
 while Lord Kenyon ruled, that, where the legal estate is outstanding in 
 another person, the party not clothed with that legal estate cannot re- 
 cover in a court of law, whether the action is brought by the trustee or 
 by a stranger.(6) 
 
 80. In New York, the cestui que trust cannot defend himself in an 
 ejectment brought by the trustee, by showing that he is the beneficiary 
 of a resulting irust,(7) more especially unless such interest is clear and 
 precise. Thus, a patent for lands was granted to A, B & C, for them- 
 selves and their associates, being a settlement of Friends on the west 
 side of S. lake, to have and to hold the same to said three persons, as 
 tenants in common for themselves and their associates. The plaintiff, 
 claiming under the patentees, brings ejectment against the defendant, a 
 member of the societv, who had paid a proportion of the purchase ■ 
 money. Held, the defendant's title was too uncertain, to prevail against 
 the plaintiff's legal claim. But, where the trust is wholly nominal, and 
 
 (1) Wilson V. Cheshire, 1 M'Cord's Cha. (6) Armstrong v. Beirse, 3 Burr. 1901 ; 
 233. Goodtitle v. Knot, Cowp. 46 ; Doe v. Pott, 
 
 (2) Cobb V. Thompson, 1 Mar. 513. Dougl. 721; Roe v. Reade, 8 T. R. 122; 1 
 
 (3) Cooper'!). Cooper, 1 Halst. Ch. 9. Pet. 299 ; lb. 430 ; Denu v. Allen, 1 Penning 
 
 (4) Wade v. Paget, 1 Bro. 363 ; Brydges v. 60 ; M'Henry v. M'Call, 10 Watts, 456. 
 Brydges, 3 Vea. 126; Nicholson v. Halsey, (7) Moore D. Spellman, 5 Denio, 225 ; Jaok- 
 1 John. Ch. 422 ; Gardner v. Astor, 3, 53. son v. Van Slyck, 8 John. 488. 
 
 (5) Mason v. Mason, 2 Sandf. Ch. 432. 
 
3S4 
 
 TRUSTS. NATURE, ETC. OP 
 
 [CHAP. SXIT. 
 
 executed in the cestui^ a third person cannot set it up as against the 
 cestui.(\.) 
 
 31. In Pennsylvania, a cestui que trust may maintain ejectment, 
 -where possession is necessary, to give him such enjoyment of the 
 property as it was intended he should have ; and the legal title of the 
 trustee cannot be set up against him by a third person. Thus, 
 where the owner of a farm dedicates a portion of it to a charity, as to 
 a school, without a conveyance, and afterwards conveys his farm to 
 another ; the grantee becomes only trustee, in respect to the portion so 
 dedicated, for the cestuis que trust ; and, if he ousts them, they may 
 maintain ejectment,(2) 
 
 82. So, a purchaser of land may bring ejectment against the vendor 
 upon a mere agreement, after tender of the price ; and the vendor 
 against the purchaser, if the price be not paid. (3) 
 
 33. In Massachusetts, if the trustee bring a real action against the 
 cestui, upon the plea of " nul disseizin," the former shall prevail. Bu^ 
 the tenant may plead specially the trust, and that he is in possession as 
 tenant at will, taking the rents and profits. In Maryland, such action 
 will lie, unless, from the facts, a conveyance is to be presumed. In 
 Alabama, the cestui cannot defend on the ground of improper conduct 
 by the trustee.('i) 
 
 3i. In Ohio, a trust cannot be taken advantage of in ejectment, and 
 a court of law will not notice it.(5) 
 
 35. A cestui may maintain ejectment, after the purposes of the deed 
 of trust have been satisfied, but the trustee or his grantee may do the 
 same. (6) 
 
 35 a. The trustee, after the time fixed for payment by the terms of 
 a trust deed, is invested with the legal title, and at law is the proper 
 party to contest the legal sufficiency of the deed, and a verdict for or 
 against him, if obtained without collusion and fraud, is binding and 
 conclusive on his cestui que trust.(7) 
 
 36. Where the circumstances of a case are such, as to require or 
 justify the presumption that the legal estate has been conveyed to the 
 beneficial and equitable owner; the jury may be instructed to rely 
 upon such presumption and give their verdict in favor of the latter 
 This presumption arises from long-continued possession by the cestui 
 and those under whom he claims. Although somewhat analogous to 
 the title acquired by an adverse occupancy ; it is not precisely similar, 
 because the possession may have been held under the equitable, instead 
 of the legal title. But the presumption, in this case, is founded upon 
 the principle, that the law will consider as done that which ought to 
 have been done. Like the presumption of a grant, it does not proceed 
 upon the belief, that the thing presumed has actually taken phice, but 
 
 (X) Jackson v. Sisson, 2 John. Cas. 321, 
 (containing a learned examination of cases by 
 Mr. Justice Kent.) Welch v. Allen, 21 
 Wend. 147. 
 
 (2) Kennedy v. Fury, 1 Dall. 12; Smith v. 
 Patton, 1 S. & R. 80. See Rosst). Barker, 5 
 Watts, 391 ; Sw.nyze V. Burke, 12 Pet. 11; 
 Huston «. Wiokerham, 8 Watts, 519; Pres- 
 byterian, kc. V. Johnston, 1 W. & Serg. 56 ; 
 Sehoo), &c. V. Dunkleberger, 6 Barr, 29. 
 
 (3) Hawn v. Norria, 4 Binn. 77 ; Minsker 
 
 V. Morrison, 2 Ye. 344 ; Mitchell v. De Roche, 
 1, 12. 
 
 (4) Russell V. Lewis, 2 Pick. 510; Newhall 
 V. Wheeler, 7 Mass. 199; Matthews);. Ward, 
 1 Gill & J. 443 ; Mordecai v. Tankersly, 1 
 Ala^ N. S. 100. 
 
 (5) Walk Intro. 316. 
 
 (6) Hopkins v. Ward, 6 Munf. 41 ; v. 
 
 Stevens, 2 Rand, 422. 
 
 (7) Marriott v. Givens, 8 Ala. 694. 
 
CHAP, xxiy.] 
 
 A TRUST ESTATE. 
 
 335 
 
 is adopted from the principle of quieting the possession, and the impos- 
 sibility of discovering in whom the legal estate, if outstanding, is ac- 
 tually vested. Mere possibilities are not to be regarded. The court 
 must govern itself by a moral certainty ; for it is impossible, in the 
 nature of things, there should be a mathematical certainty of a good 
 title. Hence, though the evidence of actual reconveyance be slight 
 and inconclusive, yet, if it can be ascertained at what period the 
 legal estate ought to have been reconveyed, such reconveyance may be 
 presumed. (l)(a) 
 
 37. Bill. in equity, for specific performance of an agreement to pur- 
 chase land. Defence — a want of title in the plaintiff. It appeared 
 that the land was conveyed in 1664, byway of indemnity against evic- 
 tion from another estate, with a provision for reconveyance of one 
 moiety, after the expiration of two lives, and eleven years thereafter. 
 For one hundred and forty years, no claim appeared to have been 
 made under this deed ; but the grantor, and those claiming under him, 
 were always in possession, although the deed was once mentioned in 
 an instrument relating to the land, made in 1694. Held, a re-convey- 
 ance might be presumed, as to one-half, at the time stipulated, and, as 
 to the other, when the danger of eviction might reasonably be consid- 
 ered at an end, which must have been in much less time than one hun- 
 dred and forty years ; and that the title was good. (2) 
 
 38. But where a trust was presumed, from strong circumstances, once 
 to have existed ; after the lapse of forty years, and the death of all the 
 original parties, it was also presumed to be extinguished (3) 
 
 39. On the other hand, the question may arise, how far the rights 
 of a cestuique trust are impaired by mere lapse of time. On this point, 
 it is held, that express, technical, direct or pur.e trusts, clearly proved, of 
 which Chancery has proper, peculiar and exclusive jurisdiction, are 
 not within the statute of limitations, though liable to be barred after 
 the lapse of a reasonable time without enforcement ; but implied or con- 
 structive trusts are ; and if the evidence of a trust is doubtful, adverse pos- 
 session will have much effect in barring a party's rights. The period of 
 limita tion does not commence, till the cestui knows of some adverse act of 
 the trustee. And where the owner of the equitable title is in possession, 
 and afterwards evicted by him having the mere legal title; the statute be- 
 gins to run only from the time of eviction. Implied trusts have been de- 
 
 (1) Jackson v. Pierce, 2 John. 226; Jack- 
 son V. Moore, 13, 516; Hillary v. Waller, 12 
 Ves. 250-4; Lyddall v. Weston, 2 Atk. 19; 
 Eldridge v. Knott, Cowp. 215 ; Doe v. Davis, 
 
 1 Ad. & Ell. (N. S) 4H0. See Flournoy t;. 
 Johnson, 1 B. Men. 693. 
 
 f2) Hilary v. Waller, 12 Ves 239. 
 
 (3) Prevost v. Gratz, 6 Wheat. 481. 
 
 (a) Courts sometimes presume extinguishment of a title, in order to sustain, but rarely to 
 disturb, tlie possession. Adair v. Loti, 3 Hill, 182. Where a deed was made to trustees 
 for the use of a church, which was afterwards ijicorporated ; held, after a longtime, a con- 
 veyance from the trustees to the corporation would be presumed. Dutch, &c. v. Mott, 7 
 Paige, 11. 
 
 But, where the legal estate is vested by a will in executors or trustees, to effectuate the 
 purposes of the will, and a release of their estate would be a breach of duty ; no presump- 
 tion in favor of such release can be allowed. Brewster v. Striker, 2 Comst. 19. 
 
 Delivery and acceptance of a conveyance in trust will be presumed, after possession held 
 by the cestui gue trust for more than twenty-five years, although the trustee be a lunatic at 
 the time of the conveyance, and continue so. Eyrick v. Hetriek, 1 Harris, 488. 
 
336 
 
 TRUSTS. NATURE, ETC., OP 
 
 [CHAP. XXIT 
 
 fined, as those of which courts of law have jurisdiction.(l) The Su- 
 preme Court of the United States have said, that, where a trust is clearly 
 established, more especially if there has been fraud, on principles of eter- 
 nal justice, lapse of time shall be no bar to relief (2)(a!) 
 
 (1) SHayw. 153; Shelby v. Shelby, 1 Cooke, 
 182; Kane v. Bloodgood, 1 John. Ch. Ill; 
 Palls V. Torrance, 4 Hawk. 413 ; Van Rhyn 
 V. Vincent, 1 M'Cord's Cha. 313 ; Oliver v. 
 Piatt, 3 How. 333 ; White v. White, 1 Md. Ch. 
 63 ; McDonald v. Simms, 3 Kelly, 383 ; Evarts 
 V. Nason, 11 Verm. 122 ; Finney v. Cochran, 1 
 W. & Serg. 118; Talbott v. Todd, 5 Dana, 199 ; 
 Singleton v. Moore, Rice, 110; Bohannon 
 V. Ithreshley, 2 B, Monr. 438 ; Moore v. 
 GreeH, 3 B. Monr. 413 ; Nicholson v. Lauder- 
 dale, 3 Humph. 200; Lloyd v. Currin, lb. 
 462 ; Porter v. Porter, lb. 686; Piatt v. Oli- 
 ver, 2 Blaokf. 268; Walton ii. Coulson, 1 
 M'L. 120; Maury v. Mason, 8 Por. 211 ; Ha- 
 sell, 3 T. & Coll. 617 ; Wedderburn v. Wed- 
 
 derburn, 4 My. & C. 41 ; Att'y, ka.v. Fishmon- 
 gers', &o., 6 My. & C. 16 ; Price v. Blakemore, 
 
 6 Beav. 507 ; Bank, &o. v. Beverly, 1 How. 
 134; Baker V. Whiting, 3 Sumn. 476; Couch, 
 V. Couch, 9 B. Mon. 160; Thomasi;. Brinsfield, 
 
 7 Geo. ]54; Variok v. Edwards, 11 Paige, 
 290 ; Murdock v. Hughes, 7 S. & M. 219 ; 
 Lexington v. Bridges, 7 B. Mon. 665. See 
 McDonald i;.Sims, 3 Kelly, 383 ; Perkins v. 
 Cartwell, 4 Harring. 270. 
 
 (2) Prevost n. Gratz, 6 Wheat. 498 ; see 2 
 Story, 735, et seq. ; Planters', ko. v. Farmers', 
 Ac, 8 Gill A J. 449 ; Wood. v. Wood, 3 Ala- 
 bama, (N. S.,) 756; Smith v. Ramsey, 1 Gilm. 
 373. 
 
 (a) Wliere a will authorizes the executors to sell lands for payment of debts ; a trust is 
 hereby created, and the lien upon the lands continues, till a presumption of payment arises 
 from lapse of time. Such lien is not limited with regard to time, as in ordinary cases. 
 Alexander v. McMurray, 8 Watts, 504; Steel v. Henry, 9, 523. When an action is brought 
 by a cestui que trust, to enforce against the trustee the provisions of the trust deed, and he 
 does not deny the complainant's interest in the trust estate, but defends upon other grounds ; 
 the limitation to the suit is the time applicable to sealed instruments. Flint v. Hatohett, 9 
 Geo. 328. 
 
 One having the legal title to land conveyed it to a purchaser, having no notice of any 
 trust, and he after eighteen years devised the land. Held, alter the lapse of thirty years, & 
 person claiming a trust in the property was barred. Coxe v. Smith, 4 John. Cha. 271. 
 
 It has been said, that, as between trustee and cestui, the former does not cease to stand 
 in that relation by any wrongful act in regard to the estate, except at the election of the lat- 
 ter. Also that trusts are excepted from the statute of limitations, only as between the trus- 
 tee and cestui. Palls v. Torrance, 4 Hawk. 413 ; Fisher v. Tucker, 1 McC. Cha, 176 ; Llew- 
 ellin V. Mackworth, 15 Vin. 125. 
 
CHAP. XXV.] 
 
 TRUSTS— CESTUI AND TRUSTEE, ETC. 
 
 337 
 
 CHAPTER XXV. 
 
 TRUSTS— CESTUI AND TRUSTEE— THRIR RESPECTIVE INTERESTS, RIOHTS 
 AND DUTIES, AS BETWEEN THEMSELVES, AND IN RELATION TO THIRD 
 PERSONS. 
 
 1. Incidents of a trust — right of cestui to 
 a conveyance. 
 
 6. Cestui not prejudiced by any act, &o., 
 of trustee. 
 
 6. Change of estate by trustee. 
 
 1. Executory agreement — binding in 
 favor of cestui. 
 
 8. Conveyance by trustee to third per- 
 sons — notice of trust, &c. 
 22. Authorized sale by trustee — liability 
 of purchaser to the cestui. 
 
 37. Joint trustees — conveyances and re- 
 
 ceipts by. 
 
 38. Liability of trustee to cestui. Release 
 
 of debts. 
 
 39. Sale of land. 
 
 40. One trustee, whether liable for another. 
 
 41. For what amount trustees shall ac- 
 
 count. 
 
 42. Exchange of lands. 
 
 43. Cestui's remedy against trustee. 
 
 44. Compensation and allowance to trus- 
 
 tee. 
 49. Trustee shall not purchase the trust 
 
 estate. 
 68- Exceptions. 
 '!3. Disclaimer and release by trustee. 
 
 75. Trustee cannot delegate his power. 
 
 76. Statutory provisions as to joint trus- 
 
 tees. 
 
 77. Joint trustees in New York. 
 
 78. Chancery may remove, appoint new 
 
 trustee, &a 
 
 81. Descent of trust to heirs. 
 
 82. Who may be trustees. 
 
 83. Trust /asieus on the estate. 
 85. How affected by escheat, &c. 
 
 1. The three leading incidents of a trust, as of a use at common 
 law, are pernancy of the profits, execution of estates, and defence of the 
 land.{i) The first and last of these properties seem not to require any 
 particular comment. With regard to the second, it is said, that, where 
 a cestui has an absolute interest in the trust, he may compel the trustee 
 to convey the legal estate to himself or any one whom he shall ap- 
 point.(2) Of course, the cestui has no such right, where the trust is 
 created only in part for his benefit ; as, for instance, where annuities 
 are first to be paid by the trustee. And the rule seems equally inap- 
 
 , plicable to that numerous class of cases, in which a leading object of 
 the party, who conveyed or devised the land, was to vest the legal 
 estate permanently in the trustee and his successors, and such object 
 would be defeated by compelling them to part with it. The rule is, 
 that, in the exercise of a sound discretion, equity will compel the trus- 
 tee to transfer the legal estate, unless the intent of the party creating 
 the trust require that he receive the profits.(3) 
 
 2. Thus, where one devised the use and improvement of land for 
 the support of a child, providing that, so long as he should be indus- 
 trious and economical, he should be entitled to the use and improve- 
 ment, and to all he should raise by virtue of the improvement ; the 
 cestui, if shown to be incapable and of intemperate habits, though he 
 were so in the testator's lifetime, shall not recover possession from the 
 trustee. (4) 
 
 3. It is doubtful whether a trustee can safely make a conveyance to 
 
 (1) See ch. 20, sec. 7. 
 
 (2) 1 Cruise, 350. 
 
 (3) Bass V. Scott, 2 Leigh, 359 ; Jasper v. 
 Maxwell, 1 Dev. Eq. 357 ; Lynch v. Utiea, 
 Ac, 18 Wend. 236. See Morton v. South- 
 
 gate, 28 Maine, 41 ; Bishop v. Bishop, 13 
 Ala. 475 ; Flournoy v. Johnson, 7 B. Men. 
 693 ; Hoare v. Harris, 11 Illin. 24. 
 (4) Root V. Teomans, 15 Pick. 488. 
 
 VoT,. T. 
 
 95! 
 
338 
 
 TRUSTS— CESTUI AND 
 
 [CHAP. XXV. 
 
 execute the trust, without a decree in equity, and costs will not be 
 awarded against him for refusing to do so. The general rule is, in 
 case of infants, that a trustee cannot be excused from strict.perform- 
 ance without a decree.(l) In Kentucky, a sale by a trustee is invalid, 
 unless made under a decree, or unless the party creating the trust 
 joins.(2) 
 
 4. A trustee cannot justify his refusal to convey the estate, by 
 buying in an outstanding title.(3)(tt) 
 
 5. It is the general rule of equity, that neither any act nor any 
 omission, on the part of a trustee, shall be allowed to prejudice the 
 cestui que trust.{4:) To prevent this, equity will treat money as land 
 and land as money, and consider that which ought to be done as 
 actually done.(5) So long as the subject of an express or implied trust 
 remains in the hands of the trustee, or of his heirs, executors, adminis- 
 trators or devisees, the Court of Chancery will lay hold of it for the 
 benefit of the cestici.{6) 
 
 6. Where a cestui is of age, the trustee has no right, unless expressly 
 empowered, to change the nature of the estate; to convert land into 
 
 (1) 2 Story on Equity, 243 ; Wood v. 
 Wood, 5 Paige, 597. See Armstrong v. 
 Zane, 12 Oliio, 287 ; Williams, 3 Bland, 190; 
 Warapler v. Shipley, lb. 183 ; Winder v. 
 Diffenderffer, 2, 167 ; Jones v. Stockett, 426 ; 
 Orchard v. Smith, 319; Dorsey v. Gilbert, 11 
 Gill & J. 87 ; Calvert i;, Godfrey, 6 Beav. 97. 
 
 (2) I Ky. Rer. L. 449. 
 
 (3) Kellogg V. Wood, 4 Paige, 578. 
 
 (4) Lechmere v. Carlisle, 3 P. Wms. 215 ; 
 Banks v. Sutton, 2, 715. See Neate v. Pink, 
 8 Eng. L. & Equ. 205. 
 
 (5) See ch. 1. 
 
 (6) Ridgely w. Carey,4Har. & McHen. 198. 
 
 (a) The legislature may constitutionally order a conveyance (rom the trustee to the 
 cestui. Duteli, &c. v. Mott, 7 Paige, 77. Where land is given in trust to convey to the 
 cestui at such a time, with a power of sale during the trust, and a conveyance is rot then 
 made; the trustee cannot afterwards sell, though the trust continues. Grieveson v. Kirsopp, 
 2 'Keen, 653. See Wood v. White, lb. 664. 
 
 An equitable tenant for life, under a will, may have possession, upon giving security to 
 fulfil its provisions ; and, although the trustee had previously leased to one having notice, 
 the court} still appointed a receiver to let to the tenant for life, with security. Baykes v. 
 Baykes, 1 Coll. 537. 
 
 In decreeing a conveyance of the legal estate by a trustee, equity will not require a gene- 
 ral warranty deed ; but only a special warranty against his own acts. Hoare v. Harris, 11 
 Illin. 24. It is said, the court will not take the legal estate from a trustee, and vest it in the 
 party entitled, till a refusal to act by the party entitled to a conveyance. Hodgson, &o., 
 4 Eng. L & Equ. 182. 
 
 To a bill filed by a cestui que trust against the trustees and the other cestuis que trust, for 
 the purpose of obtaining a conveyance of the complainant's share of the legal title to real 
 estate, alleged to be in the trustees, and for partition, the defendants pleaded that neither 
 the complainant nor the trustees were, nor was either of them, in possession of the premises 
 at the commencement of the suit. Without denying the allegation in the bill, that the 
 trustees held the legal title as trustees for the complainant and the other catuis que trust, 
 in different undivided proportions; held, the complainant was entitled to a decree estab- 
 lishing the alleged trust, and directing the conveyance of the complainant's share of the 
 legal estate to him, whenever the trustees could legally make such conveyance, notwith- 
 standing the whole premises were, at the time, held adversely to both parties. Bradstreet 
 V. Schuyler, 3 Barb. Oli. 608. 
 
 A trustee, who permits the debtor to retain possession of the estate, waste It, and use it 
 as his own, is responsible for the injury to ihe trust fund, out of his own estate. Harrison 
 V. Muck, 10 Ala. 185. 
 
 It Is no around for staying a decree upon a claim for the execution of a trust, that a bill 
 has Vieeii filed for its execution, embracing, in addition, otlier objects. Scott v. Hastings, 5 
 Eng. Law and Eq. 64. 
 
CHAP. XXy.] TRUSTEE; RiaHTS, ETC. 339 
 
 money, or the converse. Otherwise, it seems, if the cestui is an 
 infant.(l)(a) 
 
 7. Even where a trust consists in a mere executory agreement between 
 the trustee and a third party, such agreement cannot be revoked, to 
 the prejudice of the cestui. Thus, where a father contracts in writing 
 for the purchase of land, in trust for his son, the trust will be. enforced, 
 although the vendor has since, with the father's consent, devised the 
 land to another person. So, where an owner of land contracts to con- 
 vey to one person, and conveys to another, having notice of such con- 
 tract ; the purchaser takes subject to all the rights and equities of the 
 former contracting party.(2) 
 
 8. But, if a trustee convey the land held by him, for valuable con- 
 sideration, to one ignorant of the trust, the latter shall hold it, dis- 
 charged therefrom. It has been seen, (3) that a creditor of the trustee 
 cannot take the land to satisfy his debt ; and in this respect it seems to 
 make no difference, whether the creditor has notice of the trust or not. 
 
 (1) 2 Story, 242 ; DeBevoise v. Sandford, r (2) Taylor v. James, 4 Des. 1 ; Glover v, 
 1 Hoffm. 192. See Couch v. Couch, 9 B. Fisher, 11 lUin. 66C. See John. Cha. 13S. 
 Mon. 160. ! (3; Ch. 24. 
 
 (a) Where a trustee disposes of the trust property, the cestui que trust may claim the thing 
 received in exchange, if it can be identified. Piatt v. Oliver, 3 McLean, 27 ; Turner v. Peti- 
 grew, 6 Humph. 438. And this, although the property received in exchange may have 
 greatly increased in value. lb. If the increased value be the result of skilful labor, the 
 rule may be different lb. Thus, a cestui que trust may follow the trust fund into land 
 purchased with it by the trustee, whether the contract for the purchase be executed or 
 executory. Brothers v. Porter, 6 B, Mon. 106. So, money paid into court by the Liver- 
 pool dock trustees, in respect of leaseholds for years, taken by them under the powers of 
 their Act of Parliament, was ordered to be reinvested iu the purchase of copyholds of in- 
 heritance. Coyte's, &c., 3 Eng. Law and Eq. 224. 
 
 Where a change in the nature of the estate takes place by operation of law, the property 
 will be still held on the same terms as before, with respect to the mutual rights of the trus- 
 tee and cestui. Thus, real and personal property was devised in trust, tl)e rents, issues and 
 income to be paid to the cestui. A part of the real estate being taken for a railroad, and 
 the damages paid to the trustee ; held, this sum was not income, &c., to be paid to the 
 cestui, but a substituted capital, of which he was merely entitled to the interest. Gibson v. 
 Cooke, 1 Met. 75. 
 
 Devise to a trustee, his heirs and representatives, in trust, to invest and re-invest the 
 land, from time to time, in stocks or other safe securities, and pay the income, with $200 
 annually of the principal, to the testator's daughter for life; afterwards to pay and transfer 
 the whole of the trust fund to her children. Held, by necessary implication, the trustee had 
 power to sell the real estate, discharged of the trust. Purdie v. Whitney, 20 Pick. 25. See 
 Rathliun v. Colton, 15 lb. 471. 
 
 An a.ssignment by a trustee, purporting to transfer the trust property, although insufla- 
 cient to pass the interest of the cestuis que trmt, may pass the individual interest of the 
 trustee. Piatt v. Oliver, 3 McLean, 27. 
 
 Whether a trustee has an equitable right to convey, is a question purely of equitable 
 jurisdiction, and cannot be entertained by a court of law. Canoy v. Troutman, 7 Ired. 155. 
 
 At law, a sale by a trustee conveys the legal estate, and the title of the purchaser is not 
 affected by the tru-stee's having exceeded the power to sell, given by the trust deed, nor by 
 a misapplication of the proceeds of the sale. Tliese are equities, which belong to another 
 tribunal. D'Oyley v. Loveland, 1 Strobh. 45. 
 
 Where land was conveyed by an unsealed writing, in trust, to pay certain debts ; held, it 
 was not sufficient in itself to authorize the trustee to sell, but, as it was an equitable lieu 
 on the land, he should obtain authority to sell, by praying for a, decree to sell for the pur- 
 poses of the trust. Linton v. Boly, 12 Mis. 567. 
 
 The court has no power, upon the petition of the grantor, the cestui que trust, and the 
 trustees, to order a sale of real estate held in trust and partly for the benefit of infants,- 
 allhough a sale would be beneficial to the cestui que trust, where such a sale would be con- 
 trary to the provisions of the grant, and the remainder-men are uncertain. Turner, 10 
 Barb. 552. 
 
340 
 
 TRUSTS— CESTUI AND 
 
 [CHAP. XXT. 
 
 But a mortgage by the trustee, though, like a judgment, it is a mere 
 incumbrance, will pass a title to an ignorant mortgagee, discharged of 
 the trust.(l) In order to pass a perfect title to the purchaser from a 
 trustee, there must be both a want of notice and a valuable considera- 
 tion. Neither is sufficient of itself Hence a gratuitous grantee with- 
 out notice, and a purchaser for consideration with notice, shall be alike 
 held chargeable with the trust. It seems, if there is a partial considera- 
 tion, the purchaser will hold only pro tanto.{2) 
 
 9. To constitute the notice requisite to charge a purchaser, it is 
 sufficient that he have such information as ought to put him on in- 
 quiry. (3) 
 
 10. The pendency of a suit in equity by the cestui against the trus- 
 tee — after the service of a subpoena and filing the bill — is implied 
 notice.(4) 
 
 11. But not a recital in a deed between third persons, though regis- 
 tered.(5) 
 
 12. Possession of the land by the cestui is implied notice of the 
 trust.(6) 
 
 13. The purchaser from a trustee is chargeable, if he have notice of 
 the trust, though he have no notice who is the cestui. But it is held, 
 that he must have known the precise terms of the trust.(7) 
 
 14. Where an insolvent trustee sells, partly for cash and partly in 
 payment of his own debt, a mortgage given to him on the face of it as 
 trustee, the purchaser is cliargeable with the trust.(8) 
 
 15. But where a survey of wild land, without an entry in the book 
 of entries, constitutes no appropriation, notice of such survey to one 
 holding a subsequent land-warrant does not affect his title.(9) 
 
 16. If an executor, not in advance to the estate, dispose of the pro- 
 perty for his own private purposes, whether in payment of a debt or. 
 for a new pecuniary consideration ; the purchaser, having notice, is 
 chargeable with the, trust. 
 
 17. A, an executor, empowered to sell lands, sells them, and takes a 
 deed of trust for the price, which he afterwards assigns as security for 
 his own debt. The assignment refers to the deed of trust, which refers 
 to the original deed, which refers to the will. Held, the assignee was 
 chargeable with the trusts of the executor.(lO) 
 
 18. So, an assignment of a deed of assignment is sufficient notice of 
 the trusts contained in the latter.(ll) 
 
 19. If a trustee repurchase the estate from a purchaser without no- 
 tice, the trust will revive, as a charge upon the land, in his hands.(12)(a) 
 
 (1) Finch V. Winohelsea, 1 P. 'WiiDS. 218. 
 
 (2) Mannings. 6th Parish, &o., 6 Pick. 18; 
 Page V. Page, 8 N. H. 187 ; Chaplin v. Givens, 
 Eice, 132; Paine v. Webster, 1 Term. 101 ; 
 Wilson V. Mason, 1 Cranch, 100 ; Hagthorp 
 V. Hook, 1 Gill & J. 271 ; 1 MoCord's Cha. 
 119-32 ; Harrisburgh, &o. v. Tyler, 3 Watts 
 &S. 373; ila.n\yv. Sprague, 7 Shepl. 431; 
 Hallett V. Collins, 10 How. 174; Harris v. 
 De Graffenreid, 11 Ired. 89 ; Webster v. 
 Prench, 11 Illin. 254; Heth v. Richmond, 
 &c., 4 Gratt. 482 ; Buck v. Winn, 11 B. Mon. 
 
 320 ; Pooley v. Budd, 7 Eng. L. & Equ. 229. 
 
 (3) 2 Paige, 202. 
 
 (4) Murray v. Ballou, 1 John. Cha. 566. 
 
 (5) lb. 
 
 (6) Pritohard v. Brown, 4 N. H. 404. 
 
 (7) Maples «. Medlin, 1 Mur. 219; Conner 
 V. Tuck, 11 Ala. 794. 
 
 (8) Pendleton v. Pay, 2 Paige, 202. 
 
 (9) Wilson V. Mason, 1 Cranch, 100. 
 
 (10) GtslSv. Castleman, 5 Rand. 195. 
 
 (11) Russell V. Clark, 7 Cranch, 69-97. 
 
 (12) Bovey v. Snaith, 1 Cruise, 526. 
 
 (a) Land was conyeyed upon divers trusts with power to sell. The trustees, meaning to 
 annul the trusts, re-conveyed to the grantor, who thus took the legal estate, but still bur- 
 
CHAP. XXV.] 
 
 TRUSTEE— EIGHTS ; ETC. 
 
 341 
 
 20. But, in general, a purchaser without notice, from one with notice, 
 is not chargeable with the trust. 
 
 21. So a purchaser with notice, from one without notice.(l)(a) 
 
 22. The rule above stated relates to unauthorized transfers by a trus- 
 tee, which involve a violation of duty on his part. A different liability 
 attaches to the purchaser of trust property, which the trustee was em- 
 powered and directed to sell, for a certain specified object. The general 
 rule is, that the deed of a trustee conveys an absolute title at law, 
 without proof by the purchaser that the conditions of sale have beeri 
 complied with. But in equity it is otherwise. (2) 
 
 23. Where one conveys or devises land to trustees, to be sold or 
 mortgaged for payment of specified debts or legacies, or to obtain 
 money to be invested in funds, the purchaser, mortgagee, &c., is bound 
 to see to the application of the money, or the land will still be liable in 
 his hands. (3) 
 
 24. So, where land was sold under a decree m Chancery, for pay- 
 ment of certain debts ascertained by a report of the master ; it was 
 held, that the purchaser was charged with the application of the 
 money. (4) 
 
 24 a. A proceeding in equity will not discharge the purchaser from 
 seeing to the application of his purchase-money ; and therefore, the 
 cestui que trusts of the will are necessary parties to any proceeding 
 looking to a conveyance.(5) 
 
 25. The same liability attaches to the purchaser, where the purchase- 
 money is to be applied by the trustee to any other definite and specific 
 object ; as, for instance, where an Act of Parliament granted land in 
 trust, to be sold, and the proceeds applied to the rebuilding of a print- 
 ing house. And the rule is no less applicable, where lands are liable 
 to debts without express charge, as is universally the case in the United 
 States, than in England, where they are not thus liable; because, 
 though no charge is superadded by the will, as between the devisee and 
 the creditor, the relation of the devisees to each other is materially affected 
 byit.(6) 
 
 26. Where the trustee is required to invest the proceeds of sale in a 
 certain way, it seems, the liability of the purchaser extends so far only 
 as to make him responsible for such original investment ; and that he 
 is not answerable for any subsequent misappropriation, either of the 
 funds themselves, or interest or dividends arising from them. (7) 
 
 27. Unless the debts and legacies are specified, the purchaser is not 
 responsible for the application of the purchase-money. That is, unless 
 the debts are specified, he is liable for neither ; the debts being payable 
 
 (1) Butnpus V. Platner, 1 John. Cha. 213. 
 
 (2) Taj-lor v. King, 6 Mun. 366-1. 
 
 (3) Dunoh V. Kent, 1 Ver. 260 ; Spalding 
 V. Shalmer, lb. 301. See Fyler v. Fyler, 3 
 Beav. 550. 
 
 {i) Lloyd V. Baldwin, 1 Tes. 173 ; (Lining 
 V. Peyton, 2 Desaus. Cha. 378.) 
 
 (5) Duffy V. Calvert, 6 Gill. 487. 
 
 (6) Cotterel v. Hampson, 2 Vern. 5 ; 12 
 Wheat. 501. 
 
 (7) 2 Booth's Cas. and Opin. 114. 
 
 dened with the trusts. He thereupon re-conveyed to the trustees, to hold for the same uses 
 and purposes, and as fully in every respect, as under the original conveyance to them. 
 Held, the power to sell of the trustees was revived. Salisbury v. Bigelow, 20 Pick. 174. 
 
 (a) Even though he had notice before the first purchase. Bracken v. Miller, 4 W. <fc 
 Serg. 102. 
 
342 TRUSTS— CESTUI AND [CHAP. XXT. 
 
 first. And in this respect it is immaterial whether the land is expressly 
 given in trust, or merely charged with debts. A charge is a devise of 
 the estate, in substance and effect, pro tanto, upon trust to pay the 
 debts.(l) 
 
 28. Although most of the cases, in which the doctrine above named 
 has been established, seem to relate to trustees, yet there is another 
 class of decisions, in which a distinction is made between a purchase 
 from a mere heir or devisee, charged with payment of debts, and one 
 from a trustee, who is the hand to receive the money, and whose receipt, 
 therefore, is said to be a perpetual discharge.(2)(a) Sir Wilham Grant 
 
 (1) Jebb V. Abbet, 1 Bro. 186, d. ; 1 Vern. 
 261 ; Williamson v. Curtis, 3 Bro. 96 ; Amb. 
 677; Dursley v. Berkeley, 6 Ves. 654, n. 
 
 218-9 ; Andrews!;. Sparbawk, 13 Pick. 393 ; 
 Duffy V. Calvert, 6 Gill, 487 ; Cadbury v. 
 Duval, 10 Barr, 215. 
 
 Bailey v. Ekina, 7, 323; Rogers v. Skilli- (2) Cutbbert u. Baker, Bug. Yen. 378; 4 
 come, Amb. 188; Gardner «. Gardner, 3 Mas. IVes 99. 
 
 (a) This distinction is rejected in Massachusetts, (Andrews v. Sparbawk, 13 Pick. 401,) 
 but seems to be recognized in Maryland (Duffey v. Calvert, 6 Gill, 487) and Illinois, (Reeve 
 V. Allen, 5 Gilm. 236.) 
 
 The following cases illustrate tlie principles stated in the text: 
 
 If a trustee, without the direction of the cestui que trust, dispose of and Te'ease the trust 
 property before the purposes of the trust are performed, it does not release in equity the 
 lien on the property. Wolfe v. Bate, 9 B. Mon. 208. 
 
 A trustee cannot waive rights of tlie cestui que trust by an executory contract, without a 
 valuable consideration, and in favor of one who knew of the equities between tlie trustee 
 and cestui que trust, and such contract will not be enforced by a court of equity, to the injury 
 of the trust estate. Mayrant v. Guiguard, 3 Strobh. Eq. 112. 
 
 Where the owner of a farm dedicates a portion of it to a charity, as to a school, without a 
 conveyance, and afterwards conveys his farm to another, the grantee becomes only trustee, 
 in respect to the portion so dedicated, for the cestui que trusts ; »nd, if he ousts them from 
 the possession of it, they may maintain ejectment against him to regain it. School Directors 
 V. Dunkleberger, 6 Barr, 29. 
 
 A release from tlie cestui to the trustee will not divest any rights and equities resulting 
 from a violation of his trust by the latter. Iddings v. Bruen, 4 Sandf. Ch. 3. 
 
 Where a trustee is empowered to sell trust property, for the purpose of re-investment, and 
 sells it to one who knows the terms of the trust, and who pays for it by relieving the per- 
 sonal liabilities of the trustee; it seems, the property remains subject to the trust. Butler 
 v. Hicljs, lis. & M. 78. 
 
 A testator left property in trust for the sole and separate use of his daughters. At the 
 commissioners' sale, under an order of distribution, the husband of a legatee became a pur- 
 chaser, and the legacy to his wife was allowed in part payment. Held, he took the land 
 subject to the trusts declared in the will; and a sale of the land for the debt of the husband 
 would not, after the death of the husband, prevent the court, on her application, from restor- 
 ing her to possession, and ordering an account of the rents and profits from her husband's 
 death. Williams v. Hollingsworth, 1 Strobh. Eq. 103. 
 
 Land was conveyed in trust, to pay the debts of the grantor out of the rents and profits, 
 the support of himself, his wife and children, and at his death to be divided among his chil- 
 dren. Held, the trustees had no authority to sell, however urgent the necessity. Mundy 
 v. Tawter, 3 Gratt. 618. 
 
 And a purchaser from such grantor and the trustees will be held to have notice of the 
 trust, and be bound to know that the trustees had no power to sell. lb. 
 
 But, it appearing from the title papers that the grantor had only an interest of one-fourth 
 part of the lauds described, although an equitable interest in the whole ; the purchaser, 
 T/ithout actual notice of the equitable title, will be held a purchaser with notice, to the ex- 
 tent of only one-fourth part of the land. lb. 
 
 The cestuis que trust having obtained a decree against the purchaser for such fourth part, 
 the trustees and grantor being also parties to the suit; the purchaser is entitled to a decree 
 over for the same against the grantor and trustees, although he has a remedy at law on 
 their warranty. lb. 
 
 A purchaser of land from one who is in fact a trustee, but who sells in his own name, 
 may defend against payment of the purchase-money, although he has taken a deed and 
 given his bonds, on which judgments have been entered Beck v. Uhrick, 1 Harris, 636. 
 
 Where a vendee of real estate, in his answer to a bill brought by the wife and children of 
 
CHAP. XrV.] TRUSTEE; RIGHTS, ETC. 343 
 
 remarked, that the doctrine on this subject had been carried farther 
 than equity would warrant; and that, although where one purchased 
 trom a trustee having no right to sell, he ought to be charged with the 
 trust, yet, where the trustee had such right, he should be able, as inci- 
 dent thereto, to give a receipt for the price.(l) 
 
 29. Thus, where an estate is limited to trustees for payment of debts 
 n" u 1 j^°'?^' ^^^ trustees having raised the money, but misappropriated 
 It; beld,_the creditors and legatees had no further lien upon the land, 
 but, having once borne its burthen, it went to the heir ; that the 
 estate was debtor for the debts and legacies, but not for the faults of 
 the trustees.(2) 
 
 30. It is a common practice to make express provision in the deed 
 or will, that the receipt of the trustees shall be a sufficient discharge to 
 the purchaser. In such case, the latter is of course exempt from all 
 habihty. But, if there are several trustees, the receipt of a part only 
 will not discharge a purchaser with notice, although the others have 
 refused to act, and conveyed their interest to their fellows. An express 
 renunciation of the trust, however, would dispense with the necessity 
 of a signing by the trustee who renounced.(3) 
 
 31. Where a trustee, empowered to sell the land and re-invest the 
 proceeds to the same uses, joins in a convevance with the cestui; 
 held, m South Carolina, partly on the ground" of local circumstances 
 and usage, that the purchaser is not responsible for the disposition of 
 the money.(4) 
 
 82. The whole doctrine of the liability of the purchaser, either from 
 trustees or other parties authorized to sell, for the right application of 
 the purchase-money, seems to have been overruled or very much 
 shaken by the Supreme Court of the United States, in the case of 
 Potter V. Gardner.{b) In this case, the testator devised an estate to his 
 son A, in fee, "he paying all my just debts out of said estate. And I 
 do hereby order, &c., that my son shall pay my debts out of the estate," 
 &c. _ A sold the estate to B. The executrix and other devisees filed a 
 bill m equity against A and B, for the purpose of charging B with the 
 application of the money to the debts of the testator. It appeared that 
 a part of the purchase-money was paid, by extinguishing debts due from 
 A to third persons, and a debt due from A to B, and that another part 
 
 (1) Balfour v. "Welland, 16 Vea. 151-6. 
 
 (2) 1 Salk. 153.* 
 
 (3) Crewe v. Dieken, 4 Ves, 97. 
 
 (4) Lininff v. Peyton, 2 Dessaus. 375. 
 
 (5) 12 Wheat. 498. See Taft v. Morse, 4 
 Met. 523 ; Ball v. Harris, 4 My. & C. 264, tLat 
 
 * It does not appear that the debts were specified. 
 
 where property is charged with debts and de- 
 vised in trust, the trustee may sell or mort- 
 gage, and the purchaser is not bouad for the 
 application of the purchase-money. Eland v. 
 Eland, lb. 420. 
 
 A, admits that he had heard that the estate was in some way devised in trust for A, his 
 wife and children; this admission charges him with notice. Haywood v. Ensley, 8 
 Humph. 460. 
 
 The maker of a note sold an estate to the third indorser, under an agreement that the pur- 
 chase-money should be appropriated to the discharge of the note, and to save harmless the 
 second indorser. Held, the third indorser was a trustee for the second, and the assent of 
 the second indorser to the trust would be presuoied, and that the trust could not be after- 
 wards defeated by arrangement between the maker and third indorser. Stockard v. Stock- 
 ard, 7 Humph. 303. 
 
344 
 
 TRUSTS— CESTUI AJSfD 
 
 [CHAP. XXT. 
 
 remained due in the form of a note not negotiable. Held, B should be 
 charged with such part of the purchase-money as remained unpaid, 
 absolutely ; and with such part as had been applied to the debts of A, 
 contingently; — the decree, in regard to the latter, being in the first 
 instance against A, and, on his failure to pay, against B. The court 
 remark, that no question seemed to be made as to the authority of those 
 modern decisions, whicli deny the distinction between lands charged in 
 the hands of an heir or devisee with the payment of debts, and lands 
 devised to a trustee for the payment of debts. In either case, the per- 
 son who pays the purchase-money to the person authorized to sell is 
 not bound to look to its application, unless the mon^ is misapplied (as 
 in this case) with his co-operation. (a) 
 
 33. It is said, that, -where lands are devised, in trust to be sold for 
 payment of debts, incase the personal estate shall prove insufficient for 
 that purpose ; a purchaser without notice acquires a good title as against 
 the heir, although the personal estate is not insufficient. The law does 
 not require him to look into the condition of the testator's estate. But 
 implied notice is sufficient to impair his title ; as, for instance, a lis pen- 
 dens, to have an account between the heir and executor.(l) 
 
 34. This doctrine, however, is denied by high authority ; and it is 
 laid down, that, when ^ power is given to executors to sell for this pur- 
 pose, deficiency of personal estate is a condition precedent to a good 
 title in the purchaser.(2) And, inasmuch as the personal estate is by 
 implication primarily liable, it seems the same rule is applicable, 
 although the will does not expressly order that it be sold in the first 
 instance. 
 
 35. An order of court, authorizing a sale of lands, is conclusive of 
 its validity, though it turns out that there were personal assets.(3) 
 
 (1) Culpeper v. Aston, 2 Cha. Ca. 115; 
 Coleman v. McKinney, 3 J. J. Mar. 249. 
 
 (2) Pearne's Opin. 121 ; Sug. Ven. & P. 
 343. 
 
 (3) Leverett v. Harris, 1 Mass. 292. 
 
 (a) With regard to tliis case it is to be observed, that, although the language of the court 
 disavows the liability of iona fide purchasers, in any case, yet the facts would warrant no 
 other decision, even according to the old rule, because the debts were not specified. Story, J., 
 lays down the S3.me Tole, hut with this important limitation. S. C. 3 Mas. 2 IS. And the Su- 
 preme Court in Massachusetts adopt his views. Andrews v. Sparhawk, 13 Pick, 401. 
 
 A testator devised the residue of his real estate to his wife A, for life, (she being also exe- 
 cutrix,) and to trustees subject to her life estate, in trust to sell and pay debts not otherwise 
 provided for. The trustees conveyed to A, under the power, for a consideration mentioned 
 in the deed, but not in fact paid. A mortgaged the land, and it was sold by the sheriff under 
 the mortgage. Held, the mortgagee had priority over the creditors of the testator, who 
 had obtained judgment within five years after his death ; and he was not bound to see to the 
 appropriation of the purchase-money of the conveyance to A. Cadbury v. Duval, 10 Barr, 
 265; Franklin, &c., lb. 
 
 Where an administrator purchases real estate with funds, a moiety of which belongs to 
 himself, and the other moiety to others, in an action of ejectment by the cestui que trust 
 against a purchaser of the land from the administrator, without notice of the trust, the pur- 
 chaser is entitled to be reimbursed the one-half of the purchase-money paid by him before 
 notice of the trust, unless he has been fully compensated to the extent of that moiety out 
 of the rents and profits. It is not, however, necessary that the amount should be tendered 
 before suit brought. Beck v. Uhrich, 4 Harris, 499. 
 
 The administrator, who was a co-defendant in the ejectment suit, is entitled to be reim- 
 bursed for expenses incurred in the creation of the trust, and advances made for the benefit 
 of the trust. lb. 
 
 The administration account, settled after the suit brought, is evidence in favor of the de- 
 fendants, to show the amount of money advanced by the administrator in the purchase of 
 the land, but it is not conclusive. lb. 
 
CHAP. XXV.] 
 
 TRUSTEE; EIGHTS, ETC. 
 
 345 
 
 86. Where a trustee is authorized, generally, to sell land for pay- 
 ment of debts, a purchaser acquires a good title, although more was 
 sold than was necessary for this object; more especially where the sale 
 takes place under a decree of Chancery, and with the consent of parties 
 interested. Hence, under such circumstances, a purchaser cannot avoid 
 the bargain, by alleging a defect in the title.(l) 
 
 37. Joint trustees have all an equal interest and authority, and must 
 join in conveyances and receipts. But, where one only receives money, 
 the others, though joining in a receipt for it, will not in general be held 
 accountable. An express provision is almost universally inserted in 
 trust deeds, that each trustee shall be accountable only for such sums as 
 actually come to his hands.(2) 
 
 38. The general rule is, that a trustee shall not be allowed to derive 
 any personal advantage from his trust. Hence, if he compound a debt 
 due from the estate, the profit goes, not to him, but to the cestui que 
 trust. But if, in good faith and with discretion, he release a debt, he 
 shall not sustain any loss thereby. (8) 
 
 39. Where a trustee commits a breach of trust, he will be held strictly 
 accountable for all consequences. Thus, if he wrongfully sell the estate, 
 he shall answer to the cesto' for its full value.(a) So, trustees who, 
 without sufficient cause, doubted the identity of their cestui que intst, 
 and, in breach of trust, paid over the trust fund to others, were ordered 
 to make good the same, and pay the costs and interest, at 51 per cent., 
 — the accounts to be taken with rests.(6) But the law will protect a 
 trustee who acts according to his best judgment, though he make some 
 trifling mistakes in doubtful matters. So, he is not responsible for 
 wrongs to the estate, in which he had no agency. (4) 
 
 40. One trustee is liable, for concealing the wrongful acts of another.(c) 
 
 41. A trustee in possession has been held bound to account for all 
 that might have been received from the estate.(5) 
 
 42. Where a trustee, authorized to sell lands, and apply the pro- 
 ceeds to payment of debts or purchase of stock, exchanges them for 
 other lands, he shall account for the full value of the lands ex- 
 changed.(6) 
 
 43. It has been intimated in England, and expressly decided in Mas- 
 sachusetts, that a cestui que trust may maintain an action at law against 
 his trustee for breach of trust, as upon an implied assumpsit. Of course, 
 
 (1) Spalding v. Shalmer, 1 Tern. 303 ; Lut- 
 wyoli V. Winford, 2 Bro. E. 248. 
 
 (2) Fellows V. Mitchell, 1 P. "Wms. 81 ; 
 Bartlett v. Hodgson, 1 T. E. 42 ; Kip v. Den- 
 iston, 4 John. 26 ; Monell v. Monell, 5 John. 
 Cha. 296. See Taylor v. Eoberts, 3 Alab. N". 
 83. 
 
 (3) Robinson v. Pett, 3 P. Wms. 251 ; Pu- 
 seyv. Clemson, 9 S. & R. 204; Forbes «. Eoss, 
 2 Bro. 130. 
 
 (4) Smith V. French, 2 Atk. 243 ; 1 Harr. 
 
 AG. 11; Root V. Teomans, 15 Piolc, 488; 
 Courtee v. Dawson, 2 Bland, 289 ; Chase v. 
 Lockerman, 11 Gill & J. 185; Eainsford v. 
 Rainsford, Rice, 343; Angell v. Dawson, 3 
 T. & Coll. 308 ; Hester v. Wilkinson, 6 
 
 Humph. ; Hutchins v. Hutchins, 6 Bng. 
 
 L. & Equ. 41. 
 
 (5) Boardman v. Mosman, 1 Bro. 68 ; Rog- 
 ers!). Rogers, 1 Paige, 188. 
 
 (6) Ringgold V. Ringgold, 1 Harr. & G. 11. 
 
 (a) It has been recently decided, that payment to one of two trustees binds both. Hus- 
 band V. Davis, 4 Eng. L. & Equ. 342. 
 
 (J) The cestui may, at his election, reclaim the property; or claim other property taken in 
 exchange. Oliver d. Piatt, 3 How. 333. Implied notice wiU bind the purchaser. lb. And 
 one joint owner will be bound by notice to the other. Ibid. 
 ( c) See Att'y Gen. v. Holland, 2 Y. & Coll. 683; Bayley v. Rees, Holt Eq. 80. 
 
846 
 
 TRUSTS— CESTUI AND 
 
 [CHAP. XXV. 
 
 in England, the cestui stands on the footing of a mere simple contract 
 creditor. So a cestui que trust, after the death of the party who declared 
 the trust, may maintain a suit in his own name against the trustee, if 
 the latter refuse to pay over.(l) 
 
 44. It was formerly held, that a trustee could not be allowed any 
 compensation for his services. This rule was founded upon the reasons, 
 that by such allowance the estate might be exhausted ; that it was im- 
 possible to fix upon a fair amount, one man's services being worth more, 
 and another's less ; and that the trustee had his option, whether to ac- 
 cept or refuse the ofSce.(2)(a) This rule seems to be still in force in 
 Ohio, and in New York,(6) it has been held doubtful, whether even a 
 positive agreement with the cestui for compensation, made after creation 
 of the trust, is binding. But, wheTi a trust is undertalsen without any 
 consideration, and actually commenced, the trustee is bound to proceed 
 and execute it with the same diligence and good faith as if he was to re- 
 ceive compensation. (3) 
 
 45. But where the party creating the trust directed that the trustees 
 should be compensated, it was held, that such order should be carried 
 into effect ; and the amount of compensation was referred to a master 
 to settle.(4) 
 
 46. It is said, the general practice in America, and especially in Mas- 
 sachusetts, is to allow commissions to trustees, in case of open and ad- 
 mitted express trusts, unless the trustee has forfeited them by gross 
 misconduct. (5) In Massachusetts, trustees are allowed a commission of 
 5 per cent,(c) and ihe allowance thereof will not prevent that of specific 
 charges also. In such case, the commissions are considered as a com- 
 pensation for services not specially mentioned in the account. But a 
 trustee cannot have an allowance by way of commission, on assuming 
 his office. In Pennsylvania, an executor is always oompensated.(cZ) So 
 
 (1) Stuart V. Hellish, 2 Atk. 612 ; Twitt v. 
 Cootzer, 1 Harr. 451 ; Newhallj). Wheeler, 1 
 Mass. 198 ; Giflford v. Manley, For. 109 ; Lyd- 
 del V. WestOD, 2 Atk. 19 ; Gadsden v. Lord, 1 
 Dess. 216. 
 
 (2) Treat, of Bqu. lib. 2, ch. 7, sec. 3. See 
 Gilbert v. Dyneley, 3 Mann. & G. 12. 
 
 (3) Walk. Intro. 314 ; Manning v. Manning, 
 1 Jobn. Cha. 527 ; Meaoham v. Stearns, 9 
 Paige, 398 ; Iddings v. Bruer, 4 Sandf. Cb. 
 223; Switzer v. Skiles, 3 Gilm. 529. 
 
 (4) Ellison V. Airey, 1 Ves. 112. 
 
 (5) Jenkins v. Eldridge, 3 Story, 325. 
 
 (a) Another reason assigned is, that there is much solicitude and vexation in most trusts, 
 which cannot be compensated by money. Barrelli;. Joy, 16 Mass. 228. 
 
 (6) After the estate of trustees ceases by the Rev. Sts. of New York, on the cessation of 
 the objects of the trust, they have no longer a lien on the land for any unpaid charges and 
 commissions. Bellinger v. Shafer, 2 Sandf. Ch. 293. 
 
 A trustee, on passing the trust estate to a new trustee, and discharging himself, was al- 
 lowed commissions on stocks, bonds and mortgages, which he conveyed to the new trustee 
 in specie, as they had remained during his own trusteeship ; also, on certain houses and 
 land, in which the proceeds of certain choses in action had been invested by a former trustee 
 for the preservation of the property, and which were held to be personalty in equity. De 
 Peyster, 4 Sandf. Ch. 511. 
 
 (c) " On the gross amount of all the property that has come to his hands," is the expres- 
 sion in one case, (16 Mass. 221 ;) "on net income from real and personal estate — income re- 
 ceived and accounted for," is probably the more correct phrase, used in another and later 
 case. 2 Met. 422. See Kendall w. New England, &o., 13 Conn. 383; Mitchell u. Holmes, 
 1 Md. Ch. 287. 
 
 {d) So, two and a half per cent, commissions were allowed on a sale by assignees of real 
 estate, assigned for the benefit of creditors, the purchase-money being about $44,000, of which 
 $13,000 came into their hands, the residue continuing a lien, by agreement between a mort- 
 gagee and the purchaser. Shunk's, &c., 2 Barr, 304. 
 
CHAP. XXV.] 
 
 TRUSTEE; RIGHTS, ETC. 
 
 S47 
 
 a trustee has been allowed 3 per cent, on the price of property sold by 
 him ; in Maryland, 5 per cent. So in Virginia, North Carolina,(a) Mis- 
 sissippi, and sometimes in Kentucky, compensation is made. In Dela- 
 ware, upon a sale by order of court, the allowance is not over 6 per 
 cent, on the first hundred dollars, nor over one per cent, on four thou- 
 sand dollars. In Alabama, a provision in the deed for 12 1-2 per cent, 
 will not avoid it, unless proved tovbe unconscioaable.(I) 
 
 47. It is said, that the cestui que frwal ought to save the trustee harm- 
 less, as to all damages relating to the mist. Upon this principle, a 
 trustee shall be liberally allowed all reasonable costs and charges in- 
 curred in the management of the estate. Thus, if he bring a suit to 
 recover the land, he will not be limited, in a setilement with the cestui, 
 to the taxed costs, but will be allowed the expenses actually incurred 
 in the suit. So, he will be allowed a solicitor's fee. But he will not 
 be allowed the expenses of actions of assault and battery brought 
 against him, thougli arising from his defence of the estate. Wher6 
 he has advanced money, without any probability of gaining by it per- 
 sonally, the amount shall be reimbursed to him; and, in Pennsylvania, 
 may be enforced by an ejectment and conditional verdict. And it is 
 now usual to provide expressly for the reimbursement of all costs and 
 expenses incurred in executing the trust. If the trustee pay off an in- 
 cumbrance, he may reimburse himself from the property, and leave the 
 cestui to call upon the grantor on his warranty, instead of doing it him- 
 self. Taxes paid are a lien upon the land, and may be paid out of the 
 trust fund. (2) 
 
 48. In ^Massachusetts and New York, a trustee will not be allowed 
 the cost oi permanent improvements, such as building, clearing, road- 
 making, kQ,;{b) and regard must be had to the probable duration of the 
 trust, in determining what improvements fall under this designation. 
 If, by means of improvements, the rent of the property is increased, 
 the cestui may be put to his election, between allowing the charge and 
 not receiving the increased rent. And the trustee shall be allowed for 
 
 (1) Barrel! v. Joy, 16 Mass. 221; Rathbun 
 V. Colton, 15 Pick. 471 ; Dixon v. Homer, 2 
 Met. 420; Jenlcins v. Eldridge, 3 Story, 325; 
 Hogan V. Stone, 1 Ala. (N. S.) 496; Sliurtliff v. 
 Witlierapoon, 1 Sm. k M. 613 ; Wilson v. Wil- 
 son, 3 Binii. 560; Piisey v. Olemson, 9 S. & 
 R. 204; Walker, lb. 223; Longley v. Hall, 
 11 Pick. 120; Marsteller, 4 Watts, 267 ; Mil- 
 ler V. Beverleys, 4 Hen. & Mun. 415 ; Nathans 
 V. Morris, 4 Whart. 389; Brown v. Wallace, 
 2 Bland, 59 ; Winder v. Diffenderffer, lb. 207 ; 
 Tyson v. HoUingsworth, lb. 332 ; Andrews 
 V. Scotton, lb. 672 ; Dela. St. 1843, 507 ; Sher- 
 rill V. Shurford, 6 Ired. Eq, 228 ; Phillips v. 
 Bustard, 1 B, Monr. 349 ; Warring v. Darrall, 
 10 Gill & J. 126 ; Donelson v. Posey, 13 Alab. 
 752; Shunk's, Ac, 2 Barr. 304. See the 
 
 State V. Piatt, 4 Harring, 154 ; v. Rog- 
 ers, lb.; Goodburn v. Stevens, 1 Md. Ch. 
 420; Greening v. Fox, 12 B. Mon. 187; 
 Barry v. Barry, 1 Md. Ch. 20 ; Stehman, 5 
 Barr, 413. 
 
 (2) Trott V. Dawson, 1 P. Wms. 780; 
 Green v. Winter, 1 John. Cha. 29; Freeman 
 V. Tompkins, 1 Strobh. Bqu. 53 ; Gary v. 
 May, 16 Ohio, 66 ; Amand w. Bradburn, 2 
 Clia. Cas. 128 ; Watts v. Watts, 2 M'Cord's 
 Cha. 82; 7 Bro. Pari. 266 ; Pierson v. Thomp- 
 son, 1 Edw. Cha. 212; Addis «. Clement, 2 
 P. Wms. 455 ; Murray v. DeRottenham, 6 
 John. Cha. 62 ; Dilworth v. Sinderling, 1 Binn. 
 495 ; Jones v, Stockett, 2 Bland, 417 ; Green 
 V. Putney, 1 Md. Ch. 262 ; Altimus v. Elliott, 
 2 Barr, 62. 
 
 (a) Where a father made a conveyance of land and negroes to one of his sons, to be man- 
 aged under the direction of that son, in trust that he would apply the proceeds to the support 
 of the father and his family during the father's lifetime, and after his death sell the property 
 and divide the proceeds among his heirs and distributees ; held, the son was entitled to a 
 reasonable compensation for his oare and trouble. Raiford v. Raiford, 6 Ired. Eq. 490. 
 
 (6) Otherwise in Pennsylvania. Dilworth v. Sinderling, 1 Binn. 495. 
 
348 
 
 TRUSTS— CESTUI AND 
 
 [CHAP. XXV. 
 
 reasonable repafrs ; but not for pulling down and rebuilding._ So, it 
 has been held in New York, that, where lands are purchased in trust, 
 with the money of a wife, the trustee, whether the husband or a stranger, 
 shall be allowed for permanent improvements. So, where a person hold- 
 ing land in trust, with a power to sell, materially improves the estate,, 
 under a belief honestly entertained, with reasonable grouads for that 
 belief, that he is the owner of the land, and the amount received upon 
 the sale is increased in consequence of such improvements, he is enti- 
 tled to retain such excess for his own use, but no more. But where the 
 father of beneficiaries, with consent of the trustees, made permanent 
 improvements on the land, while their tenant; the trust containing no 
 authority for the same ; held, no allowance could be made for the im- 
 provements, as against the beneficiaries and those claiming under them. 
 The value of improvements is estimated by their cost.(i) 
 
 49. The policy of the law requires, that the relation of trustee and 
 cestui should be guarded with vigilance, and contracts between them 
 scrutinized, that no injustice may be done the cesiui{2) 
 
 50. Upon this principle is founded the general rule, that a trustee 
 shall not be allowed to purchase the trust property for his own benefit, 
 either directly, or through an agent. It is said to be a plain point of 
 equity, and a principle of clear reasoning, that he who undertakes to act 
 for another in any matter shall not, in the same matter, act for himself, 
 and make the business an object of interest. He is not acting with 
 that want of interest, that total absence of temptation, that duty im- 
 posed upon him, that he shall gain a profit. Hence, in whatever shape 
 a profit accrues to the trustee, whether by management or good fortune, 
 it is not fit that benefit should remain in him. It ought to be comma- 
 nicated to those whose interests, being put under his care, afforded him 
 the means of gaining that advantage. He takes the land, clothed with 
 the same trusts as it was liable to in his hands, previous to the sale. 
 The principle is sometimes said to be universal, subject to no qualifica- 
 tions or exceptions; and sometimes, though not universal, a general 
 one. It applies not merely to trustees technically so called, but to ju- 
 dicial officers, and all persons concerned in disposing of the property of 
 others, such as attorneys, commissioners, sheriffs, &c.(3)(a) 
 
 (1) Williamson u. Seaber, 3 T. & Coll. Ill ; 
 Bridge v. Brown, 2 T. & Coll. Cha. 181; 
 Ealhbun t). Colton, 15 Pick, ill; Trustees, 
 &o. V. Jaques, 1 John. Cha. 450 ; Bellinger v. 
 Shafer, 2 Sandf. Cha. 293 ; Pratt v. Thornton, 
 28 Maine, 355. 
 
 (2) Ringgold V. Ringgold, 1 Harr. & a. 
 11. 
 
 (3) "Wliichcote v. Lawrence, 3 Ves. Jr. 740 ; 
 Hayward «. Ellis,' 13 Pick. 212; Howell v. 
 Baker, 4 John. Cha 120 ; Toorhees v. Stoot- 
 hoi; 6 Halst. 145 ; Turner v. Bouchell, 3 Har. 
 & J. 99 ; Davis v. Simpson, 5, 141 ; 1 Men, 
 44; Bruchv. Lantz, 2 Rawle, 392; 2 "W hart. 
 53; Misso. St. 425; 1 Ky. Rev. L. 623; 
 Scott V. Davis, 4 My. & C. 8T ; Jones v. 
 Thomas, 2 T. & Coll. 498 ; Williamson v. 
 
 Seaber, 3 lb. Ill ; Braekenridge v. Holland, 
 2 Blackt: 380 ; Saltmarsh v. Beene, 4 Port. 
 283; Williams v. Powell, llred. Equ. 460; 
 Field V. Arrowsmith, 3 Humph. 442 ; Ely v. 
 Horine, 5 Dana, 404 ; Bowling v. Dobyns, lb. 
 445 ; Van Eps v. Van Eps, 9 Paige, 237 ; 
 Torrey v. Bank, &c., lb. 649 ; Kerr v. Murphy, 
 2 Miles, 157 ; Small v. Jones, 1 Watts & S. 
 136; Campbell' t). Pennsylvania, &o., 2 Whart. 
 53; Thorp B.McCullum, lailm. 614; Bank, &o. 
 Torrey, 7 Hill, 260 ; Slade v. Van Veohten, 11 
 Paige, 21; Belli;. Welch, 2 aill. 163; Iddings 
 V. Bruen; 4 Sandf. Cha. 223 ; Rathbun v. 
 Rathbun, 6 Barb. 98 ; Pratt v. Thornton, 28 
 Maine, 355; Conger «. Ring, 11 Barb. 356; 
 Jenkins v. Eldridge, 3 Story, 181; Michael 
 V. Michael, 4 Ired. Equ. 349. 
 
 (a) Thus, counsel consulted respecting a title to land cannot buy in an outstanding ad- 
 verse claim, and set it up against his client. Haokenbury v. Carlisle, 5 Watts & S. 348. 
 An action was brought against A, an administrator, for his own benefit, but in the name of 
 
CHAP. SXT.] 
 
 TRUSTEE; RJG-HTS, ETC. 
 
 349 
 
 51. The above-named principle seems to have been limited in some 
 cases to a purchaser from an infant cestui que trust. But this restriction 
 is now done away ; and, although the cestui be of age, the transaction 
 morally fair, and honest,(a) a higher price paid by the trustee than any 
 one else would give, the estate taken at an appraisement or in the name 
 of a third person ; yet, upon the ground of general inconvenience, the 
 transaction may be set aside by the cestui. The trustee purchases sub- 
 ject to that equity .(1) 
 
 52. But, where the estate is sold under a decree in Chancery, by an 
 open bidding before the master ; or where, in case of a trust for credit- 
 ors, a majority of them assent ; the purchase, it seems, will be sustained. 
 In Pennsylvania, the circumstance that a sale is a judicial one is held 
 to make no difference. So, in South Carolina, if made at the instance 
 of the trustee, it is held to be his sale. And the mere fact of a public 
 sale does not make the sale valid. So where, in a sale made by exe- 
 cutors, one of them became a joint purchaser and afterwards sole 
 owner; held, although the sale was ratified by the heirs and devisees, 
 the land was still liable to be taken by creditors.(2) 
 
 53. If the property purchased by the trustee is a lease, and he re- 
 news it in his own name, the renewal shall be for the benefit of the 
 cestui.ih) So, if a trustee buys in an incumbrance upon the estate, 
 
 (1) Campbell v. Walker, 5 Tea. 680. 
 
 (2) 1 Cruise, 358 ; Wiggins, 1 Hill's Cha. 
 354; Campbell (;. Pennsylvania, &o., 2 Whart. 
 53 ; Whelpdale v. Cookson, 1 Ves. 9 ; 5 Tes. 
 
 678 ; Bruch /). Lantz, 2 Eawle, 392. See 
 Pitt 0. Petway, 12 Ired. 69; Haywood il. 
 Eusley, 8 Humph. 460. 
 
 B. A suffered a judgment to be rendered against him, and, in the levy of the execution 
 upon the intestate's estate, acted both as defendant and agent of B. Held, the proceedings 
 were illegal and collusive, and that the levy was void as against a subsequent execution 
 in favor of C. Goddard v. Divoll, 1 ilet. 413. And the principle applies to public, as well 
 as private trusts ; as where a member of the legislature sought to obtain a title from the 
 land-office, after the claimant had petitioned for confirmation of his right. O'Neill, 2 Bland, 
 151. It has been enforced in a late case even against a high dignitary in tlie church. A 
 statute authorized a rector, with consent of the bishop, to raise money by an annuity for 
 the rectory-house. The bishop advanced the money, and obtained a grant of the annuity, 
 charged on the living. Held, the proceeding was entirely cold. Greenlow v. King, 3 
 Beav. 49. 
 
 The right to avoid a purchase of the trust property by a trustee is not personal to the 
 beneficiary, but passes to his representatives; and creditors, or a receiver lov their benefit, 
 may avail themselves of it. Iddings v. Bruen, 4 Sandf Ch. 223. 
 
 In Massachusetts, partition may be made between a trustee, attorney or guardian, and the 
 party connected with him in that relation. St. 1853, 993. 
 
 It is said, a court of equity will, under no circumstances, permit a trustee to secure a debt 
 of his own, not secured by the trust, by forming a combination with one claiming adversely 
 to the cestuis que trust. Irwin v. Harris, 6 Ired. Eq. 215. 
 
 Where a trustee denies a trust, and claims the property as his own, and the trust is estab- 
 lished by parol evidence, he cannot set up a bond to himself from the creator of tlie trust 
 extending the times of payment. Tritt v. Crotzer, 1 Harris, 451. 
 
 (a) The reason of the rule is said to be, not that there is, but there may he, fraud. Broth- 
 ers V. Brothers, 7 Ired. Equ. 150. 
 
 (6) A. joint lessee will also be held responsible as a trustee, in case of renewal. Burrell v. 
 Bull, 3 Sandf Ch. 15. 
 
 So a partner will, in respect to a renewed lease, be a trustee for the firm, where he would 
 not be so in respect to a purchase of the reversion. Anderson v. Lemon, 4 Sandf 552. 
 
 A and B held a lease, fixtures, stock, &o., in common, and A carried on the business of a 
 refectory. C and D held mortgages on A's interest, and, not feeling secure, agreed to pay 
 the arrears of rent if immediate possession were given, which was done, and they also 
 agreed to protect the interests of B. They did not pay the rent, but suffered a sale under 
 a distress, purchased the fixtures, stock, &c., at the sale, and continued the business. It 
 having beeu arranged that C should procure a renewal of the lease, for the common benefit of 
 
350 
 
 TRUSTS— CESTUI AND 
 
 [CHAP. XXT. 
 
 he can hold it only as security for the sum paid by hina, with intcr- 
 est.(i) 
 
 54. If, after purchasing the estate, the trustee resells it at an advance, 
 more especially if in pursuance of a previous bargain, the cestui may 
 affirm the sale, and claim the profits. But, in such case, the trustee 
 shall be allowed money paid to his agent for making the purchase. So, 
 where the holder of a mortgage assigned it in trust, for the benefit of 
 children, and afterwards accepted a reassignment of it from the assignee 
 in trust ; held, he was accountable as a trustee to the cestui que trusts. 
 So, where a trustee became the owner of land, on which was a mort- 
 gage belonging to the trust estate, cancelled the mortgage on the record, 
 sold one-third of the same land, taking back a mortgage thereon for the 
 same amount as that which he had cancelled, and executed a declara- 
 tion of trust, acknowledging that he held it in trust, in lieu of the 
 one cancelled, but the land covered by this substituted mortgage was 
 greatly inadequate security ; on a bill by the cestui que trust, setting 
 forth that these acts of the trustee were done without his knowledge or 
 consent, and that the original bond and mortgage had never been paid, 
 a decree was made, establishing the original bond and mortgage, as 
 valid existing securities, securing the rights of subsequent bona fide 
 mortgagees, and directing a sale of the premises, and payment of any 
 deficiency by the trustee. So, where a trustee has borrowed money, 
 and with it purchased other property, and added it to the trust, and re- 
 paid the borrowed money out of the proceeds and profits of the trust 
 property ; the property thus purchased will belong to the beneficiaries 
 in the trust.(2) 
 
 55. One to whom a legacy is given, coupled with a trust, is charge- 
 able with the latter, and cannot legally deal with the cestui.{3) 
 
 56. An administrator purchases land, sold upon a judgment in favor 
 of his intestate. Held, he took it in trust.(4) 
 
 57. So, if an executor purchase the land of his testator at sheriff's 
 sale, recede from his purchase, and the land be resold, he is chargeable 
 for the highest price.(5)(a) 
 
 (1) Killlck V. Flexney, 4 Bro. R. 161; 
 Quackenbush v. Leonard, 9 Paige, 334 ; 
 "Webb V. Sugar, 2 Y. & Coll. 24T ; Tanner v. 
 Elworthy, 4 Beav. 487 ; "Waters v. Bailey, 2 
 T. & Coll. Cha. 219. 
 
 (2) Whiclicote v. Lawrence, 3 Tes. jr. 740 ; 
 Hay ward D. P'llis, 13 Pick. 272 ; Wasson v. 
 English, 13 Mis. 176; Gilchrist t). Stevenson, 
 
 9 Barb. 9 ; Stuart v. Kissam, 2, 498 ; Butler 
 ». Hicks, 11 S. & M. 78. 
 
 (3) McCants v. Bee, 1 McCord's Cha. 383. 
 
 (4) Fellows V. Fellows, 4 Cow. 682. See 
 Darcusi;. Crump, 6 B. Mon. 363; Painter v. 
 Henderson, 7 Barr, 48. 
 
 (5) Guior V. Kelly, 2 Bin. 294. 
 
 B, C and D, C procured the renewal in his own name, and then he and D separately sold 
 their interests in the whole to E, wlio took possession of the whole concern, and kept B 
 out of possession. Held, in a suit by B, that C and D were bound to account to him for his 
 share of the profits previous to the sale to E, and for his share of the purchase-money, de- 
 ducting his share of what they had paid. Burrell v. Bull, 3 Sandf Ch. 15. 
 
 (a) In Illinois, it is provided by statute, that, if the interest of an estate require that land 
 sold on execution be purchased by the executor, he may buy it, and hold it as assets. St. 
 1841, 168. "^yhere an executor purchases land, and takes a conveyance to the estate, this 
 is, prima facie, a declaration of trust, and the land will be subject to division among the 
 heirs. Garrett v. Garrett, 1 Strobh. Eq. 96. 
 
 A purchase by an executor, at an orphans' court sale for payment of debts, is voidable 
 by the devisee or heir, even though the purchaser did not interfere in procuring the order 
 to be made, but the petition was presented, the bond given, and the sale made by another 
 executor. Bee.sonv. Beesofi, 9 Barr, 279. 
 
OHAP. XXT.] 
 
 TRUSTEE; EIGHTS, ETC. 
 
 351 
 
 58. An attorney, employed to collect or foreclose a mortgage, takes 
 a conveyance to himself of the equity, instead of foreclosing. Held, 
 the estate was subject to the trust in the hands of his heirs ; and that 
 they were bound to reconvey, on payment of the amount paid for the 
 equity, and of the trustee's claim for his services, together with the 
 value of improvements made by themselves before notice of the trust.(l) 
 So, where a bank is bound to pay off and discharge a mortgage, so as 
 to relieve the property of a third person from sale under a decree of 
 foreclosure, and the cashier attends the sale as agent for the bank, and 
 bids off the property on his own account; held, he must in equity be 
 regarded as having purchased for the benefit of the bank, and that the 
 purchase was improper, and should be set aside.(2) So, a purchase, 
 by the general agent of heirs, of the land of their ancestor, from the 
 vendee at a tax sale, instead of redeeming the land, inures to the 
 benefit of the heirs.(3) 
 
 59. Executors, having authority to sell, sold, with the intent of 
 repurchasing the estate from the purchaser. Held, the sale was 
 voidable.(4) 
 
 60. Devise of land mortgaged, and a direction to the executors to 
 redeem the mortgage. Though having assets, the executors took an 
 assignment of the mortgage. Held, they should hold it in trust for the 
 devisee, whose right, it seems, wo\ild be barred only by the lapse of 
 twenty years.(5) 
 
 61. Laud was sold upon execution. The plaintiff directed his attor- 
 ney, A, to bid it off. A confessed that he had done so, and said that 
 the deed would be made to the plaintiff, and that he had made a tem- 
 porary sale, to save the expense of advertising, and would receipt the 
 execution, when paid. The sale was made on a stormy day, and only 
 A and the officer were present. A purchased the land, and afterwards 
 conveyed to B, who had notice of the facts. The land was worth 
 $2,000, while only $80 was due on the execution. Held, it was doubt- 
 ful whether the plaintiff's attorney could, in any case, legally purchase 
 land sold on execution, inasmuch as he has the whole control of the 
 proceedings, and therefore great opportunity for unfairness; and that 
 in this case the judgment debtor might redeem, on payment of the sum 
 due upon the execution and interest, the amount paid to discharge in- 
 cumbrances by A or B, and the cost of improvements made by the 
 latter.(6) 
 
 62. A trustee agreed to purchase a farm for the cestui from the pro- 
 ceeds of trust property. He bought the farm, and gave a bond and 
 mortgage for the purchase-money, but refused to pay them when due, 
 and procured a foreclosure and sale by the mortgagee, at a loss of 
 $4,000. Held, he was liable for the loss.(7) 
 
 63. One of several remainder-men purchased the particular estate, 
 avowedly for all. Held, a trust for the others.(8)(a) 
 
 (1) Giddings v. Eastman, 5 Paige, 
 See Davinney v. Morris, 8 Watts, 314. 
 
 (2) Bank, &c. v. Torrey, 7 Hill, 260. 
 
 (3) Myers, 2 Barr, 463. 
 
 (4) Den v. McKnisht, 6 Halst 385. 
 
 561. 
 
 (5) Jenison v. Hapgood, 7 Pick. 1. 
 
 (6) Howell V. Baker, 4 Jolm. Clia. 118 
 
 (7) Green v. Winter, 1 John. Cha. 27. 
 
 (8) Anderson v. Bacon, 1 Mar. 51. 
 
 (a) A, a tenant in common, released his right toB. C was in possession, claiming under a 
 gale for taxes. He was also a tenant in common, and agent for A. and the other proprietors. 
 
352 
 
 TEtrSTS— CESTUI AND 
 
 [CHAP. XKV. 
 
 63 a. Where an agent, to sell a mortgage, represented to his principal 
 that a certain price was the most he could obtain for it, when it was of 
 greater value, and it was sold for that price to the agent ; held, the re- 
 dress of the principal was not an allegation of fraudulent representa- 
 tion, but a call to annul the assignment, or account to him for its true 
 value.(l) So, if heirs elect to set aside purchases made by executors, 
 administrators, or guardians, at their own sale, they must go into 
 equity.(2) 
 
 64. The cestui que trust " must not lie by to speculate upon events," 
 but disafSrm the sale in a reasonable time; and what is reasonable 
 time, depends on the circumstances of each case. The sale is not void, 
 but only voidable at his election ; and, the rule being adopted solely 
 for his benefit, neither remainder-men, strangers, nor parties to the 
 deed, nor those claiming under them, can raise the objection, nor will 
 the deed be set aside on application by or on behalf of the trustee 
 himself(3) 
 
 65. Upon the filing of a bill in Chancery, to obtain a resale of the 
 premises, it will be referred to a master to settle whether such resale 
 would be beneficial to the plaintiff. And, if sucW resale takes place, 
 and no advance is made upon the sum paid by the trustee, he will be 
 held to complete the purchase.(4) 
 
 66. Where there are joint trustees, a sale of the trust property by 
 one to another is illegal ; and the latter is liable for any neglect on the 
 part of the former to pay over the purchase-money, or apply it to the 
 purposes of the trust. The purchaser is also answerable for all profits 
 arising from the property.(5) 
 
 67. But where an heir or devisee, being one of several, becomes con- 
 structively charged with a trust, but, having no notice of it, purchases 
 the shares of the others, he shall hold the latter discharged of the trust, 
 though his own share remains charged.(6) 
 
 68. Although a purchase by the trustee of the trust property is a 
 transaction of great hazard and delicacy, to be watched with the utmost 
 diligence, yet such purchase may be valid, provided it appears, after the 
 most careful investigation, that there was a distinct and clear contract, 
 understood by the cestui ; and that on the part of the trustee there was 
 neither fraud, concealment, nor any advantage taken of his situatioD, 
 as such. 
 
 69. Thus, a trustee for payment of debts purchased the estate as 
 agent for his father, both being creditors and partners, and the cestui 
 had full knowledge, and took the sole management of the sale, making 
 
 (1) Thompson v. Hallet, 26 Maine, 141. 
 
 (2) Worthy v. Johnson, 8 Geo. 236. 
 
 (3) Thorp V. MoCullum, 1 Gilm. 614; 
 Worthy v. Johnson, 8 Geo. 236 ; Pitt v. Pet- 
 way, 12 Ired. 69; M'Kinley v. Irvine, 13 
 Ala. 681 ; Ward v Smith, 3 Sandf. Cha. 592; 
 Painter v. Henderson, 7 Barr, 48 ; Costeris, 
 &c., 1 Har. 292 ; Woelhers, &e., 2 Barr, 11. 
 
 (4) Campbell v. Walker, 6 Ves. 678 ; Ball 
 
 V. Carew, 13 Pick. 31; Den v. McKnight, 6 
 Halst. 385 ; Davia v. Simpson, 5 Har. and J. 
 147 ; Laoey, 6 Ves. 625; Thorp v. M'GoUum, 
 1 Gilm. 614. 
 
 (5) Ringgold V. Same, 1 Har. & Gill, 11 ; 
 Hulbert v. Grant, 4 Mon. 582 ; Case v. Abeel, 
 1 Paige, 393. 
 
 (6) Giddings t. Eastman, 5 Paige, 561. 
 
 Held, he must be considered a trustee for A and B, and was bound to convey to them, 
 upon receiving the amount of his expenditures, and a fair compensation for his services. 
 Baker v. Whiting, 3 Sumn. 476. 
 
CHAP. XXV.] 
 
 TRUSTEE; RIGHTS, ETC. 
 
 353 
 
 surveys, settling the particulars, prices, &c. Held, the purchase was 
 good.(l) 
 
 70. So, a trustee may validly purchase directly from the cestui, pro- 
 vided he practice no unfairness. By such a contract, he in fact removes 
 himself from the character of a trustee.(2) And, after the trust ceases, 
 the trustee may always make a valid purchase.(a) 
 
 71. A mortgages land for security to B, his surety. A then trans- 
 fers to C, a creditor, all his remaining interest in the land, without the 
 knowledge and not for the account of B, and afterwards transfers such 
 interest to B. Held, in the absence of all fraud, B's purchase was not 
 invalid, as made by a trustee ; for, by A's transfer to G, he had ceased 
 to stand in that relation.(3) 
 
 72. The rule against a trustee's purchasing does not prevent him 
 from occupy i7ig.(i) 
 
 72 a. A cestui que trust, knowing of a purchase of the trustee, and of 
 his right to avoid it, may ratify it, by assenting to the application of 
 the purchase-money to his use, (5) 
 
 72 b. Where a trustee becomes a purchaser at the sale of a co-trustee, 
 it is necessary, in order to render the sale utterly void by reason of the 
 fraudulent acts of the seller, to connect the purchaser with them. (6) 
 
 72 c. Where land is sold under a testamentary power by trustees, an 
 executor, who is not one of the trustees, may purchase. (7) 
 
 72 d. A purchase of land by an administrator, at a sale of the estate 
 of his intestate, if not actually fraudulent, cannot be avoided by the 
 heirs, unless suit be brought within twenty-one years after the sale, or 
 within ten years after the heirs attain their majority, if they were then 
 minors. (8) 
 
 72 e. If the rule, that a trustee to sell cannot himself become the pur- 
 chaser, is applicable to an administrator, licensed to sell real estate, 
 and purchase through a third person, such purchase is voidable only 
 by creditors, or other persons interested, while the estate remains in the 
 hands of such administrator ; and not as against a bona fide purchaser, for 
 valuable consideration, without notice.(9) 
 
 72 / Although good faith must be strictly enforced against a trus- 
 tee, and he may not be allowed to deal with the property for his own 
 benefit, yet, where the trustee had substituted a new security, by way 
 of mortgage, in the place of a former mortgage, upon certain property, 
 but not including the whole which was covered by the former mortgage ; 
 and there was no gain made, or intended to be made, by the trustee ; 
 and, so far as appeared, the new security would have been deemed suf- 
 
 (1) Coles V. Trecothick, 9 Ves. 234 ; Morse 
 V. Royal, 12 Ves. 355 : Naylor v. Wincti, 1 
 Sim. & atu. 555 ; McCants v. Boe, 1 M'Oord's 
 Cha. 389. See Murdock, 2 Bland, iel ; Ken- 
 nedy V. Kennedy, 2 Alab. (N. S.) 572 ; Allen 
 V. Bryant, 7 Ired. Equ, 276; Marshall ii. Ste- 
 phens, 8 Humph. 159. 
 
 (2) Sanderson v. Walker, 13 Ves. 601. 
 
 (3) Ball V. Carew, 13 Pick. 28. 
 
 (4) Root V. Yeomatis, 15 Pick, 495. 
 
 (5) Beeson v. Beeson, 9 Barr, 279. 
 
 (6) Beeson v. Beeson, 9 Barr, 279. 
 
 (7) Cudburrya. Duval, 10 Barr, 265. 
 
 (8) Musselman v. Eshieman, 10 Barr, 
 
 (9) Robbing v. Bates, 4 Gush. 104. 
 
 394. 
 
 (a) So a trustee may become purchaser, at a sale made by virtue of proceedings prior to 
 his becoming such. Thus, the assignees of an insolvent may purchase land sold on execu- 
 tion under a'mortgage prior to the aasigument. Fiak v. Lurher, 6 Watts & S. 18. 
 
 Vol. I. 23 
 
354 
 
 TRUSTS— CESTTJL AND 
 
 [CHAP. xxy. 
 
 ficient at the time, and it was accepted by the- cestui que trust, who was 
 competent to judge of its value; the transaction was not deemed to be 
 void.(l) 
 
 72 g. The purchase of trust property, by a trustee, through a secret 
 agent, does not, of itself, render the sale utterly void, unless used as a 
 means of deceiving or misleading the cestui que trust.{2) 
 
 72 h. Where one of two partners, in his own name, and with his own 
 funds, purchased in fee the premises on which the firm, under a lease, 
 was conducting its business, (after the term limited for the partnership 
 had expired, but before an actual dissolution,) such purchase being 
 made, not fraudulently, but without the consent or knowledge of his 
 co-partner, and the purchase of the real estate not being any part of 
 their ordinary business ; held, the latter could not, at his election, 
 claim that the premises were partnership property .(3) 
 
 72 i. Two partners had been conducting business, on leased premises. 
 The term for their connection had expired, but the business was con- 
 tinuing, with a view to arrange a further term. One of tbem, with the 
 other's knowledge, was treating with the owners of the reversion for 
 its purchase, professedly intending the premises for the use of the firm, 
 if it continued, and consulting his co-partner as to the price demanded. 
 The latter, privately, without the knowledge of the former, bought the 
 premises with his own means, and in his own name, and then refused 
 to continue the firm permanently. Held, the purchase was not made frau- 
 dulently as against the purchaser's partner, and the premises were not 
 partnership property. (4) 
 
 72 j. A cestui que trust can purchase at a sale of the trust estate as 
 freely as a third person, but lie does not become a trustee for parties 
 interested, without a repayment to him of the purchase-money .(5) 
 
 72 k. A trustee may retain the amount of a loss, occasioned by the 
 failure of a cestui que trust to comply with the terms upon which he 
 purchased a portion of the trust estate out of the income of such trust 
 estate, payable to said cestui que trust.{6) 
 
 73. Where one of several trustees refuses to accept the trust, it is 
 usual for him to disclaim by deed, or release all his interest to the others. 
 A release implies a prior acceptance, and therefore cannot affect such 
 duties as are founded in personal confidence. Thus, notwithstanding 
 such release, the trustee must still join iii a receipt for purchase-money, 
 if the will required that all should sign it.(7)(a) 
 
 (1) Stuart v. Kissam, 11 Barb. 211. 
 
 (2) Beeson v. Beeson, 9 Barr, 279. 
 
 (3) Anderson v. Lemon, 4 Sandf. 552. 
 
 (4) lb. 
 
 (5) "Walker v. Brungard, 13 S. & M. 723. 
 
 (6) Waters v. Waters, 1 Md. Ch. 196. 
 
 (1) Crew V. Dicken, 4 Tes. 97. Seo Mass. 
 Rev. St. ch. 69, see. 8 ; Green v. Bcirhmd, 4 
 Met. 330; Field v. Arrowsmitli, 3 Humph. 
 442.- 
 
 (a) With regard to the rights and duties of joint trustets; in general, they are not respon- 
 sible for the acts of each other. 2 Story's Kqu. 520 ; 4 Kent, 306, n. Thus, where a loss 
 accrues to a trust fund, through the default of one ot five trustees, liis co-trustees will not be 
 held responsible for such loss, if they have acted in good faith, and exercised that vigilance 
 over the fund, which a naan of ordinary prudence -will exercise over his own pronerty The 
 State V. Guilford, 18 Ohio, 500. t f j- 
 
 Otherwise, whnre money has been jointly received, or a joint receipt given for it, (unless 
 this was a necessary or merely formal act, and proof is given of actual payment to one alone,) 
 or where, though payment was made to one, it was done by the act, direction, or agreement 
 of the other. 2 Story, 520 ; 4 Kent, 406, n. See Griffin t. Macaulay, 7 Grat't. 476 • Banks 
 
CHAP. XSY.] TRUSTEE; RIGHTS, ETC. 355 
 
 74. After accepting and entering upon the execution of a trust, or 
 perhaps even after suffering hinaself to be appointed, the trustee cannot 
 surrender it, without the assent of the cestui, or order of court.(l)(«) 
 
 (1) Sheperd v., McEvers, 4 John. Cha. 136. See Mass. St. 1843, 213 ; Chaplin v. Givena, 
 Rice, 132. 
 
 T. "Wilkes, 3 Sandf. Ch. 99 ; Jolinson v. Corbett, 11 Paige, 265 ; Richardson v. Tlie State, 
 2 Gill, 439 ; State v. Guilford, 15 Ohio, 593. 
 
 Where there are several trustees, who unite in a breach of trust, the cestui que trust, in 
 seeking relief, may proceed against all or either of the trustees. Gilchrist v. Stevenson, 
 9 Barb. 9. 
 
 With regard to Va& powers of joint trustees; in general, they must act together, in order 
 to render tlieir doings lefcal and effectual. 
 
 Thus in receipts and conveyances; their power over the subject matter of the trust being 
 equal and undivided, they cannot act separately. Ridgeley v. Johnson, 11 Barb. 527. 
 
 A deed in the names of, and purporting to be executed by, three trustees of a trust in 
 lands, apppared,upon its production, to have been in fact executed by only two of the 
 trustees. The trustee who did not execute the deed had been appointed only a few 
 months previously to the date of the deed. Held, that inasmuch as the deed, upon its face, 
 assumed that he was still alive, and he was named as one of the grantors therein, the pre- 
 sumption was, that he was alive at the date of the deed; and that a party claiming under the 
 deed, in order to avail herself thereof, by showing authority in two trustees only to execute 
 it, was bound to prove that such third trustee was dead at the time the deed was executed 
 by the others. lb. 
 
 A sale by one of two trustees, of property held by them jointly under an assignment for 
 the benefit of creditors, is void. Wilbur v. Almy, 12 How. (U. S.) 180. One of the trustees 
 cannot release a mortgage. Van Rensselaer v. Akin, 22 Wend. 549. But it is held, that 
 though, where a trust is appointed for private purposes, all the trustees must join in receipts 
 for money; in cases of public trusts, a majority of the trustees will be sufficient. Hill 
 T. Josselyn, 13 S. & M. 597. In Maryland, where one of two trustees appointed by a wiU re- 
 linquishes to trustees, the other may execute it. Md. L. 1828, ch. 174. 
 
 In North Carolina, it is provided, that, where several executors are appointed in trust to 
 sell lands, if some of them refuse administration, the others may give a valid deed. 
 A similar provision is made in Pennsylvania, where an executor has died, removed, or been 
 discharged ; and, in Ilhnoi.i, where one of the executors empowered to sell dies. In Ohio,'a 
 surviving trustee under a will may execute it, unless an intention is expressed to the contrary. 
 
 In Kentucky it is held, that, where a mere discretionary power to sell lands is given to 
 several executors, they have a, power, without an interest, and one cannot sell alone, though 
 the rest do not quahfy. But a devise to executors to sell, for payment of debti, gives them 
 an interest. In New York, upon the refusal of one trustee to accept the trust, the whole 
 estate vests in the others, as if the former were dead, or had no' been named. And, if one 
 refuse to accept, and formally renounce the trust, the Court of Chancery has no authority to 
 re-instate him, even with his consent, and on application of another trustee. 1 N. 0. Rev. Sts. 
 281 ; Purd. 301-2, Illin. Rev. L. 641 ; Woolridge v. Watkins, 3 Bibb, 349 : Baird v. Reman, 
 1 Mar. 215; Swan, 1001; King v. Donnelly, 5 Paige, 46; Sohoonhoven, lb. 559. See 
 Champlin, 3 Edw. 571 ; Niles v. Stevens, 4 Denio, .^99; Taylor ». Morris, 1 Oomst. 341. 
 In Missouri, where there are joint trustees, and one dies, the others take by survivorship. 
 Stewart V. Pettus, 10 Miss. 755. , ., , , 
 
 (a) All the trustees of a will declined to act, and did not act or takeupon themselves the trusts 
 of the will. A petition was presented for the appointment of certain persons as trustees, " in 
 the place or stead of" the trustees so declining to act, who appeared by counsel and dis- 
 claimed. Held, that the disclaiming trustees were, nevertheless, " existing ' trustees, so as 
 to authorize an order appointing the new trusteed in tlieir " place or stead within the mean- 
 ing of the 32d section of the Trustee Act of 1850. Tylers, &c., 8 Bng. Law and llq. 96. 
 
 A marriage settlement contained a power for the two trustees and the survivor of them, 
 and the executors or administrators of such survivor, to sell certain estates with the consent 
 of ihe husband and wife. The settlement contained no power of appointing new trustees. 
 one trustee died; the other trustee went to reside abroad; and, upon a bdl filed for that 
 purpose two new trustees were appointed under an order of the court. Held, that the trus- 
 tees appointed by the court had no right to execute the power of sale. Newman v. War- 
 ner, 7 Kng. Law and Eq. Rep. 182. , . , ^ .■ u a t j j <• 
 
 A and B contracted for the building of a house on a certain lot, which A erected, and for 
 which B became indebted to him in the sum of $6,000. Shortly afterwards, B conveyed 
 the house and lot to A and C, in trust for the use of B's wife and children, and to be held by 
 them free from B's debts. After B's death, A prosecuted his claim against B's estate, and 
 
356 TRUSTS— CESTUI AND [CHAP. XXV. 
 
 75. A trustee cannot delegate his power, as, for instance, a power to 
 sell.(l) 
 
 76. If a trustee refuses to accept the trust, the Court of Chancery will 
 either appoint a new one, assume the execution of the trust itself, or 
 direct a release to other trustees, if there are such, who are willing to 
 accept the office. (2) 
 
 77. A court of chancery may also, in some cases, remove a trustee 
 from office, though he is willing to act.' As where his co-trustees re- 
 fuse to join with him. 
 
 78. So, where a female trustee marries a foreigner, though she ex- 
 pressly disclaim all intention of going abroad. 
 
 79. And it is said, there is great inconvenience in a married woman's 
 being trustee.(3) 
 
 80. It is usual to provide expressly in trust deeds, th&t, if any of the 
 trustees die, become incapable of acting, or wish to relinquish the 
 trust, a new trustee shall be appointed, either by the others or by the 
 cestui, and the property conveyed to him jointly with the rest.(a) 
 Where there is no such clause, the Court of Chancery will appoint a 
 new trustee, after a release from the former one. This may be done 
 upon a bill filed against the remaining trustees, and by reference to a 
 Master. (4) And Chancery will appoint a new trustee, notwithstanding 
 
 (1) Hawley v. James, 5 Paige, 318. 
 
 (2) 2 Bi-ev. Dig. 305 ; Barnet v. Barnet, 4 
 Des. Clia. 454 ; Cooper v. Henderson, 6 Bin. 
 192; Lining!;. Peyton, 2 Des. 375; Travell 
 t;. Dan vers, Finoli, 380; Swan, 1001; Com. 
 V. Barnitz, 9 Watts, 252; Ebert, 9, 300; 
 Carlisle ; lb. 332 ; Snyder i/. Snyder, 1 Md. 
 Ch. 295. 
 
 (3) Uvedale v. Ettrick, 2 Cha. Gas. 20; 
 Lake v. Delambert, 4 Ves. 592-5. See Wriglit 
 V. Miller, 3 Barb. Oli, 382 ; Craig, 1 Barb. 33 ; 
 Gibbes u. Smith, 2 Rich. Equ. 131; Sloo 
 V. Law, 1 Blatob. 512; Berry v. Williamson, 
 
 11 B. Mon. 245 ; Jones, &c., 4 Sandf. Ch. 615; 
 Rigler v. Cloud, 2 Harr (Pen.) 361 ; Cliilde 
 V. Willis, 2 Eng. L. & Equ. 356; Watts, 4 
 lb. 61 ; Tunstall, 5 lb. 113 ; Turner v. Maule, 
 lb. 222; Plyer, &a, lb. 232; Robert, 2 
 Strobh. Equ. 86 ; Bayles v. Staats, 1 Halst. 
 Ch. 513 ; Davidson, Ac, 1 Eng. L. & Equ. 
 161 ; Davies, &a, lb. 8; Parrant, lb. 47. 
 
 (4) Buchanan v. Hamilton, 5 Ves. 722; 
 Stuyvesant, 3 Edw. 299 ; Cape Sable, &o., 3 
 Bland, 627 ; Winder v. Di£fenderffer, 2, 167 ; 
 Berry, lb. 322; Jones v. Stockett, lb. 434; 
 Clay, Ala. 350. 
 
 sought by a bill in equity to have the trust estate sold under his execution. Held, that 
 having accepted the office of trustee, A could not renounce it ; and, as he was to hold the 
 property free from B's debts, he could not enforce his own claim against the trust estate, as 
 it would be a violation of his duty as trustee. Strong v. Willi.s, 3 Florida, 124. 
 
 Where a testator provides that his executors shall sell, lease, or dispose of his real estate 
 at their discretion, the trust is personal; and, if the executors renounce, it cannot be exe- 
 cuted by an administrator under the will. Armstrong v. Park, 9 Humph. 195. 
 
 (a) A testator, by his will, appointed A and B to be his trnstoes. He then directed that, 
 "if the trustees hereby appointed, or to be appointed, as hereinafter is mentioned, should 
 die," &o., it should be lawful for other trustees to he appointed as therein mentioned. A 
 died in the lifetime of the testator. Hald, that, under the power, a new trustee could be 
 appointed in the place of A. Hadley's Trust, 9 Eng. Law and Eq. Rep. 67. 
 
 A testator, by his will, appointed A and B to be his tru.stees, and directed that if they 
 should die, or desired to be discharged from, or refused or declined to act, it should be lawful 
 for the surviving or continuing trustee or trustees, or if there should be none such, tlien for 
 the trustee so desiring to be discharged, or relusing or declining to act, to appoint new 
 trustees. A died. Held, that B declining to act, except for the purpose of appointino- new 
 trustees, had the power of appointing new trustees in the place of A and fe. lb ° 
 
 In South Carolina, in case of the sul)Stitution of one trustee tor another I'lo deed is neces- 
 sary from the one to tlie other, but the statute of 1796 executes the transfer by the order of 
 the court making the substitution. McNish v. Guerard, 4 Strobh, Eq 66 
 
 When a trustee retires, and new trustees are appointed by the court, the retirino- trustee 
 is entitled to have the accounts taken. Nott v. Foster, 1 Bug. Law and Eq 125 ° 
 
 A demise of lands was made to trustees (or 1,000 years on'eertain trusts On a petition 
 for the appomtment of new trustees, it was held, that the reversioner ouo-ht to be served 
 with the petition. Farrant's Trmt, in re, 1 Eng. Law and Eq. Rep. 47. ° 
 
CHAP. XXV.] 
 
 TEUSTEE: EIGHTS, ETC. 
 
 357 
 
 by the will creating the trust, such appointment seems to be confided 
 to the original trustee. So, if one trustee declines. Chancery will 
 appoint a receiver for an infant cestui.{l) 
 
 81. In Kentucky, where there is a devise to two in trust, without 
 mentioning the survivor, upon the death of one, one-half of the trust 
 estate passes to his heirs. So a trustee may devise his estate, and, 
 if the devisee renounce, the trust will pass to the heirs.(2) 
 
 82. All persons are capable of being trustees. In England, the 
 king, who cannot be seized to a use, may be a trustee, and the remedy 
 against him is in the Exchequer. So, in this country, a State may be 
 a trustee. So a corporation may hold in trust for its own members or 
 others, and is subject to the jurisdiction of Chancery. (3) 
 
 83. A trust, once created, is said to fasten itself on the estate. 
 Chancery never wants a trustee. Hence, when the trustee dies or 
 becomes incapable of acting, the court will provide for the continu- 
 ation of the trust, by compelling the legal owner of the estate to per- 
 form it. So, also, where no trustee is appointed, if the object of the 
 grant or devise cannot be otherwise effected, the court will appoint 
 or imply a trustee. Thus, where land is devised upon certain trusts, 
 to a company which is incapable of taking it, the heir at law of the 
 testator shall be held a trustee. So, where land is devised to a mar- 
 ried woman, for her separate use, her husband shall be a trustee for 
 her.(<2) And the same has been held in Tennessee, in the gift of 
 a slave to a woman and the heirs of her body. So, where no trustee 
 of the wife is appointed by an ante-nuptial marriage settlement, by 
 which the husbami stipulates that the wife shall enjoy her own prop- 
 erty, the husband will be treated as trustee in equity, and compelled 
 to account to his wife, as such. So, where the only obstacle to the 
 execution of a trust created by a will, is the refusal of trustees to 
 accept the trust, the court will supply the defect by appointing new 
 trustees. Generally it may be stated, that, where property has been 
 bequeathed in trust, without the appointment of a trustee, if it is per- 
 sonal estate, the personal representative is deemed the trustee ; and if 
 real estate, the heir or devisee.(4)(6) 
 
 (1) DuDSCorab V. Dunscomb, 2 H. & Miin. 
 11 ; Tait V. Jenkins, 1 Y. & Coll. Cha. 492. 
 See Goodwin v. Hubbard, 15 Mass. 210. 
 
 (2) Sanders v. Morrison, 7 Mon. 56 ; Wag- 
 gener v. "Wa^gener, 3, 545. See Waltons v. 
 Coulson, 1 MeL. 132. 
 
 (3) Penn v. Lord Baltimore, 1 Tes. 453 ; 3 
 Comm. 438; Mayor, &c. v. Att'y Gen. 7 Bro. 
 Pari. 235 ; Att'y, &c. v. Governors, 4o., 2 
 Ves. 46; Green v. Eutherforth, 1, 468; 1 
 Cruise, 322. 
 
 (4) 2 Story on Equ. 396; Blanchard v. 
 Blood, 2 Barb. 352; Burrill v. Sheil, 2 Barb. 
 457 ; Harkins v. Coalter, 2 Port. 463 ; Souley 
 V. Cloekmakers, &c., 1 Bro. 81 ; Eogers v. 
 Ross, 4 John. Cha. 388; Bennet v. Davis, 2 
 P. Wms. 316; Hamilton v. Bishop, 8 Terg. 
 33: Stagg v. Beekman. 2 Edw. 89 ; Ray «. 
 Adams, 3 My. & K. 237 ; Hoxie v. Hoxie, 7 
 Paige, 187; Couch j). Couch, 9 B Mon.' 160; 
 DuCfy V. Calvert, 6 Gill, 487 ; Suarez v. Pun- 
 pelly, 2 Sandf. Ch. 336; Willis on Trustees, 56. 
 
 (a) It has been held otherwise in South Carolina. Hunter, Rice, 293. See Baskins v. 
 Giles, lb. 315. 
 
 (6) By the Maryland act of 1831, e. 311, sec. 11, mere naked trusts, when the trustee has 
 no beneficial interest or estate whatsoever in the lands, descend to the heir at common law. 
 Duffy V. Calvert, 6 Gill, 487. 
 
 But, in a special case, the right of the trustee to reimburse himself out of the trust in his 
 hands, the heavy expenses incurred in the attempt to sustain the will, and the ulterior 
 limitations in his favor in the codicil, were held to create such beneficial interests as must 
 exclude this trust from the operation of that act. lb. 
 
358 
 
 TRUST TERMS. 
 
 [CHAP. XXTI. 
 
 84. But if the terms of a devise show a manifest intent to charge 
 with the trust only the party to whom the estate is expressly given ; 
 upon his refusing to accept the estate, it vests in the heirs, discharged 
 of the trust ; and they are not liable to reimburse any moneys ex- 
 pended for the benefit of the cestui que trusl, who is a minor, by his 
 guardian. 
 
 85. Though a trust will not be suffered to fail for want of a trustee ; 
 yet, it is said, that being an incident merely, it will be suspended or 
 destroyed by the suspension or destruction of the legal estate, as by 
 escheat, disseizin, &c. But it has been held, that where the estate of 
 the trustee devolves upon the State by escheat, the State holds subject 
 to the trust. A trust will escheat for want of heirs ; but the trustee 
 maj' maintain ejectment against one claiming under the State.(l) 
 
 86. On the other hand, if all the purposes of a trust, as to any 
 share of the property, cease, or are illegal, the estate of the trustees 
 ceases pro tanlo.{2) 
 
 CHAPTER XXVI. 
 
 TRUST TERMS. TRUSTS IN NEW TOEK. 
 1. Trust terms. 1 9. Trasts in New York. 
 
 1. Terms for years are either vested in trustees for the use of par- 
 ticular persons, or for particular purposes ; or else upon trust, to attend 
 the inheritance. 
 
 2. Those of the former class are called terms in gross. The cestui 
 que trust of such a term is entitled to the rents and profits, and may also 
 demand an assignment of the term to himself His estate is transfera- 
 ble ; passes to his executors and administrators ; and is equitable, 
 though not legal assets, not being within the statute of frauds. The 
 husband of a female cestui has the same interest as in any other term. 
 
 3. Terms attendant on the inheritance, though constituting a title 
 equally intricate and important in the English law, are practically 
 almost unknown in the United States, and therefore demand only a 
 very brief notice. 
 
 4. The attendancy of terms is the creation of a court of equity, invented 
 partly to protect real property, and partly to feep it in the right channel. 
 
 5. If a ttrm has been created for a particular purpose, which is satis- 
 fied, and the instrument does not provide for a cesser of the term, on 
 the happening of that event, the beneficial interest in it becomes a crea- 
 ture of equity, to be disposed of and moulded according to the equit- 
 able interests of all persons having claims upon the inheritance. When 
 the purposes of the trust are satisfied, the ownership of the term belongs, 
 in equity, to the owner of the inheritance, whether declared by the 
 
 (1) Benzein v. Lenoir, Dev. Eq. 225 ; Mar- 
 shall V. LoTelass, Cam. &, Nor. 217 ; Ward v. 
 Matthews, 10 Gill & J. 443 ; St. 4 & 5 Wm. 
 4; oh. 23. See Com. v. Blanton, 2 Monr. 393. 
 
 (2) Lorillard v. Coster, 5 Paige, 173 ; Parks 
 V. Parks, 9 Paige, 161 ; McMullin v. MoMul- 
 lin, 8 Watts, 236. 
 
CHAP. XXVI.] 
 
 TRUSTS IN NEW YORK. 
 
 359 
 
 original conveyance to attend it or not. The trustee will hold tlie term 
 for equitable incumbrancers, according to priority ; and it is a general 
 rule, that in all cases where the term and the freehold would, if legal 
 estates, merge, by being vested in the same person, the term will, in 
 equity, be construed to be 'attendant on the inheritance, unless there be 
 evidence of an intention to sever them. 
 
 6. If a bona fide purchaser happen to take a defective conveyance, he 
 may remedy the defect, and perfect his equitable title, by taking an 
 assignment of an outstanding term, which will give him priority over 
 the intermediate legal estate. 
 
 7. As a conveyance of the legal estate in fee of a trustee may be 
 often presumed, so in many cases the surrender of a trust term may be 
 presumed. 
 
 8. The equitable interest in a term attendant devolves in the same 
 channel, and is governed by the same rules, as the inheritance. The 
 term becomes consolidated with the inheritance, and follows it in its de- 
 scent or alienation. On the death of the ancestor, it vests technically 
 in his personal representatives, but in equity it goes to the heir. It 
 must be devised with all the formalities of real estate. (l)(a) 
 
 9. By the New York Revised Statutes, uses and trusts are abolished, 
 except as therein authorized and modified; and every estate and inter- 
 est in land converted into a legal right, with the same exception. (2)(Z)) 
 
 10. In relation to trusts, these statutes abolish passive trusts, where 
 the trustee has only a naked and formal titb, and vest the whole bene- 
 ficial interest, or right in equity to the possession and profits, iu the 
 
 (1) 4 Kent, 86, 94; 1 Cruise, 334, et seq. 
 
 (2) 4 Kent, 294. See Hone v. Van Schaick, 
 20 Wend. 564; Darling u. Rogers, 22, 483; 
 Jackson v. Edwards, lb. 498 ; Rogers v. De 
 Forest, 7 Paige, 272; Gott v. Cook, lb. 521 ; 
 Hone V. Tan Schaick, lb. 221 ; De Peyster 
 V. Clendening, 8 Paige, 29,5 ; Van Vechten v. 
 Tan Vechten, lb. 104; Tail v. Tail, 7 Barb. 
 226 ; Leggett V. Perkins, 2 Comst. 297 ; 
 Tucker v. Tucker, 5 Barb. 99 ; Sulden v. 
 
 Termilya, 3 Com.it. 525 ; Yateg v. Yates, 
 9 Barb. 324 ; Sterrioker v. Dickinson, 9, 516 ; 
 Oraigj;. Ornig, 3 Barb. Oil. 76, 9; L'Amoureux 
 V. Van Renssalaer, 1 Barb. Cfi. 34 ; M'Oos- 
 ker V. Brady, lb. 329; Mason v. Jones, 2 
 Barb. 229; Haxtun v. Corse, 2 Barb. Ch. 
 506; Mason u. Mason, 2 Sandf. Ch. 432; 
 Arnold D. Gilbert, 3, 531; Bellinger j;. Shafer, 
 2 Sandf. Ch. 293. 
 
 (a) I liave been able to find no case in the American Reports, upon the subject of attend- 
 ant terms. I am informed by one of the counsel in a case in Massachusetts, (Salisbury v. 
 Bigelow, S. J. C. March, 1838,) that the subject was there much discussed — probably, by 
 "way of analogy and illustration merely. 
 
 (6) In Wisconsin, (Rev. Sts. chap. 57, p. 318,) uses and trusts are abolished except as 
 expressly provided. 
 
 Section 2. Estates now held to use are confirmed. 
 
 Sees. 3 & 5. A ny one entitled to possession of land by virtue of an agreement, &o., shall be 
 deemed to have the legal estate. 
 
 Section 4. The last section is not to apply to active trusts where the trustees have the 
 management and responsibility. 
 
 Section 6. The above sections not to apply to resulting trusts. 
 
 Section 7. A trust shall not result to the party who pays the purchase-money, another 
 taking the deed ; but the deed shall be deemed fraudulent, and a trust shall result to the 
 creditors of the former. 
 
 Section 1 0. A purchaser without notice of a resulting trust shall not be affected by it. 
 
 Section 11. Express trusts may be created to sell for creditors; to sell, mortgage or lease 
 for legatees, or pay a charge on laud ; to receive income and apply to the use of any person, 
 subject to chap. 56 ; and in some other cases. 
 
 Section 12. A devise to sell, without power to receive rents, &o., shall be construed a 
 power merely. 
 
 Section 13. The surplus of rents of trust property, beyond what is necessary to the sup- 
 port of the cestui que trust, is subject to his debts. 
 
 Sec. 14. Trusts shall not be deemed powers, when they can be lawfully executed as such. 
 
360 
 
 TEtTST TERMS. 
 
 [CHAP. XXVI. 
 
 cestui que trust. The latter takes a legal, corresponding with his bene- 
 ficial interest; and no estate or interest vests in the trustee.(l) 
 
 11. Trusts are confined to two classes. 1. Trusts arising or result- 
 ing by implication of law. But the payment of the purchase-money 
 by one man, for land conveyed to another, creates no trust in favor of 
 the former,(a) except in relation to his creditors existing at the time; 
 and excepting also a conveyance made to the latter without the con- 
 sent of the former, in violation of some trust. But no resulting trust 
 is valid against a purchaser for valuable consideration, without notice. 
 2. Certain classes o{ active or express trusts, where the trustee is clothed 
 with some actual power of disposition or management, which requires 
 a legal estate and actual possession. Express trusts are allowed : '2. To 
 sell lands for the benefit of creditors ; 3. To sell, mortgage or lease 
 lands for the benefit of legatees, or for the purpose of satisfying ;iny 
 charge thereon ; 4. To receive rents and profits, and apply them to 
 the support and education of any person, or to accumulate them for the 
 purposes and within the limits mentioned. In these cases, the trustee 
 takes the whole estate in law and equity, subject only to the execution 
 of the trusts. If an express trust is created for any other purpose, no 
 estate vests in the trustee : but if the act authorized is lawful under a 
 power, the trust is valid as a power in trust. Every estate and interest, 
 not embraced in an express trust, and not otherwise disposed of, re- 
 mains in or reverts to the person who created the trust, and he may 
 dispose of the lands, subject to the trust, or in the event of its failure 
 or termination ; and the grantee or devisee will have a legal estate, as 
 against all persons but the trustee. The conveyance to the trustee 
 must contain a declaration of the trust ; otherwise it will be absolute 
 against subsequent creditors of, or purchasers from, the trustee without 
 notice. When thus declared, any act of the trustee in contravention 
 of the trust is void. Upon the death of all the trustees, the trust vests 
 in the Court of Cliancery, and does not pass to the representatives of 
 the surviving trustee.(2) 
 
 12. "Where some of the trusts provided for are valid, and others 
 invalid, the trustee will take a legal estate for the fulfilment of the 
 former only, unless the whole are so blended together, that it is im- 
 practicable to execute one without the other, in which case all will be 
 void. And any subsequent limitation, which is invalid as creating a 
 perpetuity, shall be deemed wholly void, in determing the validity of 
 the legal estate itself, or other preceding trusts.(3) 
 
 13. An annuity is a legacy of several annual sums in gross; and, if 
 payable from the rents and profits of land, a charge upon such land. 
 Hence, an express trust, to lease lands and receive the rents, &c., for 
 payment of such annuity, is valid under section 55 of the statute.(4) 
 
 (1) 4 Kent. 303 ; Cushney v. Henry, 4 
 Paige, 345 ; Tatea v. Tates, 9 Barb. 324. 
 
 (2) 4 Kent, 303-4-5. 
 
 (3) Hawley v. James, 6 Paige, 318; Dupre 
 
 t). Thompson, 4 Barb. 219; 8, 531; De Kay 
 V. Irving, 5 Denio, 646 ; Tucker v. Tucker, 5 
 Barb. 99. 
 (4) lb. 
 
 (a) But see Ross v. Hegeman, 2 Edw. Chan. 313, that, where there is a joint adranoe of 
 money upon a purchase by two in the name of one, a trust results to the other, though ho 
 did not pay the money till after completion of the purchase. If A purchases with money 
 of B, and the deed is made to A by consent of B, no trust results to B. Norton v. Stone, 
 8 Paige, 222. 
 
CHAP. XXYl.] 
 
 TRUSTS IN NEW YORK. 
 
 361 
 
 ^_ 1-i. In such case, there is a resulting trust in the surplus rents, &o., 
 in favor of the person presumptively next entitled to the estate.(l) 
 
 15. Where certain property is to be invested in land, in trust to re- 
 ceive the rents and profits for the use of a cestui que trust, and the in- 
 terest of the latter is inalienable, (under the Rev. Statute, sect. 63,) even 
 the consent of the parties and of the Court of Chancery also will not 
 authorize an yact which is virtually an alienation. But, if the property 
 is directed to be invested in lands in a certain place, the court may 
 authorize an investment in other lands, with the consent of parties, and 
 may itself consent on behalf of infants.(2) 
 
 16. A trust to receive rents and profits and pay them over was a 
 familiar one at common law ; but at first was held not to be valid un- 
 der the Eevised Statutes. The phrase used in describing the third 
 class of express trusts, " apply them to the use," was decided to mean 
 that the trustee shou\d provide means and pay debts; that he is to judge 
 of the propriety of the expenditures ; and has the whole legal and 
 equitable estate ; that the cestui has no estate, but only a right to en- 
 force the trust in equity. This class of express trusts was said to be 
 intended for the cases of minors, ^emes covert, lunatics and spendthrifts. 
 But in a later case it has been held, that one who creates a trust, to re- 
 ceive rents and profits or income for the use of another, may direct the 
 manner of their application, and that they be periodically paid over to 
 the cestui, to provide him with necessaries.(3) 
 
 17. In order to receive rents and profits for the use of another, the 
 trustee must have a legal title to the land. If such title is vested in 
 the cestui himself, no valid power in triist ca,n be reserved to the trustee. 
 
 18. A testator directed that his property should be invested in lands, 
 to bo conveyed to his children, but in trust for their guardian to receive 
 the rents and profits for their use, both during and after .heir minority, 
 so long as he should think proper. Held, the trust was void under the 
 Eevised Statutes; that the guardian took no estate as trustee, but 
 could hold the fund only as guardian. (4) 
 
 19. A trust for the accumulation of rents, &c., or income, is invalid, 
 unless it is for the sole benefit of an infant, and he to be paid abso- 
 lutely on coming of age.(5) 
 
 20. Trusts of real property for charitable uses are within the prohi- 
 bition of the statute, unless authorized by the act of 1840, respecting 
 grants and conveyances to colleges and other literary institutions, and 
 made to such trustees as are therein authorized to hold,(6) 
 
 21. A religious society may purchase and hold land in trust for any 
 use within the general objects of its incorporation. Where a grant was 
 made to a religious society in trust for the support of the minister ; 
 held, this use was within the " other pious uses" for which religious 
 societies were empowered to purchase and hold real property by the 
 general act for their incorporation. (7) 
 
 22. An annuity, arising from the proceeds of real and personal 
 estate in the hands of trustees, is beyond what is necessary for the sup- 
 port of the party and his family, subject to the claims of his creditors ; 
 
 (1) lb. ; Irving v. De Kay, 9 Paige, 521. 
 
 (2) Wood V. Wood, 5 Paip;e, 596. 
 
 (3) Coster v. Lorillard, 1835, 4 Kent, 309, 
 n. ; Gottv. Coolc, 7 Paige, 521. 
 
 (4) Wood V. Wood, 5 Paige, 591. 
 
 (5) Hawley v. James, 5 Paige, 318. 
 
 (6) Tales v. Yates, 9 Barb. 324. 
 
 (1) Tucker v. St. Clement's Cliuroh, 3 Sandf. 
 242. 
 
362 
 
 TRUST TERMS. TRUSTS IN NEW YORK. [CHAP. XXTl 
 
 and tlie Court of Chancery will not, under the provision empowering' 
 them to exonerate from creditors' suits such funds created by third 
 persons, insert in an injunction a qualiiication excepting trast funds so 
 created.(l) 
 
 23. A trust created by will to executors, to sell and convey gores of 
 land to straighten lines ; to rent houses and collect rents ; to repair ; to 
 pay taxes and assessments ; to effect insurance, and pay over the surplus 
 to the devisees thereof; such trust to continue until the death of the 
 widow of the testator, and one year afterwards — is illegal under the 
 statute, which prohibits the alienation of trust estates, and the creation 
 of trusts to extend beyond two lives in being.(2) 
 
 24. It cannot be objected to the validity of a trust, that it unduly 
 suspends the alienability or absolute ownership of the property, where 
 the execution of the trust by selling is unlimited as to time, if the time 
 is not made to depend on an event which might carry it beyond the 
 duration of two lives.(3) 
 
 25. A general power in trust, the execution or non-execution of 
 which does not depend on the mere volition of the trustees, is imperative 
 in its nature, and imposes a duty, the performance of which may be 
 compelled in equity. (4) 
 
 26. A husband, by post-nuptial settlement, conveyed all the property 
 acquired by his marriage to trustees, " to hold and to keep the principal 
 and interest thereof during the said marriage, exempt from his debts, 
 contracts, or control ; to be managed and disposed of on her separate 
 orders or receipts, or by her deeds or will, so that she may enjoy and 
 dispose of the same as it came from her parents and sister, or may 
 hereafter in any manner accrue to her in all respects as if she were 
 unmarried." Held, the deed passed to the trustees all the interest 
 which the husband had acquired by the marriage, and created a good 
 and valid trust, and not a mere nominal trust, nor did it contemplate a 
 duration greater than was allowed by statute.(5) 
 
 27. Held, also, that such deed did not pass, as the husband had no 
 power to convey the fee, or the right to dispose of the real estate of the 
 wife, nor the rents and profits thereof beyond his lifetime.(6) 
 
 28. Held, also, that the power of appointment by the deed to the 
 wife extended to the absolute disposal by her of the principal and in- 
 come, or of any part thereof (7) 
 
 29. The Eevised Statutes do not apply to a will, creating a trust which 
 was executed before they were passed.(8) 
 
 (1) Rider v. Mason, 4 Sandf. Oh. 351. 
 
 (2) Tucker ». Tucker, 5 Barb. 99. 
 
 (3) Arnold *. Gilbert, 5 Barb. 190. 
 W lb. 
 
 (5) Cruger v. Cruger, 5 Barb. 225. 
 
 (6) lb. 
 (7 lb. 
 
 (8) Stewart v. MoMartiu, 5 Barb. 438. 
 
CHAP. XXVII] ESTATE ON CONDITION, ETC. 363 
 
 CHAPTER XXVII. 
 
 ESTATE ON CONDITION. NATURE AND KINDS OF CONDITIONS. 
 
 1. Definition. 
 
 2. Implied or eocpress. 
 
 4. Precedent or subsequent 
 
 11. May belong to any estate. 
 
 12. Things eocecuted and executory. 
 
 13. Must determine the whole estate. 
 15. To whom reserved. 
 
 18. Impossible conditions. 
 
 19. Ulegal oonditiona 
 
 20. Repugnant conditions. 
 
 23. Cannot be made void by a change of 
 the law. 
 
 25. Repugnant obligations. 
 
 28. Condition against assignment of lease. 
 
 38. Confession of judgment, whether a trans- 
 fer. 
 
 40. For re-entry in case of insolvency. 
 
 43. In restraint of marriage. 
 
 1. A condition is said to be a qualification or restriction annexed to 
 a conveyance, by which, upon the happening or not happening of a 
 particular event, or the performance or non-performance of some act 
 by the grantor or grantee ; an estate shall commence, be enlarged, or 
 be defeated.(l) Lord Mansfield remarked, that at common law the 
 only modification of estates was by condition. (2) 
 
 2. A condition is either implied or express. Implied conditions are 
 those created by law, and not by any express words ; that is, the legal 
 incidents of estates. For instance, at common law, a tenant for life 
 held his estate upon the implied condition, that any attempt by him to 
 convey in fee would be a forfeiture of his interest ; and also upon the 
 implied condition, not to commit waste. (3)(a) 
 
 (1) 2 Cruise, 4. | (3) Co. Lit. 233 b. 
 
 (2) Doe V. Hutton, 3 B. & P. 654, n. | 
 
 (a) Where a conveyance is made for certain purposes, expressed in the deed, the question 
 sometimes arises, wliether the application of the land to the specified uses constitutes an 
 implied condition, the breach of which will forfeit the estate. 
 
 Grant, in 1640, by the assembly of the colony of New Haven, of certain land, "for the 
 purpose of planting," to be located by the grantees in separate lots, and held in severalty. 
 Held, these terms did not make a condition or qualification that tlie lots should be planted, 
 in the modern sense of the word, but the grant was for the purpose of a settlement. East 
 Haven v. Hemmingway, 7 Conn. 186. 
 
 Whether a deed of land, "for the purpose of a court-house and jail," involves an implied 
 condition against using it for any other purpose, qu. If it does, the erection of a stable on 
 the land is no breach of the condition, nor of a dwelling for the jailor, with proper out- 
 houses and a garden. Jackson v. Pike, 9 Cow. 69. Grant of land, on condition that certain 
 public buildings should be there erected. By an act passed afterwards, the seat of justice 
 was removed. Held, the land reverted. Police, &c. v. Reeves, 18 Mart. 221. See Austin 
 V. Cambridgeport, &o., 21 Pick. 215; Braithwaite v. Skinner, 5 Mees. & W. 313. 
 
 A granted, for a nominal consideration, a lot of land to certain persons, in trust for those 
 who had subscribed, or might thereafter subscribe, towards the erection thereon of a school- 
 house and house of public worship, and towards the support of a school, or of the gospel, in 
 said building: providing, that if the premises should be converted to any other use than as 
 aforesaid, and for a burying-ground, the lot should revert to the grantor and his assigns. 
 One of the trustees permitted a female, in distress, to occupy the premises temporarily as 
 tenant at will, without rent, though she and her family remained there seven years. Held, 
 no forfeiture. McKissick v. Pickle, 16 Penn. 140. 
 
 In case of a conveyance, with warranty, to commissioners and their successors, for the 
 use of a county forever, in consideration of one dollar, and that the county seat had been 
 located on the land ; the grantor cannot recover it back, though the legislature subsequently 
 change the county seat. Harris v. Shaw, 13 Illin. 456. It might be otherwise, if the grant 
 had been on condition of using the land for a particular purpose. lb. 
 
 Deed, in the common form of a conveyance in fee, "for the purpose of erecting a school- 
 
364 ESTATE OK CONDITIOK, ETC. [CHAP. XXVII. 
 
 3. Express conditions are those created by express words, either in 
 
 house or school-houses, for school purposes, and for these purposes only." Held, a convey" 
 ance of the land, and not of some possibility or peculiar interest in reversion. Sherwood v. 
 "Waller, 20 Conn 262. 
 
 Grant of land in fee, in trust for certain persons and their associates, " for the purpose of 
 the public worship of God, and the erection on said premises granted of a church or meeting- 
 house for said worship, as also a house for a clergyman and a school-house." The deed 
 contained the following conditions : that " the grantees, or cesiuis que trust, or some of them, 
 shall build and finish, within two years frrtm tlie 9th day of November, 1832, on the lot 
 hereby conveyed, a church or meeting-house for the public worship of God, and shall build 
 and finish, within three years from the said 9th day of November, a suitable dwelling-house 
 for the clergyman, and a school-house, all on the lot hereby conveyed ; and in case the said 
 church or meeting-house, and parsonage-house and school-house, shall not be built on said 
 lot, and finished within the respective times above mentioned, then the land hereby granted, 
 with its appurtenances, is to revert to 'the grantors.' And this grant is upon the further 
 condition, that the land, &c., shall be forever hereafter appropriated to the maintenance and 
 support of the public worship of God, as hereinbefore specified, and to no other uses or 
 purposes whatever; otherwise, the same to revert to said corporation of the Canal Bridge, 
 as above mentioned." Afterwards, the grantors extended the time within which the school- 
 house miofht be built. B and others conveyed said lot to S and others, in trust for a reli- 
 gious society that had been incorporated, to be held on the trusts and conditions expressed 
 in the deed of tlie original grantors, made to B and others. The meeting-house, parsonage- 
 house, and school-house, were built on said lot, and were finished, to the satisfaction of the 
 original grantors, within the times mentioned in their deed, and afterwards extended by 
 them. Afterwards another house, connected with the school-house, was built on said lot, 
 for the use of the preceptor of the school ; a vestry and two shops were made in the base- 
 ment of the meeting-house, and the shops leased for secular business; the land, on which 
 the parsonage- house was built, was mortgaged for a debt incurred in building on the whole 
 lot; the land, on which tlie school-house and preceptor's house were built, was leased for a 
 long term to an incorporated academy, and said academy mortgaged the same. The origi- 
 nal grantors entered upon the land originally granted by them to B and others, for breaches 
 of the conditions in their deed, and brought writs of entry to recover the whole land, as for- 
 feited by such breaches. Held, the second condition in said original deed was repugnant to 
 the previous parts of the deed, and was void; and that the actions could not be maintained. 
 Proprietors, &o, v. Methodist, &,c., 13 Met. 335. 
 
 A person conveyed to trustees a piece of ground, for the purpose of having a public 
 school-house erected thereon ; and the house was accordingly built. Held, the grant was 
 not forfeited, merely because the trustees had permitted religious, political, and temperance 
 meetings to be held in the house, at times when such meetings did not materially interfere 
 with any school taught therein. Broodway v. The State, 8 Blackf. 290. 
 
 Lands were sold to the city of New York for the purposes of a public square, upon con- 
 dition that they should forever be used and appropriated for such purposes exclusively, and 
 that the corporation should immediately proceed to regulate the land granted, and enclose 
 and improve it in the manner specified in the conveyance. The corporation joined in such 
 deed, under the corporate seal, and covenanted to stand seized of the premises for the pur- 
 poses of a public square exclusively, and that such corporation would abide by, observe and 
 perform the conditions imposed upon it by the acceptance of such agreement and convey- 
 ance. Held, the corporation was bound to perform the conditions specified in the deed, and 
 liable in damages to the grantor for the non-performance thereof. Sfuyvesant v. Mayor, Ac, 
 11 Paige, Hi. 
 
 Held, also, that the grantor might, at his election, re-enter for breach of the conditions, 
 bring an action for damages sustained by the breach of the covenants of the corporation, or 
 file a bill in equity for specific performance. lb. 
 
 Where land was conveyed to trustees, to erect a Roman Catholic church, and lay out a 
 place of burial, with a condition that, if the church was not erected, and the remainder of 
 the lot appropriated for burial purposes, the deed should be void, &c., and no church was 
 ever erected on the lot, but a church was erected, by the same society of Christians, upon a 
 lot in the neighborhood, and the lot in question was used exclusively as a place of sepul- 
 ture ; and, the corporation of Baltimore being about to sell the lot for non-payment of a 
 paving tax, the pastor of the church and one of the congregation filed a bill for an injunc- 
 tion ; held, neitlier of the complainants hai any interest, legal or equitable, for the protec- 
 tion of which they could claim the interposition of a court of equity. Dolan v. The Mayor, 
 &c., 4 Gill, 394. 
 
 TJnder the New York Statute, (1 Rev. Sts. 346,) providing that a diversion of salt works 
 to other purposes than the manufacture of salt shall work a forfeiture of the leasehold estate, 
 the partial diversion of a lot, as for the erection of a dwelling-house, &c., will not work a 
 forfeiture. Hasbrook v. Paddock, 1 Barb. 635. 
 
CHAP. XXVII] ESTATE ON CONDITION, ETC. 365 
 
 the deed itself or some other instrument to which it refers ; as, for 
 
 And, if it did, a subsequent holder of the leasehold estate, under an agreement for an ex- 
 change of it for other lands, cannot take advantage of it for the purpose of avoiding such 
 agreement, after he had quietly occupied for several years, and the other party liad made 
 large improvements on the land received by him in exchange ; such partial diversion being 
 known to liim at the time of making the agreement, and the statute, making a diversion a 
 forfeiture, being a public law, of which he was bound to take notice ; and where such forfei- 
 ture, if any, had been waived by the people and a renewal of the lease granted, lb. 
 
 Contributors to a fund, on condition that a literary and theological seminary shall be 
 located permanently in a specified place, and ia consideration thereof, which is accordingly 
 done ; have a right to apply for an injunction, to prevent an illegal and unauthorized re- 
 moval of the seminary to another place. Hascall u. The Madison, &o , 8 Barb. 174. 
 
 Where A and B made a parol agreement with the inhabitants of a town and its neighbor- 
 hood, that they would give the ground for a church and graveyard for the use of two con- 
 gregations, if the members of the congregations and the neighbors would erect the house of 
 worship and open n graveyard ou the premises; and the church or raeeting-house was 
 erected in consequence, and the graveyard opened at the expense of said congregations and 
 other charitable neighbors; held, that the agreement whs not within the statute of frauds; 
 that A and B stood seized of the premises as trustees for the use of the two congregations ; 
 and, upon a sale by the sheriff under a judgment against A, the sheriff's vendee acquired 
 the title of A, subject to the trust, and became himself a trustee for the original uses. 
 Beaver v. Filson, 8 Barr, 327. 
 
 The question sometimes arises, whether certain terms of limitation create merely a charge 
 upon land given to one person, for the benefit of another, or a condition, by breach of which 
 the estate is forfeited. Tlius, a testator devised all his real estate to his sons, by their paying 
 to each of his daughters so much " out of the estate." This payment not being made, one 
 of the daughters Ijrings a writ of entry for a part of the land, as forfeited by breach of condi- 
 tion. Held, the sons took an absolute estate in fee, charged with the legacies, not an estate 
 on condition; that this charge would follow the property into the hands of any purchaser, 
 with notice; but that the present action could not be sustained. Taft v. Morse, 4 Met. 523 ; 
 ace. Morancy v. Buford, 1 M'Lean, 195. See Fox v. Phelps, 17 Wend. 39.3. Crawford v. 
 Severson, 5 Gill 443; Hackadorn, &c., 11 Penn. 86; Wright, &c., 2 Jones, 256. Devise to 
 a son of the testator, he paying his younger brother £100. Held, a charge. Luckelt v. 
 White, 10 Gill &, J. 480. The following are some other cases of conditional devise.". '"I 
 will — that loth to offend by the viordpay, &c., to H and his wife I wish their acceptances 
 of twenty five acres of land," &c. The testatrix lived in H's family, who alterwards sued 
 the executor for her board, but without success. Held, a conditional devise, which H elected 
 to relinquisli by bringing the suit. Hapgood v. Houghton, 22 Pick. 480. Devise to A and 
 B, sons of the testator, of all his real estate, on condition, if either made any claim on the es- 
 tate, he should have no right under the will. A made such claim, and received payment 
 from the executor. Held, a forfeiture of his moiety, which passed to the heirs. Sackett v. 
 Mallory, 1 Met. 355. Devise of a fractional part of certain land, "to be taken by the devi- 
 see where he shall choose or select," &c. Held, not a condition precedent to tlie vesting of 
 the estate, but the devisee became a tenant in common, with a right of selection. Brown v. 
 Bailey, 1 Met. 254. Devise — "I will that A shall be supported outof my estate — and shall 
 have the use of the north room in my house," while single. If she marries, "I give her 
 $150, to be paid her by my son B in full of all demands." B, being devisee of the whole es- 
 tate, gave bond for payment of debts and legacies, and afterwards conveyed the land to C, 
 who had notice of theabove devise. Held, a charge upon the real estate (A having never 
 married.) if the personal was insufficient, to be enforced either by a suit on the bond or 
 against C. Sheldon v. Purple, 15 Pick. 528. 
 
 Devise to A, a son of the testator, of three lots ofland, "by hia paying the other children 
 towards their share of my estate, $300;" and of the residue of his estate, to his children. 
 Held, a charge on the land of A. Ward v. Ward, 15 Pick. 511. See Button v. Button, 2 
 Beav. 256; Veazey v. Whitehouse, 10 N. H. 409. 
 
 A will contained legacies and a devise to A, with a condition annexed; proceeded to give 
 legacies to B; and, by a subsequent clause, ordered that A should pay all debts. Held, this 
 was not a mere personal charsie upon A, but, with the legacies to B, a charge upon the real 
 estate. Sands v. Champlin, 1 Story, 376. A devise, in respect thereof charging the devisee 
 with debts and legacies, is in rem, and a charge upon the property. lb. 
 
 Devise on condition of maintaining the testator's widow for life. If the devisee refuse to 
 accept and perform the condition, the devise is void, and the heirs may enter. Stone v. Hux- 
 ford, 8 Blackf 452. 
 
 A testator, in one clause of his will, directed that his wife should "have a decent and 
 comfortable support to be derived from all hia lands and tenements " In a subsequent clause, 
 he devised to his son A, in fee-simple, a part of his lands, "subject nevertheless to a charge 
 of five hundred dollars, to be paid by him, his heirs, &o., to hia brother B, aa soon as he, the 
 
866 
 
 ESTATE OJT CONDITION, ETC. 
 
 [CHAP. XXTII. 
 
 instance, a condition in a lease, that, if the rent shall not be paid at the 
 day, the lessor may re-enter.(l)(a) 
 
 4. Conditions are eilhev precedent or subsequent ; the former must be 
 performed before the estate will vest, the latter enlarge or defeat an 
 estate already created. 
 
 5. Whether a condition shall be regarded as precedent or subsequent, 
 depends not on any form or location of words, but on the fair construc- 
 tion of the contract, and plain intention of the parties.(2) 
 
 6. If, in case of a will, the particular clause in question, or the whole 
 will, indicates that the condition must be performed before the estate 
 can vest, the condition is precedent. If the act prescribed does not 
 necessarily precede the vesting of the estate, but may accompany or 
 follow it, the condition is subsequent.(3) 
 
 7. Where covenants go to the whole of the consideration on both 
 sides, they are conditions precedent; where only to a part, otherwise; 
 and each party must resort to his separate remedy, because the dama- 
 ges might be unequal. (4) 
 
 8. Conveyance in fee, reserving a life estate in a part of the land. 
 "This deed is made and to have effect on the following conditions;" 
 viz., payment of money at divers times to several persons. The fee 
 passes, upon condition subsequent.(5) 
 
 9. A testator gave a large amount of lands to his wife for life, and 
 all his real estate ai her death to A, on condition of his marrying a 
 dauohter of B and C, who at the making of the will had no child. 
 Held, the words of gift being in prcesenti, "I give," &c., imported an 
 immediate interest ; that, in regard to the portion devised to the wife, 
 inasmuch as B and C were childless at the making of the will, the tes- 
 tator evidently did not contemplate that A would marry, according to 
 the condition, during the life of the wife, and therefore intended that 
 
 g 
 
 (1) Lit. 328. 
 
 (2) Thorp V. Thorp, 12 Mod. 464; New- 
 kirk V. Same, 2 Caines, 352 ; Barruso v. 
 Madan, 2 John. 148 ; Brocljenbroagh v. Ward, 
 4 Rand. 352; Green v. Thomas, 2 Fairf. 318 ; 
 Finlav v King, 3 Pet. 374; Tompkins v. El- 
 liot, 5" Wend. 496 ; 7 Gill & J. 240 ; Gardiner 
 V. Corson, 15 Mass. 500; Barry i). Alsbury, 
 6 Lit. 151 ; Pasaraore v. Moore, 1 J. J. Mar. 
 591; Dallman V. Kiiiff, 4 Bing. N. 105; 
 Turner v. Tebbult, 2 Y. & Coll. Cha. 225. 
 Thompson v. Bright, 1 Cush. 420; McCiil- 
 
 lough V, Cox, 6 Barb. 386; Houston v. Spru- 
 ance, 4 Harring. 117; Shinn v. Roberts, 1 
 Spencer, 436. 
 
 (3) 3 Pet. 374. 
 
 (4) Boon V. Eyre, 1 H. Blaokf. 273, n. 
 See Barry v. Alsbury, 6 Lit. 151 ; Minister, 
 &c. V. Bradford, 8 Cow. 457; 20 John. 12; 
 Johnson v. Eeed, 9 Mass. 78 ; ]3rockenbrougli 
 V. Ward, 4 Rand. 352; Clopton v. Bolton, 
 23 Miss. 78. 
 
 (5) Howard v. Turner, 6 Green]. 106. 
 
 said B, shall have completed his studies, &c. ; a good and sufficient voucher for the payment 
 of the said sum of five hundred dollars, &c., shall vest in him,_ his heirs or assigns forever a 
 good, pure and absolute estate of inheritance in the said lands and tenements." Held, not- 
 withstanding this charge in favor of B, the land so devised was also subject to its propor- 
 tionate share of tlie charge in favor of the wife. Baird v. Baird, 7 Ired. Eq. 265. 
 
 Where an estate is devised on condition of, or subject to, the payment of a sum of money, 
 or where an intention to make an estate, speciflcally devised, the fund for the payment of a 
 legacy, is clearly exhibited ; such legacy is a charge upon the estate ; and equity may de- 
 cree, that the person in whom the estate is vested shall execute the trust, although he be 
 an heir of the testator, who has taken the estate upon the devisee's declining to accept it. 
 Bugbee v. Sargent, 27 Maine, 338. 
 
 (a) Conveyance, "subject to the conditions and obligations contained in an agreement 
 between the parties." Held, a valid legal condition was thereby created, upon breach of 
 which the grantor could recover the land even from an execution purchaser of the grantee's 
 estate. Bear v. Whisler, 7 Watts, 144. 
 
CHAP. XXTIL] ESTATE ON CONDITION, ETC. 367 
 
 Le should take at her death, whether he had thus married or not ; that 
 there was no ground for any distinction, with respect to the condition, 
 between this and the other part of the estate ; and, therefore, that the 
 devise of the whole was on condition subsequent, and took effect im- 
 mediately, subject, as to a part of the land, to the wife's possession for 
 liie.(l) It would have been otherwise, it seems, if the devise had been, 
 "I devise my lands to A on his marrying B."(2)(a) 
 
 10. There is one case, where the distinction between conditions pre- 
 cedent and subsequent becomes very important, the same event produ- 
 cing, in the two cases, directly opposite effects. It will be seen that, if 
 a precedent condition becomes impossible^ bj'' act of God, no estate can 
 vest ; whereas, if the condition is a subsequent one, the estate becomes 
 absolute. So, if the condition be illegal.{2>) 
 
 11. A condition may be annexed to any estate whatsoever. 
 
 12. It is said that, as to things executed, a condition must be created 
 and annexed to the estate, at the time of making it. Hence, when a 
 condition is made by a separate deed, this must be sealed and delivered 
 at the same time as the principal deed. This point arose in ihs reign 
 of Edward III, who, having conveyed lands to certain noblemen, at- 
 tempted, subsequently, to annex a condition to such conveyance. But 
 the condition was held void by all the judges and sergeants.(4) But 
 
 (1) Finley v. King, 3 Pet. 314. See Tay- , son, 9 "Wheat. 325 ; Myera v. Daviess, 10 B. 
 lor V. Mason, 9 Vi^heat, 325. Hon. 394. 
 
 (2) Jb. 315. (4) Co. Lit. 236 b; Touch. 126; 2 Cruise, 5. 
 (3) Infra, ch. 23, sec. 15. See Taylor v. Ma- 1 
 
 (a) A deed from the trustees of a town contained tlie stipulation, that the grantee should 
 •'allow all people to pass and repass, to fish, fowl and hunt," &e., on the granted premises. 
 Held, this was not a resermtion or exception, but a condition subsequent, upon Isreaeh of 
 which the title might, by proper proceedings, be divested. Parsons v. Miller, 15 Wend. 
 564. 
 
 Devise of land to a town, to use and improve forever, and not be sold, but rented out, and 
 the rents applied to support the tainistry in the town. Held, a condition subsequent. 
 Brigham v. Shattuck, 10 Pick. 309. Devise to a son in fee, "on condition that, after my 
 decease, he becomes a perfectly sober man;" if not, the property to descend to his wife and 
 children in fee. Held, a condition precedent. Lewisburg v. Augusta, 2 W. & Serg. 65. 
 
 A, having an absolute appointment by deod or will over an estate, devised it to her hus- 
 band B, with power to sell and dispose of the same, or to raise any sum of mouey tliereon 
 by mortgage, as he should think proper, "provided that such part of all and every sum and 
 sums of money, so as aforesaid raised by the said B, either by sale or mortgage, as shall bo 
 unexpended at ray (his) decease, shall be charged upon the houses belonging to B, situate, 
 &o., to be disposed of immediately after the decease of tV\6 said B, that sum to be paid to my 
 four nieces." She also devised tlie reversion of the estate to her four nieces, in case it 
 should be in mortgage ; and, if the estate should not be sold or mortgaged by B. then she 
 devised the same to lier said four nieces, as tenants in common in fee, B mortgaged tbo 
 estate, and died, never having charged his houses with any part of the mortgage-money. 
 Held, the condition was not a condition precedent, and the mortgage was valid. Watkins 
 V. Williams, 10 Bng. Law and Eq 23. 
 
 A, and B his wife, conveyed real estate to C and D, on condition tliat the grantors should 
 be permitted to continue to occupy the house on the premises, and that the grantees, their 
 heirs, executors and administrators, should furnish the grantors a decent and comfortable 
 support during their (the grantors') lives. Held, the condition was a condition subsequent ; 
 and, if the possession of said house and a suitable support were furnished to B, after the 
 death of A, she might claim her dower m the premises. Hefner v. Yount, 8 Blackf 455. 
 
 "Where land is devised to A, on condition that he shall pay debts and a legacy, the estate 
 vests in A immediately on the testator's death, and such payment is a condition subsequent. 
 Horsey v. Horsey, 4 Harring. 517. 
 
368 ESTATE ON CONDITION, ETC. [CHAP. XXTII. 
 
 things executory, such as rents, annuities, &c., may be restrained by con- 
 ditions annexed to them after their creation. (!)(«) 
 
 13. A condition must determine the whole estate to which it is annexed. 
 Thus, if a feoffment is made on condition that, upon the happening of 
 a certain event, the feoffor m.a,j re-enter and hold for a time, or the es- 
 tate shall be void for apart of the time ; or, if a lease be made for ten 
 years on condition that in a certain event it shall be void for five ; these 
 conditions are void. But a condition may legally be confined to a por- 
 tion of the land which is conveyed. Thus, there may be a conveyance 
 of six acres, with a condition that, upon a certain event, it shall be void 
 as to three. So, also, in case of a lease, it has been seen (ch. 16,) that 
 there may be a condition for the lessor to re-enter for non-payment of 
 rent, and hold till he is satisfied.{2,) 
 
 14. Conveyance of an estate tail, conditioned to be void in a certain 
 event, as if the tenant in tail were dead. Held, inasmuch as the death 
 of the tenant would not terminate the estate, but only his death without 
 issue, tliis condition was void.(3) 
 
 15. A condition can be reserved only to the grantor or lessor, or his 
 heirs, not to a third person. This rule is founded upon the general 
 principle of law, which forbids maintenance or the purchase of disputed 
 itles. (See Maintenance.) But heirs shall have the benefit of a condition, 
 though not specially named. (4)(6) 
 
 16. It is a legal maxim, that nothing which lies in action, entry, or re- 
 entry, can be granted over. Upon this principle, at common law, a con- 
 dition, in a lease, for re-entry upon non-payment of rent, did not pass 
 to an assignee of the reversion, even though the tenant attorned to him. 
 This rule, however, is changed by statute. (6) 
 
 17. There are many circumstances which may render a condition 
 void. 
 
 18. ImjDossihle conditions(c) are void. So those which become impos- 
 sible by the act of the grantor. Thus, where the King of Great Britain 
 granted a charter of a town in Vermont, (then New Hampshire,) in 
 part to the defendants, an incorporated society, reserving a rent of one 
 
 (1) Co. Lit. 237 a. , I't. 214 a; "WiDn «. Cole, "Walk. 419; King's, 
 
 (2) Corhet'3 case, 1 Rep. 86 b. te v. Pelham, 9 Mass. 501. See Parker v. 
 
 (3) Jermin V. Arscott, 1 Rep. 85; 6 lb. 40. Nichols, 1 Pick. Ill ; 7 Conn. 201. 
 
 (4) Jackson v. Tpoping, 1 Wend. 388; Co.| (5) Lit. sec. 347. 
 
 (a) Tliis distinction seems to be now of no practical importance, however well founded in 
 the technical rules of the ancient common law. Things executed may undoubtedly be modi- 
 fled, subsequently to their creation, by the consent of both parties; and things executory 
 cannot be, without such consent 
 
 (h) For, as they are the persons prejudiced by the grant or lease, they ought to have tho 
 same means as their ancestors, of recovering the estate. See ch. 28, sees 6, 44. Devise 
 to a son of the testator of a farm in fee-simple ; on condition that his daughters should have 
 the use and occupation of a room in his house, food, Ac, while they remained unmarried. 
 Held, upon breach of condition, the daughters might recover their shares of the estate, us 
 heirs' to their father. Hogeboom v. Hall, 24 Wend. 146. 
 
 So a residuary devisee may avail himself of a condition annexed to a specific devise. Hay- 
 den V. Stoughton, 5 Pick. 528; Brigham v. Shattuck, 10, 306; Clapp v. Stougbton, lb. 463. 
 
 In Pennsylvania, a right of entry may be reserved to the grantor's assigns ; under which 
 a purchaser on execution may claim for a forfeiture, though subsequent to the purchase. Mc- 
 Kissick V. Pickle, 16 Penn. 140. 
 
 (c) ■' Impossible conditions mean a physical impossibility, and not the want of power in the 
 party.'' 1 Swift, 93. 
 
CHAP. XXVII.] 
 
 ESTATE ON CONDITION, ETC. 
 
 369 
 
 shilling for every hundred acres, after the first ten years, fo he paid an- 
 nually to the grantor, in his council chamber in Portsmouth, or to such offi- 
 cer as should be appointed to receive it ; held, the separation of the 
 two countries, an act of the grantor, rendered impossible a payment at 
 the place named ; and, no other place having been appointed, nor any 
 officer to receive it, the people of Vermont, as successors to the king, 
 could not claim a forfeiture.(l) 
 
 19. Illegal conditions are void. These are : 1. To do something that 
 is malum in se or malum prohibitum. 2. To omit some duty. 3. To en- 
 courage such act or omission. (2)(a) 
 
 20. It is said, that a condition is a divided clause from the grant, and 
 therefore cannot either expressly or by implication frustrate the grant, 
 in regard to any of its inseparable incidents. Hence, conditions repug- 
 nant to the nature of the estate are void. As, for instance, a condition 
 in a conveyance of the fee, or even a devise of an estate for life, that 
 the grantee shall not take the profits, or alienate; or a condition in a 
 lease to three persons, that one of them shall not demand the profits, 
 or enter upon the land during the lives of the others. So a condition, 
 annexed to an estate tail, that the donee shall not marry; because, 
 without marriage, he could not have an heir of bis body ; or that he 
 shall not suffer a recovery. (3)(5) 
 
 (1) People, &o. V. Soc'y, &o. 1 Paine, 652 ; 
 11. S. V. Arredondo, 6 Pet. 691; Hughes v. 
 Edwarda, 9 Wheat. 489 ; Wiiitney v. Spea- 
 cer, i Cow. 39. 
 
 (2) Mitchel V. Reynolds, 1 P.'Wms. 189. 
 
 (3) Lit. 360-1; Hob. 170; Doe u. Carter, 
 
 8 T. R. 61 ; Co. Lit. 206 b, 223 a; Moore v. 
 Savil, 2 Leon. 132; Jenli. 243 ; Dyer, 343 b; 
 Co. Lit. 223 b ; Newton v. Reid, 4 Sim 141 ; 
 Hodges V. Hodges, 2 Gush. 455 ; MoCullough 
 V Gilmore, 11 Penn. 370; Blacket t;. Lamb, 
 10 Eng. L. & Equ. 6. 
 
 (a) "There are three sorts of conditions to be rejected: 1. Such as are repugnant; 
 2. Those impossible in their creation ; 3. Those mala in se." Harvey v. Aston, 1 Atk. 361 ; 
 Com. R. 726; Willes, 83. 
 
 (6) Roehford v. Hackman, 10 Eng. L. & Equ. 64. Devise of real estate to a wife for life, 
 and ''the remainder of the testator's estate, in possession or reversion, to his five cliildren, 
 to be equally divided to and among them or their heirs respectively, always intending that 
 none of his children shall dispo.se of their part of the real estate in reversion, before it is 
 legally assigned to them." Held, the children took a vested remainder in the real estate 
 given to the wife for life, and the above restriction upon alienation was void. Hall v. Tufts, 
 18 Pick. 455. 
 
 Lease in perpetuity, with a condition and covenant that, upon every sale of the land, the 
 tenant or bis assigns should obtain the written consent of the reversioner, and offer him the 
 right of pre-emption, and, if sold after such offer, that one-tenth of the purchase-money 
 should be paid to the lessor. Held, this provision was a restraint and a fine upon aliena- 
 tion, against the policy of the law, upon which the remedy, if any, was at law, but which 
 equity would not aid in enforcing. Livingston v. Stickles, 8 Paige. 398. A condition in a 
 lease, that the tenant shall not sell any wood or timber without permission, is valid. Ter- 
 planck V. Wright, 23 Wend. 506. 
 
 But, in a lease for two years, a provi-'o that the lessee occupy but one, is void. Scovell v. 
 Cabell, Cro. Eliz. 107. So, in the grant of a house, a condition not to meddle with the 
 shops, which are part of tli'e house. Hob. 170. See, as to insensible and absurd conditions, 
 Doe V. Carew, 2 Ad. * EU (N. S.) 317. 
 
 The owner of lots of land on the Bast River, opposite New York, improved one of them 
 at a great expense for a cottage residence and garden, and sold a part of the other, with the 
 agreement that the grantee should only use it for a place of residence; and the conditions 
 in the deed were, that the grantee should not use the lot in any way, or for any business, 
 which might be offensive to the occupant of the adjoining lot, or that would tend to deterio- 
 rate or lessen its value, and the grantee was not to use the lot as a stone quarry. The 
 grantee leased a part of the lot, tor a railroad to carry stone from a neighboring quarry to a 
 wharf, which he gave the lessees leave to build oppc site the lot. Held, on a bill by the 
 grantor for an injunction, that such a .se of the lot would be a breach of the conditions of 
 the deed, and that the grantee and his lessees could be restrained by an injunction. The 
 
 Vol. I. 24 
 
370 
 
 ESTATE ON CONDITION, ETC. 
 
 [CHAP. XXVII. 
 
 21. So a condition annexed to a devise to children, in these words : 
 " in case they continued to inhabit the town of H., otherwise not." In 
 this case, only one of the devisees lived at H., at the date of the will, 
 or the death of the testator. The word continue was therefore held 
 unmeaning. Another ground was, that the devisees being themselves 
 heirs at law, there was no one to take advantage of a breach of condi- 
 tion ; inasmuch as the residuary devise to two sons of the testator, ex- 
 pressly excepted this portion of the estate. The devise was declared 
 repugnant, unreasonable, uncertain and nugatory. But Thompson, J., 
 dissented, on the ground that the condition was a precedent one.(l) 
 
 22. But conditions, prohibiting only what is contrary to law, are 
 valid. Thus, a condition against alienation in mortmain^ or against 
 alienation in any mode which is invalid in law. And a condition 
 against the exercise of a power, which is not incident to the estate 
 granted, but only collateral, and conferred by a special statute, is valid; 
 as, for instance, a condition in a gift in tail, that the donee shall not 
 lease for three lives or twenty-one years, as authorized -by Statute 82 
 Henry VIII.(2) 
 
 23. A condition, valid at the time of creating it, cannot be affected 
 by any change in the law pertaining to its subject matter. 
 
 24. Conveyance, on condition the grantee shall not aliene, till he 
 reaches the age of twenty-five years. Before this time he alienes, and 
 makes a second conveyance after reaching the age prescribed. The 
 first deed is void, and the last valid. When this condition was im- 
 posed, twenty-five was the age of majority in this State (Missouri.) A 
 subsequent act changed it to twenty-one. Held, the condition was still 
 binding.(3) 
 
 25. It was formerly held, that a bond, against exercising the powers 
 incident to an estate, was valid. (See si/jara, ch. 2, sec. 56.) Thus, 
 where a son, receiving lands from his father in tail, gave bond that he 
 would not dock the entail, and afterwards applied to Chancery for re- 
 lief against the bond ; held, it was a valid instrument.(4:) 
 
 26. But this doctrine is said to be extremely questionable, and has 
 been denied in subsequent cases.(5) 
 
 27. Thus, where successive tenants in tail, according to the direction 
 of the donor, entered into mutual obligations not to aliene ; held, in 
 
 (1) Newkerk v. Newkerk, 2 Caines, 345. 
 
 (2) 2 Cruise, 1 ; Gray «. Blanchard, 8 Pick. 
 289. 
 
 (3) Dougall V. Fryer, 3 Misso. 40. 
 
 (4) Co. Lit. 206 b; Freeman v. Freeman, 
 2 Vern. 233 ; aco. Turner v. Jolinson, 1 Dana, 
 438. 
 
 (5) 2 Cruise, 1. 
 
 erection of a wliarf was held to be especially a breach, as it would be a temptation to noc- 
 turnal debauchees to frequent the neighborhood. Seymour v. McDonald. 4 Saiidf! Ch. 502. 
 
 A conveyed land to B and C, his wife, with the conditions that f-ach should take an un- 
 divided moiety, and that C should not incumber her part or sell it, without B's consent and 
 that she should have tlie power to devise the same. Held, these conditions were not void 
 and the appointment made by C in her will was a valid one, and could not be set aside by 
 her or B's heirs. Hicks v. Cochran, 4 Edw. Ch. 107. 
 
 A condition annexed to a devise, that the person who may have the right is to procure 
 an act of the legislature for change of name, "together with his tiiking an oath before he 
 has possession, that he will not make any change during his lile" in the will relative to the 
 real estate; is repugnant and void. Taylor v. Mason, 9 Wheat. 325. 
 
 A condition in a conveyance, that the grantee shall keep a saw and grist mill on the 
 land doing business, is valid ; and a breach thereof forfeits the estate. Sperry v Pond 5 
 Ohio, 389. -^ J ■ 1 
 
CHAP. ZXVII.] 
 
 ESTATE ON CONDITION, ETC. 
 
 371 
 
 Chancery, and by the advice of Lord Coke, that, as these agreements 
 tended to a perpetuity, they should be delivered up to be cancelled. 
 The same decree was made, in case of a bond from a tenant in tail not 
 to commit waste.(l) 
 
 28. In regard to estates for life and for years, it has been held, that, 
 if a lease is made to one and his assigns, a condition against as.signment 
 is repugnant and void. But where assigns are not named, such condi- 
 tion is valid, though not favored, but looked nearly into by the oourts.(2) 
 As a general principle, the landlord, having the jus disponendi, may 
 annex whatever condition he pleases to his grant, provided it is not 
 illegal, unreasonable, or against public policy. It is reasonable that a 
 landlord should exercise his judgment, with respect to the person to 
 whom he trusts the management of his estate. It is a matter of per- 
 sonal confidence, founded on a knowledge of the tenant's honesty, or 
 skill and diligence in farming.(3)(a) 
 
 29. Lease for years, on condition the lessee, his executors or assigns 
 should not aliene, without the lessor's consent. After the lessee's death, 
 his administrator assigned, without leave of the lessor. Held, as the 
 administrator was an assignee in law, this was a breach of the con- 
 dition.(4r) 
 
 30. So a condition, that if the lessee for years, his executors or as- 
 signs demised the land for more than from year to year, the lease should 
 cease ; was held valid, and to be broken by a devise of the term. (5) 
 
 3L But it was subsequently decided, that, where a lessee covenanted 
 not to assign his term without consent, a devise was no breach. (6) 
 
 32. A condition against assignment, either by the lessee or his assigns, 
 without the lessor's consent, is waived and put an end to by an assign- 
 ment with his consent ; so that a subsequent assignment by the first 
 assignee is valid, and not within the condition. So if a license is ob- 
 tained, it remains in force, and an alienation is valid, after the land- 
 lord's death. (7) 
 
 33. An under-lease is not within a condition against assigning over 
 the lessee's estate..(6) So held, where a lessee for twenty-one years 
 covenanted " not to assign, transfer or set over, or otherwise do or put 
 away the said indenture of demise, or the premises thereby demised or 
 any part thereof, to any person or persons whomsoever, without the 
 license and consent of the lessor ;" and afterwards leased for fourteen 
 years. 
 
 34. So, where the condition was, that the lessee would not assign 
 
 (1) Poole's case, Moo. 810; Jervis i). Bru- 
 tori, 2 Tern. 251. 
 
 (2) Stukeley v. Butler, Hob. 170 ; Co. Lit. 
 204 a, 223 b; Crusoe v. Bugby, 3 Wils. 237 ; 
 Hargrave v. Kinj;, 5 Ired. Equ. 430. 
 
 (3j Koe v. Galliers, 2 T. R. 138-40. 
 
 (4) More's case, Cro. Eliz. 26 ; (Pennant's 
 case, 3 Rep. 64.) 
 
 (5) Berry v. Taunton, Cro. Rllz. 231. 
 
 (6) Pox V. Swann, Styles, 483. 
 
 (7) Dumpor's case, 4 Rep, 119; "Whitoh- 
 eot V. Pox, Cro. Jac. 398 ; Co. Litt. 52 b. 
 
 (a) A condition is to be distinguished from a covenant against assigning, kc. The latter 
 is merely a ground for damages, not for tbrfeiture; more especially where the lease ex- 
 pressly provides a forfeiture for waste, non-payment of rent, &o. Spear v. Fuller, 2 N H. 
 174. Whether a Itasee, witn such a covenant in the lease, can pass any title to the assignee, 
 qu. As between him and such assignee, the transfer is valid, and sufficient consideration 
 for a note. lb. 
 
 i6) bo it is held, that the lessee may associate others with himself in the enjoyment of 
 the term. Hargrave v. King, 5 Ired. Equ. 430. 
 
372 ESTATE ON CONDITION, ETC. [CHAP. XXYII. 
 
 over or otherwise part with the indenture or the premises thereby 
 leased, or any part thereof, to any person, &c. 
 
 35. But in case of a lease to one, his executors, &c., a proviso that 
 the lessee, his executors, &c., shall not set, let or assign over the premi- 
 ses or any part thereof, embraces an under-lease by the lessee's admin- 
 istrator. The term, for the purposes of assignment, is not legal assets. 
 If the proviso applied in its terms only to the lessee himEell, it might 
 be held not to embrace a transfer by the administrator. 
 
 86. Where the condition requires consent in writing, a parol consent 
 will not be sufiicient. 
 
 37. Whether a consent by the lessor to a transfer of a part of the 
 premises, is a waiver of the condition as to the whole, qu.{l) 
 
 38. Where there is a condition against any transfer of the lessee's 
 estate, if he confess judgment, through a warrant of attorney, upon 
 which execution is taken out and levied upon the term ; this is no 
 breach of condition, but the term will pass to an execution purchaser, 
 even with notice of the proviso. A judgment is held to be " in invitum ;'''' 
 aud the case is merely that of a fair creditor, using due diligence to 
 enforce payment of a just debt.(2) 
 
 39. Bui, in a new action between the same parties, the verdict found, 
 that " the warrant of attorney was executed for the express purpose of 
 getting possession of the lease," in which purpose the tenant concurred; 
 and it was held that the lease was forfeited. Lord Kenj'on remarked, 
 "it would be ridiculous to suppose, that a court of justice could not 
 see through such a flimsy pretext as this. Here the maxim applies, 
 that which cannot be d.oi'ie per directum shall not be done per oblquum. 
 The tenant could not by any assignment, under-lease or mortgage, have 
 conveyed his interest to a creditor. Consequently, he cannot convey 
 it by an attempt of this kind."(3) 
 
 39 a. A lease gave the lessee power to sell his interest, on obtaining 
 the lessor's written consent, and paying him one-tenth of the purchase- 
 money. The lessee contracted to sell his interest, and received the 
 principal part of the purchase-money; and the purchaser went into 
 possession under the contract, but received no actual transfer of title. 
 Held, the condition must be construed strictly against the lessor; and 
 as the legal estate of the lessee was not divested, the right of the lessor 
 to th§ tenth of the purchase money was incomplete, and he was not 
 entitled to relief in equity. Aliier, however, if it appear that the legal 
 estate is continued in the lessee, for the mere purpose of evading the 
 covenant or condition, the equitable title having been transferred.(4) 
 
 40. A condition, that the lessor may re-enter in case of bankruptcy 
 on the part of the lessee, has been held valid. (a) It was objected, that 
 such a principle would enable the lessee to hold out false colors to the 
 world, and that the condition was equivalent to a proviso, that the 
 lease, though absolutely granted, should not be seized under a commis- 
 sion of bankruptcy. But the court held, that there was the same rea- 
 son for making this provision, as for providing against voluntary as- 
 
 (1) Crusoe -n. Bugby, 3 Wila. 234; 2 Bl. , (2) Doe v. Carter, 8 T. R. 57. 
 R. 766; Jackson v. Harrison, 17 John. 66; (3) 8 T. R. 300-1. 
 Roe V. Harrison, 2 T. R. 425. 1 (4) Livingston v. Stickles, 7 Hill, 263. 
 
 (a) It is waived by the receipt of subsequent rent. Doe v. Eees, 4 Bing. N. 384. 
 
CHAP. XXVII.] 
 
 ESTATE ON CONDITION, ETC. 
 
 373 
 
 signments; that there was even more danger of the estate falling into 
 bad hands in the former case than in the latter; that public policy 
 favored the security of landlords ; that the mere possession of land was 
 no proof of ownership, but a creditor was bound to look into the lease 
 It he wx)uld ascertain the title ; and that, although if the lease were 
 granted absolutely, such proviso would be void for repugnancy, yet 
 here Uiere was an express limitation to terminate the estate upon the 
 lessees becommg bankrupt, a stipulation agamst his own act. The case 
 was compared to that of a lease for twenty-one years, on condition that 
 the tenant should continue to occupy personally, which would be a 
 valid proviso. It was also suggested, that such a condition, in a very 
 long lease, would be liable to the objection of creating a perpetuity.(l) 
 
 41. Some cases have occurred, in which leases have contained a con- 
 dition against the lessee's allowing other perisons to occupy, except 
 under certain restrictions. Thus, where there was a stipulation in the 
 lease, that " if the lessee suffer more than one person to every 100 acres 
 to reside on, use or occupy any part of the premises, the lease shall be 
 void;" held, a breach of condition, for the lessee to let parts of the 
 premises to persons for a year, to cultivate for shares, in the proportion 
 of more than one for each 100 acres.(2) 
 
 42. But, where 135 acres were leased, and the lessee covenanted not 
 to permit more than one tenant to each 100 acres to reside on or occupy 
 the premises ; held, it was no breach to allow one tenant besides him- 
 self to occupy. (3) 
 
 43._ It is the doctrine of the ecclesiastical court and court of chan- 
 cery in England, derived from the civil law, that conditions in restraint 
 of marriage, annexed to bequests of personal property, are void, as 
 against public policy, except where there is a devise over upon breach 
 of condition.(a) But such conditions, annexed to devises of real estate, 
 have generally been held valid, whether they were precedent or subse- 
 quent.^ It is said, there can be but one true legal construction of these 
 conditions ; and therefore it m ust be the same in the Court of Chancery, 
 and all the other courts in Westminster Hall. The meaning of the 
 testator, or the control which the law puts upon his meaning, cannot 
 vary, in what court soever the question chances to be determined.(4) 
 
 44. Devise to the testator's wife for life ; then to his granddaughter, 
 A, in tail, provided, and upon condition, that she married with consent 
 of the wife of B and C ; and, if she married without consent, devise to 
 D. A married without consent. The master of the rolls held the con- 
 
 (1) Roe V Galliers, 2 T. R. 133. See But- 
 terBeld v. Baker, 5 Pick. 522; Doe v. Carew, 
 
 2 Ad. & El. N. S. 317 : v. Rees, 6 Soott, 
 
 161, 
 
 (2) Jackaou v. Brownell, 1 John. 267. 
 
 (3) Jackaou v. Agan, 1 John. 273. 
 
 (4) Per Ld. Mansfield, Long v. Dennis, 4 
 Burr. 2056. See Craig v. Watt, 8 Watts, 
 498; Hoopes u. Dundas, 10 Barr, 75. 
 
 (a) This rule, however, seems applicable only to a general restraint of marriage ; not to 
 such conditions as merely prescribe provident regulations and sanctions; as, for instance, 
 in regard to time, place, age, or person, the consent of other parties, due ceremonies, &c. — 
 unless they are used evasively for the purpose of general restraint. It has been held that a 
 dtvise over is not essential, to render a condition annexed to laud, and in restraint of marriage, 
 void. McCuUough's Appeal, 2 Jones, 197. 
 
874 
 
 ESTATE Oif CONDITION, ETC. 
 
 [CHAP. XXTII. 
 
 dition as " in terrorem "{a) and void ; but the decree was reversed on 
 appeal.(l) 
 
 45. Devise to trustees and their heirs, in trust for A for life, if, within 
 three years from the testator's death, she should marry B ; if not, de 
 vise to C. Upon tlie death of the testator, the friends of A made pro 
 posals for her to B, which he declined, and A then married D. Held, 
 in the Court of Chancery, that this was a good condition precedent, 
 without performance of which A could gain no title ; and one which, 
 in its nature, admitted of no pecuniary compensation. (But this decree 
 was reversed in the House of Lords.)(2) 
 
 45 a. A testator devised the whole of his real estate to A and B, 
 " during their natural lives, that is, if they remain single ; but if either 
 of them shall marry, then his claim and benefit of the aforesaid land to 
 be void ; or if they both shall marry, then the land to be sold as here- 
 inafter described." Held, that on the death of A, unmarried, B took 
 the whole of the land, to hold so long as she continued unmarried. (3) 
 
 46. Such a condition has also been held valid, when annexed to a 
 devise of money, charged upon and to be raised from land ; and in the 
 case of a trust term, created for the purpose of raising portions for 
 daughters, which arise out of land, are not subject to the ecclesiastical 
 jurisdiction, but are governed wholly by the common law. (4) 
 
 47. A settled his estate to the use of himself for li(e, remainder to 
 trustees for a term of years, upon trust, to raise £2,000 for each of his 
 daughters, if they married with their mother's consent; and if either 
 of them died before marrying with consent, her portion to cease, and 
 the premises to be discharged ; or if raised, to be paid to the owner of 
 the premises. A gave to his daughters, by will, an additional £2,000 
 each, on the same condition. Having married without the consent of 
 their mother, but both they and their husbands knowing of the condi- 
 tion, the daughters filed a bill in equity against the trustees and exe- 
 cutors, to have their portions raised. Sir Joseph Jekyll decreed, that 
 the conditions were void. Upon appeal, Lord Hardwicke, aided by 
 Lord Chief Justices Willes and Lee, and Lord Baron Comyns, reversed 
 the former judgment. The chief grounds of decision were; that the 
 restraint was a condition precedent, till the performance of which no 
 estate could vest ; or else a limitation of the time of payment, which, in 
 this case, never arrived ; that the condition was neither repugnant, im- 
 possible, nor malum in se, the only conditions to be rejected ; that al- 
 though, where a compensation was possible, there was no material dis- 
 tinction between conditions precedent and subsequent, yet in this case, 
 which did not allow compensation, a much clearer intent, expressed by 
 a devise over, would be required to divest an estate once created, than 
 to prevent the vesting of the estate ; and that the direction to have the 
 estate exonerated was equivalent to a devise over.(5) 
 
 48. But, where lands are charged only as auxiliary to personal estate, 
 
 (1) Fry V. Porter, 1 Cha. Oa. 138 : 1 Mod. 
 300. 
 
 (2) Bartie v. Falkland, 3 Cba. Ca. 129 ; 16 
 Jour. 230-36-38-40-1. 
 
 (3) Fawver v. Pawver, 6 Gratt. 236. 
 
 (4) Reves v. Heme, 5 Vin. Abr. 343. 
 
 (5) Harvey v. Aston, 1 Atk. 361 ; Com. 
 R. 726; Willes, 83. 
 
 (o) Lord Mansfield shrewdly remarked upon this phrase, that a clause can carry very 
 little terror, which is adjudged to be of no effect. 4 Burr. 2055. 
 
CHAP. XXVII.] 
 
 ESTATE ON CONDITION, ETC. 
 
 375 
 
 such condition is invalid. Thus, a testatrix gave to her daughter a sum 
 of money, provided she should marry with the written consent of trus- 
 tees given before marriage, and not otherwise, and charged all her real 
 estate with debts and legacies. The daughter married without consent, 
 but this was obtained after marriage. Held, the devise took efi'ect.(l) 
 
 49. A condition, restraining a female from marrying a Scotchman, 
 has been held good.(2) 
 
 50. Conditions of this kind, however, being in the nature of ^enaZfo'es 
 Oi forfeitures, are construed strictly in favor of the devisee. It the sub- 
 stantial part and intent be performed, equity will supply small defects 
 and circumstances. They are said to be odious, and contrary to sound 
 policy.(3) 
 
 51. Devise to trustees in trust for the testator's daughter. A, till her 
 marriage or death ; if she should marry with their consent, then to her 
 and her heirs ; if without their consent, to the sisters of A: There 
 were also other devises to A and her sisters. A married during her 
 father's life, with his consent and approval, and he settled upon the 
 marriage a part of the property devised to her. Held, such marriage 
 was a waiver of the condition, and made the devise absolute ; and that 
 to treat the estate as forfeited would defeat the manifest intention, be- 
 cause it would pass, not to the other sisters, but to the heirs at law. (4) 
 
 52. So, where the condition was that the devisee should marry the 
 testator's granddaughter ; held, an oft'er of marriage and a refusal on 
 her part were a waiver of the condition. (5) 
 
 53. Devise to trustees, to the use of the testator's son, A, for life, re- 
 mainder to his wife for life, remainder to A's first and other sons in tail ; 
 provided, if A should marry any woman not having a competent mar- 
 riage portion, or without the trustees' consent, &c., in writing, under 
 hand and seal, the trustees should hold, after A's death, to the use of 
 the testator's daughters. The testator further declared, that the pro- 
 viso was not meant to be construed in terrorem, but a condition, for 
 want of performance of which, in every respect, the estate should not 
 vest in his son's wife, or the heirs of that marriage. A married a wo- 
 man having a portion, but without the consent of the trustees, one of 
 whom became one of the devisees in remainder. Lord Mansfield, in 
 rendering judgment, remarked that the forfeiture was so cruel as to 
 begin with the innocent issue of the offender, who was to have the es- 
 tate for his own life at all events ; and that the testator considered 
 money as the only qualification of a wife, but still meant to leave it to 
 the judgment of trustees, whether there might not be some equivalent 
 for money. It was accordingly held, that, although the condition was 
 undoubtedly a precedent one, yet it was to be taken in the alternative, 
 there being a mere error in the penning ; or was to be construed and ; 
 either a portion, or the consent of the trustees, fulfilled the condition ; 
 and such consent was probably withheld by one of them from self-in- 
 terest. (6) 
 
 54. Devise, on condition the devisee should marry with the consent 
 of trustees ; if not, devise over. The trustees, being applied to, offered 
 
 (1) Eeynish v. Martin, 3 Atk. 330. 
 
 (2) Perrin v. Lyon, 9 E. 170. 
 
 (3) i Burr. 2052. 
 
 (4) Clark v. Lucy, 5 Tin. Abr. 8t. 
 
 (6) Robinson v. Comyng, For. 164; 
 V. Desbouverie, 2 Atk. 261. 
 
 (6) Long V. Dennis, 4 Burr. 2052. 
 
 Daley 
 
376 
 
 ESTATE ON CONDITION, ETC. 
 
 [CHAP. xxvn. 
 
 to agree if a proper settlement were made. The devisee married with- 
 out their knowledge, and a proper settlement was afterwards made. 
 Held, a good compliance with the condition. (1) 
 
 55. Devise to A, on .condition she married with the consent of B, in 
 writing ; if not, devise over. A married without B's knowledge, but 
 B consented as soon as he heard of it. Held, a fulfilment.(2) 
 
 56. A condition restraining a widow from marrying again is valid ; 
 especially if there is a devise over.(3)(a) 
 
 57. A testator devised his real and personal estate to his wife, pro- 
 vided she remained his widow for life ; but, in case she married again, 
 she was to leave the premises ; and, if she remained a widow for life, 
 the testator devised all his property, after her death, to his father and 
 mother, if living, if not, to others. The land was sold for the payment 
 of debts, and the widow married. The testator's father died before the 
 marriage of the widow, leaving the mother surviving. Held, the tes- 
 tator's mother was entitled to the surplus proceeds of the real estate.(4) 
 
 58. Property was devised to a wife, during life or widowhood, 
 charged with the maintenance of her children, and, in the event of her 
 marriage, to be equally divided amongst the children, except that one 
 slave was given absolutely to the widow. Held, this devise was not 
 void, as in restraint of marriage ; that it was not a devise for life, to be 
 void on condition that the widow married, but a devise during widow- 
 hood, charged with the education and maintenance of the children ; and 
 that it was valid. (5) 
 
 59. Devise to "my wife of one-third of the profits arising off of my 
 real estate, only so long as she remains my widow ;" followed by lega- 
 cies to her and children, payable from the land. " Each of the fore- 
 going legacies, that is to come out of my real estate, shall be liens there- 
 on, until paid." Held, a devise of one-tbird of the land ; a devise upon 
 condition; that no entry was necessary to take advantage of it; and 
 that equity would not relieve.(6) 
 
 (1) Daley «. Desbouverie, 2 Atk. 261. 
 
 (2) Bolton V. Humphries, 2 Cruise, 24. 
 
 (3) Pitohet V. Adams, 2 Slra. 1128. 
 
 (4) Commonwealth v. Stauflfer, 10 Barr, 
 350. 
 
 (5) Hawkins v Skegga, 10 Humph. 31. 
 
 (6) Bennett v. Robinson, 10 Watts, 348. 
 
 (a) It is held in Massachusetts, that a devise to the testator's wife of an annuity, during 
 her life and widowhood, is a devise on condition subsequent, subject by its terras to be de- 
 feated by tlie second marriage of the wife; but that the condition is void as being merely 
 in terrorem, there being no devise over except to the residuary legatee, who was the heir at 
 law. Parsons v. Winslow, 6 Mass. 169. In a late case in England, it is held, that a gen- 
 eral condition in restraint of marriage is good, with respect to the testator's widow, but not 
 any other woman. Lloyd v. Lloyd, 10 Eng. L. & Eq. 139. The same general doctrine has 
 been adopted in Missouri. 
 
 Devise to a son and daughter of the testator, with a provision that if his said daughter 
 should marry or die, the land should belong exclusively to the son. Held, the condition 
 was void, being in restraint of marriage. Williams v. Cowden, 13 Mia. 211. 
 
CHAP. XXYIII. 
 
 ESTATES ON CONDITIOlSr, ETC. 
 
 377 
 
 CHAPTER XXVIII. 
 
 ESTATES ON CONDITION— PERFORMANCE, BREACH, DISCHARGE, ETC., OP 
 
 CONDITIONS. 
 
 1. Performance— conditions precedent and 
 
 subsequent. 
 
 2. Performance as far as possible. 
 
 3. Copulative condition. 
 5. Who may perlorm. 
 
 9. When performed. 
 
 13. Place. 
 
 14. Who bound by. 
 
 15. Impossible conditions. 
 
 20. Refusal to accept performance, &c. 
 
 23. Breacli and forfeiture at law; condition 
 
 and coveTiant, &c. 
 28. Reliefin equity. 
 36. Breach, how taken advantage of. 
 42. Breach, who may lake advantage of 
 49. Effect of entry. 
 51. Waiver of condition. 
 
 53. Release of condition. 
 
 54. Accord and satisfaction. 
 
 55. Oondition and Limitation — distinction. 
 
 1. With regard to the performance oi conditions, a distinction is made 
 between conditions precedent and subsequent; the former, which create 
 an estate, are coastrued liberally, according to the intent; the latter, 
 which destroy an estate, are construed strictly. Thus, where a forfeit- 
 ure of land is claimed by the grantor for breach of a condition subse- 
 quent, in the performance of which he has no interest, having parted 
 with the estate for the accommodation of which it was created ; the 
 terms of the condition are to be construed with great strictness.(l) 
 
 2. But where literal performance of a condition suksequent becomes 
 impossible, it should be performed as nearly according to the limitation 
 as practicable. Thus, if A convey to B, on condition that B re-convey 
 to A and his wife in tail, remainder to A's heirs, and before such re- 
 conveyance A die ; B shall convey to the wife for life without impeach- 
 ment of waste, remainder to A's heirs on her begotten, remainder to 
 A's right heirs.(2) 
 
 3. When a condition copulative, consisting of several branches, is 
 made precedent to an estate, the entire condition must be performed, 
 else the estate can never arise or take place.(3)(a) 
 
 4. Thus, where a settlement provided, that trustees should be seized of 
 land to the use of A and his issue, if he should be married to B after 
 the age of sixteen and they should have issue ; and they were married 
 before she was sixteen, and she lived to that age, but died without 
 issue ; it having been decided that A took the estate, this decree waS 
 reversed in the House of Lords, a part of the conditic»n not being ful- 
 filled.(4) 
 
 (1) Co. Lit. 219 b; Hogeboom v. Hall, 24 
 Wend. 146 ; Merrifield v. Cobleigh, 4 Gush. 
 178. 
 
 (2) Lit. 352. Seach. 27, aeo. 18. 
 
 (3) Harvy v. Dame, &o.. Com. R. 732 ; 
 
 Van Home v. Dorrance, 2 Dall. 317 ; Clark 
 V. Trinity. Ac, 5 Watts & S. 266. 
 
 (4) Wood V. Southampton, 2 Freem. 186 ; 
 Show. Pari. Ca. 83. 
 
 (a) A similar principle has been applied to a oondition subsequent. Under the New York 
 statute, (1 Rev Sts. 346,) providing that a diversion of salt works to other purposes than the 
 manufacture of salt shalhwork a forfeiture of the leasehold estate, the partial diversion of a 
 lot, as for the erection of a dwelling-house, &c., will not work a forfeiture, but only a diver- 
 sion of the whole. Hasbrook v. Paddock, 1 Barb. 635. 
 
878 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. XZVIII. 
 
 5. The general rule is, that any person interested in the condition or 
 the estate may perform the former. Thus, if a conveyance is made on 
 condition the grantee shall pay a certain sum at a certam time; a 
 grantee of such grantee may perform it.(l) 
 
 6. So, also, the heirs of a grantee may perform the condition, though 
 not named, if a time is fixed for the performance. The possibility of 
 performing the condition is an interest, right, or scintilla juris, which 
 descends to the heir. (See ch. 27, s. 15.) 
 
 7. Devise to A for life, remainder to B in fee ; provided, that if 
 within three months from A's death, C should pay B, his executors, 
 administrators, &c., a certain sum, the land should go to C and his heirs. 
 C died during the life of A. Held, after A's death, the heir of C might 
 perform the condition. (2) 
 
 8. But if no time is appointed for performance of the condition, the 
 performance of it is a right personal to the party himself. Thus, it is 
 said, in case of a feoffment from A to B, upon condition that if A pay 
 B a certain sum, A and his heirs may enter ; the heir cannot perform 
 the condition. This principle, however, seems inconsistent with the 
 modern law of mortgages, as will be seen hereafter.(3) 
 
 9. Where no time is fixed for performance, a condition shall be per- 
 formed either during the life of the party who is to fulfil it, or in rea- 
 sonable time, according to the circumstances of the case. Thus, where 
 the condition is that the grantee shall pay a certain sum, he is bound 
 to pay it in reasonable time, because he has the use of the land. But 
 if the grantor is to regain the estate on payment of a certain sum, he 
 has during his life to pay it ; because until payment he cannot take 
 possession. (4) So, if one devise land to A, " on condition he shall 
 marry B," the devise takes effect immediately, and the devisee has his 
 lifetime to perform the condition. (5) 
 
 10. The former of these rules is applicable, where an immediate per- 
 formance by the grantee is necessary, to effect the evident purpose of 
 the grantor in making the conveyance.((3) 
 
 11. Devise of lands to a town for a school-house, "provided it be 
 built within one hundred rods of the place where the meeting-house 
 stands." Held, this was a valid condition subsequent, and the vested 
 estate was forfeited, and passed to the residuary devisee as a contin- 
 gent interest, upon non-compliance with the condition in reasonable 
 time.(7)(a) 
 
 12. The time of performing a condition precedent in a deed cannot 
 be enlarged by parol, so that an action will lie upon the deed. (8) 
 
 13. Where a certain place is appointed for performance of a condi- 
 tion, the party who is to perform must be at the place at the time ap- 
 
 (1) Co. Lit. 201 b ; Simonds v. Simonds, 3 
 Met 558. 
 
 (2) Marks v. Marks, 1 Ab. Eq. 106. 
 
 (3) Lit. 337. 
 
 (4) Crummel v. Andros, 2 And, 73; 14 
 Mass. 428. 
 
 (5) Finlay v. Kingr, 3 Pet. 376. 
 
 (6) Hamilton v Elliott, 5 Ser & R. 375. 
 
 (7) Hayden *. Stoughton, 5 Pick. 528. See 
 Brigham v. Shattuek, 10 Pick. 309. 
 
 (8) Porter v. Stuart, 2 Aik. 417. 
 
 (a) Conveyance, on condition the grantee shall discharge a mortgage on the land, made 
 by the grantor, but not fixing any time for such discharge. HeB, it must be done in rea- 
 sonable time. Eoss v. Tremain, 2 Met. 495. See Austin v. Cambridgeport, &c., 21 Pick. 
 215. 
 
CHAP. XXYIII.] 
 
 ESTATES ON CONDITION, ETC. 
 
 379 
 
 pointed, and the other party is not bound to accept performance else- 
 where. But, if he does accept, the periormance will be good. Where 
 BO pLice is appointed for periormance, a grantee, who is to perform the 
 condition, by payment of money, must seek for the other party, if he 
 is in the realm, (country,) but not if he is abroad. If the condition is 
 to deliver specific and cumbrous articles, such as wheat or timber, the 
 grantee is not bound to seek the grantor, but the latter must go to the 
 former and appoint a place of delivery .(1) 
 
 li. One who accepts an estate upon condition is absolutely bound 
 to perform it, even tliough the performance be attended with a loss, 
 and though the party be incapable of incurring a mere personal obli- 
 gation. Thus, it seems, the acceptance of an estate charged with a 
 charity binds the party receiving it to fulfil the charity, though the 
 rents prove insuflficient.(2) So an infant heir or married woman is 
 bound to perform a condition ; which charges not the person, but the 
 land. So, an infant mortgagee is bound by the conditioti. " The deed 
 must be good in the whole, or void in the whole."(3) So, where an 
 infant agreed that a judgment with condition should be rendered in 
 his favor ; held, after coming of age, he could not avail himself of the 
 former, without the latter. Upon the same principle, a condition binds 
 the estate to which it is annexed, into whose hands soever it may 
 come.(4:)(a) 
 
 (1) Lit. 340; Co. Lit. 210 b; 3 Leon. 260; 1 
 Eolle's Abr. 444. 
 
 (2) Att'y. Gen. v. Christ's Hos., 3 Bro. Clia. 
 165. 
 
 {3j Parker v. Lincoln, 12 Mass. 18; Badger 
 
 V. Pbinney, 15, 359. See Robertson v. Ste- 
 vens, 1 Ired. Equ. 247 ; Garrett v. Scouten, 3 
 Denlo, 334; Cross v. Carson, 8 Blaekf. 138. 
 
 (4) Lowry v. Drake, 1 Dana, 47 ; Hogeboom 
 V. Hall, 24 "Wend. 146. 
 
 (a) The following recent case illustrates this, with some other principles, relating to con- 
 ditions : 
 
 A provision in a will, "that if either of ray said daughters shall be distressed, and come 
 to want, and be unable to support themselves, then my will is, that siie or they be main- 
 tained, in a decent and comfortable manner, out of the income and profits of tlie wliole of 
 my real estate," constitutes a legacy or bequest, charged upon the income of the real estate, 
 and through tliat upon the whole of the land itself; and, on the happening of the contin- 
 gency, tlie maintenance is chargeable upon such income, in the hands of any one to whom 
 the land may come. Pickering v. Pickering, 15 N. H. 281. 
 
 The land being devised to several persons jointly, an implied promise arises on the part of 
 the devisees, accepting the devise, to appropriate the income to the support of the daugh- 
 ters, or any of them, on the happening of the contingency, while the devisees hold the 
 land. lb. 
 
 Should the income not be sufiicient for the support of all the daughters who may need, it 
 must be apportioned. lb. 
 
 The devisees taking jointly, the implied promise is joint. lb. 
 
 "Where there is an implied promise by a devisee, to pay a legacy charged upon the land, 
 an action will lie against his executor or administrator, for any breach in the time of the de- 
 visee, and perhaps for a subsequent breach, if the legacy is given in such a manner that it 
 constitutes deoitum inpresenti. lb. 
 
 • If the charge upon the land be of a gross sum, payable presently, or at a future day, a 
 conveyance of the land, would neither discharge the land, nor the devisee from his implied 
 promise to pay the debt. No personal promise ofthe grantee would be implied, but he would 
 take the land charged with the duty. lb. 
 
 "Where the charge depends upon a contingency, as, for instance, where the legacy is 
 charged upon the income of the land, in case the legatee shall be in need, the implied 
 promise of the devisee, on the acceptance of the devise, extends only to an appropriation 
 of the income, if the contingency happens while he holds the estate. The law raises no 
 implication ot a promise, beyond the time that be will have the ability to perform it ; and 
 the estate he takes is assignable. lb. 
 It eeems that in such case, upon every transfer of the whole estate, the grantee who takes 
 
880 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. XXTIII. 
 
 15. "Where performance of a condition becomes impossible, by act of 
 God ; if precedent, no estate vests ; if subsequent, the estate becomes 
 absol ute. 
 
 , 16. Devise to A, on condition of her marrying B when, or before A 
 should be 21. B died, before A refused or was requested to marry him. 
 Held, the condition was excused. (1) 
 
 17. Devise of land to A, " on condition of his marrying a daughter 
 of B and C." B dies, without having had a daughter. The condition 
 hemg subsequent, and having become impossible, A's estate is absolute. (2) 
 
 18. Where performance of a condition becomes impossible by the 
 act of the party who imposes it, the estate is rendered absolute. Thus, 
 a testator devised to A for life his estate at B, and also the income of 
 certain other property, while A should live and reside at B. He after- 
 wards revoked the former devise. Held, A should hold the latter de- 
 vise absol utely.(S) 
 
 19. Where a condition is double, and one part of it is possible at the 
 time, and the other not, performance of the former is sufficient. And, 
 if the condition is disjunctive, giving an election to the party, and one 
 part becomes impossible by act of God, the whole is excused. It 
 seems, however, that this rule is subject to exceptions.(4:) 
 
 20. Where the party, who is to have the benefit of a condition, pre- 
 vents or refuses to accept performance; or absents himself when he 
 ought to be present ; or neglects or disables himself to do the first 
 act on his own part, as he was bound to do ; the condition is dis- 
 charged, (5) 
 
 21. Thus, tender and refusal of a mortgage debt(fi!) discharges the 
 land, though the debt remain. So, where the agency of a landlord is in 
 any way involved in the act, which is to work or prevent a forfeiture 
 
 (1) Co Lit. 206 a, 218 a ; Thomas v. How- 
 ell, 1 Salk. 170; Merrill v. Emery, 10 Pielc. 
 507 ; Van Home v. Dorrance, 2 Dall. 317. 
 See 19 John. 69 ; Taylor v. BuUen, 6 Cow. 
 627 ; M'Laoklan v. M'Lacklan, 9 Paige, 534. 
 
 (2) Pialay v. King, 3 Pet. 374 
 
 (3) Darley v. Laugworthy, 3 Bro. Pari. Cas. 
 359. 
 
 (4) Wigley v. Blackwal, Cro. Eliz. 780; 
 Laughter's case, 5 Rep. 21 ; Studholme v. 
 Mandell, 1 Lord Ray. 279 ; Da Costa v. Davis, 
 1 B. & P. 242. 
 
 (5) 2 Cruise, 33. See Camp v. Barker, 21 
 Verm. 469. 
 
 the estate, charged witli a duty which is to be performed upon a contingency, or a continu- 
 ing duty which does not constitute a debt, or a duty which occurs from time to time, might 
 be held, by implication, to pronaise performance of the duty, or payment of the charge 
 which accrues in his time, and that his personal representatives might be chargeable for his 
 default. lb. 
 
 But, where the devisee or devisees sell the estate in parcels at different times, (although 
 any one of the grantees might perform the duty, or make the payment, and have iiis remedy 
 for contribution,) upon ordinary principles of law, neither could exonerate his land by per- 
 forming or paying a pro rata proportion, nor could a several promise of performance of the 
 whole duty be implied. lb. * 
 
 If a joint promise, upon which an action at law may be sustained, can be implied, it must 
 be of such a shifting character, upon the happening of subsequent sales, as to show that it 
 can only be raised from the necessity of the ease, for the sake of a remedy. No such im- 
 plication can be raised, if the legatee can have any other relief; and the appropriate remedy 
 is in equity, where equitable jurisdiction over the subject matter exists. lb. 
 
 The duty devolving upon the holders of the land, in this case, would be performed by an 
 appropriation of the income, or so much of it as is necessary, at a reasonable place, by 
 either of them. But an offer of support by a devisee who had parted with his title, and 
 was not liable, would not bar the remedy. lb. 
 
 (a) In New York, even after condition broken. Farmers, &c. v. Edwards, 26 Wend. 641 
 
CHAP. XXYIII.] ESTATES ON CONDITION, ETC. 381 
 
 of a lease, he ought so to act, as to make it appear that Lc means to 
 insist on the forfeiture. (1) 
 
 22. A and B mutually agreed, that B would purchase a farm of A, 
 and, as a part of the consideration, convey to A another farm of less 
 value ; and that all timber, trees, &c., upon each estate, should be 
 valued and paid for by them respectively ; and, unless A should be 
 able to make a good title before a certain day, the agreement to be 
 void. A cut down divers trees. In a suit for the penalty annexed to 
 the agreement, held, A had disabled himself to perform his part of the 
 agreement by this act ; that such performance was a condition prece- 
 dent, and therefore A could not maintain the present action. (^) 
 
 2'6. A court of law cannot relieve against a breach of condition, or 
 restore the consideration paid by the party, upon whom such breach 
 operates as a forfeiture. 
 
 24. Thus, where one conve3's land upon condition subsequent, 
 which the grantee fails to perform, and the grantor enters for the 
 breach ; the grantee cannot recover back money paid by him as part 
 of the consideration. (3) 
 
 25. But, on the other hand, after such entry, the grantor cannot 
 recover the balance of the price.(-i) 
 
 25 a. A condition, in a deed of land subject to mortgage, that the 
 grantee shall indemnify the grantor from the principal and interest 
 secured by the mortgage, is broken by a failure to pay interest when 
 due ; and the grantor, on paying the interest, may immediatel)', with- 
 out a demand on the grantee for reimbursement, enter on the land for 
 breach of condition ; and a subsequent tender of the principal and in- 
 terest, accompanied by an offer to indemnify the grantor for any 
 trouble and expense to which he has been subjected, is no bar to a 
 suit to enforce the forfeiture.(5) 
 
 25 b. But the court will order a stay of proceedings, on payment of 
 the mortgage debt, interest and costs, provided the default was not 
 wilful.(6) 
 
 25 c. Conveyance in fee, upon condition that the deed should be 
 void, if the grantor and others paid certain notes at the times specified, 
 (the sum of said notes being the whole purchase-mouey, and the con- 
 sideration of the deed.) The grantee entered, and held without 
 hindrance, but the grantor did not pay the notes at the times specified. 
 Held, by non-performance of the condition, a forfeiture was saved, and 
 the subsequent payment of the notes could not destroy the convey- 
 ance. (7) 
 
 26. A court of law, however, will sometimes construe that which is 
 in form a condition, a breach of which forfeits the whole estate, into a 
 covenant, on which only the actual damage sustained can be recovered. 
 Conditions and limitations are not readily to be raised by mere infer- 
 ence and argument. The words usually employed to create a condi- 
 tion, are on condition. But the phrases so that, provided, if it shall 
 happen, are of the same import. Provided always may constitute a 
 condition, limitation or covenant, according to the circumstances. 
 
 (1) Jackson v. Crafts, 18 John. 110; Mer- 
 ritt V. Lambert, 7 Paige, 344 ; Tate v. Crow- 
 son, 6 Ired. 65. 
 
 (2) St. Albans v. Shore, 1 H. BI. 270; 
 Hard v. Wadham, 1 E. 619. 
 
 (3) Frost V Frost, 2 Pairf. 235. 
 
 (4) Ibid. 
 
 (5) Sanborn v. "Woodman, 5 Cush. 36. 
 
 (6) Ibid. 
 
 (7) Hodsdon v. Smith, 14 N. H. 41. 
 
382 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. XXTIIX. 
 
 And if words, both of condition and covenant, are used, both may 
 take effect.(i) 
 
 27. Bat, where the explicit words which denote a condition are 
 used, they will not be construed into a covenant. Thus, where one 
 conveyed a house, " on condition that no windows should be placed 
 in the north wall within thirty years," and windows were made 
 within that time ; held, this could not be construed as a covenant, 
 and the estate was wholly forfeited. And even where, for breach of 
 covenant, a forfeiture is incurred, a court of law has no power to stay 
 proceedings. (2) 
 
 28. Where a forfeiture has been incurred at law by breach of con- 
 dition, a coui't of Chancery will sometimes afford relief It was for- 
 merly held, that this could be done only where the condition is a sab- 
 sequent one ; bat it seems to be now settled, that in all cases a for- 
 feiture shall not bind, where the thing may be done after the time, 
 or a compensation made for it, and where the breach resalted from in- 
 evitable accident. And Chancery will relieve, even in favor of the 
 heir of the party who was to have performed the condition, and after 
 a recovery of the land, at law, by the heir from whom it was devised 
 away, on condition. (c>)(a) 
 
 29. A married woman, having a power to dispose of lands, devised 
 them to her executors to pay £500 out of them to her son ; provided, 
 that if the father did not release certain goods to the executors, the 
 devise of the money should be void, and it should go to the executors. 
 After the death of the testatrix, a release was tendered to the father, 
 which he refased to sign. The son brings a bill in equity against the 
 executors and the father, and the father answered that he was then 
 ready to release. It was decreed that the £500 should be paid. (4) 
 
 30. So, where one devises lands on condition to pay certain sums 
 at specified times to his heir, and for non-payment of one of them 
 the heir enters. Chancery will restore the land, on payment of the 
 sam with interest.(5) 
 
 31. Even where land is devised on condition of paying a sum of 
 money at a certain time, and upon non-payment devised over on the 
 same condition. Chancery will relieve. (6) 
 
 32. Devise to the two sons of the testator, "they jointly and sev- 
 erally paying to my two daughters $-jOO each, within one year from 
 
 (1) 4 Kent, 131-2 and n. ; Doe v. Phillips, 
 9 Muore, 46 ; Doe v. Watt, 8 Barn. & Cress. 
 308. 
 
 (2) Gray v. Blanchard, 8 Pick. 284 ; Doe 
 V. Asl>,y, 10 Ad. & El 71. 
 
 (3) i Kent, 120, 125; Popliam v. Bamp- 
 fleld. 1 Vern. 83; Cage v. Riissel, 2 Vern. 
 352; Baruardistone v. Fane, 2 Vera 366; 
 
 Wells V. Smith, 2 Edw. 15; City, Ac. v. 
 Smith, 3 Gill & J. 265 : Baxter v. Lansing, 7 
 Paige, 350 ; Bacon v. Huntinijton, 14 Conn. 
 92; Luekett v. Wliite, 10. Gill & J, 480j 
 Washhuni v. "Washburn, 23 Verm. 516. 
 
 (4) Ibid. 
 
 (5) Grimston v Bruce, 1 Salk. 156. 
 
 (6) Woodman v. Bhike, 2 Vern. 222. 
 
 (a) Cliancery relieves in ease of failure to pay rent, though the lease was thereby to be- 
 come void. In equity, it seems, an equitable agreement, tiioucrli in form of a clia?-g6, does 
 not forfeit, without ciiange of possession. But no relief is afforded to a lessee, who commits 
 a breach of covenant. Bowser v. Colby, 1 Hfire, 109. 
 
 It IS said. Ji/ne fixed for performance of a condition precedent is of the essence of the con- 
 tract, whether it be an hour or a day. Shinn v. Roberts, 1 Spencer, 435. 
 
 Wlisther the Supremo Court in Maine can afford equitable relief for breach of condition; 
 see Mavwick v. Andrews, 25 Maine, 525. 
 
CHAP. XXVIII.] ESTATES ON CONDITIOK, ETC. 883 
 
 my death." Held, this was not a legacy, but a condition — -the breach of 
 which forfeited the estate at law ; but also that Chancery would 
 relieve, notwithstanding the effect of the disposition was to make an 
 unequal distribution of the estate.(l) Hosmer, J., seems to place the 
 decision upon the ground that the condition was a subsequent one.(2) 
 
 33. But Chancery will not relieve against a breach of condition, in 
 those cases where there is no rule for the measure of damages, and 
 where the breach consists in a positive act directly in the face of the 
 condition ; as, for instance, where a lease contains a condition against 
 assignment, which the lessee violates. Nor will it relieve where, by 
 performing a condition precedent, the party would have the right to sue 
 at law ; though he has offered so to perforin. (3) It is said, equity can- 
 not control the lawful contracts of parties, or the law of the land. 
 And, in one case. Lord Eldon held, that rulief could be granted only 
 where the condition was to pay money. {A){d) 
 
 34. So, Chancery will not relieve against forfeiture of an estate, de- 
 clared at law, where the condition consists in the performance of ser- 
 vices and attentions, for the personal comfort and convenience of the 
 party claiming the forfeiture. In such case, the time for the perform- 
 ance of the service is of the essence of the contract ; it can never be 
 performed afterwards ; and it is impossible to put the party in the pre- 
 cise situation in whicli be would have been if the condition had been 
 performed. (5) 
 
 34 a. And, even if the forfeiture were declared, for breach of a con- 
 dition admitting of compensation, the court will not relieve, when the 
 party has been guilty of other breaches, for which a forfeiture might 
 be enforced at law, and when the court cannot feel confident that the 
 party would thereafter faithfully perform his covenant.(6) 
 
 3-i b. So, the insolvency of the party asking the relief affords a strong 
 reason why the relief should not be granted, where such insolvency 
 might, and probably would, prevent the due performance of the 
 covenants.(7) 
 
 34 c. And, when the covenants are for the performance of personal 
 services^ and the delivery, from time to time, of specific articles of pro- 
 duce and provisions, for the comfort and support of the covenantees,^ 
 and a forfeiture has been declared at law for a breach of conditions;' 
 the Court of Chancery have no power, upon a bill brought for relief, to 
 change the contract of the parties, and direct a certain sum to be paid 
 periodically, in lieu of the performance of the covenants stipulated. (8) 
 
 34 d. And, where the forfeiture, in such case, was taken for breach 
 of covenant to keep a suitable horse for the use of the covenantees, and 
 there had been no subsequent performance, or acceptance of perform- 
 ance ; held, a subsequent acceptance, by the covenantees, of the per- 
 
 (1) Wheeler v. "Walker, 2 Conn. 196-299. 
 
 (2) Ih. 301. 
 
 (3) Wafer D. Moeato, 9 Mod. 112; Rolfe v. 
 Harris, 2 Price, 207 u. ; Braoebridge v. 
 Buckl y, lb. 200 ; Uity, &o. v. Smitli, 3 Gil. 
 4 J. 2tl5 : Gouverueur v. Bibbj, 3 Edw. 3i8. 
 
 (4) Hill V. Barclay, 1 8 Yes. 63. See Blake 
 ■V. Slirieve, 5 Dana, 373. 
 
 (5) Dunkleei). Adams, 20 Verm. 415. See 
 Au.stint;. Raymond. 9 Verm. 420. 
 
 (6) lb. 
 
 (7) lb. 
 
 (8) lb. 
 
 (a) Where an order was passed upon a mortgagor to pay the debt between the hours of 
 11 and 12, and tlie mortgagee came to tlie place at 20 miuutes past 11 and waited an hour, 
 the mortgage was held loreclosod. 1 Coll. Cha. 273. 
 
384 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. XXTIII. 
 
 formance of otlier covenants, essential to their support, would not 
 operate as a waiver of the forfeiture, it appearing that a litigation was 
 pending at the time between the parties, in which the covenantees were 
 constantly insisting upon the forfeiture. (i) 
 
 S5. A covenanted, in 1799, to convey to B certain land, being gov- 
 ernment land, "on B being at one-half the expense, in land or other- 
 wise, for procuring a title," &c. This condition was the sole considera- 
 tion. A incurred the expenses in 1800, and gave notice to B in 1802, 
 but B paid no regard to it till 1806. In the meantime, the value of 
 the land increased tenfold. B brings a bill in equity against A for 
 specific performance. Held, the condition was a condition precedent, 
 and, upon various considerations, equity would not relieve. 1. B was 
 not bound by any contract ; and, therefore, if A had performed his part 
 of the agreement, he would have had no remedy against B. 2. As the 
 title to the land was in the government, and a survey necessary, the 
 expenses must necessarily be incurred; and they must also be paid in 
 procuring the title — merely reimbursing might defeat the whole object. 
 3. Hence this condition was not intended as a mere security, and the 
 breach was not a mere default in time, but it destroyed the substance of 
 the contract. 4. The act provided for was to be done for the benefit of 
 a third party, the owner of the land, and therefore the damage was not 
 susceptible of compensation. 5. The word " expenses" included time 
 and labor, which, from their very nature, could not be paid at any sub- 
 sequent period.(2) 
 
 36. Breach of a condition, annexed to a freehold, can be taken ad- 
 vantage of by the grantor or his heir, only by means of an entry upon 
 the land, for this express purpose, or, in some cases, a claim, which is 
 equivalent to entry; and it matters not, whether there is any express 
 provision for re-entry or not. In case of incorporeal or reversionary 
 rights, a claim is the only practicable mode. Where there is a forfeit- 
 ure to the government, an office, or writ of scire facias or quo warranto, 
 is equivalent to entry. (3) But the bringing of an action of disseizin 
 has no effect as a claim.{-i){a) In some instances of condition subse- 
 
 (1) Dunkle v. Adams, 20 Yerm. 415. See 
 Austin V. Raymond, 9 Term. 420. 
 
 (2) Hutrheson v. Ileirs, &e., Ohio Cond. R. 
 10. See Longstreet f. Ketoliani, Coxe, 170. 
 
 (3) Oo. Lit. 218 a; Fitcliet v. Adams, 2 
 Stra. 1128 ; Wigs? «■ 'Wigg, 1 Atk. 383 ; Gray 
 V. Blanciiard, 8 Pick. 284; Pinch v. Riseley, 
 Popn. 53; Doe v. Watt, 1 Mann. & By. G94; 
 
 Canal, &e. v. Railroad, &e., 4 Gill &' J. 121; 
 Willard v. Henry, 2 N. H. 120; People v. 
 Brown, 1 Gaines, 426; Spear v. Fuller, 8 N. 
 H. 174; Thompson v. Bright, 1 Cush. 420; 
 Cross v. Carson, 8 Blackf. 138; Bowen v. 
 Bowen, 18 Conn. 435. 
 
 (4) Chalker v. Chalker, 1 Conn. 79; Lin- 
 coln, &e. V. Drummond, 5 Mass. 321. 
 
 ' (a) It liaa been seen, that, in many of the States, the bringing of a suit is made equivalent 
 to re-entry, in case of non-payment of rent. In Ohio, tlie same provision applies to all 
 breaches of conditiou. (Walk. Intro. 297 ; Sperry v. Pond, 5 Ohio, 387.) In Massachusetts, 
 (Rev. St. 610,) in all cases, a title may be enlorced by action alone, without entry. In Ver- 
 mont, where A conveyed to B for the life of B and his wife, reserving to himself the right to 
 possess and cultivate the premises, for the purpose of enabling him lo perform certain cove- 
 nants upon his part, for the support of B and his wife; and B subsequently recovered judg- 
 ment in ejectment against A, for breach of those covenants, upon which no writ of posses- 
 sion was taken out; held, the judgment terminated A's right to possession, and, if he still 
 undertook to manage the farm, directly or indirectly, without some new license, he did so as 
 a wrong-doer, and acquired no right to the crops, as against B, or the holders of B's title. 
 Adams v. Dunklee, 19 Term. 382. Where a right of re-entry was reserved for breach of 
 covenant, upon giving notice of avoiding the conveyance ; held, a notice that there would 
 be a re-entry, unless the other party should do certain acta, was insufficient, being prospective 
 and conditional. Muskett v. Hill, 6 Bing. N. 694. 
 
CHAP. SSYIII.] ESTATES ON CONDITION, ETC. 385 
 
 quent, Chancery will decree a reconveyance of the land. Thus, where 
 a marriage settlement was made, on condition that if the wife, on 
 coming of age, should not charge her own estate with a certain sum, 
 the settlement should be void, and she refused so to do; a reconvey- 
 ance was decreed, with an account ot the rents and profits from the 
 time of refusal.(l) 
 
 37. Even where the condition provides that the estate shall be void 
 on non-performance, the estate is not defeated without some act or de- 
 claration of the grantor.(a) (But see sec. 41.) Thus, A granted to B a 
 license to enter upon his lands, and search for and dig nres for twenty- 
 one years, provided, that if he should cease to work the mine for six 
 months, or break any of his covenants, the said indenture and the 
 liberties, powers, &c., thereby granted, should cease, determine and be 
 utterly void and of no effect. Held, the word voi'c? should be construed 
 to mean voidable ; that, although no entry was necessary to avoid the 
 license, because it did not pass the land, yet, by analogy to the rule in 
 case of a freehold lease, the grantor should give notice of his intention 
 to avoid it; and that, until such notice, the right of possession, certainly 
 as against any one not claiming under the grantor, remained in the 
 occupant.(2) 
 
 38. So where a patent is granted, with the provision that on failure 
 to clear or pay rent, it shall ipso facto cease ; still the condition is sub- 
 sequent, and an adverse claimant is bound to prove a forfeiture. And 
 notwithstanding this form of expressing a condition, to save a forfeit- 
 ure, it will be fairly and liberally construed ; and a distinction made 
 between slight or accidental breaches, and those which are important 
 and wilful.(3)(6) 
 
 39. There are some cases, where an entry for breach of condition is 
 impracticable, or inconsistent with other rights, and therefore the law 
 does not require it. Thus, where A grants land to B, with livery of 
 seizin, for five years, on condition that, if he pay a certain sum within 
 two years, he shall have the fee, and B fails to make payment at the 
 time ; inasmuch as A has no right of entry till the five years expire, 
 the fee revests in him without entry or claim. So, where one grants 
 a rent-charge from his own land on condition, the rent becomes void 
 upon breach of condition, without entry or claim, because the grantor 
 
 (1) Hunt V. HuDt, Gilb. Rep. -iS ; Free, in 
 Cha. 387. 
 
 (2) Robe.rts v. Davey. 4 Barn. & Ad. 664 ; 
 Bowser v. Colby, 1 Hare, 109 ; Phelps v. 
 
 Chesson, 12 Ired. 194; Westera, i;o. v. Kyle, 
 6 Gill, 343. 
 
 (3) Sueed v. Ward, 5 Dana, 187 ; Cross v. 
 Coleman, 6, 446. 
 
 (a) But a deed of land upon condition that, unless the grantee should make certain pay- 
 ments, the deed should be " void, so far as to make good any non-fumimont of said condi- 
 tions," will entitle the grantor, on breach of condition, to recover possession of the land, to 
 hold as security for the performance of the conditions. Pisk v. Chandler, 30 Maine, 79. 
 
 (6) Conveyance by father to son, of one-third of his farm, upon which both resided, con- 
 ditioned to be Toid, if the grantee should refuse to pay the grantor $30, each year, if the 
 grantor should call for it. Held, the annual payments could not be consolidated and de- 
 manded together, after several years, but each must be demanded separately, at or about 
 the close of each year, and, if not, was waived, or relinquished, and no forfeiture incurred 
 by non-payment. Buokmaster v. Needhara, 22 Verm. 117. 
 
 The son, having been in possession with the father several years, removed, and left the 
 latter in sole possession, and afterwards mortgaged one-third of the farm. Held, the father's 
 possession should not be presumed to be adverse, even though so intended, as against the 
 validity of the mortgage, unless the mortgagee had notice of the adverse posBessioa. lb. 
 
 YoL. I. 25 
 
386 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. XXYIII. 
 
 is already in possession. For the same reason, if a grantee on condition, 
 before a'breach, lease the laud to the grantor, no entry is required to 
 revest the title in the latter. So a party, for whose benefit a condition 
 subsequent is attached to a devise of real estate, being in possession at 
 the time of the breach, is presumed to hold for the purpose of enfor- 
 cing the forfeiture. Such party may waive the forfeiture; and acts in- 
 consistent with the claim of forfeiture are sufficient evidence of a wai- 
 ver.(l) 
 
 40. But where the party who is to perform a condition, and the 
 party for whom- it is to be performed, are jointly in possession, it is 
 said the latter must make claim for a breach, by acts and words, or 
 either of them, such as will distinctly admonish the grantee that pos- 
 session will be retained for the breach, and not \\'aived. Complaints 
 are mere statements of a breach, not expressions of an intent to claim a 
 forfeiture. (2)(a) 
 
 41. AVhere the estate to which a condition is annexed is for years 
 only, and is to cease on the lessor's doing a certain act, no entry is re- 
 quired to determine it. Thus, if A lease to B for years, on condition 
 that if he pay B £10 the estate shall cease, upon such payment the 
 term i-pso facto, comes to an end.(3)(6) 
 
 42. As the benefit of a condition can be reserved only to the grantor 
 or lessor and his heirs, so no person could enter for breach of an ex- 
 press condition, at common law, except parties and privies in right and 
 representation — that is, the heirs, executors, &c., of individuals, or the 
 successors of corporations. Neither privies nor assignees in law, as 
 the lord by escheat, nor privies in estate, as reversioners and remainder- 
 men had a right of entry. (c) This rule, however, did not apply to im- 
 plied conditions — as, for instance, that against a tenant's attempting to 
 convey a greater interest than he himself had ; of the breach of which 
 an assignee might take advantage.(4) 
 
 42 a. The charter of Trinity Church was confirmed in 1704, by an 
 act which limited its clear income from lands to £500 a year. In 1705, 
 a tract of land was granted to it by the queen, which was leased for 
 £30 a year, for five years from that time. The land rapidly increased 
 in value, and the income and value became enormous. Held, on a bill 
 in which the church's title in fee was denied, that such an increase of 
 the income of the land would not divest the church of its title under 
 the grant, and, if it did, it could only be taken advantage of by the 
 
 (1) Lit. 350; Co. Lit. 218 a; Lincoln, &o. 
 V. Drummond, 5 Mass. 321 ; Hamilton v. El- 
 liot, 5 S. & R. 315. See Watenby v Moran, 3 
 Call, 491 ; Andrews v. Senter, 32 Maine, 
 394. 
 
 (2) "Willard v. Henry, 2 N. H. 122. 
 
 (3) Plow. 142 ; Bro. Abr. Gonditim, 83. 
 (4; Lit. 347 ; Co. Lit. 215, a. See infra, see. 
 
 46 : 2 Cruise, 31. 
 
 (a) Upon tlie same principle, a breach of condition must, in general, consist in some act, 
 not in a mere declaration. Tims, wliere tlie condition is that certain persons shall have the 
 use and oecupationof a room : mere denialof the right isno breach — there must be a shutting 
 up of the room, or some similar act. 1-logeboom v. Hall, 24 Wend. 146. 
 
 (6l But where a lense is made, upon the condition that the lessee, at the end of each year, 
 should give bond, witli surety, for the rent of the succeeding year, a failure to comply with 
 the condition will not work a forfeiture, unless the landlord make a demand of performance 
 at the end of the year. Tate v. Crowson, 6 Ired. 65. 
 
 (c] Kur has it creditor of one of the heirs of the grantor, any remedy against the land, 
 unless it be by an execution at law, against that portion of it which may belong to such 
 heir, alter the right of entry shall have been exercised. Cross v. Carson, 8 Blackfi 138. 
 
CHAP. XXVIII.] 
 
 ESTATES ON CONDITION, ETC. 
 
 887 
 
 sovereigu, and not by one claiming a title hostile to tlie corporation, 
 and to the sovereign.(l) 
 
 42 h. A statute provided, that a diversion of salt-works, to other pur- 
 poses than the manufacture of salt, should work a forfeiture of lease- 
 hold estate. Held, a partial diversion of a lot could not be taken ad- 
 vantage of by a subsequent holder of the leasehold estate, under an 
 agreement for an exchange of it for other lands, for the purpose of 
 avoiding such agreement, after he had quietly occupied the premises 
 for several years, and the other party had made large improvements on 
 the land received by him in exchange ; such partial diversion being 
 known to him at the time of making the agreement, and the statute 
 making a diversion a forfeiture being a public law, of which he was 
 bound to take notice, and where such forfeiture, if any, had been 
 waived by the people, and a renewal of the lease granted. (2) 
 
 43. A condition may be of such a nature that, although relating only 
 to the grantor himself, and not broken during his life, there may be a 
 breach after his death, of which the heir may take advantage. 
 
 44. A man granted land to A, his child, on condition that A should 
 support him, pay his debts, and save him from any trouble or cost on 
 account of them, with a clause of re-entry. After the father's death, 
 B, another child, presented a debt of the father to A for payment, 
 which was refused. Whereupon B brings ejectment for a share of the 
 land as an heir at bw. Held, the action would lie, though this debt 
 had subjected the father to no cost, &c. — that clause in the condition 
 being operative only during his life.(8) 
 
 45. A condition, by means of a descent, may be disannexed from the 
 estate with which it was originally connected. Thus, although the land 
 itself may descend to such special heirs, as claim through the ancestor, 
 from whom it came to the deceased ; the condition, being reserved to heirs 
 generally, will pass to the heirs at common law. But, after the latter 
 have entered for condition broken, the former may re-enter upon them. 
 Where the condition descends to one heir only, as heir at common law, 
 but the estate descends to beveral — as in the English gavelkind — after 
 entry by the former, the rest shall enjoy the estate with him. (4) 
 
 46. At common law, as has been stated, (sec. 42,) where a reversioner 
 assigned his reversion, the assignee could not avail himself of any con- 
 ditions annexed to the particular estate. The conditions were regarded 
 as rights in action^ which, by the policy of the law, were not assignable. 
 But,' by St. 32 Hen. VIII, c. 34, the assignees of reversions are placed 
 on the same footing, in regard to conditions and taking advantage 
 thereof, as the original lessors.(a) 
 
 47. An assignee oi part of the land is not within the statute ; but an 
 assignee oi part of the reversion is.(6) The statute does not apply to one 
 
 (1) BofrardusD. Trinity &o, 4 SandC Oh. 633. 
 
 (2) Hasbrook •;. Pad'docli, 1 Barb. 635. 
 
 (3) Jackson v. Topping, 1 Wend. 388. 
 
 (4) Paine v. Samms, 1 And. 184 ; Clere v. 
 Peoock, 2, 22 ; Rob. Gav. 119 ; Godb. 3. 
 
 (a) Lease from a company, with condition of re-entry. The company being afterwards 
 incorporated, with a provision that all contracts, Ac, with the company should be valid ; 
 held, tlie corporation miglit avail itself of the condition. Doe v. Knebell, 2 Carr. & K. 66. 
 
 (h) Thus, if a lease be made of three acres, and tlie reversion of two of them granted 
 away, although the rent will be apportioned, the condition is destroyed, being entire and 
 agailist common right. 2 Cruise, 22. But if the reversion is granted for years, the grantee 
 may avail himself of a condition. Co. Lit. 215, a. 
 
388 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. xxvm. 
 
 who comes to the estate hy law, as, for instance, by escheat ; because 
 the language of it implies, that the assignee must be either an assignee 
 to, or by, the reversioner, claiming either in the^er or ihepost — that is, 
 one who comes in by act and limitation of the party. It seems, how- 
 ever, that a tenant by the curtesy, or in dower, although claiming by 
 law, is within the statute ; being in hy the wife or the husband. Al- 
 though the words of the statute are " for non-payment of rent, or for 
 doing waste, or other forfeiture," yet an assignee can take advantage of 
 such conditions only as are incident to the reversion — like those per- 
 taining to rent ; or such as are for the benefit of the estate — like those re- 
 lating to waste and repairs ; and not those merelj^ personal — as for the 
 payment of a sum in gross.(l) 
 
 48. It seems, that, in some cases, the party upon whom a condition 
 is imposed may himself take advantage of it, to avoid his own act. 
 Thus, it has been held, that where there is a lawful condition against 
 alienation, under a certain age, if a deed be made before reaching this 
 age, and a Fecond after, the first is void, and the last valid. (2) 
 
 49. Entry for condition broken has the effect of entirely defeating 
 the estate of the grantee, and restoring the grantor to the same title, 
 which he had before the conveyance was made. It constitutes a para- 
 mount claim, and operates by relation, so as to avoid all' intermediate 
 rights and incumbrances. Thus, although the widow of a conditional 
 grantee has dower, yet an entry for breach of condition will destroy 
 this right. And, whether made before or after the husband's death, it 
 seems, will make no difrerence.(3)(a) 
 
 50. There are, however, some exceptions to this princip]e.(4) 
 
 51. A condition may be waived by the acts of the party for whose 
 benefit it was created, and, after being once dispensed with, can never 
 afterwards be enforced. Thus, where land was conveyed on condition 
 of paying a certain annuity, and, after a failure to pay, the annuitant 
 accepted the annuity ; held, a perpetual waiver of the condition. So, 
 a receipt by the lessor of rent, accruing after acts of forfeiture by the 
 lessee, which are known to the lessor, is a waiver of the forfeiture.(5)(6) 
 
 52. A father conveyed an estate to his son, on condition, that unless 
 the son maintained his parents and brother in a specified manner, and 
 pro{)erly cultivated the land, the conveyance should be void for the 
 whole land during the lives of the parents, and as to one-half ol the 
 land forever. The father having died, his widow claimed her dower 
 
 (5) Clarke v. Cummings, 5 Barb. 339 ; 
 Chalker v. Chalker, 1 Conn. 79. See Enfield 
 &c. V. Connecticut, &c , 1 Conn. 45 ; Dickey 
 V. M'Cullougli, 2 Watts & S. 100; Bayley v. 
 Homan, 5 Mann. & G-. 94; Thompson v. 
 Bright, 1 Gush. 420 ; Western, &c. v. Kyle, 6 
 Gill, 343 ; Conkling v. King, 10 Barb. 312. 
 
 (1) Co. Lit. 215 a; Hill v. Grange, Plow. 
 161. 
 
 (2) Dougal V. Fryer, 2 Misso, 40. 
 
 (3) Lit. 325; Co. Lit. 202 a; Ann May- 
 owe's case, 1 Rep. 147 b; 1 Rolle's Abr. 
 474. 
 
 (4) Co. Lit. 202 a. See Litchfield f. Ready, 
 1 Kng. L. & Equ. 460. 
 
 (a) So, whore lands bought from the government are forfeited for breach of condition, the 
 widow has no dower. Rodgers v. Eawlings, 8 Por. 326. One holding a life estate leased 
 to the remainder-man for tlie life of the lessor, on condition to be avoided for non-payment 
 of rent; and alterwards entered (or breach of condition. Held, this defeated any claim for 
 dower by the lessee's widow. Beardslee v. Beard.slee, 5 Barb. £24. 
 
 (b) One tenant in common devised to another, on condition ho would convey to his 
 daughter a part of the hind. No conveyance was made, but the dpugliter for a lotig time 
 occupied the land. Held, there wag no forfeiture. Plummer v. Neile, 6 Walts & S. 91. 
 
CHAP. XXVm.J ESTATES ON CONDITION, ETC. 389 
 
 instead of the support thus provided for her, and the son transferred 
 the land to another person. After the father's death, the mother was 
 well supported, but neither she nor the father was supported in the 
 manner pointed out by the deed, nor was the land well cultivated. 
 The son, however, had always remained in possession, with his parents, 
 and they had accepted the support which he gave them, often com- 
 plaining that the condition was not fulfilled, but never making formal 
 entry or claim for a breach. Held, these facts showed a waiver of the 
 condition.(l)(a) 
 
 52 a. The owner of land made a deed of a small parcel thereof, with 
 a house thereon, reserving to himself the privilege of a bridle road in 
 front of the house, and not to be at any expense in supporting a fence 
 around the land conveyed ; and whenever the grantee, his heirs or 
 assigns, should neglect or refuse to support the fence, then the deed to 
 be void ; and subsequently conveyed the residue to one who removed 
 the fence without replacing it, and reconveyed such residue to the 
 grantor, who afterwards entered upon the small parcel, claiming a 
 forfeiture thereof for breach of the condition. Held, the condition, if 
 not merely personal, being designed to benefit the grantor, as owner of 
 the residue of the lot, attached to such residue, and passed to the 
 grantee thereof, whose removal of the fence was an extinguishment or 
 waiver of the condition ; which, being thus determined, could not be 
 revived by the reconveyance. And, the reconveyance having been in 
 mortgage, held, further, it was immaterial in this respect, whether the 
 removal of the fence took place before or after the execution of the 
 mortgage. Held, also, until reasonable notice given, or request made, 
 and neglect or refusal of the grantee, to replace the fence, there was no 
 neglect or refusal to support the fence, within the terms of the condi- 
 tion.(2) 
 
 53. A condition may be destroyed by a release or discharge, which 
 may be made either to the grantee or his assignee, if there be one. 
 And where the grantee has limited the estate to one for life, remainder 
 in fee, a release to the tenant for life will enure to the benefit of the 
 remainder-man. It is held, that if the conditions of a deed have not 
 been performed, the whole estate, legal and equitable, will revert to the 
 grantor or his heirs, unless there is proof of such an agreement, or 
 specific acts amounting to evidence of such an agreement, on the part 
 of the grantor, or his heirs, as would entitle the grantees to a discharge 
 of the condition.(3) 
 
 64. Accord and satisfaction is a legal equivalent for performance of a 
 condition precedent. So, where an act is to be done at a certain time, 
 
 (1) "Willard V. Henry, 2 N. H. 120. I (3) Co. Lit. 291 b, 291 b; Dolan v. Mayor 
 
 (2) Merrifield v. Cobleigh, 4 Cush. 118. \ kc, 4 Gil), 394. 
 
 (a) It has been held, that forfeiture of a condition is not waived by parol assent or silent 
 acquiescence, nor by an offer to accept immediate payment. Jackson v. Crysler, 1 John. 
 Cas. 125 ; Gray v. Blanohard 8 Pick. 292 ; Hutcheson v. M'Natt, 1 Ham. 21. It is only 
 where rent is paid which accrued after a forfeitiire, that the acceptance of such pS^ment is 
 considered an affirmance of the lease, and a waiver of the forfeiture. Hunter v. Osterhoudt, 
 11 Barb. 33. A condition cannot be waived by the reversioner, after he has parted with 
 his reversion. Comroyns v. Latimer, 2 Plori, 71. Performance of a condition may be pre- 
 sumed from lapse of time. Pox v. Phelps, 17 Wend. 393 ; 20, 437. 
 
390 
 
 ESTATES ON CONDITION, ETC. 
 
 [CHAP. X2VIII. 
 
 or on demand, an acceptance of the act after the time, or on a second 
 demand, as and for a performance, will save the forfeiture.(l) 
 
 55. A condition is to be distinguished from a limitation. The latter 
 requires no entry to terminate the estate, but terminates it ipso facto, by 
 the mere happening of the event referred to. Thus, if A grant an 
 estate to B till the death of C, B's estate immediately comes to an end 
 upon the death of C.(2) 
 
 56. So, if a man makes a lease for a hundred years, if the lessee lives 
 so long, upon the lessee's death the estate revests in the grantor without 
 entry. And a grantee of the reversion might always take advantage 
 of a limitation, though not of a condition. 
 
 57. Where a condition subsequent is followed by a limitation to a 
 third person, upon non-fulfilment or breach, this is a conditional limita- 
 tion. Words of limitation mark the period which is to determine the 
 estate, but words of condition render it liable to be defeated in the in- 
 termediate time. The one specifies the utmost time of continuance ; 
 the other marks some event, which, if it takes place during that time, 
 will defeat the estate. A life estate given in the prior part of a will 
 may well be determined, by an apt limitation over, contained in a sub- 
 sequent part. 
 
 58. A conditional limitation is of a mixed nature. Thus, if an estate 
 be limited to A for life, provided, that when C returns from Rome, it 
 shall thenceforth remain to the use of B in fee ; this is a condition, be- 
 cause it defeats the estate previously limited, while it is also a limita- 
 tion, because no entry is required to take advantage of it. Such a dis- 
 position can be made, in general, only by will or a conveyance to uses. 
 But in New York it may be made by common law conveyanee.,(3) 
 
 (1) Eioharda v. Carl, 1 Ind. 313 ; Hogins 
 V. Arnold, 15 Pick, 259 ; 5 Mann. & a. 94. 
 
 (2) Co. Lit. 214 b ; Coppage v. Alexander, 
 2 B. Monr. 316. 
 
 (3) 4 Kent, 121-3 ; 1 N. Y. Rev. St 725 ; 
 
 Cogan V. Cogan, Cro. Eliz. 360 ; Stearna v. 
 Godfrey, 16 Maine, 158; Doe v. Crisp, 8 Ad. 
 & Ell 779; Eochford v. Haokman, 10 Eng. 
 L. & Equ. 64. 
 
CHAP. XXIX.] MORTGAGE— NATURE, FORM, EFFECT, ETC. 
 
 S9i 
 
 CHAPTER XXIX. 
 
 MORTGAGE— NATURE, FORM AND EFFECT OF A MORTGAGE. 
 
 1. Definition and liibtory of mortgages. 
 
 2. Riglit of redemption. 
 
 5. In fee or for years. 
 
 6. Deed and defeasance. 
 
 20. What constitutes a mortgage in Chan- 
 cery. Parol evidence. 
 23. Personal liability of mortgagor; whether 
 
 28. 
 
 46. 
 
 implied in a mortgagee, or necessary 
 to constitute one. 
 
 Right of redemption cannot be re- 
 strained ; mortgage and conditional 
 sale, distinction between. 
 
 Power to sell, given to a mortgagee. 
 
 1. A MORTGAGE is a conditional conveyance of land, designed as secu- 
 rity for the payment of money or performance of some other act, and 
 to be void upon such payment or performaoce.(a) The name is de- 
 
 (tt) By the English law, there are two kinds of estates, held as security for the repayment 
 of money; the one acquired by some legal and compulsory process; the other voluntarily 
 conveyed by the debtor to the creditor. Those of the first kind are called estates by statute 
 merchant, statute staple and elegit. By the feudal law, the lands of a debtor were not liable 
 to be taken by legal process, except in the hands of his heir; upon the ground that he 
 ■would thereby, as by a voluntary alienation, be disabled from performing his feudal services. 
 But in the reign of Edw. I., in consequence of great complaints from foreign merchants as 
 to the difficulty of recovering their debts ; a statute was passed, providing that the debtor 
 of any merchant might be summoned before a certain prescribed tribunal, to acknowledge 
 the debt, under his own and the king's seal, and have a day fixed for payment ; and if pay- 
 ment were not then made, that by an immediate execution all his lands should be delivered 
 to the merchant, to hold until the debt was wholly levied. This species of security was 
 called a statute merchant. Statute staple is a security of a similar nature to the one above 
 described, and is defined as a bond of record, acknowledged before the mayor of some tra- 
 ding town, (sometimes called estaple or staple,) and attested by a public seal. Under this 
 sealed obligation, execution might be obtained against the lands of the debtor, in tlie same 
 manner as under a statute merchant. Although these securities were originally intended 
 for the benefit of merchants only, yet, on account of their cheapness and coovenience, they 
 became generally adopted, until in tlie reign of Hen. VIII, an act was passed, restricting 
 statutes staple to merchants. The same statute, however, created a new kind of security, 
 called a reco'gnizance in the nature of a statute staple, being a bond acknowledged before cer- 
 tain judges or magistrates, and enrolled ; upon whicli the same advantages may be had as 
 upon a statute staple. 
 
 Another compulsory security for payment of debts was provided by St. 'Westmin. 2, 13 
 Edw. I, ch. 18, which authorized a judgment creditor to elect, either to have a writ a! fieri 
 facias, to be levied upon personal property, or else tliat the debtor should deliver him all 
 his chattels, with certain exceptions, and one-half his lands, until the debt was levied, upon a 
 reasonable price or extent. From this right of election, the new execution provided as above 
 derived the name of elegit. The effect of the statute was, that a judgment became a lien 
 upon the debtor's lands. So, also, a debtor, upon executing a bond for the delit, may also 
 give a, warrant of attorney, authorizing some attorney of the court to acknowledge a 
 judgment for the money, upon which acknowledgment an elegit may issue, as in case of an 
 adversary suit. Tarioua statutes have been passed, requiring judgments to be docketed, 
 registered or recorded, in order to give them priority of lien over subsequent transfers or 
 incumbrances. "When a writ of elegit is sued out, the sheriff empannels a jury, upon whose 
 appraisal he sets out and delivers a moiety of the debtor's lands to the plaintiff, by metes 
 and bounds. All estates in fee-simple may be thus taken; so, a reversion, an estate tail, 
 a rent-charge, a term for years. This last may also be sold as personal property. Although 
 the estate acquired by the creditor is uncertain as to duration, being determinable only on 
 payment of tiie debt, yet it is but a chattel interest, which passes to executors. The se- 
 curity follows the claim secured. 
 
 These are the general rules of the English law, relating to estates held by compulsory 
 process for payment of debts. They are practically of little consequence in the United 
 States, because each State has for itself, by minute statutory provisions, regulated the subject 
 of levying or extending executions upon real property, a summary view of which will be 
 given in a subsequent portion of this work. 
 
 The subject of estates, voluntarily conveyed to a creditor as security, is considered in the 
 text. 
 
392 
 
 MORTGAGE— NATURE, 
 
 [CHAP. XXIX. 
 
 rived from the fact, that by the old law, where land was thus conveyed, 
 unless the condition was performed at the day, the estate became dead 
 or extinct.(a) A mortgage was in fact a feoffment upon condition, or 
 the creation of a base or determinable fee, with a right of reverter at- 
 tached to it. The debt was required to be tendered at the time and 
 place prescribed ; and, in general, the strict rules of law pertaining to 
 conditions were rigidly enforced in relation to mortgages.(l)(&) 
 
 2. At an early period, (c) however, the Court of Chancery interfered 
 to relieve against the hardship of an absolute forfeiture, upon payment 
 of the debt, with interest and costs, if made in a reasonable time after 
 the day appointed. Chancellor Kent remarks, " the case of mortgages 
 is one of the most splendid instances in the history of our jurispru- 
 dence, of the triumph of equitable principles over technical rules, and 
 of the homage which those principles have received by their adoption 
 in the courts of law."(2) 
 
 8. It was at first held, that the mortgagor had not the right of re- 
 acquiring his estate, as against those holding the estate of the mortgagee 
 in the post, as, for instance, the widow having a right of dower, or the lord 
 the right of escheat. But this distinction in favor of parties thus hold- 
 ing the land has long been wholly done away. (3) 
 
 4. The mortgagor's right to regain his estate by application to the 
 Court of Chlncery, after breach of condition, is called an equity of 
 redemption ; and the same phrase is generally, though it would seem 
 somewhat inaccurately, used, to express the interest remaining in the 
 mortgagor, even before breach of condition. But in the Statutes of 
 North Carolina and Florida, the distinction between these two kinds of 
 estate seems to be carefully observed ; the former being entitled an 
 equity of redemption, and the latter a legal right of redemption. {4) 
 
 5. A mortgage may be made by a conveyance either in fee or for 
 years. The latter form is rarely adopted in the United States. In 
 
 (1) "Wade's case, 5 Co, 114; Goodall's caee, 
 5 Co. 95; Lit. sec. 332; Co. Lit. 210 b; 4 
 Kent, 139; Parsons v Welles, 17 Mass. 421 ; 
 Pride t) Boyce, Rice, 275; Loyd «. Currin, 3 
 Humph. 462. See Cliaptnan v. Turner, 1 
 Call, 252; Coote, 139; Hebron v. Centre, 
 Ac, 11 N. H. 571; Montgomery!/. Bruere, 
 
 1 South. 268 ; Lull v. Matthews, 19 Vera. 
 322. 
 
 (2) 4 Kent, 168. See Clapp v. Titus, 9 
 Term. 211. 
 
 (3) 2 Cruise, 79-80. 
 
 (4) 1 N. C. Rev. St. 266 ; Thomp. Dig. 355 ; 
 State V. Laval, 4 McCord, 340. 
 
 (a) This is the chief point of distinction between the morfoium vadium or mortgage, and 
 the vivum vadium, or living pledge, which was used in the early periods of the English law, 
 but is now for the most part obsolete. It wag a conveyance ol land.s by debtor to creditor, 
 to hold till the rents and profits should amount to the sum borrowed, and then revert to the 
 borrower. See Poindexter v. M 'Cannon, 1 Bad. & Dev. Equ. 377; Thayer v. Mann, 19 
 Pifk. 538 ; Coote, 41, 43, 207, 222, 223 ; Teulon T. Curtis, Tounge, 619. As to the form 
 of the condition of a mortgage, see Skinner v. Cox, 4 Dev. 59; Stewart v. Hutchins, 6 Hill, 
 143 ; Palmer v. Guriisey, 7 Wend. 248 ; Cooper v. Whitney, 3 Hill, 95 ; Baldwin v. Jen- 
 kins, 23 Miss. 206 ; Cotterell v. Long, 20 Ohio, 464. 
 
 (6) The ancient law, however, which maybe considered as still in force, was as rigid in pro- 
 tecting the rights of the mortgagor, where he was guilty of no neglect, as in decreeing an 
 absolute forfeiture for the slightest non-compliance with the condition of the mortgage. 
 Thus, if a legal tender of the mortgage debt is made at the day and refused; the land is 
 forever discharged of the incumbrance, though the debt remains. Swett v. Horn, 1 N. H. 
 332, 333. See Merritt v. Lambert, 7 Paige, 344; Edwards v. Ins. Co., 21 Wend. 476; 26 
 lb. 541 ; Arnot v. Post, 6 Hill, 65; Smith v. Kelley, 27 Maine, 237. 
 
 (c) When this was; see Roscarrick v. Barton, 1 Cha. Cas. 219; Hale's History of Com- 
 mon Law, ch. 3; Rot. Pari, vol. 3, p. 258; Emanuel, &o. v. Evans, 1 Cha. Rep. 10; 2 
 Cruise, 62. 
 
CHAP. SXIX.] 
 
 FOEM, EFFECT, ETC. 
 
 393 
 
 Missouri, mortgages of leaseholds for more than twenty years are treated 
 like mortgages of estates in fee.(l)(a) 
 
 6. A mortgage may be made by an absolute deed, and a &/ea5a7ice(J) 
 back, instead of a single conditional deed. In England, this form of 
 mortgage has been regarded unfavorably by the courts, as indicating 
 fraud, and injurious to the mortgagor; because the defeasance might 
 be lost, and an absolute title set up.(2) 
 
 _ 7. The statute law, in many of the United States, expressly recog- 
 nizes this form of mortgage ; and, as deeds are universally registered, 
 the inconveniences above suggested are less serious here than in Eng- 
 land. In Delaware, the statute speaks of " a defeasance, or a written 
 contract in the nature of a defeasance, or for reconvevance of the pre- 
 mises, or any part thereof" In Rhode Island, of a bond of defeasance, 
 or other instrument which creates a mortgage or redeemable estate. 
 Similar terms are used in New Jersey and Illinois; in the former of 
 which States, any luriting may be a defeasance; but, ordinarily, the 
 ■word defeasance only is used. In New Hampshire, the condition of the 
 mortgage must be contained in the deed itself.(c) By the Eevi.-ed 
 Statutes, a mortgage is defined, as a conveyance to secure payment 
 of money, or performance of any other thing stated in the conditions 
 thereof. In Florida, all writings of conveyance to secure payment of 
 money are mortgages.(3) 
 
 8. It is thegeneral rule, that the defeasance shall be a part of the 
 same transaction with the conveyance. A conveyance must be a mort- 
 gage at the time of its inception; it never can become such by any subse- 
 quent act of the parties. If there ever was a moment when it could be 
 considered only as an an absolute estate, it must ever remain so. But 
 provided both instruments are parts of one transaction, the defeasance 
 
 (1) Jfisso. St. 410. See Wheeler w.Monte- 
 fiore, 2 Ad. k Ell. N. 133; Edwards v. 
 Jones, 1 Coll. Cha. 247; Coote, 156, 157; 
 Phipps V. Budd, 2 Eng. L. k Equ. 137; 
 Kearney u. Post. 1 Sandf. 105; Budeley v. 
 Massey, 6 Eng. L. k Equ. 356. 
 
 (2) (^otterell v. Purchase, Forr. 63 ; Sel. 
 Cas. in Cha. 9; Wright v. Bates, 13 Verm. 
 341 ; Harrison v. Lemon, 3 Blackf. 52 ; Kelly 
 V. Tho iipson, 7 Watts, 401 ; Holmes v. G-rant, 
 8 Paige, 243; Miller u. Hamblet, U Verm. 
 
 499 ; Jaques v. Weeks, 7 Watts, 261 ; Cham- 
 bers V. Hise, 2 Dev, k B. 305; Waters v. 
 Randall, 6 Met. 479; Manufrs., &o. v. Bank, 
 Ac, 7 W. & S. 335 ; Scott V. McFarland, 13 
 Mass. 309, 
 
 (3) Lund V Lund, 1 N. H. 39 ; Erskine v. 
 Townsend, 2 Mass. 493 ; Wright, 44 ; Dela. 
 St. 1829, 91 ; E. I L. 204; 1 N. J. L. 464 ; 
 lUin. Eev. L. 131; N. H. Eev. St. 245; 
 Thomp. Dig. 376; N. J. Eev. Sts. 658. 
 
 (a) A lease for years by indenture, in which the lessor acknowledges the receipt in ad- 
 vance of a certain sum, in full for rent during the term, and the lessee covenants to re- 
 convey on repayment thereof with interest, is a mortgage, and subject to the same privi- 
 leges with a mortgage of the freehold. Nugent v. Riley, 1 Met. 117, So, also, though 
 executed only by the lessor, if the lessee accepts and takes possession under it. lb. 
 
 In such case, though there is technically no covenant by the lessee, upon which an action 
 will lie, yet, if he underlets and receives rent during the term, to the full amount of hia 
 payment, with interest, his estate for years thereby ceases, and the lessor is restored to hia 
 old title. If he receives more than that amount, the surplus is received by him, not as 
 mortgagee, but for the lessor, who may recover it in an action for money had and re- 
 ceived, lb. 
 
 (6) See Defeasance, vol. 2. To defeat a deed, it must, in general, be itself a deed, or an 
 instrument under seal. Whether a defeasance is necessarily under seal, see 22 Pick. 526 ; 
 Parsons v. Mumford, 3 Barb, Cha. 152 ; Moore v. Madden, 2 Eng. 530. 
 
 (c) Reference to a bond, made with the deed, and containing the condition, is a substan- 
 tial compliance with the statute. Bassett v. Bassett, 10 N. H. 64, See Lifft v. Walker, 
 lb. 150. 
 
394 
 
 MORTGAGE— NATURE, 
 
 [CHAP. XXIX. 
 
 may be dated after the deed. In Maine, they must bear the same 
 date.(l) 
 
 9. So, a condition may constitute a mortgage, if written on the back 
 of an absolute deed, though without signature or seal.(2) 
 
 10. Where one conveys land for a certain consideration, and the 
 grantee covenants to reconvey, on payment of that sum, within one 
 year, this is a mortgage, notwithstanding parol evidence that the parties 
 intended otherwise.(3) 
 
 11. But a covenant by the grantee, to reconvey at an agreed price, 
 unless certain improvements shall be commenced within .a given time, 
 is not a condition.(4) 
 
 12. A conveys land to B, who, two years afterwards, gives A a bond 
 to convey the land to the wife of A, upon payment of certain notes. 
 Held, no mortgage ; and parol proof is inadmissible, that B agreed to 
 A's keeping possession, that the deed was given as security, and the 
 bond not made at the time, merely because the amount due upon the 
 notes was not then ascertained.(5) 
 
 * 13. A gave to B the following receipt or acknowledgment: "this day 
 
 received of B a deed of, &c., for and in consideration of ■ dollars, 
 
 paid by my recognizance, and other demands against him ; if on final 
 settlement a balance shall be due him, I agree to pay it or reconvey 
 to him, on being repaid for my advances and trouble ; and I will re- 
 turn all that the land brings, besides repaying me." A afterwards sold 
 the land. Held, this did not constitute a mortgage ; that B had no 
 interest, liable to his creditors, or which a court of equity would re- 
 cognize, inasmuch as A had his election, either to reconvey the land 
 or pay the surplus balance, and had elected the latter bv conveying 
 the land.(6)(a) 
 
 (1) Lund V. Lund, 1 N. H. 41 ; Harrison v. 
 Trustees, &c., 12 Mass. 456; Bod well v. 
 "Webster, 13 Pick. 413; Kelly v. Thompson, 
 T "Walts, 401 ; Me. Rev. St. 653 ; 2 Greenl. 
 Cruise, 81 n. See Preeman v. Baldwin, 13 
 Ala. 246 ; Kerr v. Gilmore, 6 Watts, 405 ; 
 Brown v. "Wright, 5 Terg. 57. 
 
 (2) Stocking v. Fairchild, 5 Pick. 181; 
 Perkins v. Dibble, 10 Ohio, 433; Baldwin o. 
 Jenkins, 23 Miss. 206. 
 
 (3) Colwell V. "Woods, 3 "Watts, 188; Ham- 
 mond V. Hopkins, 3 Yerg. 525 ; Cooper v. 
 "Whitney, 3 Hill, 395. 
 
 (4) Cunningham v. Harper, "Wright, 366. 
 See Humphreys v. Snyder. 1 Morr. (Iowa) 
 263; Davenport v. Bartlett, 9 Ala. 179. 
 
 (5) Bennock v. "Whipple, 3 Pairf. 346 ; 
 Lund V. Lund, 1 N. H. 39. 
 
 (6) Puller V. Pratt, 1 Pairf. 197; Holmes 
 
 (a) If such a deed recites, as its consideration, an indebtedness of the grantor, which is 
 not discharged ; and is given by one trustee to another for the benefit of the ceshd, to whom 
 the debt is due; and contains a limitation over upon his death ; and is subject to being dis- 
 claimed by the cestui upon coming of age; still it is not a mortgage. Eckford v. De Kay, 
 26 Wend. 29. 
 
 "Where an absolute deed is given, but intended as a mortgage, it is void as against credi- 
 tors, &c., although afterwards the parties agree that the grantee have the whole title, and 
 the full value of the land is paid to creditors, according to contract. So, although a second 
 delivery is made of the deed; because, the title having once passed, it cannot thus be di- 
 vested. Halcombe v. Ray, 1 Ired. 340. A conveyance signed by both grantor and grantee, 
 and providing that the grantee shall sell the property, pay debts due him from the proceeds, 
 and the surplus to the grantor; constitutes a trust, in the nature of a mortgage. Cross v. 
 Coleman, 6 Dana, 446. 
 
 An absolute deed was made to a creditor, with the understanding that he should pay his 
 own debt, indemnify himself against his liabilities, and satisfy other creditors, and pay the 
 balance to the debtor's wife and children. Held, the transaction was a mortgage as to the 
 debt of the grantee, and a trust for tlie balance. McLanahan v. MoLanahan, 6 Humph. 99. 
 
 A conveyance to a trustee, with power to sell, pay a debt from the proceeds, and deliver 
 
GHAP. XXIX.] FORM, EFFECT, ETC. 395 
 
 14. A bond delivered to a third person as an escrow, will not consti- 
 tute a defeasance, unless the condition on which it is to be delivered 
 to the obligee is performed. 
 
 15. A, having borrowed money from B, conveys land to him. B 
 signs a bond of defeasance, which, by mutual agreement, is left with C, 
 to be delivered by him to A, if A repay the money borrowed within a 
 certain time. The time having elapsed, without repayment, delivers 
 the bond to B. Held, although, if A had repaid the money within the 
 time, the bond would have operated as a defeasance by relation to the first 
 deliyery, yet, as B held no security for the money, the transaction did 
 not Constitute a mortgage.(l) 
 
 16. In general, a defeasance must be recorded or registered. Omission 
 to register the defeasance makes the conveyance absolute as to all per- 
 sons but the parties and their representatives, and those having actual 
 notice. And, it seems, possession by the grantor will be no equivalent 
 for that registration.(2)(a) 
 
 17. Where a deed is given, accompanied by a defeasance, which is 
 not recorded; a subsequent surrender and cancelling of such defeasance, 
 by agreement, for the purpose of giving the grantee an absolute title, 
 without unfairness between the parties or as to strangers, and before 
 any rights of creditors have intervened, will vest the absolute title in 
 the grantee.(3j(6) 
 
 18. Where the obligee in a bond of defeasance has treated it by' his 
 acts as constituting a mortgage, he cannot maintain an action upon it 
 
 as a contract. 
 
 (1) Bodwell V. Webster, 13 Pick. 411. See 
 Carey D. Rawson, 8 Mass. 159. 
 
 (2) Grimstone v Carter. 3 Paige, 421; 
 "Whittick V. Kane, 1 Paige, 202 ; Dey v. Dun- 
 
 ham, 2 John. Cha. 182; Fuller v. Pratt, 1 
 Fairf. 197; Mass. Rev. Sts. 407. See Friedley 
 V. Hamilton, 17 S. & R. 70 ; 3 Paige, 421. 
 (3) Trull V. Skinner, 17 Pick. 213. 
 
 the balance to the grantor, upon his failure to pay the debt; is a mortgage. Woodruff v. 
 Robb, 19 Ohio, 212. 
 
 But a conveyance, with an agreement that the grantor may have back the land upon 
 payment of the purchase-money and interest in two years, or before that time, if it should 
 be sold for a larger sum, but both parties speaking of a sale, and the price being the full 
 value of the land; is not a mortgage. King v. Kincey, 1 Ired. Equ. 187. 
 
 An instrument of defeasance may create a mortgage, though the parties have acquiesced 
 for a long time after the period of payment stipulated therein, in the conveyance of the 
 property; more especially if it is a reversionary interest. Waters v. Mynn, 14 Jur. 341. 
 
 (a) In Delaware- and New Jersey, the grantee of the land is required to record a note or 
 abstract of the defeasance, with his deed, in order to give validity to tlie registry of the lat- 
 ter. But, in Delaware, unless the grantor also record the defeasance within a certain time, 
 it will be void against bona fide purchasers. By a statute of Illinois, a party " shall not have 
 the benefit" of a defeasance, unless recorded within 30 days. This would seem to render 
 registration necessary even as between the parties. In Pennsylvania, the defeasance must 
 be recorded as against creditors, &c. So, in Michigan, notice to a purchaser is a good substi- 
 tute for registration. But not to a judgment creditor, or vendee, on execution. Illin. Rev. 
 L. 131 ; Jaques v. Weeks, 7 Watts, 26i ; Mich. Rev St. 261. Actual notice dispenses with 
 registration in Massachusetts. The principle applies to the assignee of the grantor under 
 the insolvent law. Stetson v. Gulliver, 2 Cush. 494. 
 
 In Maine, implied notice, existing prior to the Revised Statutes, was binding upon an at- 
 taching creditor. Mo'Laughlin v. Shepherd, 32 Maine, 143. The rule as to the recording 
 of a defeasance applies only to a bond from the grantee to the grantor ; not to a bond from 
 the grantor to the grantee, secured by tlje conveyance. Noyes v. Sturdivant, 6 Shepl. 104. 
 
 (Pi After such cancellation, the grantee agreed by another deed to convey on certain terms 
 to the grantor. Held, as this deed was subsequent to the original one, not part of the same 
 transaction, nor intended nor understood as a defeasance, it did not either continue the ori- 
 ginal right of redemption, or constitute with the first deed a new mortgage. 17 Pick. 213. 
 
396 MORTGAGK— NATURE, [CHAP. XXIX. 
 
 19. A conveys land to B. B gives back a bond, reciting that the 
 consideration of the deed was to indemnify him from his liability for A 
 upon a certain note, and providing that, if A pays the note at a certain 
 time, and B does not reconvey the land upon demand, the obligation 
 shall be binding. A paid the note within the time and demanded a 
 reconveyance, and then transferred all his interest in the land to 0. It 
 seems, this bond made the transaction a mortgage. Held, A could not 
 maintain an action upon the bond.(l) 
 
 20. In addition to the class of strictly legal defeasances, being written 
 and sealed instruments, and to written instruments not under seal, which 
 are often allowed the same effect ; even pai-ol evidence is frequently ad- 
 mitted, for the purpose of converting an absolute deed into a mortgage. 
 This apparent departure from the well-established rule, which excludes 
 parol evidence to control written instruments, has been sometimes re- 
 stricted to courts of equity, and sometimes to cases of mistake, accident, 
 surprise, fraud and trust, which constitute peculiar grounds of Chancery 
 jurisdiction, and may always be shown by parol evidence. But the 
 prevailing current of decisions now tends to do away these limitations, 
 and to establish the general proposition, that an absolute deed may be 
 proved to be a mortgage by parol evidence. The principle has been 
 earnestly resisted, more especially in courts of law, acting as such, or 
 invested with merely limited equity jurisdiction. Thus, in Massachu- 
 setts and New Hampshire, it is held, that, before the court can exercise 
 Chancery powers, it must decide, as a court of law, tvhether there is a 
 mortgage ; and this point cannot be proved by parol evidence. So, in 
 New York, Maryland, North Carolina, Kentucky, Tennessee, Missis- 
 sippi and Missouri, there have been decisions against the admissibility 
 of parol evidence, to prove an absolute deed a mortgage, except under 
 special circumstances; but the prevailing American doctrine is as above 
 stated. (a) 
 
 (1) Hoginsj;. Arnold, 15 Pick. 259. 
 
 [a) The following may be cited as the leading English oases upon this subject. Jason 
 T. Byres, 2 Cha. Cas. 35 ; Joynes v. Statham, 3 Atk. 387 ; Maxwell v. Montaeute, Prec. 
 Ch. 526 ; "Walker v. Walker, 2 Atk. 99 ; Young v. Peachy, lb. 251 ; Cottington v. Fletcher, 
 lb. 155 ; Hampton v. Spencer, 2 Vern. 288 ; Beubow v. Townsend, 1 My. k K. 506 ; Baker 
 V. "Wind, 1 Vez. 160. 
 
 In Massachusetts, Kelleran v. Brown, 4 Mass. 443; Levering y. Fogg, 18 Pick. 540; 
 Fowler v. Rice, 17. 100, 22, 526 ; Boyd v. Stone, 11 Mass. 342. 
 
 In New Hampshire, 1 N. H. 41; Blokford v. Daniels, 271; Emilet v. Otis, lb. 167; 
 "Wendell v. N. [-!., &o, 9, 404; Clark v. Hohbs, 11, 122. 
 
 In Vermont, Campbell v. "Worthington, 6 Verm. 448 ; Baxter v. "Willey, 9, 280 ; Wright 
 T. Bates, 13, 348; Washburn v. Titus, 9, 211. 
 
 In Connecticut, Bacon v. Brown, 19 Conn. 29. 
 
 In New York, the decisions have been somewhat conflicting; but the prevailing doctrine 
 favors the admission of parol evidence, both at law and in equity. See Moses v. Murgatroyd, 
 1 John. Cha. 119; Marks v. Pell, lb. 599; Stevens v. Cooper, lb. 425; Strong v. Stewart, 
 4, 167 ; Jackson v. Jackson, 5 Cow. 173; Whitlick v. Kane,'l Paige, 202 ; Martin v. Eapelye, 
 3 Edw. 229; Walton v. Cronly, 14 Wend. 63; Patchin v. Pierce, 12, 61; Van Buren v. 
 Olmstead, 5 Paige, 9; Swart v. Service, 21 Wend. 36; M' In tyre v. Humphreys, I Ho£fm. 
 31 ; Holmes v. Grant, 8 Paige, 243 ; Roach v. Cosine, 9 Wend. 227 ; Walton v. Cronly, 14, 
 «3 ; Eckford v. DeElay, 26, 39 ; Webb v. Rice, 1 Hill, 606 ; Brown v. Dewey, 2 Barb. 28 ; 
 Taylor v. Baldwin, 10 Barb. 582 ; (the latest case, and adverse to the admission of parol 
 evidence.) 
 
 As to the practice in Pennsylvania, see Peterson v. Willing, 3 Dall. 506 ; Wharf v. Howell, 
 S Binn. 499 ; Jaques v. Weeks, 7 Watts, 268. 
 
 In North Carolina, Blackwell v. Overby, 6 Ired. Equ. 38 ; Kelly v. Bryan, 6 Ired. 283 ; 
 
CHAP. XXIX.] 
 
 PORM, EFFECT, ETC. 
 
 397 
 
 21. A mortgage sometimes contains a covenant to repay the money 
 borrowed, or to pay the debt secured ; which creates a pursonal liability 
 in the mortgagor. In this country, the more common practice is, that 
 the proviso of the deed refers to a bond, note or otheT personal security, 
 made at the same time, upon the payment of which, both the mortgage 
 and the personal security are to become void. In this case, also, the 
 mortgagor is, of course, personally liable for the debt. Whether in the 
 absence of such covenant, bond or note, the mortgage itself creates a 
 personal liability, has been a matter of somewhat varying decision. 
 The prevailing doctrine is, that it does not, unless the deed contains an 
 express or implied admission of a debt due, without any accompanying 
 agreement to rely wholly upon the property for its security or payment. 
 But such an agreement might perhaps be inferred, from the mere fact 
 of the absence of a direct promise, contrary to prevailing usage. In 
 case o^ borrowed money, a mortgage is considered, in England, as a sim- 
 ple contract credit ; and assumpsit lies to recover it. So it has been 
 held, that, upon a recital of indebtedness in the mortgage, an action of 
 debt may be maintained, as upon a covenant. So, where one person 
 pays money for the benefit of another, and takes a mortgage to secure 
 its repayment ; the former is said to have a remedy either in rem or in 
 personam.{l){a) 
 
 22. Another point, upon which there has been much discussion and 
 variety of opinion, is whether a conveyance of land given as security 
 can be considered as technically a mortgage, without an accompanying 
 personal obligatioa of the grantor. Upon this subject, it is now the 
 prevailing, and well established doctrine, that although the absence of 
 such personal obligation may raise a presumption that the transaction 
 is a conditional sale and not a mortgage ; still it is by no means conclu- 
 sive, and the grantor may have all the rights of a mortgagor as to re- 
 demption and otherwise. If the land is put in pledge, on condition, for 
 
 (1) Ancaster D. Mayer, 1 Bro. 464; Floyer 
 V. Lavington. 1 P. Wtns. 268; Tates jj. Asli- 
 ton, 4 Qu. B. 182; 8 Mass. 564; Penniman 
 V. HoUis, 13 Ma.ss. 430; Conger i). Lancaster, 
 5 Terg. 477 ; Kingi;. King, 3 P. Wms. .S58 ; 
 Courtney v. Taylor, 6 M. & G. 851 ; Goodman 
 V. Grierson, 2 Ball & B 274; Flaggi). Mann, 
 2 Sumu. 534; Wharf «. Howell, 5 Binn. 499 ; 
 
 Soott V. Fields, 7 "Watts, 360; Elder?). Rouse, 
 15 Wend. 218 ; Hone v. Fisher, 2 Barb. Cha. 
 559; Hall V. Byrne, 1 Seam. 140; 2 Greenl. 
 Cruise, 83 n. ; New Orleans, &e. v Hogan, 1 
 La. Ann. R. 62 ; Tates v. Aston, 4 Ad. & Ell. 
 N. 182; Grinnell v. Baxter, 17 Pick. 386; 
 Biiconf. Brown, 19 Conn. 29; Lawrance v. 
 Boston, 8 Bng. L. & Equ. 494. 
 
 Sellers v. Stalcup, 7 Ired. Equ. 13 ; Allen v. McRae, 4 Ired. Eqif. 325 ; Elliott v. Maxwell, 
 7, 246; Kemp v. Earp, lb. 167. 
 
 In Maryland, Watkins v. Stockett, 6 Har. & J. 435 ; Bend v. Susquehannah, &o., lb. 128: 
 Bank, &c. v. Whyte, 1 Md. Cha. 536. 
 
 In Tennes-see, Brown v. Wright, 4 Terg. 57 ; Perry v. Pearson, 1 Humph. 431. 
 
 In Arkansa.s, Blakemore v. Byrnside, 2 Eng. 505. 
 
 In Illitioia, Hovey v. Holcomb, 11 lUin. 660 ; Coates v. Woodworth, 13, 654. 
 
 In Missouri, Hogel v. Lindell, 10 Mis. 483. 
 
 In Alabama, May v. Eastin, 2 Port. 414. 
 
 In Mississippi, Watson v. Dickens, 12 Sm. i, M. 608; Prewett v. Dobbs, 13, 431. 
 
 In Texas, Stamper v. Johnson, 3 Tex. 1. 
 
 In Indiana, Conwell v. Evill, 4 Blackf. 67. 
 
 In Kentucky, Thomas v. MeCormack, 9 Dana, 108. 
 
 In Ohio, Minmi, &c. v. Bank, &e. Wright, 249. 
 
 In the courts of the United States, Morris v. Nixon, 1 How. 127 ; Bentley v. Phelps, 2 
 Woodb. & Mia. 426 ; Bank, &o. v. Sprigg, 1 McL. 183 ; Chiokering y. Hatch, 3 Sumn. 474. 
 
 (a) In Maryland, a mortgage made by a citizen to a foreigner for the loan of money i 
 Vilid, and binds him to pay it without any express eovenant or agreement. 
 
898 
 
 MOETGAGE— NATURE, 
 
 rCHAP. XXIX 
 
 the payment of money or some other act; the transacUon is a mort- 
 gage, whether the land is the only security or not.(l) 
 
 2'3. A mortgage being intended simply for security, and the nature of 
 the transaction affording opportunity and temptation to the lender to 
 take advantage of the necessities of the borrower ; the right of redemp- 
 tion is held, in equity, to be an inseparable incident to a mortgage, and 
 all restrictions or qualifications of this right are deemed utterly void. 
 The maxim is, "once a mortgage, always a mortgage." Hence, a pro- 
 viso, limiting the right of redemption to the mortgagor himself, is of no 
 effect, and his heir after his death may redeem. So, although limited 
 by an express covenant to the heirs male of his body, a jointress or as- 
 signee claiming under him may redeem. The right of redemption has 
 been said to be as inseparable from a mortgage, as that of replevying 
 from a distress.(2)(a). 
 
 24. A condition, that if the mortgagee, on failure of the mortgagor 
 to pay the money at the time, pay him a further sum, the former shall 
 become absolute owner, is void ; though an agreement to give the mort- 
 gagee the right of pre-emption, in case of a sale, has been assumed to 
 be valid. Chancellor Kent, however, suggests that this agreement, like 
 the former, would be void. The mortgagor will not be allo^red to use 
 the incumbrance, in obtaining the equity of redemption for less than its 
 value. (3) 
 
 25. Mortgage for £200, with a bond, conditioned that if not paid at 
 the day, and if the mortgagee should then pay the mortgagor the fur- 
 ther sum of £J1S in full for the purchase of the land, the bond should 
 
 (1) Coote, 50, 61 ; Mellor v. Lees, 2 Atk. 
 494; Exton v. Greanes, 1 Tern. 138; Con- 
 ■way V. Alexander, 1 Cranoli, 237 ; Morris v, 
 Nixon, 1 How. 119; Wilcox v. Morris, 1 Mur. 
 117; Porter v. Nelson, 4 N. H. 130 ; Smith 
 *. People's, &o., 11 Shepl 185; Kelly i;. Beers, 
 12 Mass. 388, 389; Lanlair v. Lanfair, 18 
 Pick. 299 ; Hiester v. Maderia, 3 "W. & S. 384. 
 
 (2) Jason v. Kyres, 2 Olia. Cas. 33 ; Howard 
 V. Harris, 1 Vern. 33, 1 90 ; Henry v. Davis, 
 7 John". Oha. 40 ; Clark v. Henry, 2 Cow. 
 324; Holridge v. Gillespie, 2 John. Cha. 30; 
 Conway K. Alexander, 7 Cranoh, 218; Bowen 
 V. Edwards, 1 Rep. in Cha. 221; 2 Sumn. 
 487 ; Kunkle v. Wolfersberger, 6 Watts, 126 ; 
 Jaques V. Weeks, 7 Watts, 261 ; Wright v. 
 
 Bate!?, 13 Verm. 341 ; Perkins u. Drye, 3 Dana, 
 176; Rankin v. Mortimere, 7 Watts, 372; 
 Waters v. Randall, 6 Met. 483; Hiester u. 
 Maderia, 3 W. & S. 387 ; May v. Easton, 2 
 Port. 414; Spurffeon v. Collier, 1 Ed. 59. 
 Trea. of Bqu. lib V., 1. u. 1, sec. 4 ; Vernon v. 
 Bethel), 2 Kd. 113; Clench u. Witherby, Gas. 
 Temp. Pinch, 376; Sevier «. Greenway, 19 
 Ves. 412; Caufman v. Sayre, 2 B. Mon. 205. 
 (3) 4 Kent, 142; Holridge v. Gillespie, 2 
 John. Cha. 34; Hammonds 'o. Hopkins, 3 
 Yerg. 525 ; McKinstry v. Cronly, 12 Ala. 678 ; 
 Hicks V. Hicks, 5 Gill & J. 85: St. John v. 
 Turner, 2 Vern. 418; Vernon «;. Betheil, 2 
 Ed. 110. 
 
 (a) But the rule above stated does not apply to an agreement contained in the mortgage, 
 that, if the interest shall not be paid when due, the mortgagee may treat the mortgage as 
 due, and sue upon it, and also have a claim for his damages. Such agreement will be en- 
 forced. Huling V. Drexell, 7 Watts, 126. The unrestricted right of redemption extends to 
 transactions between the parties in the nature of security for the debt, subsequent to the ori- 
 ginal mortgage. So, a third person may sometimes have an unlimited right to redeem, though 
 there is no direct mortgage from him to the party of whom redemption is claimed. Thus, 
 where an equit&ble owner sold his title and received part of tlie price, and then, with the con- 
 sent of the purchaser, sold to another, on condition that he would advance the balance, and 
 give the first purchaser a certain time to pay it ; upon which payment, tlie first purchaser 
 was to have tlie land, otherwise the second purchaser shculd have It. The first purchaser 
 promised to pay the money to the second, and soon removed from tlie land, and the second 
 purchaser took possession. Held, after the six months, not having paid the money, the first 
 purchaser might still redeem the land. Bloodgood v. Zeily, 2 Caines' Cas. in Er. 1 24 ; Pen- 
 nington V. Hanbey, 4 Munf. 140. 
 
CHAP. XXIX.] 
 
 FORM, EFFECT, ETC. 
 
 399 
 
 be void. The £200 not being paid, and the mortgagee having paid 
 the £78 ; held, the infant heir of the mortgagor might redeem. (1) 
 
 26. A mortgagee may contract, subsequently to the mortgage, for a 
 purchase or release of the equity of redemption ; but no agreement 
 for a beneficial interest from the estate during the mortgage is valid, if 
 disaffirmed in a reasonable time.(2) 
 
 27. On the same principle, if the mortgagor agree, by a distinct 
 contract, to pay the mortgagee a sum over and above the debt, interest 
 and cost, such contract will be set aside as unconscionable ; for a man 
 shall not have interest for his money, and a collateral advantage be- 
 sides for the loan of it, or clog the redemption with any bye agreement. 
 
 28. A loaned to B a sum of money on mortgage, and at the same time 
 took from him a separate covenant, to convey to A, if he thought fit, 
 certain ground-ren-ts of the same value. On a bill for redemption by 
 B, held he might redeem by paying merely the sum loaned, with in- 
 terest and cost. (3) 
 
 29. Equity does not sanction an agreement to turn interest into prin- 
 cipal, at the end of a specified period ; because it is a stipulation lor a 
 collateral advantage, and tends to usury, though not actually usurious.(4) 
 
 30. But an agreement, that the mortgagee shall have the use of the 
 property, instead of interest, is not usurious, unless such use amounts 
 to more than legal interest.(5) 
 
 31. An agreement, subsequent to the making of the mortgage, be- 
 tween any party interested as mortgagee, and the mortgagor or his as- 
 signee, to limit the right of redemption to any particular time, will not 
 be enforced. 
 
 32. A mortgagee filed a bill in equity, for foreclosure, against the 
 mortgagor and his creditors, having an interest in the equity of redemp- 
 tion, and obtained a decree. The defendant, one of the creditors, paid 
 and took an assignment of the mortgage, and agreed with the other 
 creditors that they might redeem within a certain time. The defendant 
 having had possession twenty years, the other creditors file a bill for 
 redemption. Held, the other creditors stood in the conditional relation 
 of mortgagor, to the defendant ; and as the decree for foreclosure was 
 not assigned to him, the agreement limiting the time of redemption was 
 void, and they might redeem.(6)(a) 
 
 33. A mortgage is to be distinguished from a sale with an agreement 
 to repurchase. The latter transaction, though narrowly watched, is 
 construed like an independent agreement between strangers ; and the 
 seller will not have a mortgagor's right to redeem after the appointed 
 
 (1) Willett V. 'Winnell, 1 Tern. 488. 
 
 (2) 4 Kent. 143. 
 
 (3) Jennings V. 'Ward, 2 Tern. 520. 
 
 (4) Cliambers v. Goldwin, 9 Vez. 271 ; 
 Ooote, 501, 502. 
 
 (5) Joyner w. Vincent, 4 Dev. & B. 512. 
 
 See Coote, 511, 512 ; Marquis, &o. v. Higgins, 
 2 Vern. 134; Burton v. Siattery, 5 B. P. 0. 
 233; Brown ii. Barkliam, 1 P. Wms. 652; 
 Stanhope v. Manners, 2 Ed. 199. 
 (6) Exton V. Greaves, 1 Vern. 138. 
 
 (a) A, tenant in tail of a reversion, mortgaged it. B, his father, joining. A ap;reed tiiat 
 unless lie paid by tne day. or if B paid the debt, B should have the property, and give A 
 one-sevpnth. B having died, and devised the land; held, A still had the right of redemp- 
 tion. Playford v. Playford, Holt, Equ. 310. 
 
400 
 
 MORTGAGE— NAT aRE, 
 
 [CHAP. XXIX. 
 
 day. But equity will ahrays coustrue the transaction to be a mortgage, 
 if possible. (l)(a) 
 
 3i. Where there is an agreement for repurchase within a certain 
 time, by the mortgagor, of the estate mortgaged, and such agreement 
 is made, not at the giving of the mortgage, but afterwards ; the right 
 of redemption or repurchase may be restricted to the time stipulated. 
 
 35. A, being a joint tenant with B, made a conveyance to C for 
 £101, absolute in form, but admitted to be in reality a mortgage. This 
 deed was cancelled, and another similar one made for a larger conside- 
 ration, including the £104, and covenanting that A would not make 
 partition without C's consent. The receipts for the money spoke of it 
 as purchase-money. Two years after the last deed, it was agreed that 
 A should regain the land, on payment of principal, interest and costs. 
 B being in possession, C recovered the land in ejectment, and occupied 
 sixteen years. A brings a bill to redeem. Held, though the covenant 
 against partition showed that A was still supposed to retain an interest 
 in the land, and though the first deed was allowed to be a mortgage, 
 yet the case, on the whole, was one of a subsequent agreement for re- 
 purchase, and, after the lapse of so long a time, a redemption should 
 not be allowed. (2) 
 
 36. So, where a mortgagee, having recovered the land for breach of 
 condition, for an additional advance of money obtains a release of the 
 equity from the mortgagor, at the same time giving him a promise to 
 sell and convey, on payment of the whole money advanced within a 
 certain time ; after this time has elapsed, the estate becomes absolute 
 in the mortgagee ; the last transaction being regarded as an original 
 contract to convey the estate upon certain terms. In this case, how- 
 ever, sixteen years had elapsed. (3) 
 
 37. Where a riiortgage is made to or for a relation or a wife ; in con- 
 formity with the presumed intention of the mortgagor, to make the 
 conveyance beneficial to the mortgagee, the right of redemption will be 
 limited strictly to the time specified. In case of a marriage settlement, 
 an omission to perform the condition will be construed as an election 
 to let the settlement stand, and no redemption will be allowed, espe- 
 cially after the mortgagor's death, and against a purchaser without no- 
 tice from the wife.(4) 
 
 38. Thus, where A conveyed to B, to whom he was related by mar- 
 riage, by an absolute deed, and took back another deed, making the 
 land redeemable during A's life ; held, in reversal of Lord Notting- 
 ham's decree, that the heir of A could not redeem.(5) 
 
 (1) 4 Kent, 143-4; Davis v. Thomas, 1 
 Euss & M. 506 ; Poindexter v. MoCannon, 1 
 Dev. Eq. 373. 
 
 (2) Cdtterell v. Purchase, Ca. Temp. Tal. 
 61; Wrixon v. Cotter, 1 Ridge, 295; Auetin 
 V. Bradley, 2 Day,' 466; 2 N. Y. Rev. Sts. 
 546 ; Waters v. Randall, 6 Met. 484 ; Per- 
 kins V. Drye, 3 Dana, 177 ; Russell v. South- 
 ard, 12 How. 139; Cameron v. Irwin, 5 EiU, 
 
 280; Trull?;. Skinner, 17 Pick. 213; Harri- 
 son V. Phillips, &o., 12 Mass. 465; Marshall 
 V. Stewart, 17 Ohio, 351. 
 
 (3) Endsworth v. Griffith, 2 Abr. Eq. 695 ; 
 5 Bro. Pari. 184. 
 
 (4) King V. Bromley, 2 Abr. Eq. 595. 
 
 (5) Bonham v. Newcomb, 2 Tent. 364; 1 
 Abr. Equ. 312. See Trull v. Owen, 4 T. & 
 Coll. 492. 
 
 (a) Conveyance in consideration of a certain sum, with a written but unsealed agreement 
 by the grantee to reconvey, upon repayment of the sum within a certain time. Held, an 
 equitable mortgage, not a sale with conditional right to repurchase. Eaton v. Green, 22 
 Pick 526. 
 
CHAP. XXIX] FORM, EFFECT, ETC. 401 
 
 39. A granted a rent-charge of £48 per annum to B in fee, on con- 
 dition, tliat if A should at any time, after notice, pay in the purchase- 
 money by certain instalments, with interest, during his life, the grant 
 should be void. The rent-charge fell short of the interest, and there was 
 no covenant to pay the money. After A's death,- B conveyed to C 
 with warranty, and C to D. Sixty years having elapsed ; upon a bill 
 for redemption, held, the circumstances of the case showed that the 
 mortgagee had parted with a fair equivalent for purchasing the right 
 of redemption after A's death, and the lapse of time made the case still 
 stronger against the bill, which was accordingly dismissed. (1) 
 
 40. A mortgages an estate to B, and B to C, for £200, A and his 
 son D joining in the latter mortgage. To secure payment of the inter- 
 est, C leases to the son of A for 5,000 years, at the rent of £12 per 
 annum, for the first three years, and the rest of the term £10; and, if 
 the £200 and interest were not paid in three years, the land to be re- 
 conveyed. Eeceipts were given, sometimes as for interest, and some- 
 times for a rent-charge. The last receipt was about forty years subse- 
 quent to the lease. Ten years after this receipt, a bill was brought for 
 redemption by the grandson of A, the estate having nearly doubled in 
 value since the mortgage. Held, it would not lie.(2) 
 
 41. A having received a patent from the crown for land for a term 
 of years, at a certain rent, a subsequent patent, not noticing the former, 
 was made to B. The former term having nearly fifty years to run, 
 and being worth £200 per annum, B, in consideration of £200, by 
 lease and release, conveys to A, with the condition, that upon repay- 
 ment, within five years, he might re-enter; but, on failure of payment 
 at the time, the estate of A should be absolute and indefeasible, both 
 in equity and law, and B forever debarred from all right and relief in 
 equity. And B hereby released forever his right to redeem, on failure 
 as aforesaid. There was no covenant for payment of the £200. The 
 five years having expired, A brings a bill in equity for foreclosure, to 
 which B never put in any answer or defence, and a decree was made 
 that B should be foreclosed, unless the money were paid upon a certain 
 day. More than thirty years afterwards, the lands having risen in 
 value, the heirs of B bring a bill in equity against the heirs of A, alle- 
 ging surprise and imposition in obtaining the decree, and praying re- 
 demption. The plaintiffs prevailed, but the decree was reversed in the 
 House of Lords. The grounds of argument for the defendants were, 
 the terms of the ccyiveyance from B to A, waiving all right of redemp- 
 tion; the reversionary character of B's estate, yielding no present pro- 
 fit, and worth at the time not more than £200; and the want of any 
 covenant to pay the money, and consequently of any mutuality in the 
 transaction, which is essential to constitute a mortgage.(3) 
 
 42. The distinction between a mortgage and a conditional sale is 
 said to be, that if a debt remains, the transaction is a mortgage, but if 
 the debt is extinguished by mutual agreement, or the money advanced 
 is not loa-iied, but the grantor has a right to refund in a given time, and 
 have a reconveyance ; this is a conditional sale. The true inquiry is, 
 whether the purpose of the parties was to treat of a purchase, the value 
 of the commodity contemplated, and the price fixed. And the point 
 
 (1) Ployer v. Lavington, 1 P. "Wma. 268. I (3) Tasburgh v. Eohlin, 2 Bro. Pari. Oaa. 
 
 (2) Mellor v. Lees, 2 Atk. 494. | 265. 
 
 Vol. I. 26 
 
402 
 
 MORTGAGE— NATURE, 
 
 [CHAP. XXIX. 
 
 is to be settled by the luhole transaction, not merely the written evidence. 
 Parol evidence is received, not to explain or construe the writings, but 
 to show the true character of the contract. Various and minute cir- 
 cumstances are to be taken into view. If a fair price is advanced, the 
 property liable to i"njury, such as requires frequent repairs, and of 
 fluctuating fashion and profits; or if the purchaser, though not put 
 into actual possession, leases to the grantor, and receives the rents, &;c., 
 without accounting, and the grantor's wife releases her dower; and if 
 the estate consists of a large building, which is subject to fire, and at 
 the grantee's risk, and he has no power to enforce his claim against the 
 grantor, there being no covenant or promise by the latter, while he at 
 the same time has the right of re-purchasing within a given time : all 
 these facts go to show a conditional sale.(l) The want of any personal 
 obligation against the grantor, though not conclusive, is very stroilg 
 evidence of a conditional sale ; for a mortgagee must have a remedy, 
 express or implied, against the person of the debtor. But Chancery will 
 always lean in favor of a mortgage.(2)(a) 
 
 43. The same general principle, of not restricting the right of redemp- 
 tion, has been applied to the case of a lease from mortgagor to mortgagee, 
 which is in the nature of a partial surrender of the equity of redemp- 
 tion. So, also, to a lease from mortgagee to mortgagor, accompanied 
 by a covenant to reconvey the premises to the mortgagor, upon payment 
 of a certain sum by a specified time ; in which case, a redemption will be 
 decreed, even against a purchaser from the mortgagee, with notice.(3) 
 
 44. The rule above stated, as to the right of redemption, and the dis- 
 tinction between a mortgage and a conditional sale, has been applied to 
 the conditional assignment of a mortgage itself 
 
 45. A assigns a mortgage to B, upon condition, that if certain ex- 
 pected receipts shall amount to $300, B shall re-assign, and account for 
 the surplus over that sum; if they shall not amount to that sum, and 
 
 (1) Slee V. Manhattan, &c., 1 Paige, 56; 
 Goodman v. Grierson, 2 Ball & B. 274; Ro- 
 binson V. Cropsey, 2 Edw. 138; Robertson?;. 
 Campbell, 2 Call, 354; Chapman v. Turner, 
 1, 244; Sevier i;. Greenway, 19 Ves. 413; 
 Hicks V. Hicks, 5 Gill & J. 82 ; Bennet v. 
 Holt, 2 Yerg. 6; Hickman «. Quinn, 6, 96: 
 Hannah, Ac, Bland, 225-6; Davis t). Thomas, 
 1 Riiss. & M. 506; 2 Sumn. 487. 
 
 (2'' Conway v. Alexander, 7 Cranoh, 237 ; 
 Menade u. Delaire, 2 Des. 564; Baxter v. 
 VPilley, 9 Verm. 276; Holmes v. Grant, 8 
 Paige, 243; Chambers 1). Hise, 2 Dev. & B. 
 Equ. 375; Glover v. Payn, 19 "Wend. 518; 
 
 Bacon v. Brown, 19 Conn. 29 ; Dougherty v. 
 McColgan, 6 G. & John. 275 ; Russell v. 
 Southard, 12 How. 139; Gait v. Jackson, 9 
 Geo. 151; Gaither v. Teague, 7 Ired. 460; 
 Page V. Foster, 7 JST, H. 392 ; Verner v Win- 
 stanley, 2 Sch. & L. 393 ; Perry v. Meddow- 
 croft, 4 Beav. 197 ;, Williams v. Owen, 10 
 Sim. 386 ; Baker v. Thrasher, 4 Denio, 493. 
 (3) Gubbins «;. Creed, 2 Soh. & Lef. 214; 
 Wright V. Bates, 13 Verm. 341 See Sleei;. 
 Manhattan, &o., 1 Paige, 48 ; Fuller v. Hodg- 
 don, 25 Maine, 243 ; Holridge v. Giile.spie, 
 2 John. Cha. 30 ; Miami, &e. v. Bank, Ac, 
 Wright, 249. 
 
 (a) It has been held, that parol evidence, tliough admi.ssible to prove an absolute deed a 
 mortgage, is not adniissible to prove a formal mortgage to be a conditional sale; that, in the 
 one case, the proof raises an equity consistent with the writing, and in the other would 
 contradict it. Kunkle v. Wolferalierger, 6 Watls, 130. 
 
 So. on the other liand. it lias been said, that in examining transactions between borrowers 
 and lenders, courts of equity, aware of the unequal relation of the parties, are particularly 
 attentive to any circunislances tending to show an inconsistency between the form of an 
 act and the intent of the parties, and will take great pains, when their su.spicion is thus 
 excited, to get at the suh.staiice of what was done or intended. But it is a conclusion of 
 reason, and therefore must be the presumption of every court, that solemn instruments declare 
 the truth, until error, mistake, or imposition be shown. McDonald v. McLeod, 1 Ired. Equ. 226. 
 
CHAP. XXIX] 
 
 FORM, EFFECT, ETC. 
 
 403 
 
 unless A in one week pay the deficiency, the mortgage to be considered 
 as absolutely assigned. The receipts having fallen short of $300, held, 
 this was a mortgage or pledge, not a conditional sale, and that A should 
 have relief in equity, on making up the $300.(1) 
 
 46. A power may be given to a mortgagee, in case of non-payment 
 at the time, to sell the estate.{a) He may pass a title without the moicga- 
 gor's joining in the deed ; and the latter will be divested of all right and 
 interest, and, if in possession, become a mere tenant at sufferance. 
 Such power passes to an assignee of the inortgage.(2) 
 
 47. Such power having been inserted in a deed of defeasance, the 
 proceeds to be first applied to the debt, and the surplus paid to the 
 mortgagor, the mortgagee, on failure of payment, agreed with a third 
 person to convey the land to him. The court decided, that this agree- 
 ment was not equivalent to an actual sale, but seemed to take it for 
 granted, that such conveyance would be efi"ectaal to pass the estate.(3) 
 
 48. In a similar case, the land having been sold at auction, the pur- 
 chaser required the concurrence of the mortgagor, who refused to join, 
 alleging that the sale was made at a sacrifice, and without his consent. 
 The purchaser then brings a bill against the mortgagee and mortgagor, 
 which was sustained against the former, but dismissed as to the lat- 
 ter.(4) 
 
 49. Lord Eldon considered the power in question as a dangerous and 
 extraordinary one, and of modern introduction, and thought it should 
 be vested in some third person as a trustee for both parties. But Chan- 
 cellor Kent remarks, that the mortgagee himself, under such power, be- 
 comes a trustee for the surplus ; and that unless due notice be given of 
 a sale, equity will set it aside.(5) 
 
 51. It is said, the only doubt as to the validity of such power seems 
 to be, as it affects the rights of subsequent mortgagees.(6) 
 
 52. In Maryland, by statute, real estate mortgaged in the city of 
 Baltimore may be sold under such power.(7) The validity of a power 
 to sell is also recognized in other States. 
 
 53. If, upon a sale under a power, the mortgagee himself purchases, 
 the sale is voidable in equity, by the mortgagor, for good grounds, 
 though not absolutely void. In New York and Michigan, the mortga- 
 gee is authorized to purchase, if it be done fairly ; and, in New York, 
 the affidavit of sale, without deed, will perfect his title. In the same 
 State, the power, to be effectual, must be registered or recorded, and 
 
 (1) Solomon v. 'Wilgon, 1 Whart. 241. 
 
 (2) Corder v. Morgan, 18 Ves. 344. See 
 Kinsley v. Ames, 2 Met. 29; Hobson v. Bell, 
 
 2 Beav. 17 ; Gorson v. Blakey, 6 Misso. 273; 
 Cameron v. Irwin, 5 Hill, 272 ; Holden v. Gil- 
 bert, 7 Paige, 208 ; Gates v. Jacob, 1 B. Monr. 
 307 ; Dobson v. Racey, 3 Sandf. Cha. 60 ; 
 Stabbaok ». Leat, Coop. 46 ; Curling ti. 
 Shuttlewortli, 6 Bing. 121; Green v. Tanner, 
 
 3 Matt. 423 ; Clay v. Willis, 1 B. & C, 364 ; 
 Deatrehan v. Soudiier, 11 Mississippi, 484; 
 Longwith u. Butler, 3Gilm.32; Sanders t). 
 Kicliarda, 2 Coll. 568; Hobson v. Bell, 2 
 
 Beav. 17; Hyndraan v. Hyndman, 19 Verm. 
 9 ; Major v. Ward, 5 Hare, 598; Wright v. 
 Rose, 2 Sim. & St. 323 ; Moses v. Miirgatroyd, 
 iJohn. Cha. 119; Coutantu. Servoss, 3 Barb. 
 128; Jericks V. Alexander, 11 Paige, 619. 
 
 (3) Croft V. Powell, 2 Com. R. 603. 
 
 (4) Clay V. Sharp, 2 Cruise, 95 ; Sug. on 
 Vend. 6th ed. App. 14 
 
 (5) Roberts o. bozon, (Feb 1825,) 4 Kent. 
 146. See Brisbane v. Stoughton, 17 Oliio, 
 482. 
 
 (6) Walk. Intro. 306. 
 
 (7) Md. St. 1836,-7, oh. 249. 
 
 (a) By the civil law, the mortgagee has this power by implication, and even an express 
 agreement will not deprive him of it. 1 Dom. 360. It is said to ba invalid in Virginia. 4 
 Kent, 148, n. 
 
404 
 
 MORTGAGE— "WHAT ESTATE 
 
 [CHAP. XXX. 
 
 the sale is made equivalent to a foreclosure, as against the mortgagor 
 and all claiming by title subsequent to the mortgage. Similar provi- 
 sions in Maryland and Maine. (See Powers.) In Michigan, the mort- 
 gagee cannot sell, if he has previously commenced a suit, which is pend- 
 ing. In Mississippi, without six months' notice. (1) 
 
 54. It has been held in Massachusetts, that the giving of a power to 
 sell, in an instrument which would otherwise be a mortgage, does not 
 change the character of the mortgagee's estate. For, although he may 
 pass an absolute title to a third person, by executing the power, yet, until 
 it is executed, he, himself, has only a conditional title. And even a pur- 
 chaser will not take an absolute estate, it seems, if he has notice of the 
 original nature of the transaction, and purchases with some reference to 
 the conditional character of the title.(2) 
 
 CHAPTER XXX. 
 
 MORTGAGE— WHAT ESTATE IT CURATES IN" THE MORTGAGOR AND THE 
 
 MORTGAGEE. 
 
 1. Estate remains in tbe mortgagor, as to ( 
 third persons, but not as to the mort- 
 
 7. Mortgagee may take possession, when. 
 
 8, Agreement for mortgagor's possession. 
 16. Mortgagor in possession, natyre of his I 
 
 estate — tenancy at will, &c. 
 
 17. Cannot commit waate, but not bound 
 
 to repair. 
 
 18. Lease by mortgagor before or after the 
 
 mortgage ; rights of the lessee and 
 mortgagee. 
 
 34. "Waste by mortgagee. 
 
 35. Lease by mortgagee. 
 
 1. Although a mortgage, in form, purports to convey a present 
 estate to the mortgagee, liable to be defeated by performance of the 
 condition named ; yet the well-settled modern doctrine is, that, not- 
 withstanding the conveyance, the mortgagor, not only in equity but 
 at law, remains owner of the land, till some further act is done to vest 
 it in the mortgagee. In other words, although the condition of a mort- 
 gage is in form subsequent, operating to devest an interest once vested ; 
 yet it is in substance and practice precedent, operating to vest an estate 
 which previously remained in the mortgagor. The language of the 
 transaction is, that A conveys to B, reserving the right to take back 
 the estate on doing a certain act ; while the effect of it is, that A trans- 
 fers to B a mere claim or lien upon the land, with the right of gaining 
 the land itself, upon A's failing to perform such act. 
 
 2. Several considerations seem to show, that this is the true view of 
 the relation between mortgagor and mortgagee. The mortgagor is a 
 freeholder in respect to the estate mortgaged. This estate, in his hands, 
 is regarded as real property, and as such must be inherited, conveyed, 
 
 (1) Munroe v. Allaire, 2 Cainea' Caaeiu Er. 
 19; Davoue v. Fanning, 2 John. Cha. 252:* 
 Slee V. Manhattan Co , 1 Paige, 48 ; 2 N. Y. 
 Rev. St. 546; 4 Kent. 147; Me. St. 1838, 
 oh. 833; N. Y. Slat. 1842, eh. 277, aeo. 8; 
 Miss. Rev, St. 499; Miss. St. 1840, 28, 9; 
 
 Middlesex, Ac. v. Minot, 4 Met. 325 ; King v, 
 Duntz, U Barb. 191. 
 
 (2) Eaton v. "Whiting, 3 Pick. 484. This 
 case seems to recognize the validity of the 
 power in question ; though the conveyance 
 was here expressly in trust to sell, and the 
 condition contained in a subsequent clause. 
 
 * These were cases of trust. 
 
CHAP. XXX.] 
 
 IT CREATES, ETC. 
 
 405 
 
 leased, devised, or taken upon legal process ; while the mortgagee's 
 interest, on the other hand, is merely personal, as will be more fully 
 explained hereafter. The mortgagor may maintain an ejectment or 
 real action for the land, to which the mortgage cannot be set up as a 
 defence. A mortgage is not an alienation or sale of the land in a 
 technical sense ; as, for instance, for the purpose of revoking a devise 
 or forfeiting the rights of a party insured, or violating an obligation not 
 to sell, without first offering the land to the obligee. So, it has been 
 held, on the other hand, that a power to sell does not involve a power 
 to mortgage. So, a mortgagor gains a settlement as owner, is required 
 or entitled to serve as juror or member of the legislature, or may be 
 received as bail.(l)(a) 
 
 3. Lord Mansfield said, "it is an affront to common sense to say 
 that the mortgagor is not the owner of the land."(2)(6) In South Caro- 
 lina, a statute expressly declares him to be such. (3) There, (as in New 
 York,) even after condition broken, or after the time stipulated for 
 redemption is past, the mortgagee can maintain no possessory action, 
 but is limited to his statutory remedy ; and the right to redeem is a 
 legal right, not a mere equity. 
 
 4. It will be at once perceived, however, that all the particulars 
 above named have reference to the relation which a mortgagor sustains 
 to third persons. A mortgage being merely security for a debt, there 
 would be little propriety in attributing to it the effect of passing away 
 the estate from the former owner, except so far as is requisite to effect 
 
 (1) Jackson v. "Willard, 4 John. 41 ; Hun- 
 tington V. Smith, 4 Conn. 235; Willington v. 
 Gale, 7 Mass. 138 ; M'Call v. Lenox, 9 S. & 
 R. 302; Ford v. Philpot, 5 Har. & J. 312; 
 Wilson V. Troup, 2 Cow. 195 ; Blaney v. 
 Bearee, 2 Greenl. 132 ; Astor v. Miller, 2 
 Paige, 68 ; Miami, &e. v. Bank, &o., Wright, 
 249'; Den w. Dimon, 5 Halst. 156-7; Wins- 
 low V. Merchants, &c., 4 Met. 310 ; Clark v. 
 Beach, 6 Conn. 142 ; Wilkina v. French, 20 
 Maine, 111; Cooper t). Davis, 15 Conn. 55S; 
 Doo V. McLoskey, 1 Alab. (N. S.) 708 ; Doe v. 
 
 Goldwin, 2 Ad. & El. (N. S.) 143 ; v. 
 
 Day, lb. 147; Ewer v. Hobbs, 5 Met. 3; 
 Glass V. Ellison, 9 N. H. 69 ; Smith v. Moore, 
 11, 55; Ellison v. Daniels, lb. 274; Perkins 
 V. Dibble, 10 Ohio, 438 ; Ralston v. Hughes, 
 13 Illin. 469 ; Meacham v. Fitchburg, &o., 4 
 Cush. 291 ; Davis v. Anderson, 1 Kelly, 176; 
 Mayo V. Fletcher, 14 Pick. 531; Heath v. 
 
 Williams, 25 Maine, 209 ; Howard v. Robin- 
 son, 5 Cush. 123; Wilson, 2 Yes. & B. 252 
 Cholmondeley v. Clinton, 2 Jao. & W. 183 
 Great Falls, &c o. Worster, 15 N. H. 412 
 Thorne v. Thorne, 1 Tern. 141-182 ; Hall v. 
 Dench, 1 Tern. 329; Levering v. Fogg, 18 
 Pick, 540 ; MoTagsart v. Thompson, 2 Harr. 
 149 ; Neilson v. Lagow, 1 2 How. 98 ; Albany 
 &c. V. Bay, 4 Comst. 9 ; Conover v. The Mu- 
 tual, &o, 3 Dtnio, 254; Howard v. Robinson, 
 5 Cush. 119; The King v. St Michael's, &o., 
 Dougl. 632 ; Rex v. Mattingley, 2 T. R. 12 ; 
 
 V. Chailey, 6 T. R. 755 ; Montgomery 
 
 j;. Bruere, 1 South, 267; 1 Pow. 170 a; 
 Beamish v. The Overseers, &c., 7 Eng. L. & 
 Equ 485. 
 
 (2) Rexv. St. Michaels, Doug. 632. 
 
 (3) 1 Brev. Dig. 175; State o. Laval, 4 
 M'Cord, 340. 
 
 (a) A mortgagee, before taking possession, is not so far an owner, as to bee ntitled to 
 notice of the proposed laying out of a road over the land, or to damages. Pariah v. Gil- 
 manton, 11 N. H. 293. See Wright v. Tukey, 3 Cush. 290. 
 
 (b) In New Hampshire, the old and literal construction of a mortgage seems to be, at 
 least in theory, substantially retained. It is there said, that the mortgagor retains only a 
 poiver to regain the fee, and that the condition as to him (not as to the mortgagee,) i^ a pre- 
 cedent one, he being a mere tenant at sufferance, and having no right of possession. 
 Brown v. Cram, 1 N. H. 171. See also Haven v. Low, 4 N. H. 16 ; Chamberlain v. Thomp- 
 son, 10 Conn. 243; 1 Pow. 107, u. ; Montgomery v. Bruere, 1 South. 268; Heigh way v. 
 Per'idleton, 15 Ohio, 735; Jamieson v. Bruce, 6 Gill & J. 74; Goodwin v. Stephenson, 11 
 B. Mon. 21 ; (deciding that a mortgagor cannot sue upon the covenants in the deed to him 
 of the land mortgaged, the mortgagee being legal owner.) Gambril v. Doe, 8 Blackf. 140; 
 Meyer v. Campbell, 12 Mis. 603 ; (holding that a mortgagor cannot recover in ejectment.) 
 
406 
 
 MORTGAGE— "WHAT ESTATE 
 
 [CHAP. XXX. 
 
 the object of the transaction. But to this extent, or, in other words, 
 as between the mortgagor and the mortgagee, for the purpose of ren- 
 dering available the security given ; a different rule prevails, and the 
 mortgagee has all or most of the rights of a legal owner. 
 
 5. A, by consent of B, a mortgagor in possession, built a house upon 
 the land. The house was sold on execution as A's, and C, the pur- 
 chaser, brings a suit for it against D, who claimed under a purchase 
 from B. Held, the mortgagee having a mere lien on the property, if 
 any interest in it, D could not defend on the ground that the mortga- 
 gee did not consent to the erection of the house, and forbade its 
 removal ; that the rights of the latter would not be affected by the 
 event of this suit, and the house would remain subject, as before, to 
 his claim.(l) It was intimated by the court, that the mortgagee ac- 
 quired no lien upon a house thus erected, although he might secure 
 the rents by taking possession ; but that it was the p&isonal p-operiy 
 of A.(2) 
 
 6. The distinction above pointed out, seems to have been reversed 
 by an observation of the court in Massachusetts ; that "the mortgagee 
 has the whole estate against all hut the mortgagor, in the same manner as 
 if it were absolute."(3) This, however, is a mere dictum, and the law 
 seems to be well settled as above stated. 
 
 7. A mortgage gives to the mortgagee an immediate right of possession, 
 which he may assert by entry or action, unless there be an express 
 stipulation to the contrary. But this is often the case, and is said to be 
 a very ancient practice, as early as the time of James I.(-i)(a) 
 
 8. A parol agreement, that the mortgagor shall remain in possession 
 till breach of condition, is insufficient; though the condition be to sup- 
 port the mortgagee and his wife, which could probably be done only 
 out of the estate mortgaged. (5) 
 
 9. But an agreement or understanding, that the mortgagor is to re- 
 main in possession, may be implied from the terms of the deed or other 
 accompanying instrument. It may operate by estoppel, covenant, con- 
 dition or reservatiou.{6) 
 
 10. A sold to B a mill, took a mortgage back, and gave B a bond, 
 stating the privileges which B was to enjoy in using the water, dam, 
 &c., covenanting to build machinery in the mill, and not follow himself. 
 
 (1) Jewett V. Patridge, 3 Fairf. 243. 
 
 (2) lb. 252. See Evans v. Merriken, 8 
 Gill & J. 39. 
 
 (3) Fay V. Brewer, 3 Pick. 404. 
 
 (4) Powsely v. Blaokman, Cro. Jao. 659 ; 
 Partridge i;. i3ere, 5 B. & A. 604; Jackson!;. 
 Bronson, 19 Jolin. 325; 14 Pick 530-1; 
 Dickenson v. Jackson, 6 Cow. 147 ; Wilkin- 
 son V. Hall, 4 Scott, 301 ; Doe v. Giles, 5 
 Bing. 421 ; Doe v Cadwallader, 2 B. & Ad. 
 473 ; Doe v. Maiaey, 8 B. & C. 767 ; Parting- 
 ton V. Woodcock, 6 Ad. & Ell, 695 ; Doe v. 
 McLoskey, 1 Alab. (jST. S.) 708 ; Luckey v. Hol- 
 brook, 11 Met. 460; Allen v. Pai-ker, 27 
 Maine, 531 ; Miner v. Stevens, 1 Cush. 485 ; 
 
 Hobart v. Sanborn, 13 N. H. 226 ; Harmon 
 V Short, 8 Sm. & M. 433; Walcop v. Mo- 
 Kinney, 10 Mis. 229; Smith v. Taylor, 9 
 Ala. 633; Molntyra v. "Whitfield, 13 Sm. & 
 II. 88; Brown v. Stewart, 1 Md. Cba. 87; 
 Reed v. Davis, 4 Pick. 217 ; Rogers v. Graze- 
 brook, 8 Ad. & Ell. (N. S.) 895. 
 
 (5) Colman v. Packard, 16 Mass. 39 ; 
 Blaney D. Bearoe, 2 Greenl, 132. 
 
 (6) 11 Pick. 477 ; Dearborn v. Dearborn, 9 
 N. H. 117 ; Flanders v. Laraphear, lb. 201. 
 See Wilkinson v. Hall, 4 Scott, 301 ; Lamb 
 V. Foss, 8 Shepl. 240; Rhoades v. Parker, 10 
 N. H. 83; Holmes v. Fisher, 13 N. H. 9; 
 Coote, 376. 
 
 (o) "Where a mortgage is upon this condition, the mortgagor may be allowed to redeem, 
 upon the terms of a pecuniary compensation for past and future support. Austin v. Austin, 
 9 Verm. 420. 
 
OHAP. XXX] 
 
 IT CREATES, ETC. 
 
 407 
 
 or suffer others to follow the same occupation, while B continued it ; 
 and reserving to himself the use of a room in the mill for a certain 
 time. Held, the bond amounted to a covenant, that B might occupy 
 the mill till breach of condition, and that A could not maintain a writ 
 of entry at common law against B.(l) 
 
 11. So where the condition of a mortgage was, that the mortgagor 
 should carry on the farm during the life of the mortgagee, and deliver 
 him one-half of the produce ; held, the mortgagee had no right to enter, 
 till condition broken or waste committed ; or except for the purpose of 
 taking his share of the produce. (2) 
 
 12'. Where the mortgagor of a leasehold estate reserves the right to 
 remain in possession till breach of condition, and holds over after such 
 breach, he is not liableyor rent to the mortgagee, previous to the entry 
 of the latter. And, if a mortgagor have tendered the debt after it fell 
 due, the title to the estate cannot be tried in a suit for rent.(3) 
 
 13. A mortgagor, reserving the right to keep possession till breach 
 of condition, may allow a stranger to occupy under him ; and the 
 latter, having entered before breach, is not a trespasser in continuing to 
 occupy afterwards.(4) 
 
 14. In Vermont and Wisconsin, a statute provides that the mortgagor 
 shall have the right of possession till breach of condition, unless the 
 deed clearly show the contrary. 
 
 15. In Massachusetts and Maine, on the other hand, the mortgagee's 
 right of possession is recognized, unless (in Massachusetts) there is an 
 agreement to the contrary.(5) 
 
 16. Where there is no agreement, express or implied, that the mort- 
 gagor shall retain possession, his possession is strictly at the will of the 
 mortgagee. It is not adverse to the latter. He has often been called a 
 tenant at will. But, technically, there is little propriety in this designa- 
 tion. In the first place, a mortgagor wants the chief mark or charac- 
 teristic of a tenant or lessee, which is the payment of rent ; for, while 
 a mortgagor, or any one holding under him, remains in possession, he 
 receives the rents and profits for his own account ; and, in the second 
 place, he has none of the privileges of a tenant at will, in regard to 
 notice to quit, but may be immediately turned out without any notice, 
 and without the privilege of emblements, the crop being liable for the 
 debt.(a) Lord Mansfield very justly denominated him a quasi tenaxil 
 at will ;(6) at the same time remarking, with reference to the prevailing 
 language of the law on the subject, that " nothing is so apt to confound as 
 a simile." It has been justly observed, however, that whatever charac- 
 
 (1) Bean v. Mayo, 5 G-reenl. 89. 
 
 (2) Hartshorn v. Hubbard, 2 N. H. 453 ; 
 ■gv. Fkgg, 11 Pick. 475. 
 
 (3) Mayo i;. Fletcher, 14 Pick. 525. 
 
 (4) lb. 
 
 (5) Term. Rev. St. 215; Mass. Rev. St. 
 635 ; Mo. Rev. St. 553 ; Ruby V. Abyssinian, 
 &c., 3 Shepl. 206. 
 
 (a) A mortgagee, not in possession, has no emblements. Toby v. Reed, 9 Conn. 225. 
 See Gillett v. Balcom, 6 Barb. 370 ; Jones v. Thomas, 8 Blackf. 428 ; Shepard v. Phil- 
 brick, 2 Denio, 174. 
 
 (6) It will be seen presently, that while a mortgagor, in most respects, has a less estate 
 than a tenant at will, he is. in one particular, treated more favorably than the latter. It 
 has been stated, (EstaU at Will,) that the assignee of a tenant at will becomes a trespasser 
 by entry upon the land ; while the better opinion is, that the assignee of a mortgagor is not 
 a trespasser, but succeeds to all the rights of the mortgagor. 
 
408 
 
 MORTGAGE— "WHAT ESTATE 
 
 [CHAP. XXX. 
 
 ter we may give to the mortgagor in possession by sufferance of the 
 mortgagee, he is still a tenant; and that he has sometimes been called 
 an agent, but without foundation, for he is not liable to account. Nor 
 is he a servant, because the mortagee has no possession. Nor can the 
 mortgagor, or one claiming under him, be a disseizor.iX) 
 
 17. A mortgagor will be restrained by the Court of Chancery from 
 committing waste, even before condition broken, though not liable there- 
 for at law ; and thereby diminishing the security of the mortgagee. 
 {Lifra, s. 25.) But the mortgagor is not bound to make repairs. If he 
 cut down trees before breach of condition, the mortgagee cannot have 
 trover against him. On the other hand, if the mortgagor in possession 
 severs anything from the land, sells it to a third person, and the mort- 
 gagee then takes it from such purchaser, the purchaser may maintain 
 an action against him.(2)(a) 
 
 18. A mortgagor in possession cannot make a lease, to bind the mort- 
 gagee.(3) His possession cannot be considered as holding out a false 
 appearance, or indacing a belief that there is no mortgage, for it is the 
 nature of the transaction that he should remain in possession, and the 
 mortgagee receive interest; and whoever wants to be secure, when he 
 takes a lease, should inquire after and examine the title deeds. When- 
 ever one of two innocent persons must be a loser, the rule is, " qui prior 
 in tempore, potior est in jure." Hence, the mortgagee may maintain 
 ejectment for the land against the lessee. 
 
 19. Such are the principles laid down by Lord Mansfield on this sub- 
 
 (1) Mo93 V. Gallimore, Doug. 279; 1 T. R. 
 378; Doug. 21; 14 Pick. 500-1 ; Jackson u 
 Puller, 4 John. 215; Crew3 v. Pendleton, 1 
 Leigh, 297 ; Rockwell v. Bradley, 2 Conn. 1 ; 
 Wakeman )). Banks, lb. 445; 4 Kent, 155- 
 6; Blaney K. Bearce, 2 Greenl. 132; McCall 
 V. Lenox, 9 S. & R. 3 1 1 ; Soudera v. Van 
 Sickle, 3 Halst. 316; Partridge v. Bere, 5 B. 
 k A. 604; Christophers v. Sparke, 2 Jac. & 
 "W. 234 ; Noyes v. Sturdivant, 6 Shepl. 104; 
 Castleman v. Belt, 2 B. Monr. 158; Hitch- 
 man V. Walton, 4 Mees. & W. 409 ; Cooper 
 V. Davis, 15 Conn. 556 ; Joyner v. Vincent, 4 
 Dev. & B. 512; Miner v. Stevens, 1 Cush. 
 485 ; Doe v. Maisey, 8 B. & C. 767 ; Litcli- 
 field V Ready, 1 Bng. L. & Eq. 460 ; Stedman 
 V. Gasset, 18 Verm. 346 ; Doe v. Tom, 4 Qu. 
 
 B. 615 ; V. Olley, 12 Ad, & Ell. 481; 
 
 Fuller V. Wadsworth, 2 Ired. 263. 
 
 (2) Parrant v. Lovel, 3 Atk. 723 ; Smith v. 
 Goodwin, 2 Greenl. 173; Catnpbellj; Macomb, 
 4 John. Cha. 534; Fay u. Brewer, 3 Pick. 
 203; Peterson v. Clark, 15 John, 205; 15 
 Conn. 556; Salmon v. Clagett, 3 Bland, 380; 
 Murdock, 2, 461 ; Usbo/ne v. XJsborne, 1 
 Dick. 75; Johnson v. White, 11 Barb. 194; 
 Boston, &o. V. King, 2 Cuah. 400 ; Van Wyok 
 V. AUiger, 6 Barb. 507 ; Ensign u Colburn, 11 
 Paige, 503; Gray o. Baldwin, 8 Blackf. 164; 
 Brown v. Stewart, 1 Md. Cha. 87; Brick u. 
 Getzinger, 1 Halst. Cha. 391; Humphreys i;. 
 Harrison, 1 Jao. & W. 581; Hampton «. 
 Hodges, 8 Ves. 105; Goodman v. Kine, 8 
 Beav, 379, 
 
 (3) Keeoh v. Hall, Dougl. 21, 
 
 (a) But it has been held, that the mortgagee may bring an action for timber out by one 
 who entered under the mortgage, Bussey v, Paige, 2 Shepl. 132 ; Gore v, Jenneas, 1 Appl. 
 53. See Frothingham v. M'Cusiok, 11 Shepl. 403 ; Langdon v. Paul, 22 Vern. 205 ; Van Pelt 
 V. McGraw, 4 Comst. 110; Lull v. Matthews, 19 Verm. 322. In case of redemption, he is 
 bound to account for what he receives. lb. If the mortgagee has expressly or impliedly 
 authorized the cutting of timber, it belongs, when cut, to the mortgagor; otherwise, the 
 mortgages may either have an injunction in equity, an action at law, or claim the timber it- 
 self, unless the rights of third persons have intervened. Smith v. Moore, 11 N. H. 55. A 
 mortgages to B, then to C; neither of whom takes possession. A cuts timber from the land, 
 after which B's mortgage is discharged. Held, C might maintain trespass again.st A. San- 
 ders v. Reed, 12 N. H. 558. It has been held, that a mortgagee has not a sufficiently vested, 
 immediate or direct title to thu property, to maintain an action for injuries done to it by a 
 third person, except in case of a direct intent to wrong and defraud him, and the mortgagor's 
 insolvency or inability to pay the mortgage debt. Lane v. Hitehcock, 14 John. 213; Bank, 
 &c. V. Mott, 17 Wend. 554; Gardner v. Heartt, 3 Denio, 232. 
 
CHAP. XXX] 
 
 IT CREATES, ETC. 
 
 409 
 
 ject. In the United States, they derive additional force from the uni- 
 versal practice of registering mortgages as well as other deeds. If uot 
 recorded, a mortgage will be invalid against a subsequent lease ; but, if 
 it is recorded, the lessee has implied notice, and takes subject to the 
 mortgage. 
 
 20. In the case decided by Lord Mansfield, it is said the mortgagee 
 had no notice of the lease, nor the lessee of the mortgage ; and that, if 
 the mortgagee had encouraged the tenant to lay out money, he would 
 be bound by the lease. How far this fact would qualify the effect of 
 registration, is perhaps a doubtful question. 
 
 21. It is to be observed, however, that an assignee of the mortgage 
 succeeds to all the rights of the mortgagee himself Hence, if after a 
 lease by the mortgagor, the mortgagee assigns the mortgage, the as- 
 signee may have ejectment against the tenant.(l) 
 
 22. It has been said, that the mortgagee may consider the lessee of 
 the mortgagor as a trespasser, a disseizor, or a lessee, at his election. It 
 seems, however, that the mere entry of such lessee does not constitute 
 him a trespasser, but only his refusal to quit, when required. In Keech 
 T. Hull, the case above cited, it is said, " the tenant stood exactly in the 
 situation of the mortgagor," against whom, clearly, trespass would not 
 lie without previous notice.(2) 
 
 , 23. So the mortgagee cannot recover, in an action of trespass for 
 mesne profits against an assignee of the mortgagor, the rents and profits 
 accruing after commencement of a suit by the mortgagee to obtain pos- 
 session. (3)(o) In deciding this point, the court remark, "it seems to 
 be admitted, that the mortgagor was not a trespasser before he was 
 served with the writ in the action to foreclose." " The question sub- 
 mitted is the same as if the action were between the mortgagee and 
 mortgagor."(4) " He cannot be considered a trespasser until after an 
 entry by the mortgagee."(5) Chancellor Kent is of opinion, that the as- 
 signee is no more a trespasser than the mortgagor himself; and that 
 this is the better and more intelligible American doctrine.((i)(&) 
 
 24. In Massachusetts, Connecticut and Pennsylvania, the English 
 
 (1) Thunder j;.Belolier, 3 E 449. 
 
 (2) 2 Cruise, 76; 1 Pow. 159, n., 160. See 
 Bvaiia V. Elliot, 9 Adol. k El. 342 ; Doe v. 
 Barton, 11, 307. If the mortgagee adopt tlie 
 lessee as his tenant, he does not thereby affirm 
 the lease, but the lessee holds from year to 
 year. Doe u. Bucknell, 8 Carr. & P. 566 ; 
 Brown v. Storey, 1 Scott, N. 9. See Hill v. 
 Jordan, 30 Maine, 367 ; Dixie v. Davies, 8 
 Eng. L. & Equ. 510; Zeiter v. Bowman, 6 
 Barb. 133 ; Clark v. Abbott, 1 Md. Ch. 474; 
 Henshaw v 'Wellsi, 9 Humph. 568; Smith v. 
 Taylor, 9 Ala. 633; Doe v. Warburton, 11 
 Ad. & Ell. 307 ; v. Goodier, 16 L. J. Q. 
 
 B. (N. S ) 436 ; Wilton v. Dunn, 7 Eng. L. k 
 Equ. 406 ; Knowles v. Maynard, 13 Met. 352 ; 
 Doe V. Olley, 12 Ad. k Ell. 481; Wheeler v. 
 Branoomb, 5 Q. B. 373; Field u. Swan, 10 Met. 
 114; Crosby «. Harlow, 8 Shepl. 499;Simera 
 V. Saltus, 13 Denio, 214; Turner!). Cameruns, 
 &o., 2 Eng. L. & Equ. 342; Coke v. Pearsall, 
 6 Ala. 542; Massachusetts v. Wilson, 10 
 Met. 126. 
 
 (3i Wilder v. Houghton, 1 Pick. 87. 
 
 (4) lb. 88. 
 
 f5) lb. 89. 
 
 (6) 4 Kent, 156-7. 
 
 (a) But, where one in possession, claiming under the mortgagor, refuses possession to the 
 mortgagee upon his entry for breach of condition, the latter may maintain an action against 
 him for mesne profits, though the entry be insufficient for foreclosure. Northhampton, &c. 
 V. Ames, 8 Met. 1. 
 
 (6| Where the mortgagee himself purchases under a sale for foreclosure after the decree, 
 he may treat an occupant under the mortgagor as a tenant or a trespasser. He is entitled 
 to the rents from the time of demanding possession or obtaining a conveyance. Castleman 
 V. Belts, 2 B. Monr. 158. 
 
410 
 
 MORTGAGE— "WHAT ESTATE 
 
 [CHAP. XXX. 
 
 rule, by whicli a mortgagor is not entitled to notice to quit, has been 
 adopted. In New York, on the other hand, it has been held, that eject- 
 ment would not lie against a mortgagor as a trespasser, without notice; 
 there being a privity of estate and a tenancy at wiil by implication. 
 But it would lie against an assignee of the mortgagor. It will be 
 seen, hereafter, that the action of ejectment by a mortgagee is now 
 abolished.(l) 
 
 25 Though mere occupancy does not constitute the mortgagor a tres- 
 passer, yet, for any wrongful act on his part relating to the estate, the 
 mortgagee may maintain trespass against him ; as, for instance, the 
 cutting and carrying away of timber trees. {Sup-a, s. 16.) Where the 
 land mortgaged is wild land, a question has been made, whether a gen- 
 eral usage to cut timber upon such land is to be held equivalent to an 
 implied license. Trespass also lies, by an assignee of the mortgage, 
 against an assignee of the mortgagor, for the removal of fixtures, though 
 erected by the latter assignee.(2) 
 
 20. A lease by the mortgagor, subsequent to the mortgage, is valid 
 between him and the lessee, and as to all the world but the mortgagee, 
 and entitles the lessee to redeem. (3) 
 
 27. Where a lease has been made before the mortgage, the mort- 
 gagee takes, of course, subject to the former, and cannot interfere with 
 the lessee's possession, so long as the latter fulfils his own obligations in 
 regard to the land. But a mortgagee, under such circumstances, seems 
 to stand on the footing of any other assignee of a reversion, and, after 
 condition broken, may call on the tenant to pay rent to him instead of 
 the mortgagor. Since the statute of Anne, no attornment is necessary 
 to create this liability on the part of the tenant. Although the statute 
 provides, that any payment of rent by the tenant shall be effectual, 
 until he has notice of the assignment ; yet, upon the giving of such no- 
 tice, the title of the assignee relates back to the time of the assignment. 
 Upon this principle, the mortgagee, in the case supposed, may call on 
 the tenant to pay him not only future rents, but those at the time in 
 arrear, and may distrain for them. This remedy is said to be a very 
 proper additional advantage to mo-rtgagees, to prevent collusion be- 
 tween the tenant and the mortgagor.(4) It has been seen, that in sev- 
 eral of the States, by express statutes, a lessee may attorn to a mort- 
 gagee after forfeiture. (See Attornment.) 
 
 28. Hence it appears, that, although the relation of landlord and 
 tenant does not subsist between mortgagee and mortgagor, it may arise 
 between the mortgagee and the lessee of the mortgagor. 
 
 29. In the case above referred to, where the mortgagee's claim of 
 rent was made upon breach of condition by the mortgagor, it is said, the 
 mortgagor previously received the reut by a tacit agreement with the 
 mortgagee ; but the mortgagee may put an end to this agreement when 
 
 (1) Rockwell V. Bradley, 2 Conn. 1 ; "Wako- 
 man o. Banks, lb. 445 ; Groton v. Box- 
 borough, 6 Mass. 50; M'Call v. Lenox, 9 S. 
 & R, 311 ; Jackson V. Laughhead, 2 John. 75; 
 Jackson j;. Puller, 4, 215; Jackson i;. Hop- 
 kins, 18, 481 ; 2 N. T. R. S. 312. In New 
 Hampshire, the mortgagor may be treated as 
 a trespasser. Pettengill i). Evans, 1 N. H. 54. 
 
 (2) Stowell V. Pike, 2 Greenl. 387 ; Smith 
 V. Goodwin, 2 Greenl. 173. 
 
 (3) See Bacon v. Bowdoin, 22 Pick. 401 ; 
 Mass. Rev. St. ch. 107, sec. 13. 
 
 (4) Moss ». Gallimore, Doug. 279 ; Birch 
 V. Wright, 1 T. R. 384 ; Smith v. Shepard, 
 15 Pick. 147 ; Mansony v. U. S. &c, 4 Alab. 
 N. S. 735 ; Castleman v. Belt, 2 B. Mon. 158. 
 In Kentucky, he may bring an action for use 
 and occupation. lb. See Rawson v. Eicke, 
 7 Ad. & Ell. 451 ; Field v. Swan, 10 Met. 
 112. 
 
CHAP. XXX,] IT CREATES, ETC. 411 
 
 he pleases. _ Whether this tacit agreement would prevent the mortgagee 
 from claiming rent immediately upon the execution of the mortgage, 
 IS a point not distinctly decided ; but, on principle, it would seem to 
 have no such effect. The true view of the matter would appear to be, 
 that where the mortgage is made before the lease, the latter is wholly 
 invalid against the former; but where the lease is made first, it is by 
 priority paramount to the mortgage, and the lessee cannot therefore be 
 disturbed ; but still the mortgagee takes the place, and succeeds to all 
 the rights, of the mortgagor.(a) 
 
 SO. If the mortgagee himself take a lease from the mortgagor, he 
 shall not set up the mortgage as a defence to a suit for the rent. If the 
 lease be made first, he may refuse to pay rent, which shall go to extin- 
 guish the mortgage debt.(i) 
 
 31. The lessee of a mortgagor, the mortgage being prior to the lease, 
 if ejected by the mortgagee, is not entitled to emblements.(2) 
 
 32. The doctrine that, where a mortgage \s prior to a lease made by 
 the mortgagor, the mortgagee may claim rent of the lessee as Lis ten- 
 ant, has been strongly denied in New Jersey and New York. It is 
 said that the case of Birch v. Wright, (1 T. R. 378,) the only case where 
 the point is pretended to have been settled, does not decide it, but 
 stands upon other grounds. 
 
 33. A mortgaged land to B, but remained in possession and con- 
 veyed to C. C admitted D as his tenant. C's interest in the land was 
 afterwards sold on execution to E. Immediately upon the sale, and 
 before a deed was given, D attorned to E, and agreed to occupy at a cer- 
 tain rent. B afterwards notified D to pay rent to him, and D, receiv- 
 ing an indemnity, accordingly paid it. E brings an action against D 
 for the rent. Held, these facts furnished no defence to the suit. A 
 distinction was taken betwepn the case of a lease prior to the mortgage, 
 and the present case, where it was subsequent to the mortgage. In 
 the former case, the rent passes as incident to the reversion which is 
 mortgaged, and the mortgagor is estopped by his own deed to claim it 
 afterwards. But in the present case, the defendant was never tenant 
 to the mortgagee, nor even to the mortgagor. Moreover, a statute, 
 (Revised L. 192,) provides, that a tenant shall not attorn to a stranger. 
 Therefore, D could not lawfully attorn to any one but or his grantee, 
 and E, holding under an execution sale against G, was to be regarded 
 as his grantee ; while, on the other hand, B was to be held a stranger. 
 Nor was the attornment to B justified by the statutory provision, which 
 excepts mortgagees from the general prohibition of attornment ; for 
 this merely leaves attornment to a mortgagee to be valid or void ac- 
 cording to the circumstances of the case, but does not justify attorn- 
 ment to any but the grantee of the landlord.(3)(6) 
 
 0) Newall J). 'Wright, 3 Mass. 138. See , (3) Souders v. Tan Sickle, 8 Halst. 3U; 
 Wolcott «. Sullivan, 1 Edw. 399. M'Kircher v. Hawley, 16 John. 289. See 
 
 (2) Lane v. King, 8 Wend. 584. I Cavis v. M'Clary, 5 U. H. 529. 
 
 (a) The tenant is held liable to pay to the mortgagee the rents due at the time of notice, 
 as well as those accruing subsequently. Pope v. Biggs, 9 B. & 0. 245, 
 
 (6) If a mortgagee enter for breach of condition, and order a lessee in possession to pay 
 him the rent ; tliough the entry be not such as is necessary tor foreclosure, it will still 
 give the mortgagee a title to the rent as against the mortgagor. Stone v. Patterson, 19 
 Pick. 476. 
 
412 MORTaAGE— WHAT ESTATE, ETC. [CHAP. XXX. 
 
 8-4. A mortgagee in possession, being tlie legal owner of the inheri- 
 tanci-, has power at law to commit waste. (See ch. 31, s. 52.) But a 
 court of chancery will restrain him from doing it, unless the security 
 is defective ; or will decree an account of the trees cut down, and an 
 application of the proceeds to pay, first the interest, and then the prin- 
 cipal, of the mortgage debt.(l)(a) In iiaine, a question has been made, 
 whether a mortgagee after entry may cut and carry away for sale, 
 timber and other trees, lie must account for the proceeds of timber 
 cut by a third person, which are received by him.(2) 
 
 35. A mortgagee in possession cannot make a lease of the land to 
 bind the mortgagor, unless there be an absolute necessity for it;(6) and 
 if the mortgagor bring a bill in equity for reconveyance, and tender 
 the amount due, although the mortgagee set up sucli lease in his an- 
 swer, and offer to reconvey upon the plaintiflF's assenting thereto, a re- 
 conveyance will be decreed free from this condition. (3) 
 
 (1) Hanson v. Derby, 2 Tern. 392 ; Sol. l (2) Blaney v. Beaoe, 2 Greenl. 132 ; Gore 
 Gas. in Chan. 30; 2 Cruise, 81. See Evans \v. Zeneess, 1 Appl. 53. (See infra. 31.) 
 V. Thomas, Cro. Jao. 172; MoCormicli v. (3) flungerford ii. Clay, 9 Mod. 1. 
 Digby, 8 Blaekf, 99. 1 
 
 A tenant of the mortgagor, if the mortgage be forfeited during Viis lease, may attorn to, 
 and take a lease from, the mortgagee, and the mortgagor can then msiiitain no action for 
 the rent. Jones v. Clark, 20 John. 51; Maglll v. Hinsdale, 1 Conn. 464; Jackson v. De- 
 lancy, 11 John. 365. But mere notice to a lessee by the mortgagee will not make him his 
 tenant. Johnson v. Jones, 9 Ad. & Ell. 809 ; Evans v. Elliott, lb. 342. 
 
 A mortgagee remained in possession six years, without acknowledgment of the mortga- 
 gor's title, bought out a tenant for life of the equity, and occupied twenty years more. Held, 
 his occupancy was not adverse during the tenancy for life, and the reversioner might re- 
 deem. Hyde v. Dallaway, 2 Hare, 528. 
 
 In connection with the subject of leases made by a mortgagor, may be stated tlio rule of 
 law applicable to the liability on the part of the mbrtgagee, created by a mortgage of 
 leasehold property. 
 
 It was once held that, where a leasehold is assigned by way of mortgage, the mortgagee 
 does not, like other assignees, become liable to the covenants of the lease immediately, but 
 only after entry. But the law seems to be now settled otherwise. To guard acainst this 
 consequence of an assignment, it is usual to mortgage a term by way of under-lease. But 
 the mortgagee tliereby loses the right of renewal, wliich he would liave as assignee. The 
 mortgagee is liable onlj' for rent due after the mortgage is made, not for prior instalments. 
 Eaton V. Jaques, Doug. 457 ; Williams v. Bosanquet, 1 Brod. & B. 238; 2 Cruise, 103, u, 
 a. ; 1 Pow. on Mort. 197, n. 1 ; Blaney v. Bearee, 2 Groenl. 132 ; Astor v. Miller, 2 Paige, 
 68 ; Morris v. Mowatt. lb. 586 ; McMurphy v. Minot, 4 N. H. 251. 
 
 Devise to A, B and C, subject to a life estate, and charged with the payment of £200, a 
 legacy to the children of the testator's niece. Btfore the death of the tenant for life, A and 
 B conveyed their reversion by way of mortgage for 500 years. Held, an action of debt 
 would not lie again.st the mortgagees for tlie legacy. Braithwaite v. Skinner, 5 Mees. 4 
 W. 313. 
 
 (a) So a mortgagee will be held liable for pulling down cottages on the land. Sandon v, 
 Hooper, 6 Beav. 246. 
 
 (6) Otherwise by the civil law. 1 Dom. 356. 
 
CHAP. XXSI.] 
 
 EQUITY OF REDEMPTION, ETC. 
 
 413 
 
 CHAPTER XXXI. 
 
 EQUITY OE REDEMPTION— NATURE OE THE ESTATE— "WHO MAY 
 REDEEM, ETC. 
 
 1. Distinction between an equity of re- 
 
 demption and a trust. 
 
 2. Mortgagor has seizin. 
 
 3. Curtesy. 
 
 4. Dower. 
 
 8. "Whether assets. 
 
 9. Subject to legal process. 
 
 12. Who may redeem. 
 
 13. Subsequent incumbrancers. 
 16. Dowress, &e. — on what terms. 
 
 22. The Crown. 
 22 a. Heirs, &c. 
 
 23. Whether the whole debt must be paid. 
 25. Tacking. 
 
 29. Whether known in U. S. 
 
 30. Future advances, &o. 
 37. Time of redemption. 
 
 43. No redemption in case o^ fraud. 
 45. Terms of redemption — ^account — repairs 
 interest, &c. 
 
 1. An equity of redemption has been held to re.semble a trust. But 
 in some respects the rights of a mortgagor are better protected by the 
 law, than those of a cestui. A trust is said to be created by the contract 
 of the party, and therefore subject to his directions. But an equity of 
 redemption is inherejit in the land, and, as has been seen, not liable to be 
 impaired even by express restrictions. It is in fact the creature of a 
 court of equity, and not an interest reserved by the parties. The 
 former, anciently, did not bind a party coming to the estate in the post ; 
 while the latter adhered to the estate, into whose hands soever it might 
 come.(l)(a) 
 
 2. A mortgagor, after breach of condition, if in possession, has, in 
 the view of a court of equity, an equitable seizin, equivalent to a legal 
 seizin in the view of a court of law. Hence, his estate is subject to con- 
 veyance, devise, descent, entailment, mortgage, and to be charged with 
 an annuity. It is not a mere right, but an estate in the land, whereof 
 in equity there may be a seizin. The mortgage itself being only a 
 
 (1) Pawlett V. Att'y-Gen., Hard. 469; 17 Tes. 133 ; 2 Cruise, 88 ; Wood v. Jones, Meigs, 
 513. 
 
 (a) An equity of redemption is a title in eqvAty, not merely a trust. 1 Sand. Us. 203, 
 See Sampson v. Pattiaon, 1 Hare, 533 ; Downe v. Morris, 3 Hare, 404. A mortgage 
 deed does not per se create a trust; it conveys the estate subject to a condition. 
 The mortgagee is not accountable to any one until he enters, takes possession, and receives 
 the rents and profits, in which case he may in some sense be considered as a trustee, for he 
 is to render an account ; but this must be done in the manner and for the purposes pro- 
 vided in the several statutes for redeeming mortgages, and he is not trustee in any other 
 light. Hence, under the statute giving equity jurisdiction of trusts to the Supreme Court 
 in Massachusetts, the assignee of a mortgagor cannot maintain a bill for injunction against 
 the mortgagee, who is proceeding to recover possession at law ; and for a decree that the 
 mortgage be cancelled. Hunt v. Maynard, 6 Pi«k. 489. See Eastman v. Foster, 8 Met. 19. 
 
 A mortgagee is not precluded, hy the nature of his relation to the mortgagor, from buy- 
 ing the land, under a mortgage sale, at a low price. Mott v. Walkley. 3 Edw. 590. Con- 
 veyance to A in trust, chargeable with a certain sum, subject thereto in trust for B, and with 
 a power of sale to A. Held, A could not foreclose. 1 Hare, 533. See, as to the nature of 
 the estate or title called an equity of redemption, Burgess v. Wheate, 1 N. Bl. 145 ; Preston 
 V. Christmas, 2 Wils, 86 ; Viscount, &o. v. Morris, 3 Hare, 407 ; Asay v. Hooner, 5 Barr, 
 21 ; Borst V. Boyd, 3 Sandf. Ch. 501; Silvester v. Jarman, 10 Price, 84; Coates v. Wood- 
 worth, 13 Illin. 654; Chapman v. Mull, 7 Ired. Equ. 292; Clarke v. Sibley, 13 Met. 210; 
 Hewitt V. Huling, 11 Penns. 27 ; Pratt v. Thornton, 28 Maine, 355; Bank, &c. v. Whyte, 1 
 Md. Cha. 636. 
 
414 
 
 EQUITY OP REDEMPTION, ETC. 
 
 [CHAP. XXJI. 
 
 clione in action, unless the ownership of the land is in the_ mortgagor, it 
 is in nobodj'. The interest of the latter is no otherwise a right of 
 action than every trust, which, though not to be executed but by sub- 
 pcena out of Chancery, is still regarded as real estate.(l) In South 
 Carolina and Pennsylvania, the right of redemption is not an equitable, 
 but a strictly legal right.(2) 
 
 8. On the same principle, an equity of redemption is subject to 
 curtesy, if the wife is in possession of the land during coverture. 
 For, though such possession is a mere tenancy at will, it is in equity 
 that of the real owner, subject only to a pecuniary charge. Nor is the 
 husband to be deprived of curtesy on the ground of laches, in not 
 paying off the mortgage and thereby acquiring an absolute title, by 
 analogy to the rule which requires of him actual entry upon a legal 
 estate of the wife ; for the payment of a mortgage is a far more difficult 
 matter than a mere entry upon land ; besides that the mortgagee is en- 
 titled to notice, before he is bound to accept such payment. Upon 
 these grounds, a decision of Sir Joseph Jekyll, disallowing curtesy in 
 an equity of redemption, was reversed by Lord Hardwicke.(3) 
 
 4. But, in England, independently of an express statute, an equity 
 of redemption is not subject to dower. In this respect, it is placed 
 on the same footing with a trust.{4:) In one case, {Banks v. Sutton,){o) 
 the Master of the Rolls said, he did not know, or could find any in- 
 stance, where dower of an equity of redemption was cgntroverted and 
 adjudged against the dowress; and decreed in favor of the claim. But 
 afterwards, (in Attorney- General v. Scott,){6) Lord Talbot made a con- 
 trary decision in regard to a trust, which has been since uniformly 
 adhered to. And no peculiar equities on the part of the wife will 
 operate to change the rule in her favor ; as, for instance, the facts, 
 that the husband expressed his expectation and desire that she should 
 have dower, and was so instructed by the person who drew his will; 
 that the wife is left for the most part otherwise unprovided for ; and 
 that certain articles of luxury, such as a coach and horses, and plate, 
 are bequeathed to her, for which she can have no use without dower 
 to support her.(7)(a) 
 
 5. In the United States, the English rule is not adopted. It has 
 been seen, that in several of the States dower is allowed, by express 
 statute, in all equitable estates ; and decisions to the same effect, in re- 
 gard to equities of redemption, have been made in New York, Con- 
 necticut and Massachusetts. Chancellor Kent says, that dower is 
 allowed in equities of redemption in Massachusetts, iSTew York, Con- 
 
 (1) 2 Cruise, U3; 2 Abr. Eq. 728; Cas- 
 borne v. Searfe, 1 Atk 603; Ellilliorpe v. 
 Dewing-, 1 Ciiipm. 140. 
 
 (2) State V. Laval, 4 M'C. 340; Anderson 
 V. Neff, 11 S. & R. 223. 
 
 (3) Casborne v. Inglis, 2 Abr. Equ. 728; 1 
 Atk. 603. 
 
 (4) 2 Cruise, 122. 
 (6) 2 P. Wms. 719. 
 
 (6) For. 138; 1 Cruise, 444. 
 
 (7) Dixoa V. Saville, 2 Cruise, 111. 
 
 (a) By a recent statute, dower is allowed in equitable estates. In Maryland, and the 
 Maryland part of tlie District of Columbia, the old English rule prevailed, till expressly 
 •chantied by statute in the year 1818. See Miller v. Stump, 3 Gill, 304; M'lver v. Cherry, 
 8 Humph. 713; Stelle v. Carroll, 12 Pet. 201; Mayburry v. Brien, 15 lb. 21. 
 
CHAP. XXXI.] 
 
 EQUITY OF REDEMPTION, ETC. 
 
 415 
 
 necticut, New Jersey,(a.) Pennsylvania, Virginia, Alabama, Indiana, 
 and probably most or all of the other states.(l) 
 
 6. Thus, if the executor, &c., of the husband redeem the mortgage, 
 the widow shall have dower.(2) 
 
 7. Even in England, where a mortgage is madeybr years, and not in 
 fee, dower is allowed in the equity of redemption. If the mortgage 
 has been satisfied. Chancery will remove the term for the benefit of 
 the widow ; if not, she will be bound to pay one-third of the interest 
 or of the principal. (3) 
 
 8. In England, an equity of redemption was formerly not legal 
 assets in the hands of the heir, but he might plead " riens per descent." 
 Since the statute of frauds, like a trust, it has been held to be assets in 
 equity ; but only to pay debts of that description, to which the land 
 would have been liable, if it had been a legal estate. Where the 
 mortgage is made for years, the equity, being incident to the reversion 
 in fee, is, like the latter, legal assets.{i) By St. 3 and 4 Wm. IV, c. 104, 
 equities of redemption, generally, are made legal assets. 
 
 9. In England, an equity of redemption has been held not liable to 
 be taken on execution.ip) And it has been doubted, whether this 
 principle is changed by St. 1 and 2 Vict., c. 110. But a judgment is a 
 lien upon an equity of redemption. But, in the United States, equities 
 of redemption are almost universally made subject to legal process 
 for the debts of the mortgagor. This subject will be considered here- 
 after.(i) (See ch. 35.) 
 
 10. On the other hand, the interest of a moiigagee cannot be taken 
 upon execution before foreclosure. (6) 
 
 11. Although an equity of redemption is liable to be taken on exe- 
 cution by third persons, the mortgagee himself shall not be allov.'ed to 
 take it upon a judgment recovered for the mortgage debt ; because a 
 
 (1) 4 Kent, 44; Cooper v. Whitney, 3 
 Hill, 95. See, also, Midi. Rev. Sta. 262, 2fi3 ; 
 Ark. Rev. Sta. 337; Term. Rev. Sta. 289; 
 Wise. Rev. Sta. 333 ; Thompaon v. Boyil, 1 
 N J. 58 ; 2, 543 ; Tabelo v. Tabele, 1 John. 
 Ciia. 45 ; Titus v. Neilson, 5, 452 ; Mantz v. 
 Buclianan, 1 Md. Oh. 202 ; Hoou'land K.Watt, 
 2 Sandf. Cha. 148 ; Denton v. Nanny, 8 Barb. 
 618; Frost V. PeaeOL-k, 4 Edw. Cha. 678; 
 Bolton V Ballard, 13 Mass. 229 ; Hildretli v. 
 Jones, 13 lb. 525 : Niles v. Nye, 13 Met. 135 ; 
 Lund V. Woods, 11 Met. 566; Wedge v. 
 Moore, 6 Cusli. 8; Raynham i;. Wilmarth, 13 
 Met. 414; Gage v. Ward, 25 Maine, 101; 
 
 Littlefield v. Crocker, 30, 192; Roasiter -o. 
 Cosait, 15 N. H. 38; Clough v. Elliott, 3 
 Fost. 182 ; Matthewson v. Smith, 1 Ang. 22; 
 Danfortli v. Smith, 23 Term. 247 ; Brown v. 
 Lapham, 3 Cush. 553 ; Tillinghast v. Fry, 1 
 Ang. 53 ; Tan Tronker v. Eastman, 7 Met. 
 157; Thayer v. Richards, 19 Pick. 398; 
 Henry's case, 4 Cush. 257. 
 
 (2) 13 Mass. 227, 525. 
 
 (3) 2 Cruise, 123. 
 
 (4) 2 Cruise, 123-4. 
 
 (5) Plunket v. Penaon, 2 Atk. 290; Forth 
 V. Duke, &c., 4 Madd. 501 ; Coote, 79, 80. 
 
 (6) 1 Pow. 255, u. 1. (See ch. 32.) 
 
 (a) In this State, a contrary doctrine was formerly held. Montgomery v. Bruere, 1 South. 
 260. In Ohio, where the condition is broken before marriage, and the equity ol' redemption 
 relea.sed after, there is no dower. Rands v. Kendall, 15 Ohio, 671. 
 
 (i) In tliat part of the District of Columbia ceded by Maryland, they are not thus liable. 
 Tan Ness v. Hyatt. 13 Pet. 294. See, also, for the law in South Carolina, State v. Laval, 
 4 McC. 340 ; Hill v. Smith, 2 McL. 448. 
 
 In New York, an equity of redemption is held liable to execution, by the common law of 
 that State. Jackson v. WiUard, 4 John. 41 ; Hitchcock v. Harrington, 6, 290 ; Collins T. 
 Terry, 7, 278. 
 
416 EQtriTT OF REDEMPTION, ETC. [CHAP. SXXI. 
 
 shorter time is allowed for redeeming an equity, sold on execution, 
 than for redeeming the land itself (l)(a) 
 
 12. With regard to the persons who are entitled to redeem, it is of 
 course to be understood, that any party in whom the law vests an 
 equity of redemption, either by its own operation, or by his voluntary 
 act, may redeem the mortgage; indeed, the latter part of the proposi- 
 tion is a mere repetition of the former, since an equity of redemption is 
 itself nothing else but the right or power to redeem. It seems, any 
 one may redeem a mortgage, who is entitled to the legal estate of the 
 mortgagor, or claims a subsisting interest under him.(2)(i) 
 
 13. Any subsequent incumbrancer may redeem, and thereby take the 
 place of the prior one; such as a judgment creditor, in those States 
 where a judgment constitutes a lien on real estate. (c) And in England, 
 the cognizee of a statute, (see ch. 29, sec. 1, n.,) acknowledged after the 
 filing of a bill for foreclosure, has been allowed to redeem even after 
 the foreclosure, if recent, and although the mortgagee had no notice. 
 So where a tenant mortgages for years, and the land escheats, the lord 
 
 (1) Atkins V. Sawyer, 1 Pick. 351 ; Camp 
 V. Coxe, 1 Dev. & B. 52; Goring v. Slireve, 
 7 Dana, 64; Palmer v. Foots, 1 Paige, 437 ; 
 "Waller v. Tate, 4 B. Mon. 531; Lyster v. 
 Holland. 1 Yes. jun. 431; Ties v. Annin, 2 
 Jobn Oh. 130. 
 
 (2) Gibson v. Creliore, 5 Pick. 149 ; Grant 
 V. Duane, 9 Jolin. 591 ; lb. 611 ; Smith v. 
 Manning, 9 Mass. 422; 4 Eent, 156; N. Y. 
 St. 1838, 262 ; Parvisc. Brown, 4 Ired. Equ. 
 413 ; Boarman v. Catlott, 13 Sm. & M. 149. 
 
 (a) But where a negotiable »i0te secured by mortgage is assigned without the mortgage, 
 the equity of redemption may be attached and sold on execution by the indorsee. Crane v. 
 March, 4 Pick. 131. 
 
 One holding a note secured by mortgage, indorsed the note and assigned the mortgage 
 to a third person. The mortgagor afterwards died, having devised all his real estate to the 
 mortgagee. The latter gave his own note to the assignee for the amount of the first note, 
 with the interest which hod accrued on it, the second note bearing a memorandum, that 
 when paid it would disch.'jrge the first. The assignee retained the first note, brought a suit 
 on the second, recovered judgment, levied on the right of redemption, and indorsed the pro- 
 ceeds on the first note in part payment. In an action brouglit by the purchaser of the 
 equity, held, tlie levy was void, the facts showing a sale in belialf of the mortgagee of the 
 right of redemption, for the purpose of paying the mortgage debt, "Washburn v. Goodwin, 
 17 Pick. 137. 
 
 In New York, an equity of redemption cannot be sold, upon an execution founded on a 
 judgment at law, for the mortgage debt. 2 Rev. St. 368. 
 
 In Pennsylvania, the sale of laud mortgaged, under an execution upon the debt, extin- 
 guishes the incumbrance and pa.sses an absolute title to the purchaser. Pierce v. Potter, 7 
 "Watts, 475. If the mortgagee purchases the land for less than the debt, the mortgagor 
 cannot compel an entry of satisfaction on the mortgage. lb. 
 
 In Kentucky, it is held, that, although an equity cannot lawfully be sold on execution, in 
 a suit by the mortgagee; yet, if sold, and if the purchaser pay the mortgage debt, he 
 stands in the place, and succeeds to the rights, of the mortgagee. Goring v. Shreve, 7 
 Dana, 221. If land be mortgaged to a surety as indemnity, it cannot be taken on execution 
 for the debt. Bronson v. Robinson, 4 B. Monr. 143. See Roe v. Couch, 1 Root, 452; 
 Buck V. Sherman, 2 Doug. (Mich.) 176; Bratton, Ac, 8 Barr, 164; Mott v. Clark, 9, 399; 
 Towers v. Tuscarora, &c., 8, 297 ; Hartz v. Woods, lb. 471 ; Cathcart's, &c., 13 Penns. 416; 
 Klock V. Cronkhite, 1 Hill, 108; Brouater v. Robinson, 4 B. Mon. 143; Freeby v. Tupper, 
 15 Ohio, 467. 
 
 (6) Thus, a lessee, who took a lease after the mortgage. So, it seems, the holder of a 
 mere easement in the land. Bacon v. Bovvdoin, 22 Pick. 401. "Where one co-tenant con- 
 veys a parcel of the land by metes and bounds, takes back a mortgage and assigns it; a 
 lessee for years from the mortgagor may redeem the mortgage from the assignee, if he has 
 no title under the other co-tenant. lb. 2 Met. 591. 
 
 Ifi) In New Hampsliire, an attaching creditor. N". H. St. 1845, 233. But not, in general, 
 a mere equitable owner, such as a cestui que trust; nor one having a mere personal claim, 
 such as an aimuitant, or a party holding a contract in relation to the land. 2 Story's Equ. 
 sec. 1023; Upham v. Brooks, 2 "W. & M. 407 ; Porter v. Read, 1 Appl. 363. 
 
CHAP- XXXI.] 
 
 EQUITY OP REDEMPTION, ETC. 
 
 417 
 
 of the manor may redeem. So, the assignee of a bankrupt; even a 
 prowling assignee, who buys an equity long abandoned for a trifling 
 sum.(l) 
 
 14. In Massachusetts, where an equity of redemption is attached, 
 the owner may still make another mortgage of it, and the second 
 mortgagee, or his assignee, may redeem from the execution pur- 
 chaser.(2) 
 
 lo. On the same principle, the purchaser of an equity of redemp- 
 tion, sold upon execution against the mortgagor, may redeem the 
 mortgage. 
 
 1(3. A dowress or jointress may redeem. So, a tenant by the curtesy. 
 
 17. In one case, in Massachusetts,(8) it was doubted, on account of 
 the court's limited equity jurisdiction, whether a widow could redeem, 
 for tlie purpose of entitling herself to dower. But it seems to be 
 now well settled that she may. But dower is subject to the rights 
 of the mortgagee, and he may defend against the claim till his mort- 
 gage is satisfied. 
 
 18. It has been heretofore held, that, where a purchaser of the equity 
 of redemption pays the mortgage debt, and takes an assignment of 
 the mortgage, the widow cannot redeem without paying the whole 
 debt. But a recent case in Massachusetts decides, that a wife who 
 signed the mortgage, releasing her dower, may redeem after the 
 husband's death, by paying her proportion of the debt, estimated 
 according to the value of the rest of tlie estate, including the rever- 
 sion. If another person, claiming under the mortgagor, redeems, 
 she will be entitled to her share of the land, by paying her share of 
 the debt, according to the value of her life interest in one-third of the 
 estate. (4)(a) 
 
 (1) Crisp V. Heath, 1 Tin. Abr. 52 ; 2 Litt. 
 334; Baok, &o. v. Carroll, 4 B. Monr. 45; 
 Downe v. Jlorris, 3 Hare, 404 ; 1 Fow. 262 
 a, 263 a. Whether a second mortgagee can 
 redeem from one who purchases at o. sale 
 under the first mortgage, qu. lb. In Ala- 
 bama, a second mortgagee may either pay the 
 first mortgage, and then file a bill to have a 
 sale for payment of both mortgages, or he 
 may (ilea bill for foreclosure without payment, 
 making all necessary parties, and have a de- 
 
 cree for sale to pay both. CuUum v. Irwin, 4 
 Alab. (N. S.) 452 ; Chambers v. Mauldin, 4 
 Alah. (N. S.) 477. 
 
 (2) Bigelow V. Willson, 1 Pick. 485. 
 ch. 32. 
 
 (.S) Bird V. Gardner, 10 Mass. 364. 
 Wilkins V. French, 2 Appl. 111. 
 
 (4) Van Duyne v. Thayre, 14 Wend. 
 Gibson V. Crehore, 5 Pick. 14f>; 5 John, 
 482 ; Cass v. Martin, 6 N. H. 25 ; Van Vronc 
 ker V. Eastman, 7 Met. 157. 
 
 See 
 
 See 
 
 233; 
 Cha. 
 
 (a) Where a wife pledges her own land for a debt of the husband, she has all the rights 
 of a surety. But, if sh» joins in a mortgage of his land, she cannot claim that it be satis- 
 fied from his interest alone, so as to give her a right of dower. Hawley v. Bradford, 9 
 Paige, 200. In case of a sale under the mortgage, she shall have dower only in the sur- 
 plus remaining after payment of the debt; but the costs of suit will not be allowed' as 
 against her. lb. 
 
 In Michigan, if the heir or other representative of the mortgagor redeem the land, the 
 widow may either pay her share and take one-third of the land, or take- so much less thau 
 a third as will be equivalent to her share of the debt. Mich. Rev. St. 262-3. 
 
 In Arkansas, where land subject to mortgage is sold for the mortgage debt after the 
 husband's death, she will be entitled to the interest of one-third of any surplus. Kev. St. 
 337. Ifi Vermont, the widow of a mortgagor has dower upon payment of her proportion 
 of the debt, under direction of the Probate Court. If the heir, &c., pay the debt, she has 
 one-third of the land, deducting the value of the payment. The administrator is required 
 to pay the mortgage, if for tlie benefit of those interested to redeem, either from the per- 
 sonal, or by sale of the real estate. If there is sufficient personal estate, the court may^ 
 order dower in the whole land. Verm. Rev. St. 289. 
 
 Vol. I. 27 
 
418 
 
 EQUITY OP REDEMPTION, ETC. 
 
 [OHAP. XXXI. 
 
 19. If the purchaser of an equity of redemption takes an assignment 
 of the mortgage, and continues in possession of the land more than 
 three years trom such assignment, the condition having been broken 
 before the sale, and then the husband dies; the widow may redeem, 
 unless she has had notice of bis being in possession for condition 
 broken. And, in such case, the defendant shall account only for rents 
 received, and be allowed only for repairs made, since the husband's 
 death.(l) 
 
 20. A mortgagor devised the estate mortgaged to his son, who died, 
 leaving a widow. The executor sold the equity, purchased it himselfj 
 and redeemed the mortgage, paying one-half of it with assets in his 
 hands as executor, according to the directions of the will, and the rest 
 with his own funds. The sale was affirmed by the son's widow and 
 heirs. Held, the widow should have for her dower the interest for her 
 life of one-third of the price of the equity, and one-third of the amount 
 paid from the testator's estate to extinguish the mortgage.(2) 
 
 21. A mortgaged land, his wife, B, joining, to release her dower. 
 After the death of A, his administrator sold the equity of redemption 
 to G, who took possession of the land. C then paid the mortgage debt, 
 took an assignment of the mortgage, and afterwards made a declaration 
 that he held for the purpose of foreclosure. B had no notice of his 
 purpose to foreclose, and brought a bill in equity to redeem. Decreed 
 for the plaintiff, and that the defendant should account from the time 
 of assignment.(i3)(a) 
 
 22. In England, the crown may redeem a mortgage on an estate for- 
 feited for crime. (4) 
 
 22 a. In case of the mortgagor's death, his heir or assignee alone can 
 redeem. And, even though the estate be insolvent, this is no ground 
 of objection to a redemption by the heirs ; more especially alter the 
 lapse of a long time from the mortgagor's death, during which the cred- 
 itors have done no act towards redemption. (5) 
 
 23. A party interested cannot redeem a mortgage, without paying 
 the whole debt; (but see sec. 18,) and, if he has only a partial interest in 
 the property, he will stand in the place of the party, whose interest in 
 the estate he discharges. The mortgagor cannot claim to have a part 
 of the land estimated for the purpose of payment, and thereby entitle 
 himself to redeem the rest by paying the balance of the debt. And the 
 whole debt must be paid, though the whole or a part of it has been 
 separated from the mortgage, and is owned by a different person. In 
 carrying into effect the right of redemption, equity may marshal the 
 
 (1) Eaton V. Simonds, 14 Pick. 98. 
 
 (2) Jeniiison v. Hapgood, 14 Pick. 345. 
 
 (3) Gibson v. Creliore, i Pick. 146. 
 
 (4) 2 Cruise, 127. 
 
 (.')) Smith V. Manning, 9 Mass. 422 ; Elliott 
 V. Patton, 4 Yerg. 10; Sliaw v. Hoadloy, 8 
 Blackf. 165; Wells «. Morse, 11 Verm. 17. 
 
 (a) A mortgagor may devise his equity in lieu of dower. So, the Probate Court may as- 
 sign it. The widow may then redeem, or the heir, who may then eject her till she relunda. 
 "Wilkins V. Frsnch, 2 Appl. 111. Where one of several mortgagees was to have possession 
 of piirt of the premises Ibr life, and a pecuniary provision, under certain circumstances, not 
 exceeding a particular sum ; held, a tender by tlie widow to an assignee of the husband of a 
 sum of money, as an indemnity against such provision, did not discharge the mortgage, or 
 give lier a claim to dower. Ballard v. Bowers, 10 N. 11. 500. The husband or his assignee 
 would be entitled to possession, and the widow to dower, until a claim made for such provi- 
 sion. Ibid. 
 
CHAP. XXXI.] 
 
 EQUITY OF EEDEMPTION, ETC. 
 
 419 
 
 burden among the respective claimants, according to their respective 
 proportions.(l) 
 
 24:. One penson, having a partial interest in property mortgaged, 
 cannot compel other owners to contribute for its redemption ; because, 
 a foreclosure may perhaps be for their benefit. But, if he redeem alone, 
 he may hold the whole till he is reimbursed. He is an assignee, and 
 stands in the place of the mortgagee. So, if one of several mort- 
 gagees, in a subsequent mortgage, elects not to pay his share in redeem- 
 ing a prior one; the others, who do redeem, have a prior lien for the 
 sum paid, and may in equity compel the former to pay his share, or 
 convey his interest to themselves.(2)(a) 
 
 25. In England, agreeably to the maxim, that " he who will have 
 equity must do equity," it has been held, that a mortgagor cannot re- 
 deem the mortgaged estate, without paying not only the mortgage debt, 
 but a subsequent bond given by him to the mortgagee for money bor- 
 rowed. But this doctrine was not adhered to with respect to the mort- 
 gagor himself It is, however, still retained as against the heir or de- 
 visee of the mortgagor ; for a bond debt of the ancestor becomes his own, 
 and the descended estate is assets in his hands ; and, therefore, he will 
 not be allowed to redeem without paying it.({5) 
 
 (1) 4 Kent, 162-3-4; Calkins d. Munsell, 2 
 Root, 333; Noyes v. Clark, 7 Paige, 179; 
 Robinson v. Leavitt, 7 N. H. 97 ; Jol.naonn. 
 Candage, 31 Maine, 28; Spring v. Haines, 8 
 Sliepl. 126. See Jenneas v. Robinson, 10 N. 
 H. 215. It is said, one mortgagor cannot re- 
 deem and take a conveyance of'tiieland, witii- 
 out the consent of tlie otlier. Porter v. Cle- 
 ments, 3 Pike, 464. 
 
 (2; 5 Pick. 152; Messiter v. Wright, 16, 
 153; Saunders v. Frost, 5 lb. 259. See 
 Brooks V. Harwood, 8, 497 ; Chittenden v. 
 Barney, I Verm. 28; Smith v. Kelly, 27 
 Maine, 237; Hubbard v. Ascutney, &o, 20 
 Verm. 402 ; Brown v. Worcester, &c., 8 Met. 
 47. 
 
 (3) 2 Cruise, 127-134 See White v. Hill- 
 acre, 3 T. & Coll. 597 ; G-rugeon v. Gerrard. 
 4, 119; Second, &e. v. Vl^oodbury, 2 Shepl. 
 
 281; Williams v. Owen, 13 Sim. 597; Aid- 
 worth V. Robinson, 2 Beav. 287 ; Young v. 
 English, 7 Beav. 10; Watts v. Syraes, 8 Eng. 
 L. & Equ, 247 ; Brace v. Duchess, &c.. 2 P. 
 Wms. 491 ; Gray v. Jenks, 3 Mas. 522; White 
 V. Hillacre, 3 Y. & Coll. 608 ; Harrison v. 
 Perth, Pre. Cha. 61 ; Edmunds v. Povey, 1 
 Vern. 187; Barnett «. Weston, 12 Tez 130; 
 Purefoy v. Purefoy, 1 Tern. 29 ; Shuttlewortli 
 V, Laycook, 2 Vern. 286 ; Margrave v. Le 
 Hooke, lb. 207; Pope v. Onslow, lb. 286; 
 King, 1 Atk. 300; Tilley v. Davis, 2 Y. & C. 
 (N. R.)399; Roe v. Soley, 2 Bl. 726; De- 
 mainbray w. MetcalC Pr. Cha. 421; Cator v. 
 Charlton, Coote, 468; Gollett ?;. Munden, lb; 
 Jones t;. Smitli, lb ; Hooper, 19 Vez. 477; 
 Ireson v. Denn, 2 Cox, 425; Bowker'a Bull, 
 1 Sim. (N.) 29. 
 
 {a) Where a suit for foreclosure is brought against more than one defendant, it will not be 
 delayed to give them opportunity of litigating their own mutual rights; unless it appear, 
 upon a cross bill tiled by them, tliat this is absolutely necessary for their protection. Far- 
 mers, &p. V. Seymour, 9 Paige, 538. 
 
 A mortgagor of two parcels of land, who conveys one of them, cannot compel his grantee 
 to contribute to a redemption of the mortgage. Allen v. Clark, 17 Pick. 47. But ii; after 
 such conveyance, togetlier with a mortgage back lor the purchase-money, the mortgagor 
 convey the other parcel to another grantee, and become insolvent, and the second grantee 
 refuse to contribute to a redemption, the first grantee, upon redeeming, may claim an assign- 
 ment of the mortgage, and thus compel contribution. lb. 
 
 Mortgage of two lots of land. The right of redeeming one was transferred to A, and the 
 right ol redeeming the otlier to B, and the mortgagee afterwards released the former. Held, 
 B, in redeeming, could not compel A to contribute, but was entitled to an abatement of such 
 proportion of the sum due on the mortgage, as the value of A's parcel bore, at the time of 
 making the mortgage, to the value of both parcels. Parkman v. Welch. 19 Pick. 231. 
 
 If a mortgage debt is payable jiy instalments, and for non-payment of the first of them the 
 mortgagee enters, and alter all have become due the mortgagor brings a bill to redeem; he 
 will be required to pay the whole debt, as the condition of redemption. Mann v. Richard- 
 son, 21 Pick. 355. 
 
 If; in sueli case, a part of the instalments are not due, and the mortgagee refuses to re- 
 
420 
 
 EQUITY OP REDEMPTION, ETC. 
 
 [CHAP. XXXI. 
 
 26. The same doctrine has been applied, where one who has loaned 
 money upon land afterwards takes an assignment of a mortgage made 
 by the borrower. So, if part of a debt is paid, and more money bor- 
 rowed upon a defective security, the mortgagor shall not redeem with- 
 out paying the whole amount due. 
 
 27. But the principle is not adopted, as against an assignee of the 
 equity of redemption, or any subsequent incumbrancer; who may al- 
 ways redeem, without paying any independent claim held by the mort- 
 gagee against the mortgagor. 
 
 28. It has been said, that, here one makes two distinct mortgages of 
 separate estates, one of which proves defective in title or value; neither 
 he, nor a purchaser of one of the estates holding under him, will be 
 allowed to redeem one, without redeeming both.(l) 
 
 29. The rules above stated, by which equity imposes upon a party, 
 who seeks its aid in redeeming a mortgage, terms that are not provided 
 for by the mortgage itself; have been said to be, in some particulars, 
 solely matters of arrangement, to prevent a circuity of suits, and to have 
 no foundation in natural justice. They are strikingly at variance with 
 the regislmtion system universally practised upon in the United States, 
 and, chiefly on this ground, perhaps, have never been generally adopted 
 as a part of American ]aw.(2)(a) In Massachusetts, Vermont, New 
 Jersey, Tennessee and Illinois, cases have occurred, in which the courts 
 have had occasion to advert to them, but have denied their binding 
 force in those States. While in Maryland, Virginia and Connecticut, 
 they have been to some extent recognized and enforced. (3) 
 
 30. In this connection we may consider the question, which has been 
 somewhat discussed, how far a mortgage may be made to operate as 
 security for future advances made, or liabilities incurred, by the mort- 
 gagee. The principle is said to be, that subsequent advances cannot 
 be tacked to a prior mortgage, to the prejudice of a lona fide junior 
 incumbrancer; but a mortgage is always good to secure future loans, 
 when there is no intervening equity. In other words, where a mort- 
 gage is expressly made to cover luture debts, these debts will be se- 
 cured by it, in preference to the claim of a third person, who takes an- 
 other mortgage between the making of the first and the incurring of 
 the proposed future debts, with notice, express or implied, of the first 
 
 (1) 2 Cruise, 121-34. 
 
 (2) Lorirg v. Cooke, 3 Pick. 48. 
 
 (3) Lee v Stone, 5 Gill & J. 21-2 ; 2 Swift, 
 186-7 ; Scripture v. Johnson, 3 Conn. 213. 
 But, in Maryland, lacking is now unknown. 
 Coombs V. Jordan, 3 Bland, 330. And a 
 mortgage is valid only for wlint appears upon 
 the face of it. Md L. 825; Hopper «. Sisco, 
 1 Halst Cha. 343, n. ; Loring v. Cooke, 3 
 Pick. 48 ; Van Vronker v. Eastman, 7 Met. 
 
 157 ; Green v. Tanner, 8 Met. 411 ; Hicks v. 
 Bingham, 11 Mass. 300; Green v. Chester, 7 
 Humph. 77 ; Lawson v. Sutherland, 13 Verm. 
 309 ; Frye v. Bank, &e., 1 1 Illin. 367 ; Lee v. 
 Stone, 6 Gill. & John. 21-2; Md. L, 825; Ro- 
 bertson V. riampbell, 2 Call. 362 ; Clii-mherlain 
 V. 'Ihompson, 10 Conn. 261 ; Orvis v. Newell, 
 17 Conn. 97 ; Woodson v. Perkins, 5 Gratt. 
 345. 
 
 ceive them; the court will, by special decree, order that the case stand open, the mortga- 
 gee to retain possession till they become due. lb. See Tillinghast v. 1-ry, 1 R. 1. 406; Towle 
 V. Hait, 14 N. H. 61. Tlie rule stated in the text does not necessarily operate to debar a 
 party from redeeming part of the land, because the right of' redeeming another pail has been 
 lost. Dexter V. Arnold. 1 Sumn. 118. 
 
 (a) The doctrine ol tucking was first attacked and exploded in the case of Grant v. U. S. 
 Bank, 1 Caities Cas. in Er. 112 ; in which Gen. Hamilton made a celebrated argument against 
 it. 
 
CHAP. XXXI.] 
 
 EQUITY OF REDEMPTION, ETC. 
 
 421 
 
 mortgage. But a mortgage cannot be enlarged by tacking subsequent 
 advances to it in virtue of a parol agreement ; nor, it seems, under a 
 written contract, unless the subsequent mortgagee has full notice of it.(l) 
 It has been held, that a mortgage may be given to secure future ad- 
 vances, or as a general security for future balances. So, when a mort- 
 gagee has indorsed bills in blank, and taken the mortgage as security, 
 it is not affected by subsequent mortgages, though made before the bills 
 are put in circulation. So, a mortgage is good to secure a future book 
 account. (2) It is said, (3) the question of the validity of such a mort- 
 gage may arise under several different aspects. One inquiry is, what 
 language in the deed itself, or what evidence independent of the deed, 
 is necessary and sufficient to create such a security. Another considera- 
 tion is, whether the question is between the parties to the mortgage, 
 or between the mortgagee and creditors of the mortgagor, or subsequent 
 incumbrancers; also, how far such creditors and incumbrancers are 
 bound by the registration of the first mortgage, and the first mort- 
 gagee by a registration of the second mortgage, in reference to all sub- 
 sequent advances. 
 
 31. To render a prior mortgage valid against subsequent incum- 
 brances, the condition of the former need not be so completely certain, 
 as to preclude the necessity of extraneous inquiry, but only sufficiently 
 definite to give the necessary information, with the exercise of common 
 prudence and diiigence.(4)(a) 
 
 82. A mortgage from A to B, dated May 18, was conditioned as fol- 
 lows — " whereas B has indorsed for A a note for $1,000, and has agreed 
 to indorse $1,000 in a note or notes, hereafter, when thereto requested ;" 
 if A shall pay said notes, the deed to be void. June 16, B indorsed a 
 note for A for $1,000, which B was afterwards obliged to pay. In No- 
 vember, A mortgaged the same land to C, a bona fide creditor. On a 
 bill for foreclosure by B against C, held, the mortgage was a valid secu- 
 rity for the second note.(5) 
 
 (1) 4 Kent, 175 ; James v. Moray, 2 Cow. 
 292 ; Hendricks v. Robinson, 2 John. Cha. 
 309 ; Averill v. Guthrie, 8 Dana, 83 ; Leeds 
 V. Cameron, 3 Sumn. 492 ; Walling v. Aiken, 
 1 M'Mul. 1 ; Kc parte flooper, 19 Ves. ill ; 
 Walker v. Snediker, 1 HofFm. 146 ; Johnson 
 V. Bowie, 2 T i Coll. 268 ; Welland v. Gray, 
 lb. 199; Watson v. Dickens, 12 Sm. & M. 
 608; Craig v. Tappin, 2 Sandf. Cha. 18; 
 Quinebaug, &c. t). French, 17 Conn. 129; Tor- 
 rey v. Bank, &e., 9 Paige, 649 ; North v. Cro- 
 ■well, 11 N. H. 251; McDaniels i). Colvin, 16 
 Verm. 300; Collins u Carlile, 13 lUin. 254; 
 Bank v. Finch, &c., 3 Barb. Cha. 297 ; Lewis 
 V. De Forest, 20 Conn. 427 ; Mix v. Cowles, 
 20 Coan. 420 ; Hawkins v. May, 12 Ala. 673 ; 
 
 Kramer t). Bank, &e., 15 Ohio, 253 ; Gordons. 
 Graham, 2 Equ. Cas. Abr. 598 ; Truscott v. 
 King, 6 Barb. 346 ; Stuyvesant v. Hall, 2 
 Barb. Ch. 151; Bank, &c. v. Christie, 8 CI. 
 &Fin. 214. 
 
 (2) Bank, &c. v. Finch, 3 Barb. Ch. 293; 
 Burdett v. Clay, 8 B. Mon. 287 ; McDaniels 
 V. Colvin, 16 Verm. 300. 
 
 (3) 1 Hill on Mortg. 211 
 
 (4) Pettibone v. Griswold, 4 Conn. 158 ; St. 
 Andrews, &o. v. Tompkins. 7 John. Ch. 14 ; 
 Garber v. Henry, 6 Watts, 57 ; Hart v. Chalk- 
 er, 14 Conn. 77'. 
 
 (5) Habbard v. Savage, 8 Conn. 215. See 
 Smith V. Prince, lb. 472. 
 
 (a) The condition of a mortgage was, to pay a debt due by note, dated May 10, 1834, on 
 demand, with interest. Held, invalid against a sulisequeiit mortgagee. Hart v. Chalker, 
 14 Conn. 77. See, also, Vanneter v. Vanneter, 3 Gratt. 148; Spader v. Lawler, 17 Ohio, 
 371. A mortgage, conditioned to pay all notes, which the mortgagee may give or indorse 
 for the mortgagor, and all receipts which he may hold against him, is void against creditors. 
 Pettibone v. Griswold, 4 Conn. 158. So, a mortgage conditioned to indemnify the mortgagee 
 against a oertaiii note indorsed by him, and all other notes thereafter indorsed by him, for 
 the mortgagor's benefit, not exceeding a certain sum, is void, with respect to the latter notes, 
 against a subsequent incumbrancer. Shepard v. Shepard, 6 Cono. 37. 
 
422 
 
 EQUITY OF REDEMPTION, ETC. 
 
 [CHAP. XXXI. 
 
 33. Condition of a mortgage from A to B that, if A shall paj^ B the 
 sums to be advanced him by B, according to aa agreement mentioned 
 in a certain bond of even date from A to B; and fulfil every other 
 agreement mentioned in said bond, and build the bridge therein men- 
 tioned, and do all other things contained therein ; the deed and bond 
 to be void. A afterwards mortgages to 0. Held, the mortgage to B 
 should stand as security for advances made after the mortgage to C.(l) 
 
 34. A mortgaged to B, conditioned nominally to secure a certain 
 specified sum, but in reality to secure different sums due at the time, 
 advances afterwards to be made, and liabilities to be incurred to an un- 
 certain amount. Held, although the- misrepresentation of the true con- 
 dition subjected the mortgage to suspicion, yet, as it proved, on in- 
 quiry, to be a fair transaction, the mortgagee's claim was good, not 
 only'for debts due at the time, but for those subsequently incurred upon 
 the faith of the mortgage, as against all persons except those injured 
 and deceived by the misrepresentation ; but that it should not hold to 
 secure advances, made after notice of a subsequent conveyance by, or 
 incumbrance against the mortgagor.(2) 
 
 35. A gave to B his note, secured by mortgage, to indemnify B from 
 any loss arising from indorsements subsequently to be made by B for 
 A, which were made accordingly. Held, such note was valid against 
 creditors of A, whose claims accrued after the indorsement.(3)(a) 
 
 3fi. In Maryland, the validity of a mortgage to cover future advances 
 seems to be recognized, though not distinctly decided. So in South 
 Carolina. But in N"ew Hampshire, a late statute seems to render it 
 void. (4) The court in Massachusetts have remarked, (5) that a stipula- 
 tion in a mortgage, for the security of future advances and responsi- 
 bilities, may have a fraudulent aspect, or may be satisfactorily ex- 
 plained, according to the attending circumstances. A mortgage made 
 for this consideration alone might be void against creditors, as tending 
 to facilitate collusion, and enabling the mortgagor to get credit on his 
 property without notice of the incumbrance. But, where the object is 
 to secure an existing demand, the addition of a clause, securing future 
 advances, does not necessarily avoid the mortgage. These remarks are 
 evidently directed to the point, whether such a mortgage is void/or the 
 
 (!) Crane v. Deming, 1 Conn. 387. See 
 Booth V. Barnum, 9 lb. 286. 
 
 (2) Shirras v. Caig-, 1 Craneh, 34, 50-1. 
 
 (3) Gardner i; "Webber, 17 Pick. 407. 
 
 (4) Union, &c.w. Edwards, 1 Gill & J. 363 ; 
 Clagett V. Salmon, 5 lb. 314; 1 M'Cord's 
 
 Cha. 265; N. H. L. 1829, 532; Rev. St. 
 245. 
 
 (5) Badlam u Tucker, 1 Pick. 398; Atkin- 
 son V. Maling, 2 T. R. 462. See 7 Tin. Abr. 
 62-3. 
 
 (a) A being indebted to B, and B being also liable for liim as surety, A gives a mortgagei 
 to secure a note, covering the whole amount of debt and liability ; and the next day, be- 
 fore any payment by B, as surety, makes an assignment for benefit of his creditors. Held, 
 the mortgage was valid, so far as to secure tlie debt due to B. Sanford v. Wheeler, 13 
 Conn. 165. 
 
 Mortgage to secure a note for §500, such note being given solely on account of the mort- 
 gagee's suretyship for that amount, upon which he afterwards paid the debt. Held, as 
 against a subsequent mortgagee, the mortgage was invalid. North v. Belden, 13 Conn. 376. 
 Mortgage to secure A, the mortgagee, as indorser of certain notes. When these fell due, 
 they were renewed by giving others with different names, but the original liability of A re- 
 mained undischarged, no new credit was given, and he finally paid the new notes. Held, 
 the mortgage was still valid. Pond v. Clark, 14 Conn. 334, (overruling Peters v. Goodrich, 
 3 Conn. 146.) . V 6 
 
CHAP. XXXI.] EQUITY OF REDEMPTION, ETC. 423 
 
 whole ; not whether it is effectual to cover the future advances.(a) In 
 another case, Judge Story remarks,(l) that a conveyance may be valid 
 in point of law, although given for future advances, if it be bona fide, 
 and for a valuable consideration; that this will hardly be denied, and 
 has been most solemnly settled.(J) 
 
 37. With regard to the time within which a mortgage shall be re- 
 deemed, although no precise period of limitation is fixed by law, and 
 matters in equity are governed by the course of the court; yet, in analogy 
 to the statute of limitations, uninterrupted possession by the mortgagee 
 for twenty years will raise a presumption, that the right of redeeming 
 is abandoned, more especially as against the heir of the mortgagee.(c) 
 
 (1) De Wolf)). Harris, 4 Mas. 530. 
 
 (a) In New Hampshire, notwithstanding the statute above referred to, (sec. 35,) such 
 mortgapre is valid For the amount of present indebtedness. 3 Sumn. 488 ; New Hampshire, 
 &e. V. Willard, 10 N. H. 210. 
 
 (6) In a late ease in the game State, a note, secured by mortgage, duly recorded, was 
 given by a Arm to the plaintiffs, a bank, who at the same time gave the mortgagors a wri- 
 ting, setting forth that the note was held as collateral for other liabilities of the mortgagors 
 to the bank, and that the note and mortgage were to remain for said purposes, so long as 
 the bank should hold any note against the mortgagors, and so long as they should be under 
 any liabilities to the bank; but this instrument was not recorded. Held, the mortgage was 
 not fraudulent as against subsequent purchasers; that new notes, given the bank, whether 
 in renewal of the original ones or not, were covered by the mortgage, though a third person 
 had become a partner with the mortgagors, and the new note,s were made or indorsed in the 
 name of the new firm. Commercial, &c. v. Cunningham, 24 Pick. 270. 
 
 (c) It will be seen that the legal lime of limitation is changed in many of the States. 
 The rule in equity varies accordingly. See, as to the effect of lapse of time in equity, 
 Mitchell V. Tliompson, 1 M'Lean, 105; Piatt v. Tattler, lb, 164; Scott v. Evans, lb. 486 ; 
 Cook V. Oolyer, 2 B. Monr. 73; Dexter v. Arnold, 3 Sumn. 152 ; Wells v. Morse, 11 Term. 
 9 ; Humbert v. Rector, &c., 24 Wend. 587. 
 
 In England, by St. 3 & 4 Wm. IT, ch. 27, sec. 28, the time of redemption is now limited 
 to twenty years next after the mortgagee's taking possession ; or from any written acknow- 
 ledgment given by him to the mortgagor of the right of the latter, if such exists, 1 Steph. 
 28-1:. See Hodges v. Croydon, &c., 3 Beav. 86 ; Du Tigier v. Lee, 2 Hare, 326. 
 
 Tt has been said, that "the right to /urectoM and the right to «de«m are reciprocal and com- 
 mensurable." Canefman v. Sayre, 2 B. Monr. 206. So, also, in the ease of a mortgagor 
 coming to redeem, that court (equity) has, by analogy to the statute of limitations, which 
 takes away the right of the plaintiff after twenty years' adverse possession, fixed upon that 
 as the period, after forfeiture and possession taiceu by the mortgagee, no interest having 
 been paid in the meantime, and no circumstances to account lor the neglect appearing, 
 beyond which a riglit of redemption shall not be favored. In respect to the mortgagee, who 
 is seeking to foreclose, the general rule is, that where the mortgagor has been permitted to 
 retain possession, the mortgage will, after a length of time, be presumed to have been dis- 
 charged, by payment of the money or a release, unless circumstances can be shown sufft- 
 cientiy strong to repel the presumption, — as payment of interest, a promise to pay, an 
 acknowledgment by the mortgagor that the mortgage is still existing, and the like." 
 Hughes V. Edwards, 9 Wheat. 497-8; ace. Christophers v. Spafke, 2 Jac. & W. 235; Gates 
 V. Jacob, 1 B. Mon. 309. 
 
 The following remarks are made by the court in Massachusetts: "A question has been 
 sometimes raised, whether the doctrine of presumption, arising from the lapse of time and 
 total neglect to take any measure to enforce a claim, could properly be applied to the case 
 of a mortgage of real estate; and, in some of the earlier English cases, the doctrine was 
 advanced, tliat the common law presumption applicable to bonds, judgments, &c., arising 
 from a delay of twenty years to enforce the same, did not apply in the case of a mortgage ; 
 as in such cases the legal estate was in the mortgagee, and the mortgagor was a mere 
 tenant at will, and his possession was therefore the possession of the mortgagee. But this 
 doctrine was repudiated by Lord Thurlow in the case of Trash v. White, (3 Bro. C. 0. 289,) 
 and by the Master of the Rolls in Christophers v. Sparke, in very strong language; and the 
 cases of debts secured by mortgages are placed on the same footing with other demands, 
 and held liable to be defeated by the same presumption, arising from lapse of time and 
 laches of the mortgagee." 
 
 The effect of long-continued possession, as has been seen, upon the rights of mortgagee 
 or mortgagor, has been usually made to depend upon general principles or analogies. It 
 has been a point somewhat discussed and variously decided, whether a general statute of 
 
424 EQUITY OF EEDEMPTION, ETC. [CHAP. XXXI. 
 
 So, where there has been a decree to redeem and account, the lapse of 
 twenty years after such deuree, the mortgagee being in possession, will 
 be a bar to redemption. But the same disabilities — coverture, infancy, 
 imprisonment, and absence from the country — which make an excep- 
 tion to the rule of limitation at law, will also save an equity of redemp- 
 tion from being barred in equity. But not ah absconding, which is an 
 avoiding or retarding of justice. And in equity, as at law, where 
 twenty years had elapsed in the life of the ancestor, no subsequent dis- 
 ability in the heir will take the case out of the rule of twenty years' 
 limitation. "Where a bill for redemption itself shows that the mort- 
 gagee has had possession above twenty years, it has been held, (though 
 since denied,) that the latter need not plead the limitation, but may 
 demur to the bill. In equity, as at law, in case of disability, the party 
 will, it seems, be allowed not twenty years, but only ten years, after its 
 removal. (1) 
 
 38. The limitation above referred to, being founded chiefly upon the 
 difficulty of a mortgagee's accounting after long continued possession, 
 is not applicable, where an account has been settled within twenty years. 
 
 39. Thus, after there had been four descents on the part of the plain- 
 tiff, and three on the part of the defendant, but the mortgagee, within 
 twenty years, upon a bill for foreclosure, had made up an account ; a 
 redemption was decreed. So, where there had been a stated account, 
 with an agreement to turn interest into principal — although the mort- 
 gagee had been in possession forty years. So, where within twelve 
 years the clerk of the mortgagor's solicitor had settled an account of 
 what was due, in order to pay off the mortgage, though no farther 
 proceedings were had. (2) 
 
 (1) Gordon v. Hobart, 2 Sumn. 401; Ag- 
 gasu. Piekerell, 3 Atk. 225; 2 Cruise. 135-6; 
 Phillips 'J. Sinclair, 7 SliepL 269 ; 1 Cli. Rep. 
 286; Wbite V. Ewer, 2 Vent. 340; Asliton 
 V. Milne, 6 Sim. 369 ; St. John v. Turner. 2 
 Tern. 418; Cornel v. Sykes, 1 Ch. B. 193; 
 Knowles v. Spence, 1 Ab. Equ. 315 ; Jenner 
 V. Tracy, 3 P. Wms. 287, n. ; Belch v. Harvey, 
 3 P. Wms. 287, n ; 1 N. J. R. C. 412 ; Dex- 
 ter V. Arnold, 3 Sumn. 152 ; Bonham v. New- 
 comb. 2 Ventr. 364; Spring i;. Haines, 8 
 Shepl. 126; Borst v. Boyd, 3 Sandf. Ch. 507 ; 
 Davia V. Evans, 5 Ired. 525 ; Slee v. Man- 
 hattan, &o., 1 Paige, 56 ; Bond v. Hopkins, 1 
 Sch. & Lef 429 ; Martin v. Bowker, 19 Verm. 
 526 ; McDonald v. Sim.s, 3 Kelly, 383 ; Field 
 V. Wilson, 6 B. Mon. 479 ; Gates v. Jacob, 1, 
 309 ; Giles v. Baremore, 5 John. Ch. 552 ; 
 Dunham v. Minard, 4 Paige, 443 ; Cook v. 
 Arnham, 3 P. Wms. 283 ; Newcomb v. St. 
 Peter's, &c., 2 Sandf. Oh. 636; Farrow v. 
 Farrow, 6 B. Mod. 482 ; Evans v. Hoffman, 
 
 1 Halst. Ch. 354 ; Morgan v Davis, 2 Harr. 
 & Met. 18 ; Cook v. Sultan, 2 Sim. A St. 154; 
 Dowling V. Ford, 11 Mees. k W. 329; Ben- 
 nett !). Cooper, 9 Beav. 252; Noyes v. Stur- 
 divanl, 6 Siiepl. 104; Murray v. Fishback, 5 
 B. Mon. 403. 
 
 (2) 1 Sumn. 109; Procter v. Cowper, 2 
 Vern. 377; Conway v. Shrimpton, 5 Bro. 
 Pari. 187 ; Barron ». Martin, 19 Ves. 327 ; 2 
 Cruise, 108; Hydet). Dallaway, 2 Hare, 528 ; 
 Howell V. Price, Gilb. 106; Dallas v. Floyd, 
 6 Sim. 379; Palmer v. Eyre, 6 Kng. L. & Eq. 
 355; Crooker v. Jewell, 31 Maine, 3J6; 
 Harsand v. Hardy, 18 Ves. 455 ; Fairfax v. 
 Montague, 12 Ves. 84; Barron v. Martin, 
 Coop. 189; Palmer v. Jackson, 5 B. P. 0. 
 281 ; Lucas v. Dennison, 13 Sim. 584; 
 Batehelor v. Middleton, 6 Hare, 75; Smart 
 V. Hunt, 4 Ves. 478 n ; Hardy v. Reeves, lb. 
 480; Trulock V. Robey, 12 Sim. 402; Cal- 
 kins V. Calkins, 3 Barb. 305 ; Jackson v. 
 Slater, 5 Wend. 295. 
 
 limitation, as such, can be relied on by way of formal plea in case of mortgage ; that is, 
 whether the possession of one party can be considered adverse to the other. Iti England, 
 late statute.s (as has been seen supra, see also Sts. 7 Wm. IV & 1 Vict., c. 28) establish definite 
 periods of#imitation for suits of this description, and thereby place such suits on the same 
 footing with other actions relating to real property. But in the United States, where, in 
 general, no such statutes exist, the question still remains open, whether mere lapse of time 
 can be set up as a statutory bar in cases not included within the specific provisions, liere- 
 after to be mentioned, for foreclosure and redemption. Hadle v. Healey, 7 Ves. & B. 538 ; 
 Bailey v. Carter, 7 Ired. Equ. 282 ; Bacon v. Mclntire, 8 Met. 87 ; Coates v. Woodworth, 13 
 Ulin. 654; Fenwick v. Macey, 1 Dana, 279; Dexter v. Arnold, 2 Sumn. 109. ' 
 
CHAP. XXXI.] 
 
 EQUITY OF EEDEMPTION, ETC. 
 
 425 
 
 40. Upon a similar principle, any deliberate act of the mortgagee, 
 done within twenty years, by which he recognizes the existence oi' the 
 mortgage as such, will prevent the equity from being barred by lapse 
 of time, either in favor of the mortgagee or one claiming under him. 
 Thus, where a mortgagee, twenty-three years after the mortgage, made 
 a will devising that, if the mortgage should be redeemed, the money 
 should go in a certain way ; and sixteen years after the will, the mort- 
 gagor being dead, his heir brought a bill to redeem ; a redemption was 
 decreed. But parol evidence, it seems, is insufficietit.(l) 
 
 41. So, an acknowledgment by the mortgagee, in an answer in 
 equity, that the mortgage still subsists as such, is sufficient to preserve 
 the right of redemption from being barred by lapse of time. But the 
 acknowledgments of a mortgagee, made after he has transferred his 
 interest, will not bind a purchaser without notice.(2)(a) 
 
 42. Although the rule above stated, as to the extinguishment of an 
 equity of redemption by lapse of time, is well established, yet it is said, 
 the relation between mortgagee and mortgagor is so far analogous to 
 that of trustee and cestui que trust, that the possession of either party is, 
 as to the other, amicable, not adverse, unless the former show an une- 
 quivocal intent to the contrary, — (see sec. 37, n. b ;) and therefore, the 
 statute of limitations does not run against the party out of possession : 
 that a mortgagor cannot disseize the mortgagee. So, even where a mort- 
 gagee attempts to convey an absolute title, this is no disseizin of the 
 mortgagor, but passes merely a defeasible estate. (3) 
 
 43. A court of equity will not aid a mortgagor in redeeming his 
 estate, where such redemption would be a violation of good faith on 
 his part, and an injury to the mortgagee, who has relied upon his state- 
 ments and promises. 
 
 44. A, a mortgagor, encouraged B to purchase the mortgage from 
 the mortgagee, 0; saying that the land was not worth more than the 
 debt, and that he would never redeem. B purchased the mortgage, 
 and made expensive improvements upon the land. Held, A should 
 not be allowed to redeem. (4)(5) 
 
 45. With regard to the terms upon which a mortgagor may redeem 
 his estate, or the respective claims and allowances between him and the 
 
 (1) Orde V. Smith, Sel. Cas. in Chan. 9; 
 Heyer v. Pruyn, 1 Paige, 465 ; Dexter v. Ar- 
 nold, 3 Sumn. 152. 
 
 (2) Dexter v. Arnold, 2 Sumn. 109; 3 
 Mur. 218. 
 
 (3) Penwick v. Macey, 1 Dana, 219 ; Dex- 
 ter V. Arnold, 2 Sumn. 109. 
 
 (4) Fay v. Valentine, 12 Pick. 40. 
 
 (a) The question has been raised, whether even the debt itself^ which is secured by mort- 
 gage, might not be thereby saved from tlie operation of the statute of limitations, by which 
 it would otherwise be barred ; and the prevailing doctrine seems to be, that the claim upon 
 the personal security continues as long as that upon the land mortgaged ; although In 
 Massachusetts a different rule has been adopted. But in that State an action may be main- 
 tained upon the mortgage, notwithstanding the lapse of a period of time, sufficient to bar 
 the debt, if it stood alone. The debt is said to remain, although the statute of limitations 
 may discharge the remedy upon the note. But the non-production of the personal security, 
 in connection with great lapse of time, may bar a suit to recover the land upon the mort- 
 gage. Almy V. Wilbur, 2 W. & M. 371 ; Brocklehurst v. Jessop, 1 Sim. 438 ; Dowling v. 
 Ford, 11 Mees. & W. 329; Baloh v. Onion, 4 Cush. 559; Bennett v. Cooper, 9 Beav. 
 252 ; Crane v. Paine. 4 Cush. 483 ; Merrills v. Swift, 18 Conn. 257 ; Elkins v. Edwards, 8 
 Geo 325; Inches v. Leonard. 12 Mass. 379. 
 
 (6) But a mortgagee will not lose his right of strict foreclosure, by a mere promise to 
 give time to the mortgagor to redeem. Danforth v. Roberts, 7 Shepl. 367. 
 
426 
 
 EQUITY OF REDEMPTION, ETC. 
 
 [CHAP. XXXI. 
 
 mortgagee, the general principle is, that a mortgagee in possession is a 
 steiuard or hail^" of the mortgagor, without a salary, and accountable 
 to him for all the profits of the land. So, also, is an assignee of the 
 mortgagor or a subsequent mortgagee. In general, howevei', he is not 
 responsible for all that might have been made from it, but only for the 
 actual receipts ; unless guilty of some gross neglect or wrong, as by 
 rejecting a good tenant or admitting an insufficient one ; nor is he sub- 
 ject to any account, unless the mortgage is redeemed.(l) 
 
 46. But -where the mortgagee enters before condition broken, it 
 seems the law will hold him to a very strict account of the rents and 
 profits, such entry being regarded as a harsh proceeding, contrary to 
 the intention of the transaction, and unwarranted by any default of the 
 mortgagor. Iq Massachusetts and Maine, the mortgagee, in such case, 
 shall account for the char rents and profits.{2) 
 
 47. If it be proved, that the land was let by the mortgagee for a 
 certain rent, it will be presumed that it was leased for the whole time 
 on the same terms, unless the contrary be shown. And, if he has kept 
 no account of the rents, he is chargeable with what he may be pre- 
 sumed to have received ; and, if he himself occupy, with an occupation 
 rent. But he is not chargeable with interest on the rents.(3) 
 
 48. If the mortgagee either enters on the land, but allows the mort- 
 gagor to take the profits, or permits him to use the mortgage for keep- 
 ing off other creditors, he will be held accountable for the profits. But 
 a first mortgagee, who enters for breach of condition, but allows the 
 mortgagor to remain in possession, without accounting for rents and 
 profits, is not himself liable thus to account, though he entered ibr the 
 purpose of preventing an attachment of the crops by creditors of the 
 mortgagor.(4) 
 
 49. If the mortgagee assign his mortgage, he is answerable for the 
 profits, both before and after the assignment. And an assignee cannot 
 excuse himself from accounting, by setting up an adverse title.(6)(a) 
 
 50. The mortgagee, in general, can claim no compensation ibr his 
 own trouble in receiving the rents, and even a special agreement there- 
 for will be disallowed. But, for the necessary services of an agent, he 
 may have an allowance ; and in Massachusetts he is usually allowed a 
 commission of five per cent, for his own trouble, though there is no 
 fixed rule upon the subject, and he is not restricted to this per cent- 
 
 (1) 1 Tern, 45 ; Gould v. Tancred, 2 Atk. 
 534 ; 1 Abr. Equ. 328 ; Hogan v. Stone, 1 
 Alab. N. S. 496 ; Riickman v. Astor, 9 Paige, 
 517 ; Portland Ac. v. Eox, 1 Appl. 99 ; Chol- 
 mondeley v. Clinton, 2 Jac. & W. 119 ; Moore 
 V. Degraw, 1 Halst. Ch. 346 ; Beare ». Prior, 
 6 Beav. 183; Trulocku Kobey, 15 Sim. 265; 
 Holabird v. Burr, 17 Conn. 556 ; Kellog v. 
 Rockwell, 19, 446; Bank, &e. v. Rose, 1 
 Strobh. Equ 257; Tennenti;. Dewees, 7 Barr, 
 305 ; Walton v. Withington, 9 Miss. 549 ; 
 Bennett v. Butterworth, 12 How. 367. 
 
 (2) Mass. Rev. St. 635 ; Me. lb. 553 ; Ruby 
 V. Abyssinian, &c., 3 Sliep). 306. 
 
 (3) Sel. L)as. in Chy. 63 ; Dexter v. Arnold, 
 2 Sumn. 109; 1 Ala. (N. S.) 496; Lloyd v. 
 Mason, 2 My. & 0. 487 ; Beare v. Prior, 6 
 Beav. 183. 
 
 (4) Coppring v. Cooke, 1 Vern. 270 ; Chap- 
 man V. Tanner, lb. 267 ; Charles v. Dunbar, 
 4 Met. 498. 
 
 (5) 1 Abr. Equ. 328; Gordon u. Lewis, 2 
 Sumn. 143. 
 
 (a) After a decree of foreclosure, a mortgagee is not liable to account for subsequent rents, 
 at law ; nor before, unless allowed by the master in taking his account. Whetlier in equity, 
 gii. Chapman v. Smith, 9 Verm. 153. In New York, he is thus liable. Ruckman v. 
 Astor, 9 Paige, 517. 
 
CHAP. XXXI.] 
 
 EQUITY OF REDEMPTION, ETC. 
 
 427 
 
 age.(l) But if he occupy himself, he shall not have, for his care of the 
 estate, any commission on the rent with which he is charged. (2)(a) 
 
 51. A mortgagee shall account for all loss by gross negligence or 
 wilful default, in bad cultivation and omission to repair. 
 
 52. So also, he shall account for 2taste committed by him ; as, for 
 pulling down cottages. But the English doctrine of waste is subject to 
 the same modifications as between mortgagor and mortgagee, which 
 have already been stated in relation to landlord and tenant. See also 
 ch. aO, sec. 35.(3) 
 
 53. The mortgagee shall not be required to account for the proceeds 
 of improvements made by himself (4) 
 
 54. The mortgagee will be allowed for all necessary repairs, and for 
 the expenses of defending the title to the land, both of which claims 
 shall bear interest ;{b) and he will be allowed for all necessary repairs 
 and betterments, though the expense exceed the rents and profits. So 
 for taxes, if paid by necessity. (5) 
 
 55. He will not be allowed, in general, for the clearing of wild 
 lands,{c) nor for any ornamental improvements, or new erections, unless 
 permanently beneficial, or absolutely necessary for the upholding of 
 the estate ; as in case of an aqueduct, requisite for supplying the prem- 
 ises with water. Nor will he be allowed for insurance, unless effected 
 at the mortgagor's request. It is said, however, that there is no inflexible 
 rule on this subject, but the question of allowance is in the discretion of 
 the court, subject to the particular facts of each case. The mortgagee 
 will not be permitted to make improvements, which vvill cripple the 
 right of redemption. (6) 
 
 56. In Maryland, a mortgagee is allowed for necessary repairs and 
 permanent improvements.(7) 
 
 (1) Moore v. Cable, 1 John. Cha. 385 ; 2 
 Mar. 339; Gibson v. Crehore, 5 Pick, 146; 
 Clark V. Robbins, 6 Dana, 350 ; Adams v. 
 Brown, Harr. Rep. (May, '51) p. 38. 
 
 (2 1 Tuckeri;. Buffam, 16 Pick, 46; Eaton 
 V. Simonds, 14, 98. 
 
 (3) Givens v. M'Calmont, 4 "Watts, 460 ; 
 Bland, 22 n. ; Sandon v. Hooper, 6 Beiiv. 246. 
 
 (4) Moore v. Cable, 1 John. Cha. 385. 
 
 (5) 2 Sumn. 125, 6, 143; Godfreys. Wat- 
 son, 3 Atk. 518; Reed v. Reed, 10 Pick, 398 ; 
 Mix V. Hotchkiss, 14 Conn. 32. See Thorney- 
 
 croft V Crockett, 16 Sim, 445 ; McConnel v. 
 Holobush, 11 lUin. 61 ; Marine, &e. v Biays, 
 4 Harr. & J. 343 ; Arnold v. Foot, 7 B. Mon. 
 66; Page v. Foster, 1 N. H. 392 ; Dobson v. 
 
 Land, 14 Jur. 288 ; "White v. Brown, 2 Cush. 
 412. Petlibone v. Stevens, 16 Conn. 19; 
 Lewis V. De Forest, 20 Conn. 427; St. 8 & 9 
 Vict. c. 56. 
 
 (6) Moore V. Cable, 1 John. Cha. 385; 10 
 Pick. 398 ; Russell v. Blake, 2 Pick. 506 ; 
 Saunders t;. Frost, 5 Pick. 259; Ford v. Phil- 
 pot, 5 H. & John. 312; Quin V. Brittain, 1 
 HoBfm. 353; Clark v. Smith, Saxt. 121; 
 Dougherty v. M'Colgan, 6 Gill &. J. 275 ; 
 4 Kent. 167, n. ; Mix v. Hotchkiss, 14 Conn. 
 32; Sandon v. Hooper, 6 Beav. 246; Hor- 
 lock V. Smith, 1 Coll. Cha. 287. 
 
 (7) Rawlings v. Stewart, Bland, 22 n. ; 
 Neale v. Hagthorp, 3 lb. 590. 
 
 (a) The question, whether a mortgagee's charges are reasonable, is not for a jury, but for 
 the court, with rererence to tlie facts lound by tlie jury. And in an action by the mortga- 
 gor, or his assignee, to recover back money overpaid to a mortgagee in possession, in order 
 to prevent a foreclosure, the same legal and equitable rules are to govern, which apply to a 
 settlement of the mortgagee's account upon a bill for redemption. Cazenove v. Cutler, 4 
 Met. 246. In Maine, the mortgagor may have execution tor the excess of rents received by 
 the mortgagee over the repairs. And the court may deduct on this account from the money 
 brouglit into court. Me. Rev. St. 557. 
 
 (6) By tile civil law, he is allowed for improvements not absolutely necessary, with inter- 
 est. 1 Donjat, 365. 
 
 (c) On the contrary, if he cut timber, he may be chargeable for waste. Givens v. MoCal- 
 mont, 4 Watts, 460. 
 
428 
 
 EQUITY OF REDEMPTION, ETC., 
 
 [CHAP. XXXL 
 
 57. Judge Story says, it seems, there is no universal duty in a mort- 
 gagee to make all sorts of repairs ; but he is bound to make such as are 
 reasonable and necessary, under the particular circumstances of each 
 case. If a building is very old and dilapidated, there is no rule requi- 
 ring him to incur a greatly disproportionate expense in repairing; and 
 he certainly is not bound to make any new advances. And he is not al- 
 lowed for improvements, unless they increase the value of the es- 
 tate.(l)(a) 
 
 58. The mortgagee shall not get any advantage from the mortgage 
 fund, beyond the principal and interest of his debt. It is the general 
 rule, that where a mortgagee receives a sum exceeding the interest due, 
 it shall go to sink the principal. But in decreeing an account, it seems, 
 the Court of Chancery will not require that every trifling amount be 
 thus applied ; or in all cases, even that annual rests be made. It takes 
 into view the hardship upon the mortgagee, of being obliged to enter 
 and receive his debt in fractions, and obtaining no allowance for his care 
 and trouble, though treated as a bailiff in his liability to account. In 
 general, the mortgagee will be liable for an excess of the interest re- 
 ceived by him over the interest of his debt ; but it will be otherwise, 
 •where he retains it after satisfaction of his debt, by mistake. The party 
 claiming to redeem shall allow interest upon the money which he ten- 
 dered, and -which the defendant refused to accept. (2)(i) 
 
 59. Where surplus rents remain in the hands of the mortgagee after 
 satisfaction of his debt, they constitute a chose in action, which may be 
 assigned by the mortgagor ; and the assignee may maintain a bill for an 
 account.(3) When the mortgage is accompanied with & power of sale to 
 the mortgagee, the surplus to be paid to the mortgagor, his executors 
 and administrators ; if the land is sold in the mortgagor's lifetime, the 
 surplus will be personal estate; if after his death, the equity will de- 
 scend to his heirs, and the surplus will pass along "with it.(4) In New 
 York, the surplus of proceeds of sales passes to heirs and is assets.(5) 
 
 60. Upon a bill in equity, to redeem an equity of redemption sold on 
 execution, the defendant shall account for the rents and profits, though, 
 before suit commenced, the plaintiff tendered the amount of the pur- 
 chase-money which he paid for the equity, without deducting the rents 
 and profits.(6) 
 
 (1) Dexter v. Arnold, 2 Sumn. 125, 6; 
 Gordon v. Lewis, lb. 143 ; Reed v. Reed, 10 
 Pick. 198, 
 
 (2) aould V. Tanored, 2 Atk. 534 ; Gordon 
 V. Lewis, 2 Suinn. 143 ; Tucker v. Buffiim, 
 16 Pick, 46; Pincli v. Brown, 3 BeaT. 10; 
 Jenkins o. Eldredge, 3 Story, 325; Paige 
 V. Broom, 4 Russ, 224; McDaniels a, Lap- 
 ham, 21 Yerm. 222 ; Dua,shee v. Parmelee, 19 
 
 172 ; Boolcer v. Gregory, 1 B, Mon, 439; Bos- 
 ton, &c, V. King, 2 Ousli, 400; Bourne D, Lit- 
 tlefield, 29 Maine, 302 ; Aston v. Aston, 1 
 Vez, 264; Earp, 1 Par,s, (Peons,) 453, 
 
 (3) 2 Sumn, 143. 
 
 (4) Wright V. Rnse, 2 Sim, & St, 323, 
 
 (5) Moses V. Murgatroyd, 1 Joiin. Clia. 
 119, 
 
 (6) Tucker v. Bufifum, 16 Pick, 46. 
 
 (a) He is allowed for all disbursement, to which the mortgagor or his assignee, hav- 
 ing notice of the facts, or the means of knowing them, assents, Cazenove v. Cutler, 4 
 Met, 246. 
 
 (h) Mortgage, payable in two years, with interest semi-annually. After two years, an as- 
 signee enters under a judgment and receives the rents, ka. Upon a bill to redeem, brought 
 by the widow, held, there should be annual rests; the amount paid by defendant the first 
 year for repairs, 4c., to be deducted from the rents, and the balance considered the net 
 rents; the interest for the first year to be added to the principal, the net rent deducted 
 from the product, and the balance to form a new principal, and so on to the time of judgment. 
 Tan Trouker v. Eastman, 1 Met, 157. 
 
CHAP. XXXII.] MORTGAGE— ESTATE OP A MORTGAGEE, ETC. 429 
 
 61. Where such purchaser, after the tender, occupied under a lease 
 from the mortgagee at a low rent, and afterwards purchased the mort- 
 gage, held, he should account for the fair annual value ot the land, with 
 an allowance for repairs and improvements.(l) 
 
 62. In Maine and Rhode Island, the mortgagor will be entitled to 
 redeem, by paying or tendering the debt due, with interest and costs, 
 or performing or tendering performance of any other condition of the 
 mortgage, together with the amount of reasonable expenses incurred in 
 repairs and betterments, over and above the rents and profits. And, in 
 Maine, if the mortgagor have paid money to the mortgagee, or brought 
 it into court, without deduction on account of the rents and profits re- 
 ceived by the mortgagee, he shall be entitled to a restitution of the 
 balance due him on this account. In Massachusetts, if the mortgagee, 
 or any one under him, has had possession, he shall account for the rents 
 and profits, and be allowed for reasonable rtpairs and improvements, 
 for taxes and assessments, and other necessary expenses in the care and 
 management of the estate. If there is a balance due him, it shall 
 be added to the amount which the mortgagor is to tender ; if there is 
 a balance due from him, it shall go to sink the debt.(2)(a) In Georgia, 
 a mortgagee is made liable for taxes upon the land, if the mortgagor 
 does not pay them. (3) 
 
 CHAPTER XXXII. 
 
 MORTGAGE— ESTATE OF A MORTGAGEE— SUCCESSIVE MORTGAGES OP THE 
 
 SAIIE LAND. 
 
 1. Mortgage — personal estate — passes to 
 
 executors, &c. 
 4. Devise of a mortgage. 
 8. American doctrine — whether an assigti- 
 menl of the debt passes the mortgage. 
 11. As.signment of mortgage is the transfer 
 
 of an estate. 
 14. Interest of mortgagee, not liable to exe- 
 cution. 
 18. Statute of limitations, and lapse of time. 
 20. Insurance. 
 
 2 1 . Subsequent mortgagees — general princi- 
 ples. 
 Rights of, not affected by transactions 
 between first mortagee and mortgagor. 
 Assignment of first mortgage. 
 Mortgage to several persons by one 
 deed'. 
 Equitable interference for subsequent 
 mortgagee. 
 28. Praud on the part of the mortgagor. 
 
 22, 
 
 24. 
 25. 
 
 27 
 
 1. A MORTGAGE, though it purport to convey a fee-simple, yet, being 
 merely security for debt, is personal estate, so long as the right of re- 
 demption continues. Both in law and equity, the mortgagee has only 
 a chattel interest, or a chose in action. lie is not the substantial owner. 
 
 (1) Tucker v. Ruffum, 16 Pick. 46. 
 
 (2) 1 Smith's St. 160-1-4; Mass. Rev. St. 
 636. 
 
 (3) Prince, 84 8. 
 
 (a) Bill in equity to redeem. Answer, that the tender made by the plaintiff was condi- 
 tional, and tliat he had not been alwttys afterwards ready to pay. Held, tlie defendant 
 could not su'isequently plead, that the suit was commenced more than a year after the 
 tender, according to St. 1821, c. 86, sec. 3. Tucker v. Buffum, 16 Pick. 46, 
 
430 
 
 MORTGAGE— ESTATE OF 
 
 [CHAP. XXXll 
 
 His principal right is to the money, and his right to the land is only as 
 security for the money. Hence, upon the mortgagee's death", the mort- 
 gage passes to his executors, not to his heir.s ; is primarily liable for 
 debts ; and may be devised without the formaUties necessary to a will 
 of real estate.(l)(a) 
 
 2. Though the heir of the mortgagee be in possession after condition 
 broken, and there be no want of assets, he shall' be decreed to convey 
 to the administrator.(2) 
 
 3. In Massachusetts, Rhode Island, Maine and Michigan, statutes 
 provide, that the executor, &c., of a mortgagee may recover possession 
 of the land, and hold it as assets, and be seized to the use of the heirs, 
 widow or devisees, in Maine, and., in Massachusetts, of creditors, also, 
 or of the same persons who might claim the money, if paid to redeem 
 the ]and.(6) In Massachusetts and Ehode Island, it may be sold for 
 payment of debts, by license of court. In Maryland, an executor may 
 discharge a mortgage.(3) 
 
 4. It has been held, that lands held originally under old mortgages 
 passed by a general devise, though no release of the right of redemp- 
 tion was shown ; and that there was no equity between the executor 
 and the heir or devisee, requiring any change of the property from its 
 condition at the death of the deceased owner.(4) 
 
 5. If the mortgagee indicate an intention to pass the mortgage as 
 real estate, the law will so treat it.(c) Thus, where he devises it to his 
 daughter and her heirs, the husband of such daughter, upon her death, 
 shall not hold it as personal property, but it shall go to her heirs.(5) 
 And it seems to be nov/ settled, that a mortgage will pass by will, under 
 general words relating to the realty, unless the expressions of the 
 will, or the purposes and objects of the testator, call for a different 
 construction (6) 
 
 6. If the mortgagee, after a decree for foreclosure, but before an ac- 
 count taken, or actual foreclosure, devise the mortgage to a relation to 
 
 (1) Treat of Equ. B. 3, ch. 1, sec. 13; 
 Grace v. Hunt, Cooke, 344 ; Jackson v. De 
 Laiicy, 13 John. 537; Ballard v. Carter, 5 
 Pick. 112; Chase v. Tuckerman, 11 G. & J. 
 185; Me. liev. St. 555; Cutts «. York, &c. 
 6S hepl. 190 See Silvester v. Jarman. 10 
 Price, 78; Harriett, &o., M'Lel. & Y. 292; 
 Thornbrough v. Baker, 1 Cas. in Cha. 285 ; 
 Bunyan v. Mer.iereau, 1 1 JdIid. 534 ; Martin 
 V. Mowlin, 2 Burr. 978; Dougherty v. M'- 
 Colgaii. 6 Gill & J. 275. 
 
 (2i Ellis V. Guavas, 2 Cha. Cas. 50. 
 
 (3) 1 Smith. 166-7; Mass. Eev. St. 430; 
 E. 1. L. 233-4; Mich. L. 57; Md. L. 2528. 
 
 See Boylston v. Carver, 4 Mass. 609 ; "Webber 
 V. Webber, 6 Greenl. 127 ; Johnson v. Bart- 
 lett, 17 Pick. 477 ; Blair, 13 Met. 126 ; Mass. 
 Sts. 1849, oh. 47 ; 1851, ch. 288. 
 
 (4) Att'y-Gen. v. Bower, 5 Yes. 300. See 
 Pawlett V. Att'y-Gen., Hardres, 467 ; Fields, 
 &c., 7 Enfr. L. & Equ. 260; Priel, Law Rep. 
 June, 1850, p 92 ; Beck v. MGillis, 9 Barb. 
 35; Asay v. Hoover, 5 Barr, 21; Gay r. 
 Minot, 3 Cush. 352. 
 
 (5) No3'S V. Mordant, 2 Tern. 581. 
 
 (6) Jackson v. Delancy, 13 John. 555 ; 
 Braybroke v. Inksip, 8 Ves. 407. 
 
 (a) In Johnson v. Bartlett, 17 Pick, 484, Hunt v. Hunt, 14, 379-80, and Hatch v. Dwight, 
 17 Mass. 299 ; it is intimated, that entry for condition broken might cliange the character 
 of the mortgagee's estate. So, in Rhode Island, it is said, if the mortgagee dies without 
 takinrj possession, the mortgage passes to his executors, and the heirs need not be made 
 parties in a bill to redeem. 1 Suran. 109. So, in New York, the mortgagor is said to have 
 the legal title till foreclosure or entry. Van Duyne v. Thayre, 14 "Wend. 235-6. See, also, 
 Perkins v. Dibble," 10 Ohio, 438; Miami, &o. v. Bank, &o., "Wright, 249. 
 
 (6) In New Hampshire, the law is the same. Gibson v. Bailey, 9 N. H. 168. 
 
 (c) This is not in analogy with the nile, by which a bequest of a chattel to one and his 
 heirs passes it to his executors, or that by which mortgage-money, though secured to heirs, 
 goes to executors. 2 Clia. Cas. 51. 
 
OHAP. XXXII.] A MORTGAGEE, ETC. 431 
 
 whom he is indebted in a smaller sura, this is no satisfaction of the 
 debt, being regarded as a devise of real estate.(l) 
 
 7. But in such cases, although, as between a devisor and devisee, the 
 mortgage is treated as real estate ; yet, for payment of debts, it is held 
 to be personal assets, in case of defiuiency.(2) 
 
 8. The general doctrine above stated, (sec. 1,) seems to have been 
 fully recognized in New York by Mr. Justice Kent. He says, the 
 estate in the land is the same thing as the money due on the note ; is 
 liable to debts ; goes to executors; passes by a will not conformable 
 to the statute of frauds ; is transferred or extinguished by an assign- 
 ment, or even a parol forgiving of the debt. The land is but appurte- 
 nant to the debt. Whoever owns the latter, is likewise owner of the 
 former. There must be something peculiar in the case, some very 
 special provision of the parties, to induce the court to sepaiate the 
 ownership'of the note from that of the mortgage. In the eye of com- 
 mon sense and of justice, they will generally be united, tjpon these 
 grounds. Judge Kent held, that the delivery of a mortgage, accompany- 
 ing the indorsement of a note, which it was made to secure, passed the 
 mortgage as well as the note. Mr. Justice Eadcliffe, on the other 
 hand, held, that the legal title to the land did not pass ; although the 
 assignee acquired an equitable interest, which a court of equity would 
 sustain : that although, as hetweeii mortgagor and mortgagee, the mort- 
 gage was to be regarded as personal estate, so as to pass to executors, 
 or be extinguished by pa^'ment of the debt ; yet it could not be so re- 
 garded, in reference to a transfer to third persons. In a subsequent 
 case. Judge Kent adheres to his former doctrine, that at law, as well 
 as in equity, the mortgage is regarded as a mere incident attached to 
 the debt (A){a) 
 
 (1) Garret «. E vers, 2 Cruise, 85. I (3) Johnson v. Hart, 3 Jolm. Gas. 329; 
 
 (2) lb. I Jaekson v. Willard, 4, 43. 
 
 (a) A similar doctrine is adopted in Pennsylvania. In Maryland, a mortgage, containing 
 a power to sell, may be assigned by indorsement in blank. In Vermont, a mortjjage may 
 be assigned by parol. Pratt v. Bank. &c., 10 Verm. 293. See Wilkins v. French, 2 Appl. 
 Ill ; Johnson v. Hart, 3 John. Cas. 329-30 ; lb. 326-7 ; Jackson v. Willard, 4 John. 43 ; 
 2 Rawle, 242 ; Crall V.Webster, 4, 242; JMd. St. 1836, ch. 249, sec. 15 ; Slaughter v. Foust, 
 4 Blackf. 380. 
 
 In Nsw Hampshire, the estate of a mortgapree is held to be real, so far as is necessary to 
 perlecl his security; but not so as to enable him to transfer tlie land without the debt, or 
 to pass the debt by a mere deed of the hind. Whetiier the rule is different, after possession 
 taken, is treated as doubtlnl. Ellison v, Daniels, 11 N. H. 274. 
 
 Upon the di.stinct question, whether an assignment of the debt carries the mortgage with 
 it ; the courts have so held in New York, Pennsylvania, New Hampshire, Vermont, Ken- 
 tucky, Mississippi and Alabama ; wliile in New Jersey, Massachusetts, Maine and Illinois, 
 the contrary has been decided — with more or le.ss qualification of the rules on one side and 
 the other, growing out of the peculiar circumstances of particular cases. In Indiana, a deed 
 is necessary to pass the mortgagee's legal title ; but a sale of the note passes the morlgage 
 in equity. In Connecticut, aii assignment of the mortgage, and subsequent delivery of the 
 notes, vest the mortgage title in the assignee. Johnson v. Hart, 3 John. Cas. 329, 330; 
 Jackson v. Willard, 4 John. 43; Ranyan v. Mersereau, 11, 534; Southerin v. Meudum, 5 
 N. H. 420 ; Rigney v. Lovejoy, 13, 247 ; Pratt v. Bank, &c,, 10 Verm. 294 ; Keyes v. Wood, 
 21, 331 ; Belding V. Manly, lb. 550; Burdett v Clay, 8 B. Mon. 287 ; Waller v. Tate, 4 
 S32 ; Dick v. Mawry, 9 Sm. & M. 448; Lewis v. Starke, 10, 120; Henderson v. Herrod, lb, 
 631; Bank, &c. v. Tarleton, 23, 173; M'Vay v. Bloodgood, 9 Por. 547 ; Don v. Dinion, 5 
 Halst. 156; Warden v. Adams, 15 Ma.ss. 233. See Cutler v. Haven, 8 Pick. 490. Smith 
 V. Eelley, 27 Maine, 237 ; Dwinel v. Perley, 32, 197 ; McConnell v. Hodson, 2 Gilm. 640 ; 
 Dudley v. C;idwell, 19 Conn. 218: Roberts v. Halstead, 9 Barr, 32; Donley v. Hays, 17 S. 
 & R. 400; Givan v. Tout, 7 Blackf. 210; Clearwater v. Rose, 1, 137; Burton v. Baxter, 7^ 
 297 ; Slaughter v. Foust, 4, 379 ; State, &c. v. Tweedy, 8, 447. 
 
432 
 
 MORTGAGE— ESTATE OP 
 
 [CHAP. XXXII. 
 
 9. But in New Jersey, it has been held that the principle of treat- 
 ing a mortgage as a mere incident to the debt which it is designed to 
 secure, does not dispense with the necessity of a formal assignment of 
 the former, to a party who pays and takes up the latter, in order that 
 he may defend against a suit for the land by the mortgagor. And 
 where an informal assignment was first taken, another formal assign- 
 ment, made after commencement of suit, will be ineffectual as a de- 
 fence to the action. In such case, the mortgagee holds the mortgage 
 in trust for the party Avho pays the debt, but the latter has no legal 
 title.(l) 
 
 10. In New Hampshire, it is said, a mortgage passes nothing, unless 
 it appears that the debt secured also passed, or was in the power of 
 the mortgagee. (2) 
 
 11. Although a mortgage, in most respects, is treated as a mere 
 security accompan3-ing the debt ; yet the assignment of a' mortgage 
 is held to be the conveyance of an estate, and not the mere transfer 
 of a security. Hence, the assignee must bring an action, if at all, 
 in his own name.(3)(a) 
 
 12. But if the mortgagor is disseized, the mortgagee is also dis- 
 seized, and cannot convey his interest.(-i) 
 
 13. Where a mortgage is given to secure several bonds, and the 
 mortgagee assigns a part of them at different times and to different 
 persons, and the mortgaged premises are afterwards sold upon execu- 
 tion in favor of the mortgagee against the mortgagor ; the proceeds of 
 sale shall be applied in payment of alt the bonds pro rata, as well 
 those which the mortgagee himself retains, as those which he has 
 transferred. The principle, " qui prior in tempore, potior est in jure" is 
 not applicable to this case, because it relates only to successive charges 
 upon the same properly, whereas the several bonds in this case are dis- 
 tinct things; and, if the respective dates of the transfers were open to 
 inquiry, great uncertainty and fraud would be likely to ensue. The 
 mortgagee himself has equal rights with the assignees, because the 
 
 (1) Den V. Dimon, 5 Halst. 156. 
 
 (2) Warden v. Adams, 15 Mass. 233; Par- 
 sons V. Welles, n Mass. 419 ; Bell v. Morse, 
 6 N. H. 205 ; Southerin v. ileadum, 5 N. H. 
 
 420. But see Cutler v. Haven, 8 Pick. 490. 
 
 (.S) Gould V. Newman, 6 Mass. 239. 
 
 (4) Poignard v. Smith, 8 Pick. 272. See 
 Converse «. Searis, 10 Verm. 578. 
 
 "Where negotiable notes are secured by mortgage, and assigned without the latter, the 
 mortgagee becomes a trustee for the assignees, and holds tlie mortgage for their benefit. 
 Crane v. March, 4 Pick. 131. 
 
 lu Vermont, as has been seen, an assignment of all the notes secured by mortgage passe.s 
 the mortgage also. An assignment of a part of them may or may not have this effect, ac- 
 cording to the agreement of the parties. Langdou v Keith, 9 Verm. 299. 
 
 In Pennsylvania, a mortgage, and the claim which it secures, are so far distinct, that 
 where a scire facias is brought on a bond with warrant of attorney, it is no defence tliat a 
 mortgage by which the bond was secured, is not in the plaintiff's possession, or is lost, mis- 
 laid, or destroyed. Hodgdon v. Naglee, 5 Watts & S. 217. 
 
 (a) But where the mortgage is assigned as security for a smaller sum than is due upon 
 it, the mortgagee may maintain a bill for foreclosure, especially if the assignee refuses to 
 sue. Norton v. Warner, 3 Edw. 106. So. where he guarantees the mortgnge debt to the 
 assignee, lie is a proper party to a suit for foreclosure. Bristol v. Morgan, 3 Edw. 142; 
 Curtis V. Tyler. 9 Paige, 432 ; Leonard v. Morri.s, lb. 90. Where a mortgnge is itself mort- 
 gaged, it seems, three years' redemption will be allowed, as in ease of real estate. Cutts v. 
 York, &c., 6 Shepl. 190. 
 
OHAP. XXXIL] 
 
 A MORTGAGEE, ETC. 
 
 438 
 
 assignment involved no transfer of the mortgage, unless by implication, 
 and no warranty express or implied. (l)(a) 
 
 1-i. It has been already seen, (oh. 31,) that an equity of redemption 
 is liable to legal process for the debts of the mortgagor. 
 
 15. On the other hand, the estate of a mortgagee, before foreclosure, 
 or possession taken by him, is not subject to be taken upon execution. 
 Until foreclosure, it is a mere chose in action, and an incident attached 
 to the debt, from which it cannot properly be separated. As distinct 
 from the debt, the mortgage has no determinate value ; and, if assigned, 
 the assignee's rights must be subject to the holder of the personal secu- 
 rity. And the debt cannot be sold with the mortgage, it being well 
 settled that a chose in action is not subject to sale on execution. (2) 
 
 16. These remarks, made by Mr. Justice Kent, seem to require not 
 merely entry, but foreclosure, by the mortgagee, to subject his interest 
 to be taken on execution. The case finds, however, that the mortgagee 
 had not entered, and the question stated for decision is, whether a sale 
 is valid, made " before foreclosure, and while the mortgagor is suffered 
 to retain possession." And the learned judge remarks, that when the 
 mortgagee has tahen possession, the rents and profits may become the sub- 
 ject of computation and sale.(3) 
 
 17. In Massachusetts and Connecticut, it is distinctly decided, that, 
 before entry, the mortgagee's interest is not subject to execution ; and 
 doubted, whether it is so subject before foreclosure: because, till that 
 event, all the inconveniences exist which are applicable in the other 
 case. The like decision has been made in Kentucky. In New Hamp- 
 shire, the interest of the mortgagee cannot be levied on, unless that of 
 the mortgagor is also taken, and they join in appointing an appraiser, 
 or unless there has been an entry to foreclose. A judgment for posses- 
 sion is not enough. (4) 
 
 18. Notwithstanding the principle, that the mortgage is merely inci- 
 dent to the personal security which it accompanies, the statute of limi- 
 tations, applicable to the latter, will not bar a claim upon the former. On 
 the contrary, the recital of a debt in the mortgage deed has been held 
 to take such debt out of the operation of the statute.(5)(J) 
 
 (1) Donley v. Haya, 11 Ser, & B. 400. 
 
 (2) Jackson v. Willard, 4 John. 43-4. 
 
 (3) lb. 41-2-4. 
 
 (4) Eaton v. Whiting, 3 Pick. 488 ; Hunt- 
 ington V. Smith, 4 Conn. 237 ; 1 Dana, 24-188 ; 
 
 Johnson v. Bartlett, IV Pick. 4T7 ; Glass v. 
 Ellison, 9 N H. 69. 
 
 (5) Clark v. Bull, 2 Root, 329 ; Langan v. 
 Henderson, 1 Bland, 282; Heyer «. Pruyn, 1 
 Paige, 465 ; Cheslyn v. Dalbey, 2 Y.& C. 170. 
 See Den «. Spinning,! Hal3t.473; ch. 33, see. 6. 
 
 (a) This decision was made by a majority of the court in Pennsylvania. Gibson, Ch. J., 
 dissented, on the grounds, that the assignment created a moral obligation upon the mort- 
 gagee, wliich equity would enforce, though not a legal one ; that, the debt being the principal, 
 and the mortgage an accessory, the assignment of a part of the debt was an assignment of 
 the mortgage, not pro rata, but pro tanto, and the assignee, a puroliaser of all the securities of 
 the assignor, to be used by him as freely and beneficially as by the assignor himself; and that 
 the same principles were applicable to assignees of separate parts of the same debt. 
 
 Where a vendor ol land taltes several notes for the price, retaining also a lien upon the land, 
 and pressed in ihe assignment. Ewing v. Arthur, 1 Uumph 537; ace. McVay v. Bloodgood, 
 the proceeds shall be applied to all the notes pro rata, unless a contrary intention is ex- 
 assigiis some of the notes, with the lien, retaining the others; upon a sale of the property, 
 Por. 547. Bui where a note secured by mortga<re is assigned, this is pro tanto an assign- 
 ment of the mortgage, and if the security is insufficient for the whole debt, the assignee has 
 a prior claim. Cullum v. Erwin, 4 Ala. (N .S) 452. Succe-fsive assignees have priority in 
 the order ol their assignments, unless it is expressly agreed otherwise. lb. 
 
 (6) Ace. N. H. Key. St. 360 ; Thayer v. Mann, 19 Pick. 536. See Grinnell y. Baxter, 17 
 
 YOL. I. 28 
 
434 MOETGAGE— ESTATE OF [CHAP. XXXII. 
 
 19. A mortgage was made in 1809, and recorded. The mortgagor 
 transferred the estate. The mortgagee never gave notice of his mort- 
 gage to the purchaser ; and, in 1821, brought a suit for the land, and 
 recovered. (l)(a) 
 
 20. The principle, that the personal security and the accompanying 
 mortgage are incident to each other, does not apply to any merely col- 
 lateral security, obtained by the mortgagor for the benefit of the estate. 
 Thus, the mortgagee has no claim to a policy of insurance upon the 
 premises, to the exclusion of other creditors. It is a mere personal 
 contract, not attached or incident to the mortgage.(2)(fe) 
 
 (1) Dick V. Baloh, 8 Pet. 30. r (2) Columbia, &o.ti. Lawrence, 10 Pet. 507; 
 
 J McDonald n. Black, 20 Ohio, 185. 
 
 Pick. 383 ; Miller v. Helm, 2 Sm. & M. 687 ; and infra, ch. 33, sec. 6. See also Davis v. 
 Battine, 2 Rus3 & M. 76, that commiimeiit of the mortgagor in a suit upon the debt ia no 
 bar to a subsequent action on the mortgage. In case of an equitable lien upon land for the 
 unpaid purchase-money, the vendor may enforce it, though he has lost the benefit of a se- 
 curity for the price, by lapse ol time. Magruder v. Peter, 11 Gill & J. 2 1 7. Where a bond 
 was secured by mortgage, and tlie mortgagee held possession twenty years, no interest 
 being paid ; it was doubted whether an action on the bond would ije barred by lapse of 
 time. White v. Hillacre, 3 T. & Coll. 597. 
 
 (o) Ejectment upon a mortgage, dated September 24, 1773. The suit was brought in 1814,. 
 Neither the original mortgage nor note was produced by the plaintiff, but, a record copy of 
 the former. He also proved that, in the revolutionary war, the shop of the mortgagee, 
 where many of his papers were kept, was burned. Tliere was no evidence of possession 
 or a demand of possession till a few weeks before the suit was brought; nor of any demand 
 of payment of the note. But it was proved that in 1776 the mortgagor left the State, and 
 soon afterwards died. The defendant claimed under conveyances from the mortgagor, and 
 by virtue of subsequent continued possession. The plaintiff sued as administrator of the 
 mortgagee. Held, even if the original securities were produced, the action would probably 
 be barred by lapse of time, raising a presumption of payment. The mortgagor's leaving 
 the State did not rebut this presumption, because the note was due before he left, and tlie 
 land might have been resorted to afterwards. But, moreover, the office copy was not legal 
 evidence, the loss of the original not being sufficiently proved. Inches v. Leonard, 12 
 Mass. 379. 
 
 A gave to B, his surety on several notes, a mortgage, for security and indemnity. Some 
 of the notes being outlawed, A became an insolvent debtor under the insolvent law of Mas- 
 sacliusetts. Held, B might apply the property first to the valid notes, and that the rest 
 must be distributed pro rata among the holders of the others, they having an equitable 
 lien on the fund ; but that he could not pay some of the outlawed notes from the property, 
 to the exclusion of others, the latter having an equal equitable claim with the former. 
 Ea.stman v. Poster, 8 Met. 19. Held, also, that the property was subject to this equitable 
 lien, although the mortgage had been foreclosed ; and, as against attaching creditors or 
 grantees of B, or an assignment under the msolvent law. lb. 
 
 (b) But if, by the terms of tlie mortgage, the mortgagor was bound to insure for the mort- 
 gagee's benefit ; the latter has an equitable lien upon the insurance, to the amount of his 
 debt. Carter v. Rocket, 8 Paige, 437. 
 
 So, where A, holding a mortgage, assigns it to B, covenanting that it is due and collectable, 
 and afterwards takes a bond from 0, as security ; B shall, in equity, have the benefit^of it, 
 and C is properly made party to a suit for foreclosure, being liable to B, if the land proves 
 deficient. Curtis v. Tyler, 9 Paige, 432. In Maine, by a late statute, where a mortgagor 
 effects insurance, if he consents in writing, the insurer may pay the loss to the mortgagee; 
 if he does not consent, a trustee process lies, and a payment will be available pro tanto. 
 Different mortgagees have claims according to priority. Any insurance by the mortgagee 
 will be void, if lie claims under this act, unless tlie insurer of the mortgagor consent. St. 
 1844, 97-8. Where a life policy is assigned to the mortgagee, in trust to receive the pro- 
 ceeds ; he cannot have a decree to sell it, but may have one for the foreclosure, and still re- 
 tain the policy. Dyson v. Morris, 1 Hare, 413. The mortgagor and mortgagee may each 
 insure his own interest. If the latter does it, it is merely an insurance of the debt, which 
 ceases when the debt is paid. If a loss occurs before such payment, he may recover, to the 
 amount of the debt, and the insurer may claim an assignment of the debt, and enforoa 
 it against the mortgagor. If the mortgagor obtains insurance, it has been held that he may re- 
 cover the full amount of the policy. Carpenter v. Providence, &e., 16 Pet. 495. See King v. the 
 
CHAP. XXXII.] 
 
 A MORTGAGEE, ETC. 
 
 435 
 
 21. It has already been stated, (ch. 31,) that a mortgagor may mort- 
 gage his equity of redemption, or, as it is commonly expressed, make 
 a second mortgage of the land ; and that a second mortgagee stands in 
 the place of the mortgagor, as to his right of redeeming the first mort- 
 gage. And the right in equity, of redeeming any number of succes- 
 sive mortgages, may be mortgaged anevv.(l)(a) It seems to be the 
 universal rule in the United Status, that mortgages, like other deeds, 
 take effect in the order of their registration. In England, upon the same 
 principle of tackivg, by which it has been seen, (ch. 31,) that a 
 mortgagee may insist upon payment of independent claims against the 
 mortgagor, as the condition of redemption ; a third mortgagee may 
 gain priority over a second mortgage, by buying up the first mortgage 
 and tacking it to his own, thereby obliging the second mortgagee to 
 redeem both, in order to redeem one. 
 
 22. The rights of a second mortgagee cannot be impaired by any 
 transaction, to which he is not a party, between the first mortgagee 
 and the mortgagor ; nor, on the other hand, will such transaction operate 
 as an extinguishment of the first mortgage, unless the circumstances 
 plainly demand this construction. 
 
 23. A mortgaged to B, afterwards to C, afterwards to D. B and C 
 entered on the same day, for condition broken. Afterwards E, a cre- 
 ditor of A, attached his equity of redemption, recovered judgment in 
 the suit against him, and subsequently purchased and took an assign- 
 ment of B's mortgage. At the execution sale, E afterwards purchased 
 A's equity of redemption, and, after the expiration of a year from such 
 purchase, believing and representing himself to be the absolute owner 
 in fee, conveyed with warranty to F. 0, the second mortgagee, ten- 
 dered to F the amount due upon B's mortgage, at the same time pro- 
 testing that he considered it as extinguished, and broughtabillin equity 
 to redeem. Held, 1. That, although, by purchasing the equity of re- 
 demption, according to the English law, B might have excluded inter- 
 vening incumbrances, yet, as the doctrine of tacking is here unknown, 
 he acquired no such right. 2. That the right of C to redeem B's mort- 
 gage was not reduced, by the sale on execution, from three years to 
 one year ; such abridgment of the right of redemption being wholly 
 confined to the relation between the mortgagor and purchaser, and not 
 affecting the claims of other mortgagees, accruing before attachment of 
 the equity, which are not subject to be impaired by any transaction 
 between the mortgagor and his creditors. 3. That the union of the 
 equity of redemption and the first mortgage in the hands of E did uot 
 extinguish the latter. Decreed, that, on payment of the sum due upon 
 
 Dale D. Shirley, 8 B. Mon. 524; Kiramell v. 
 "WiUard, 1 Doug. 217 ; Simonds v. Brown, 
 18 Verm. 231; Clarke «;. Stanley, 10 Barr, 
 472; Jones v. Plielps, 2 Barb. Cha. 440; 
 Holabird v. Burr, 17 Conn. 556 ; Bank, &o. v. 
 Peter, 13 Pet. 123; Hall v. Bell, 6 Met. 431. 
 
 (1) 8 Mass. 555, 15 Pet. 495. See "War- 
 burtoa )J. Lanman, 2 Greene, 420; Ellsworth 
 V. Mitchell, 31 Maine, 247 ; Barber v, Gary, 
 11 Barb. 549 ; State, &o. v. Campbell, 2 Rich. 
 Equ. 179; Head v. Egerton, 3 P. Wms. 
 280; Hooper v. Ramsbottom, 6 Taun. 12; 
 
 State, &e., 7 Gush ; Thomas v. Von Kapff, 6 G. & John. 372 ; Vernon v. Smith, 5 B & A. 1 ; 
 Klttredge v. Rockingham, &o., (N. H.) Law Rep. (Dec. 1849,) 412 ; King v. State, &c., (Masa.) 
 lb. (June, 1851,) 88 ; Pelton v. Brooks, 4 Gush. 203 ; Larrabee v. Lambert, 32 Maine, 97. 
 
 (a) So, land subject to the lien of an execution may be mortgaged ; and the mortgapor 
 cannot interfere with the mortgagee's title, by ordering a sale of more than enough to satisfy 
 the executioa Addison v. Crow, 6 Dana, 279. 
 
436 
 
 MORTaAGE— ESTATE OF [CHAP. XSXII. 
 
 the first mortgage, F should surrender the land, and convey and release 
 his right as the assignee of E.(l)(a) 
 
 24. An assignment of the prior mortgage to a subsequent mortgagee 
 does not necessarily operate as an extinguishment of the first mortgage. 
 Thus, where a mortgagee leased the land, and a subsequent mortgagee 
 undertook to discharge the first mortgage, paid the debt, and took an 
 assignment of the first mortgage and the lease, for the purpose of col- 
 lecting the rent; this was held no extinguishment.(2) 
 
 25. Where a mortgage is made to several persons, to secure debts 
 due to them severally, but giving a partial priority to some over others ; 
 they are not to be regarded as prior and subsequent mortgagees, in 
 reference to their respective claims upon the property, but as parties 
 
 ■ to one deed, with full notice of its terms. Thus, to secure pre-existing 
 debts, a debtor mortgaged to three creditors, A, B and 0, who were 
 absent, and ignorant of the transaction. The sum secured was $8,000, 
 to be paid in the proportion of $2,000 to the mortgagee last named, 
 and to the first and second $3,000 each. At the date of the mortgage, 
 the second and third had advanced the amount of their respective claims, 
 but the first had not. He had since, however, made upthe deficiency 
 by further advances. The property being sold on execution under the 
 mortgage, and the proceeds insufficient to pay the whole sum secured; 
 held, they should be distributed according to the sums expressed in the 
 mortgage ; that C did not stand as a subsequent mortgagee, but the 
 owner of an interest in common with the others, and under the same 
 title ; that he had neither done any act nor relinquished any right, in 
 consequence of the mortgage, to. his own prejudice; and that, having 
 affirmed the instrument in part, he was bound by it in the whole.{3)(6) 
 
 26. A second mortgagee succeeds to all the rights of the mortgagor, 
 arising out of any special contract which the latter has made with the 
 first mortgagee, in relation to the land. Thus, if the first mortgagee, 
 having taken a lease of the mortgagor, covenanting to pay rent, refuse 
 to pay the rent to a subsequent mortgagee, when demanded, not having 
 paid it to the mortgagor ; the subsequent mortgagee, when he redeems, 
 may compel the first mortgagee to account for the profits, as received 
 towards the payment of his prior mortgage.(4) 
 
 27. Where one creditor has two funds, from which he may satisfy 
 his debt, and another has a subsequent lien on only one of the funds, 
 the former creditor will be compelled in equity to resort to his exclu- 
 
 (!) Thompson v. Chandler, *l Greenl. 377. 
 (See eh. 33, sec. 34 ) 
 
 (2) Willard v. Harvey, 5 N. H. 252. 
 
 (3) Irwin v. Tabb, 11 S. & R. 419. 
 
 (4) Newall v. "Wright, 3 Mass. 138. 
 
 (a) A junior mortgagee must be made party to a bill for foreclosure by a senior one — else 
 he is not bound thereliy. Cooper v. Martin, 1 Dana, 25. But, in New Hampshire, if a 
 mortgagee bring an action at law against tlie morigagor, recover judgment, enter and re- 
 main in possession a year; the foreJosure binds a subsequent mortgagee, tliougli not notified 
 of such entry. Powner v. Clement, UN. 11. 4fl. 
 
 (6) Where a trustee, holding two sums of money, one belonging to A, the other to B, 
 loaned hoth to C, taking distinct mortgages at tlie same time, and not intending any priority, 
 but one mortgage was recorded a short lime bulure the other; held, they should be paid 
 rateably. according to tlieir re.spective amounts. Hhnades v. Uanfield, 8 Paige, 545. Where 
 one owning an undivided share of a township makes a mortgage, covering but a portion of 
 his interest, tlie mortgagee takes a proportional share, as tenant in common. Kandell v, 
 Mallett, 2 Sliepl. 51. 
 
CHAP. XXXII.] 
 
 A MORTGAGEE, ETC. 
 
 437 
 
 sive fund, provided it can be done without injury to himself or the 
 debtor. Thus, if A mortgages two estates to B, and then mortgages 
 only one of them to 0, the court will order B to take sati.sfaction from 
 the estate which is not included in O's mortgage, if sufficient for the 
 purpose. But, where there exists any doubt of the sufficiency of this 
 estate, or where the first mortgagee is unwilling to run the hazard of 
 obtaining payment from it, equity cannot take from him any part of 
 his security, till he is fully satisfied.(l) 
 
 28. In Georgia and South Carolina, a mortgagor who makes a second 
 mortgage, without disclosing, in writing, the existence of the first to 
 the second mortgagee, shall not be allowed to redeem the second mort- 
 gage. But the second mortgagee (whose deed is on record, in Georgia), 
 may redeem the first mortgage. In South Carolina, if a person suffer a 
 judgment, or enter into a statute or recognizance, binding his land, and 
 afterwards mortgage it, without giving notice, in writing, of the prior 
 incumbrance, unless, within six months from a written demand, he 
 clear off such incumbrance, he shall not be suffered to redeem. (2)(a) 
 
 (1) Evertson v. Booth, 19 Jolin. 486-93 ; 
 Pettibone i;. Stevens, 15 Conn. 19 ; Ayres v. 
 Husted, 15 Conn. 516; Bank v. Mitchell, 
 Rice, (Equ.) 389. See Sober v. Kemp, 6 
 Hare, 155 ; Ferris v. Crawford, 2 Denio, 595 ; 
 
 Lanoy v. Duke, &o., 2 Atk. 444 ; Miami, &o. 
 V. Bank, &c., Wright, 249; Barnes v. Baxter, 
 1 T. & Coll. 401; Kellogg v. Rockwell, 19 
 Conn. 446. 
 
 (2) Prince, 161; 1 Brev. 166-'?-8. 
 
 (a) In connection with the subject of sticcessive mortgages, may be briefly stated the well 
 established rule of equity, that, where a mortgage is given for a debt ivhich is also secured 
 by the obligation of a surety; the surety is entitled to be subrogated or substituted to all 
 the rights and remedies of the creditor whose debt he is compelled to pay, in relation to the 
 mortgaged estate ; and that the mortgagee cannot relinquish the estate, without thereby 
 also discharging the surety. Mathews v. Aikin, 1 Comst. 599; Root v. Bancroft, 10 Met. 
 46; Copis V. Middleton, 1 Tur. & R. 231 ; Hodgson v. Shaw, 3 My. & K. 195 ; Williams v. 
 Owen, 13 Sim 597 ; Hays v. Ward, 4 John Ch. 130 ; Bowker v. Bull, 1 Sim. (S.) 34 ; Nor- 
 ton V. Coons, 3 Denio, 130 ; Higgina v. Frankis, 10 Jur. 328 ; Gos.sin v. Brown, 1 Jones (Pen.) 
 527; McDermott v. Bank, &c., 9 Humph. 123; Root v. Stow, 13 Met. 5; C;ipel v. Butler, 
 2 Sim. & St. 457 ; Becket v. Snow, 1 Cush. 510 ; Orvis v. Newell, 17 Conn. 97 ; Brewer v. 
 Staples, 3 Sandf. Cha. 579 ; McLean v. Towle, 3 Snndf. 117 ; King v. McVickar, 3 Sandf. 
 Cha. 192. 
 
 Where a mortgage is made to a surety, for the purpose of indemnifying him for his liability 
 on account of the mortgagor, similar equitable rules are applied, as in the case above referred 
 to, of a mortgage accompanied by other security to the mortgagee. It is held, that such a 
 mortgage is in reality a security for the debt itself; to the benefit of which the creditor is 
 entitled. But he cannot make a claim upon it till the indorser's liability is fixed, and, if the 
 latter is discharged by his laches, he loses all title to the properly. Holabird v. Burr, 17 
 Conn. 556; Reinhard v. Bank, &o., 6 B. Mon. 252; Miller v. Musselman, 6 Whart. 354; 
 lewis V. DeForest, 20 Conn. 427 ; Stockard v. Stocliard, 7 Humph. 303 ; Moore v. Moberly, 
 7 B. Mon. 299; Davis V. Mills, 18 Pick. 394; Goodhue v. Berrien, 2 Sandf Cha. 630; Til- 
 ford v. James, 7 B Mon. 336 ; Shepard v. Shepard, 6 Conn. 37 ; Curtis v. Tyler, 9 Paige, 
 432 ; Eastman T. Foster, 8 Met 19 ; Telverton v. Shelden, 2 Sandf Cha. 481 ; Irwin's, &o. 
 V. Longworth, 20 Ohio, 581: Knox v. Moatz, 3 Harr. 74: Stewart v. Preston, 1 Branch, 
 10; Kramer v. Bank, Ac, 15 Ohio, 253. 
 
 Somewhat analogous to the case of successive mortgages, is that of a conveyance by the 
 mortgagor of a portion of the mortgaged land, retaining the remainder; or the conveyance 
 of different porlions, included in one mortgage, to successive purchasers, and the apportion- 
 ment of the mortgage debt upon such parcels, respectively. Tlie general rule upon this 
 subject is, that, if the mortgagor conveys a part of the land, retaining the rest, the part 
 retained is primarily liable, and the portions conveyed are liable in the inverse order of 
 their alienation. Apd the latter branch of the rule applies, where the whole land is succes- 
 sively conveyed. Ferguson v. Kimball, 3 Barb. Cha. 616 ; Cushing v. Ayer, 25 Maine, 383; 
 Kellogg V. Rand, 11 Paige, 59; Camming v. Gumming, 3 Kelly, 460; Knickerbacker v. 
 Boutwell 2 Sandf. Cha. 319 ; Henkle v. AUstadt, 4 Gratt. 284; Skeel v. Spraker, 8 Paige, 
 182; Sohryver v. Teller, 9 Paige, 173; Sheperd v. Adams, 32 Maine, 63 ; Morris v. Oak- 
 ford, 9 Barr, 499 ; Champlin v. Williams, lb. 341 ; Blyer v. MonhoUaad, 2 Sandf. Ch. 478 ; 
 
438 
 
 MORTGAGE— ASSIGNMENT, 
 
 [CHAP, xxxin. 
 
 CHAPTER XXXIII. 
 
 MORTGAGE— ASSIGNMENT, PAYMENT, RELEASE, KTC, OP MORTGAGES, 
 AND TRANSFERS OP EQUITIES OF REDEMPTION. 
 
 1. Mortgage cannot be assigned without 
 
 the debt. 
 
 2. Assignment cannot prejudice the mort- 
 
 gagor — notice, &c. 
 6. Mortgage an incident to the debt — 
 
 principle considered — and whether 
 
 paj'ment revests the estate in the 
 
 mortgagor. 
 15. Discliarging mortgage npon the record. 
 18 Release of equity — whether a payment. 
 21. Release of mortgage — ^release in part. 
 
 23. Defposit of money with mortgagee — no 
 
 payment. 
 
 24. Death of mortgagor does not turn a 
 
 mortgage into payment — practice in 
 case of insolvency. 
 
 25. Discharge of execution — not conclusive 
 
 of discbarge of mortgage. 
 
 26. Payment on mortgage, cannot be applied 
 
 to other debts. 
 28. Substituting of one security for another, 
 &o. — in general, no payment of mort- 
 
 34. Assignment and discharge of mortgage 
 — when a transfer will be construed aa 
 an assignment, and when as a dis- 
 charge. 
 
 54. Satisfied mortgage — ^whether a stranger 
 may set it up. 
 
 56. Sale by mortgagor with mortgagee's 
 consent. 
 
 58. Joint release to mortgagee and mort- 
 gagor. 
 
 1. It is said, a mortgagee cannot transfer his estate, separate from 
 the debt, either absolutely or for security ; especially, before it becomes 
 absolute, or there has been aforeclosure.(l) 
 
 2. If the mortgagee assign his mortgage, the assignee can claim only 
 what really remains due upon it when assigned ; not what appears to 
 be due. For this reason, in England, it is usual to make the mortga- 
 gor a party to such assignment.(2) 
 
 3. Any payment to the mortgagee, after assignment, but before notice 
 of it, will be effectual against the assignee ; and it is held, that regis- 
 tration is not sufficient notice of an assignment as against the mortga- 
 gor, thongh sulScient to bind subsequent purchasers, (3) 
 
 4. Hence it appears, that all dealings with the mortgagee, even in 
 his character of mortgagee, before notice of the assignment, are valid. (4) 
 
 5. Afortiorixs, this rule applicable, where the mortgagee has assumed 
 
 (1) Aymar v. Bill, 5 John. Cha. 570. But 
 see ch. 32, sees. 11-13. 
 
 (2) Matthews v. Wallwyn, 4 Ves. 118. 
 
 (3) Williams v. Sorrell, lb. 389 ; James v. 
 Johnson, 6 John. Cha. 428. In New York, 
 this is expressly provided by statute. 1 N. 
 T. Rev. St. 163 ; aec. Napier v. Elam, 6 Terg. 
 108; Hodgden v. Naglee, 5 Watts & S. 217. 
 
 (4) 4 Tes. 427. See Glidden «. Hunt, 24 
 Pick. 221; Clark i;. Flint, 22, 231; Cham- 
 bers V. Goldwin, 1 Smith, 252 ; Williams «. 
 
 Stevens, 1 Halst. Ch. 119; Wolcott v Sulli- 
 van, 1 Edw. 399 ; Palmer t). Yates, 3 Sandf. 
 137; Bree v. Holbech, Dougl. 655 ; Hammond 
 V. Washington. 1 How. 14; Moore's, &o,, 7 
 W. & S. 298 ; Bowes v. Seeger, 8 W, & S, 222 ; 
 Mott V. Clark, 9 Barr, 399 ; Farmer.?, &c. v. 
 Douglass, 11 S. & M. 469 ; Peabody «. Fenton, 
 3 Barb. Cha, 451; Williams v. Birbeck, 1 
 Hoffm, Ch. R. 359 ; Noys v Clark, 7 Paige, 
 179; Van Hook v. SomerviUe, &c. 1 Halet, 
 Ch, 633 ; Doming v. Comings, 11 N. H. 474. 
 
 Cushing V. Ayer, 25 Maine, 383 ; Johnson v. White, 11 Barb. 194; Howard, ka. v, Halsey, 
 4 Sandf. 565. As to the effect of a release by the mortgagee of a part of the land mort- 
 gaged, see Shepherd v. Adams, 32 Maine, 63; McLean v. Lafayette, &e., 3 McL, 687; 
 Paxton V. Harrier, 1 Jones, 312 ; Holraan v. Bank, &c., 12 Ala. 369 ; Howard, &c. v. Halsey, 
 4 SandC 565 ; Patty v. Pease, 8 Paige, 277 ; Stuyvesant v. Hall, 2 Barb. Cha. 151 ; Engle 
 v. Haines, 1 Halst. Cha. 186 ; Ross v. Haines, lb. 632; Money, 4 Barr, 80 ; Wheelwright V. 
 Loomer, 4 Edw. Cha. 232. 
 See, also, somewhat qualifying the general rule, Beall v. Barclay, 10 B. Mon. 261. 
 
CHAP. XXXIII.] 
 
 PAYMENT, ETC. 
 
 439 
 
 to be absolute owner of the land, by having purchased the equity of re- 
 demption. Hence, if, after such purchase, he assign the mortgage as a 
 subsisting incunribrance, and then convey the whole estate to a third, 
 person, equity will not allow the assignee of the mortgage to do what 
 the assignor could not have done, by interposing a dormant mortgage 
 to the prejudice of an ignorant purchaser; to do that indirectly, by a 
 secret assignment, which he could not do directly.(l) 
 
 6. In conformity with the principles stated in the last chapter, it is 
 said, by Lord Mansfield, that, where a debt is secured by mortgage, the 
 assignmentof the debt, or forgiving it, will draw the land after it, though 
 the debt were forgiven only by parol ; that whatever would give tbe 
 money, will carry the estate in the land along with it to every purpose, 
 and t!iat the estate in the land is the same thing as the money due upon 
 it. Upon a similar principle, a simple contract debt has been held not 
 to acquire the character of a specialty, iu consequence of being secured 
 by mortgage.(2) 
 
 7. These remarks, however, are to be considered as rather illustra- 
 tive of the general qualities of a mortgagee's estate, than as literally 
 true under all circumstances.(a) It seems to be only where the condi- 
 tion of a mortgage is performed strictly at the time, or hefore the time,{b) 
 that the title will ipso facto revest in the mortgagor. If the debt be paid 
 after the day, the mortgagee becomes a trustee in equity, and may be 
 compelled by a bill to reconvey ; the necessity for which, however, 
 shows that the legal title is in him. So, a term becomes absolute, and 
 must be surrendered or assigned.(c) 
 
 8. The mortgagor cannot maintain an action of trespass against the 
 mortgagee or any one holding under him, though the debt have been 
 paid.(3) 
 
 9. In case of ancient mortgages, a reconveyance may be presumed.(4) 
 
 10. Upon the point, however, whether mere payment of the debt will 
 revest the estate in the mortgagor, there seems to be a conflict of the 
 American authorities.(5) 
 
 11. In Maine and Massachusetts, after payment of the mortgage debt, 
 the mortgagee cannot maintain a writ of entry for the land, for the rea- 
 son, that in such case he could not recover theconditional judgment pro- 
 
 (1) 6 John. Cha. 42V. 
 
 ■(2) MartiQ w. Mowlin. 2 Burr. 978. See 1 
 Halst. 473. Also, eh. 32, sec. 15; Griimellw. 
 Baxher, 17 Pick. 383. 
 
 (3) Howe V. Lewis, 14 Pick. 329. 
 
 (4) 2 Cruise, 86. 
 
 (5) Jackson v. Davis, 18 John. 7; Wentz 
 V. Dehaven, 1 S. & R. 312; 1 Halst. 471; 
 Morgan v. Davis, 2 Har. & MoH. 17 ; Perkins 
 
 V. Dibble, 10 Ohio, 433. See Upham v. Brooks' 
 2 W. & M. 407 ; Cutler v. Lincoln, 3 Cush' 
 128; Doton !). Russell, 17 Conn. 146; PostV 
 Arnot, 2 Denio, 344: Wolfe v. Dowell, 13 Sm' 
 &, M. 103; Hadlock v. Bulfinch, 31 Maine' 
 246; Webbv. Flanders, 32, 175; Williams «" 
 Thurlow, 31, 392; Jennings', &c. v. Wood' 
 20 Ohio, 261 ; Bassett V. Mason, 18 Conn" 
 131. 
 
 (a) See Mr. Justice Wilde's criticism upon them. Parsons v. Welles, 17 Mass. 424. 
 
 (6) Mortgage from A to B, to secure several notes, payable ac different times, and after- 
 wards from A to C. Subsequently, and before maturity of either of the above notes, A gave 
 B a warranty deed of the land, in full satisfaction and discharge of them and of another note. 
 All the notes were surrendered to A, but the mortgage was not discharged. C bring,s a bill 
 in equity to redeem against B. Held, B's title under his mortgage was defeated ; if C's 
 mortgage was valid, he had by writ of entry a complete and adequate remedy at law against » 
 B ; and, therefore, the bill could not be sustained. Holraan v. Bailey, 3 Met. 65. 
 
 (c) An acknowledgment, written on the back of a mortgage, under hand and seal, of pay- 
 ment and fulfilment of the condition, ia a good discharge. AUard v. Lane, 6 Shepl. 9. 
 
440 
 
 MORTaAGE— ASSIGNMENT, 
 
 [CHAP. XXXIII. 
 
 vided bj statute. But, on the other hand, in these States, and also in 
 Connecticut, the mortgagor cannot maintain this action against the 
 mortgagee, the latter being in possession. His only remedy is by a 
 bill in equity. These points will be further considered hereafter. (See 
 ch. 37, s. 3.) 
 
 12. In New Hampshire, New York and Maryland, a tender, even 
 after condition broken, revests the estate in the mortgagor. The statute, 
 in New Hampshire, provides for a redemption, within one year after 
 entry for condition broken, and that the mortgage shall become " ut- 
 terly void."(a) Nor is this construction controlled by other provisions, 
 that the mortgagee shall release upon the record, and that money ten- 
 dered shall be paid into Court ; because, these apply equally to a ten- 
 der before breach of condition, and are designed merely to perpetuate 
 the evidence of payment in favor of the mortgagor.(l) 
 
 13; Mere possession of the obligation which a mortgage is given to 
 secure, by a party claiming the land, will not be a sufficient ground of 
 befence against a suit by the holder of the mortgage. Thus, in a suit 
 by the assignee of a mortgage against a stranger in possession, the latter 
 produced the notes secured by such mortgage, but no discharge ; and 
 the evidence stronglj' tended to prove, that the notes could not have 
 been paid to any lawful holder or assignee of the mortgage. Held, a 
 discharge of the mortgage should not be presumed.(2) 
 
 14. Entry of satisfaction on the back of a mortgage discharges it.(3) 
 
 15. Chancery will decree satis faction of a mortgage which has been 
 paid, so that it may be cancelled on the record. (4) 
 
 16. In the States of Massachusetts, Maine, New Hampshire, (where, 
 after payment or tender, the court may decree a discharge, and a copy 
 of the decree shall be recorded,) Vermont, Ehode Island, Pennsylvania, 
 Delaware, South Carolina, Alabama, Indiana, Illinois,(J) Missouri, Ar- 
 kansas, Michigan, (upon certificate from the mortgagee, acknowledged, 
 &c., like deeds,) statutory provision is made, for discharging mortgages 
 upon the margin of the public record.(5) In Pennsylvania, Illinois, 
 Missouri and Alabama, the mortgagee shall enter such discharge in 
 three months from demand, (or, in Missouri," give a release,) under 
 penalty of forfeiting a sum not exceeding the whole debt. In South 
 Carolina, in three months from demand of any party interested in the 
 estate, under penalty of one-half the debt. In Arkansas, within sixty 
 days ; in Rhode Island, Vermont and New Hampshire, in ten days 
 
 (1) "Wadev. Howard, 11 Pick. 29"!; 2 Har. 
 & McH. 17 ; Tose v. Handy, 2 Greenl. 322 ; 
 Parsons t). Wellos, It Mass. 419; Gray t;. 
 Jenks, 3 Mass. 520 ; Smith v. Vincent, 15 
 Conn. 1 ; Swett v. Horn, 1 N. H. 332 ; Far- 
 mers', &c. V. Edwards, 26 Wend. 541. 
 
 (2) Crocker v. Thompson, 3 Met. 224. 
 
 (3) Allard v. Lane, 18 Maine, 9. 
 
 (4) Kellogg r. "Wood, 4 Paige, 578. See 
 Barnes v Camark, 1 Barb. 392. 
 
 (5) Purd. Dig. 196 ; Mass. Rev- Stat. 408 ; 
 
 1 Term. L. 194, 195 ; (See lb. 1337, 6.) Aik. 
 Dig.94;S. C. St.'Deo. 1817, p. 26; Ind. Rev. 
 L. 272 ; JUin. Rev. L. 510; R. I. L. 205, 206 ; 
 Dela. Rev. L. 1829, 92; Misso. St. 409,410; 
 Mich. St. 1839, 219 ; N. H. Rev, St. 245, 246; 
 Yerm. lb. 316; Term. L. 1837, 6, 7. See 
 King V. McTickar, 3 SandE Ch. 192 ; McLean 
 V. Lafayette, &c., 3 McLean, 587 , Haskell v. 
 Haskell, 3 Gush. 540 ; Patch v. King, 29 
 Maine, 448. 
 
 I (a) By the Revised Statutes it becomes void, on performance of condition, with paymen' 
 of damages, &c., arising from breach, or a tender thereof. Rev. St. 245. 
 
 (a) In this State, a release by deed, attested by one witness, and acknowledged like other 
 conveyances, is also provided by statute. St. 1838-9, 197. 
 
CHAP. XXXIII.] 
 
 PAYMENT, ETC. 
 
 441 
 
 from demand; in Massachusetts, seven days; in Delaware, sixty days, 
 under penalty of paying all damage ; or, in Delaware, a fixed sum, 
 with treble costs in Ehode Island. And the same provision is made 
 m the latter State, in case of a refusal to execute a release of the mort- 
 gage. The statute, however, is not to impair the effect of any other 
 legal discharge, payment, satisfaction or release, in Rhode Island. In 
 Vermont, the mortgagor may have a discharge, witnessed, upon the 
 deed itself, to be recorded in the margin of the records. 
 
 17. In Indiana, the register of deeds may discharge a mortgage, on 
 the exhibition of a certificate of payment or satisfaction, signed by the 
 mortgagor, {qic. mortgagee ?) or his representative, aijd attached to the 
 mortgage, which shall be recorded. A similar provision in New 
 York.(l) ^ 
 
 18. Where a mortgagor releases his equity of redemption to the 
 mortgagee by warranty deed, made for full consideration, this is pre- 
 sumed to be a payment of the mortgage debt, unless there be clear 
 proof to the contrary ; and the presumption is strengthened by the 
 lapse of more than six years from the purchase. (2)(a) 
 
 19. It has been suggested as a questionable point, whether, by a pur- 
 chase of the equity of redemption in a part of the land, the mortgage 
 is not extinguished as to the whole ; upon the principle that a contract 
 cannot be apportioned, and in analogy with the well settled rule, as to 
 a purchase of part of the land from which a rent-charge issues.(3) (See 
 ch. 17, sec. 32.) 
 
 20. It has been said, in Vermont, that a release of the equity of re- 
 demption to thejmortgagee, does not strengthen his legal title. But, 
 in South Carolina, although the mortgagor is expressly declared to be 
 legal owner of the land, a release to the mortgagee will give him the 
 whole estate.(4) 
 
 2 1. A formal release, by the mortgagee, of a part of the land from the 
 mortgage, does not discharge the rest of the land.(5)(6) And, where the 
 same purty holds two mortgages, embracing the same land, and exe- 
 cutes a partial release of each ; if other transactions and instruments 
 between the parties show such to be the intent, the releases will oper- 
 ate to transpose and substitute, but not to discharge the respective se- 
 curities. 
 
 22. A conveyed to B an undivided moiety of certain land, taking 
 back a mortgage for the price, and afterwards covenanted, upon request, 
 
 (1) 1 ¥. T. Rev. St. 161; Ind.St. 1836, 64. 
 
 (2) Burnet v. Denniston, 5 Johu. Cha. 35 ; 
 Miles «. Coraatock, lb. 214. Seft Shelton v. 
 Hampton, 6 Ired. 216; Klock «. Kronkhite, 
 1 Hill, 107 ; Brewer v. Staples, 3 Sandf. Cha. 
 
 579 ; "White v. Todd, 10 Mis. 189 ; Longstreet 
 ir Sliipman, 1 Halst. Ch. 43. 
 
 (3) James v. Johnson, 6 John. Cha. 426. 
 
 (4) Blithorp v. Dewing, 1 Chip. 141 ; 1 
 Brev. 177 ; Tiiylorj). Stockdale, 3 M'Cord, 302. 
 
 (5) Culp V. Pisher, 1 "Watts, 494. 
 
 (o) But where a mortgagor, by deed of sale and quit-claim, foi; valuable consideration 
 therein expressed, conveyed the land to the mortgagee; held, no intention being shown to 
 pay, by such conveyance, the notes .secured by the mortgage, they might still, if outstanding, 
 be collected or negotiated. "Van Deusen v. Prink, 15 Pick. 449. See CuUum v. Emanuel, 
 1 Alab. (N. S.) 23. 
 
 (6) A.parol consent of the mortgagee to a sale of a part will operate as a release. Laugh- 
 lin V. Ferguson, 6 Dana, 120. See Proctor v. Tbrall, 22 "Verm. 262. 
 
442 MORTGAGE— ASSIGNMENT, [CHAP. XXXIII. 
 
 to execute all conveyances requisite for a partition. He subsequently 
 conveyed the other moiety to C, taking back a mortgage for the price. 
 B and C then exchanged deeds of partition, in aid of which, A released 
 the divided moiety of each grantee from the other's mortgage. Held, 
 such releases did not extinguish the mortgages as to one-half of each 
 divided moiety, but the whole divided moiety of each grantee became 
 subject to his mortgage, as his undivided moiety was before.(l)(a) 
 
 28. The depositing of money with the mortgagee, accompanied with 
 the note of a third person, upon payment of which the money is to be 
 restored, does not constitute payment. Thus, a mortgagor sold the 
 land, receiving in payment the purchaser's note, and agreeing to extin- 
 guish the mortgage. He delivered the note to the mortgagee, with an 
 agreement that, if paid, the proceeds should pay the mortgage ; and he 
 also left the sum due, with the agreement that it should not be applied, 
 but merely to stop the interest. The mortgagee receipted for the 
 money. The note was not paid. Held, these facts did not constitute 
 a payment of the mortgage.(2) 
 
 24. The death of a mortgagor does not have the effect of turning the 
 mortgage into payment of the debt, wholly or pro tanto. Hence, in 
 New Hampshire and Connecticut, where a mortgagor dies insolvent, 
 the course is to have the whole debt allowed by the commissioners of 
 insolvency, and, after receiving his dividend, the mortgagee shall hold 
 the land for the balance. Nor will the fact, that the mortgagee has pur- 
 
 (1) Bradley v. Fuller, 23 Pick. 1. i (2) Howe v. Lewis, 14 Pick. 329. But see 
 
 [Toll V HiUer, H Paige, 228. 
 
 (a) A, holding land subject to mortgage, conveyed a part of it to B, afterwards received 
 the price, and then conveyed the remainder for its full value to C, under an agreement that 
 the wliole price should go to pay the mortgage, and C'a portion be released therefrom, 
 which was accordingly done by the mortgagee. Held, the mortgage still remained a lien 
 upon B's part of the land Patty v. Pease, 8 Paigo, 277. 
 
 A, having an undivided share of a township, made a mortgage of it to B, and it was after- 
 wards divided by process of partition. Held, B should hold A's portion of the land. Ran- 
 dell V. Mallett, 2 Shepl. 51. In Equity, as has bee seen, (p. 337, n,) it is an established rule, 
 that where a creditor has a lien on several parcels of land, some of which belong to the party 
 equitably liable for the debt, and others have been sold by liim ; such debt shall be first charged 
 upon the portion unsold, and then upon the others in the inverse order of the respective 
 transfers. Skeel v.Spraker, 8 Paige, 182. This rule applies to dlfiferent mortgages of differ- 
 ent dates. Schry-mer V. Teller, 9 Paige, 173. See Torrey v. Bank, &,u., lb. 649. 
 
 Where A, owning land subject to mortgage, sells a part of it to B, who assumes the whole 
 debt; and the owner of the remaining portion is compelled to pay it ; he may claim an as- 
 signment of the mortgage to reimburse him. Halsey v. Reed, 9 Paige. 446. In such case, 
 under the revised statutes, (in New York,) upon a suit for foreclosure, cliancery may make 
 a decree over against B, for any deficiency in the mortgage debt. lb. See Rathbone v. 
 Clark, 9 Paige, 648. 
 
 Where two tenants in common mortgage for their joint debt, and aflerwards make parti- 
 tion ; the part set off to each shall be sold to pay one half the debt, in the inverse order of 
 ahenations, made subsequent to the partition. lb. In South Carolina, the right to compel 
 a resort to one particular fund among several, is not applied in favor of subsequent incum- 
 brancers or general creditors. Bank v. Mitchell, Rice. 389. In Connecticut, the law does 
 not sanction any marshalling of securities, in case of successive mortgages on tlie same pro- 
 perly. The claim of the first mortgagee is paid in full. Mix v. Hotchkiss, 14 Conn. 32; 
 Butler V. Elliott, 15, 187. But where a mortgagee holds other securities upon a bill for 
 foreclosure brought by him, other mortgagees may require that he make use of such securi- 
 ties towards the discharge of his debt. Pettibone v. Stephens, 15, 19. In the same State, 
 it is held, that, where there are two funds for payment, one creditor can compel another to 
 resort to one of those funds, in exclusion of the other, only where there is but one debtor, 
 and the claims against the funds of one. Ayres v. Husted, lb. 504, See also Stamford v. 
 Benedict, lb. 437 ; Chester v. Wheelwright, lb. 562. 
 
CHAP. XXXIir.] PAYMENT, ETC. 443 
 
 chased the equity of redemption, make any difference. But in Massa- 
 chusetts the practice is, to allow the mortgagee only the excess of the 
 debt over the value of the mortgage.(a) This is in analogy with the 
 English practice in cases of bankruptcy. And, in England, the mort- 
 gagee -w-ill be allowed to prove against the estate of the deceased mort- 
 gagor only what remains due after a sale of the land.(l) 
 
 25. Where a mortgagee recovers judgment upon the debt secured 
 by the mortgage, and gives a receipt, acknowledging full satisfaction, 
 upon the execution issued on such judgment; this is not conclusive 
 evidence of a payment and discharge of the mortgage. Thus, where 
 the judgment-debtor, on the day previous to giving such receipt, con- 
 veyed his equity of redemption to a third person, who, on the same 
 day the receipt was given, conveyed it to the mortgagee ; held, the 
 payment of the judgment must be construed only as an intended con- 
 firmation of the mortgagee's title ; because the supposition of the pay- 
 ment of nioney would involve the absurdity, that either the mort- 
 gagor or his assignee released all his interest, at the very moment when 
 the money to redeem the land was paid to the person taking the 
 release.(2) 
 
 26. Where money is paid by one person interested in an equity of 
 redemption, to obtain a partial release of the mortgage, such payment 
 shall be applied to the benefit of others interested in the equity, and 
 not to independent claims held by the mortgagee. 
 
 27. A mortgaged to B two distinct parcels of land, and afterwards 
 conveyed one of them to C, and the other to D. B released to D, for 
 a certain sum, the land transferred to him. C afterwards tendered to 
 B a sum which, with the amount paid by D, was equal to the whole 
 debt due ; but B claimed the right to apply the sum paid by D to an 
 independent debt, which he held against the mortgagor. Held, C might 
 redeem the estate. (3) 
 
 28. A mortgage being given as security for a debt, and not merely 
 for any particular evidence of debt, the general rule is, that nothing but 
 actual payment of the debt or an express release will operate as a dis- 
 charge of the mortgage. Thus, where the mortgage is given to secure 
 a note, which is afterwards cancelled, and a new one substituted, the 
 mortgage will stand as security for the new note.(4) 
 
 29. In Massachusetts, where a Qote is held to be prima facie payment 
 
 > 
 
 (1) Amoryv. Francis, 16 MasB. 308 ; Green- 
 wood V. Taylor, 1 Ruas. & M. 185 ; Doe v. 
 McLo3key, 1 Alab (N. S.) 708 ; Rowe v. 
 Young, 4 Y & Coll. 204. See Graften, &c. v. 
 Doe, 19 Term. 463 ; Findlay v Hosmer, 2 
 Conn. 350 ; Farnura v. Bontelle, 13 Met. 159. 
 
 (2) Perkins t) Pitts, 11 Mass 125. 
 
 (3) Hicks «. Bingham, 11 Mass. 300. 
 
 (4) Elliot V. Sleeper, 2 N H. 525 ; Crosby 
 V. Chase, 5 Shepl. 369; Davis v Maynard, 9 
 Mass. 247 ; Williams v. Little, 12 N. H. 29. 
 See Griigeon v. Gerard, 4 Y. & Coll. 119 ; 
 leedv. Carruthers, 2 Y.& Coll. Cha. 31; Morse 
 v. Clayton, 13 Sm. & M. 373 ; Burdett v. Clay, 
 
 8 B. Mon. 287 ; Bank, &c. v. Pinch, 3 Barb. 
 Cha. 293; Hadlock v. Bulfinch, 31 Maine, 
 246 ; Buswell v. Davis, 10 N. H. 424 ; Euston 
 V. Friday, 2 Rich. S. C. 427 n. ; Hardy v. Com- 
 mercial, &a., 10 B. Mon. 98 ; Flanders «. 
 Baratow, 6 Shepl. 357 ; Hugunin v. Stark- 
 weather. 5 Gilra. 492 ; McCormick v. Digley, 
 8 Blackf. 99 ; New Hampshire, &c. •</. Willard, 
 10 N. H. 210. But see Holman v. Bailey, 3 
 Met. 55 ; Bonham v. Galloway, 13 Illin. 68 ; 
 Purser v. Anderson, 4 Bdw. Cha. 17 ; Mo- 
 Given V. Wheelock, 7 Barb. 22 ; Boston, &o. 
 V. King, 2 Cush. 400. 
 
 (a) If personal property is pledged, with a power of sale, the property must be sold, or 
 its value legally ascertained, before the claim can be allowed against the estate. Middlesex, 
 &c. V. Minot, 4 Met. 325. 
 
444 MORTGAGE— ASSIGNMENT, [CHAP. XXXIII. 
 
 of a debt, a new note, substituted for an old one which was secured by- 
 mortgage, though given to an assignee of the mortgage, will be sub- 
 ject to the same security, if not intended as payment ; as between the 
 mortgagee and mortgagor, or parties claiming under them. Whether 
 in relation to purchasers from the mortgagor, qu.{l) 
 
 30. A mortgaged land to B, to secure the amount of a certain note, 
 which he afterwards took up, and gave a new one. C purchased the 
 land bona fide from A, who delivered to him the original note, which 
 he had taken up. G brought a bill in equity against B, for a convey- 
 ance free from his mortgage; but the bill was dismissed.(2)(a) 
 
 31. A mortgaged to B. G, a creditor of B, afterwards sunimoned A 
 in a trustee process against B, recovered judgment against A, and com- 
 mitted him upon execution, but afterwards gave him a release of the 
 judgment. B brings ejectment upon the mortgage. Held, these facts 
 constituted no defence to the action. (3) 
 
 32. Nor will the giving of new security for the mortgage debt 
 operate to discharge the mortgage, though it be of a higher nature than 
 the original security ; as a recognizance, for a simple contract.(4) 
 
 33. But, it seems, where a judgment has been recovered upon the 
 debt, a release of the judgment will discharge the mortgage.(5) 
 
 34. It is a question of very frequent occurrence, whether, under the 
 particular circumstances of a case, the transfer of a mortgage shall be 
 considered an assignment, by which the mortgage is preserved as a lien 
 or incumbrance upon the land ; or as a discharge or extinguishment, 
 which relieves the land from incumbrance, and lets in other, and pre- 
 viously posterior claims. 
 
 35. Upon the principle, that an equitable title merges in the legal 
 title, where both become vested in the same person ; if the holder of 
 an equity of redemption pay, and take an assignment of the mortgage, 
 the latter is extinguished, unless he has some beneficial interest in keep- 
 ing it alive. A court of equity will keep an incumbrance alive or 
 consider it extinguished, as will best serve the purposes of justice, and 
 
 (1) Watkina v. Hill, 8 Pick. 622. , (4) Davis v. Maynard, 9 Mass. 247. 
 
 (2) Bolles V. Chauticey, 8 Conn. 390, | (5) Perkins v. Pitts, 11 Mass. 125. 
 
 (3) Gary v. Prentiss, 7 Mass. 63. 
 
 (a) A note, given to a feme sole, and secured by mortgage, was, after her marriage, given 
 up to ttie mortgagor, and a new one taken by the husband for the amount then due. Held, 
 the mortgage was not discharged as against a purchaser from the mortgagor. Pomroy v. 
 Eice, 16 Pick. 22. Mortgage by A to B, conditioned to pay B the contents of a note, pay- 
 able on demand, signed by A as principal and B as surety, or indemnify B against his liabiUty 
 thereupon. The note was afterwards taken up, by tine substitution of a new one, signed 
 by A and other sureties ; and, subsequently, B assigned the mortgage. Held, the condition 
 was performed, and nottiing passed by such assignment. Abbott v. Upton, 19 Pick. 434. 
 
 A gave a mortgage to B, to secure a note payable by instalments. The first being due, 
 B demanded payment, saying that if it were paid he could sell the securities ; whereupon 
 A gave a negotiable note for the amount, payable in four months, which B proposed to have 
 discounted at a bank. At the same time, this indorsement was made upon the first note: 
 " Received the first instalment on the within, of $402 78." B having afterwards assigned 
 this note with the mortgage ; held, the transaction was not a mere change of security for 
 the same debt, but a payment, and a discharge pro tanto of the mortgage. Powler v. Bush, 
 21 Pick. 230. 
 
OHAP. XXXIII.] 
 
 PAYMENT, ETC. 
 
 445 
 
 the actual and just intention of the party.(l)(a) It will sometimes hold 
 a charge extinguished, where it would subsist at law ; and sometimes 
 preserve it, where at law it would be merged. With reference to the 
 party himself, it is said, it is of no sort of use to have a charge on his 
 own estate ; and, where this is the case, it will be held to sink, unless 
 something shall have been done by him to keep it on foot. In the case 
 of an infant, entitled to the estate and also to a charge upon it, the 
 court will keep the rights distinct, if it be deemed most beneficial for 
 the infant. But equity will not recognize as a beneficial purpose, the 
 enabling a mortgagee, after he has purchased the equity of redemption, 
 at some future time to assign the mortgage, lying dead in his possession, 
 to a creditor, instead of giving a new mortgage. On the contrary, this 
 purpose is pregnant with fraud and imposition. (2) 
 
 36. Upon the 20th of August, 1800, A mortgaged to B, to secure 
 payment of $2,500 in one year. In 1801, C, a creditor of A, caused 
 his equity of redemption to be sold on execution, and became himself 
 the purchaser. In December, 1806, paid and tof)k an assignment of 
 B's bond and mortgage, and in January, 1811, conveyed the whole 
 estate to D for $7,000, with warranty against incumbrances, &c. In 
 March, 1810, C assigned the bond and mortgage to E, to secure $35. 
 The assignment was acknowledged after the deed to D, and D in his 
 answer, (probably to a bill for foreclosure,) stated his belief, that it was 
 made after the deed to him. Held, it was the intention of C to extin- 
 guish the mortgage, inasmuch as he could have no object in keepingi 
 alive, and the bill was dismissed. (8) 
 
 37. On the other hand, when the transfer to the mortgagor is ex- 
 pressly designed to effect another object, it will not operate as an 
 extinguishment. 
 
 38. A mortgaged to B and to C. D afterwards extended an execu- 
 tion upon the equity of redemption. B and C entered into an agree- 
 ment with A, that the land should be sold, and the proceeds applied, 
 first to their mortgages, then to the execution of D. The land was 
 sold accordingly to E, who paid the mortgage debts, and the balance 
 of the proceeds to D. D was privy to the arrangement. B acknow- 
 
 410; Slocum v. Crttlin, 22 Verm. 137; Mo- 
 Given V. Wheeloek, 7 Barb. 29 ; Loud v. 
 Lane, 8 Mt't 517 ; Brown v. Lapliam, 3 
 Oush. 554; Kinley v. Hill, 4 W. & S. 426. 
 
 (2) Forbes v. Moffatt, 18 Ves, jr. 384; 
 Comptoa i>. Oxenden, 2 Ves. jr. 261; James 
 i>. Jolinaon, 6 Jolin. Olia. 425. 
 
 (3) Gardner v. Astor, 3 Jolin. Clia. 53. 
 
 a) Starrs. Ellis, 6 John. Cha, 395; Bailey 
 V. WiUtird, 8 N. H. 429; Cooper v. Wliitiiey, 
 3 Hill, 95; Moore «. Harrisburo:, &c., 8 Watts, 
 138; Poole «;. Hathaway, 9 Shepl. 85 ; Hill 
 V. Smith, 2 M'L. 446 ; Hatch v. Kimball, 4, 
 146; Bulk, ka.v Tarleton, 23 Miss. 173; 
 Frye « Bank, Ac, 11 lllin. 367; Robinson w. 
 Leavitt, 7 .V. H. 100; Campbell v. Kniijhts, 
 11 Shepl. 332; Helinhold v. Man, 4 Whart. 
 
 (a) Where an estate and the charge upon it become united in one person, a merger is 
 presumed. A transfer to a trustee is held to be evidence against such presumption, but not 
 conclusive. Hood v. Phillips, 3 Beav. 513. 
 
 Where there is no direct proof of the intention, it may be inferred from circumstances, 
 one of whijli is the interest of the party. But this may be rebutted by others. The party 
 may intend to merge, upon a mistaken view of his interest. He may judge erroneously, 
 knowing all the facts. But if the intent is clear, a merger will take place, thoush he ex- 
 pected advantages which he does not realize. Loomer v. Wheelriglit 3 Sandf. Oh. 157. 
 
 A mortgage is said to be extinguished by payment from the debtor's funds. Kinley v. 
 Hill, 4 VV. & S. 426. Thus, where a mortgage debt is discharged by a bond of the heirs, who 
 are also assignees of the mortgasre, to prevent a sale of the land, the mortgage is also dis- 
 charged. Robinson v. Leavitt, 7 N. H. 73. See Hadley v. Chapin, 11 Paige, 245. 
 
4i6 MORTGAOE— ASSIGNMENT, [CHAP. XXXIII. 
 
 ledged upon the records satisfaction of his mortgage, and C released to 
 A all his right in the land. On the same day, A conveyed with war- 
 ranty to E. Held, without reference to D's knowledge of the trans- 
 action, the effect of it was to make E substantially the assignee of B 
 and 0, A being a mere instrument for effecting the assignment; and that 
 D was not entitled to the land, without paying the mortgages to E.(l) 
 
 39. A, being a first mortgagee, made a lease of the land to B. C, a 
 subsequent mortgagee, undertook to discharge the first mortgage, paid 
 the debt, and took an assignment of the mortgage and lease, for the 
 purpose of enabling him to collect the rent. Held, no extinguishment 
 of the mortgage. (2){a) 
 
 40. But it has been held, that where a purchaser of the equity of re- 
 demption takes an assignment of the debt for which the mortgage was 
 given as security, the effect is the same as if the mortgagor himself had 
 done it, and the debt is to be considered as paid. 
 
 41. A gives to B a note and mortgage, and then conveys the land to 
 C. C pays B the amount due him, takes an assignment of the securi- 
 ties, and then brings a suit against A, in the name of B, upon the note. 
 Held, the action would not lie.(3) 
 
 42. Where a prior incumbrancer contracts for a purchase of the land 
 in discharge of his debt, and assumes the payment of a subsequent 
 mortgage as a part of the consideration, such purchase will operate as 
 an extinguishment of his mortgage, and give priority to the subsequent 
 mortgagee. 
 
 43. A mortgaged to B, then to C, and then charged the land with 
 another debt to B. A and afterwards entered into an indenture, 
 which set forth that had agreed for an absolute purchase of the land 
 for a certain sum, being the amount of all thedebts, out of which he 
 was to pay a certain part to the first mortgagee, and retain the balance 
 in satisfaction of his debt. In consideration of the sum named, being 
 the amount of B's two claims, the payment of which G assumed, and of 
 Cs own debt, A conveyed the equity of redemption, subject to the 
 mortgage and charge of B, to C, and C covenanted to pay B. Held, 
 C's debt was hereby extinguished, and that B might maintain a bill for 
 foreclosure upon both his mortgages, without paying it.(4)(6) 
 
 (1) Marsli V. Rice, 1 K H. 167. ( (3) EatOQ v. George, 2 N. H. 300. 
 
 (2) Willard v. Harvey, 5 N. H. 252. J (4j Lrown v. Stead, 5 Sim. 535. 
 
 (a) If a second mortgagee purchases the equity of redemption, and pays the notes secured 
 by tlie first mortgage, no action lies upon the notes against the original debtor or his sure- 
 ties. Viles V. Moulton, 11 Term. 470. 
 
 If a mortgagee iissign his mortgage as security, take back a deed of the land, and agree 
 to pay the assignee; this is no merger of the mortgage. Patty v. Pease, 8 Paige, 182. So 
 if a mortgagor applies to a third person for money to pay the mortgage, agreeing to give 
 him the same security which the mortgagee had, and on receiving the money pays it to the • 
 mortgagee, ami takes an assignment to the lender; this is no discharge of the mortgage. 
 While V. Knapp, 8 Pai^e, 173. A, a mortgagee, took a deed of the land from B, the 
 mortgagor, professing to be designed to cancel the mortgage. The mortgage and notes 
 remained with the mortgagee, upon the agreement to abide the event of an attachment, to 
 which the land was then subject. An execution being afterwards levied upon it ; held, 
 the mortgage was not discharged, but still had precedence of the attachment. Crosby v. 
 Chase, 5 Shepl. 369. 
 
 (6) An estate, subject to two charges, was devised to A, who held the first one. Upon 
 her marriage, a settlement was made, to which B, the holder of the second charge, was no 
 party, whereby it was agreed that the first charge should not be raised. Held, B should 
 hold, clear of the first charge. Parrow v. Rees, 4 Beav. 18. 
 
CHAP. XXXIII.] 
 
 PAYMENT, ETC. 
 
 447 
 
 44. Another general principle on this subject has been thus stated. 
 "When he who has the right to redeem pays the mortgage-money, the 
 mortgage is discharged, because he becomes absolutely seized — he pays 
 his own debt on his own account. The mortgage is extinguished, 
 because the debt is paid hy the real debtor to the creditor. But, where one 
 owns only part of the land, as he might pay the whole and call ibr con- 
 tribution, so he may buy in the mortgage.(l) 
 
 45. If a mortgagor is appointed executor of the mortgagee, such 
 appointment, and a subsequent conveyance of the land by the former, 
 will operate as an extinguishment of the mortgage. 
 
 46. A mortgaged land to B, his father, as security for a bond. B 
 died before condition broken, having appointed A his executor. A 
 mortgaged the land to 0, with the usual covenants of warranty, and C 
 assigned the mortgage to D. Afterwards, A, as executor, assigned his 
 own mortgage, given to B in his lifetime, and the accompanying bond, 
 to E ; and E, in a suit upon the mortgage against A in his natural ca- 
 pacity, recovered possession of the land. D brings a suit for the land 
 against E. Held, whether the mortgage given by A was extinguished 
 by his appointment as executor or not, it was extinguished by his con- 
 veyance to C.(:^)(a) 
 
 47. A deed of quit-claim, given by the mortgagee to a purchaser of 
 the equity of redemption, in which he covenants only against the acts 
 of those claiming under himself, may operate as an assignment of the 
 mortgage.(3) 
 
 48. After attachment of land under mortgage, the mortgagee, upon 
 payment of his debt by a third person, and with the mortgagor's con- 
 sent, gave to such third person a quit-claim deed of the land. Held, 
 this operated as an assignment, not an extinguishment, of the mortgage, 
 and a levy upon the land by the attaching creditor did not give him a 
 legal title. It seems, such levy passed to him the equity of redemption, 
 and he might bring a bill in equity to redeem. (4)^6) 
 
 49. It has been held in Massachusetts, that where a wife joined her 
 husband in a mortgage, and a purchaser of the equity of redemption, 
 from the administrator of the mortgagor, paid the sum due, and the 
 mortgage was discharged upon the record ; the widow was not thereby let 
 
 (1) Taylor 1). Bassett, 3 N". H. 298. r (4) Freeman «. M'Gaw, 15 Pick. 82. See 
 
 (2) Ritchie «. Williams, 11 Mass. 50; Ips- Wilson v. Troup, 2 Cow. 195; Olmsted v. 
 wich, &o. «;. Story, 6 Met. 310. KWer, 2 Sandf. 325; Crooker v. Jewell, 31 
 
 (3) Hunt V. Hunt, 14 Pick. 374. Maine, 306. 
 
 (a) So, where the mortgagor was appointed administrator o( the mortgagee, and returned 
 an inventory, including the mortgage debt, and an account, charging himself with the per- 
 sonal estate, whereupon there was a decree of distribution ; held, this was a payment, and 
 the administrator could not afterwards assign the mortgage. Richie v. Williams, 11 Mass 50. 
 But where certain land having been twice mortgaged, the mortgagor, after condition brok- 
 en, was appointed administrator of the second mortgagee, and returned an inventory, in- 
 cluding the debt due from himself; held, such appointment was not, in respect to an as- 
 signee of the first mortgage, who had purchased the mortgagor's right of redemption, a 
 payment of the second mortgagor's debt, and an extinguishment of the mortgage, but that 
 the administrator might redeem as against such assignee. Kinney v. Ensign, 1» Pick. 232. 
 See Hough v. De Forest, 13 Conn. 472 ; Miller v. Donaldson, 17 Ohio, 264. 
 
 (6) A quit-claim deed from the mortgagor to the mortgagee, after assignment of the mort- 
 gage, is no merger. Pratt v. Bank, &c., 10 Yerm. 293. Where the assignee of a mortgage 
 takes a quit-claim deed of one-half of the land; this is at most an extinguishment of only a 
 part of the debt. EUook v. Cronkhite, 1 Hill, 107. ' 
 
448 
 
 MORTGAGE— ASSIGNMENT, 
 
 [CHAP. XXXIII. 
 
 in to her dower, the discharge having the effect to pass the legal interest 
 to the holder of the equity, and thus vesting the whole estate in him.(l) 
 But this doctrine has been since overruled, and such a discharge, made 
 by the mortgagee to an execution purchaser of the equity, held an 
 extinguishment of the mortgage, which let in the widow to her 
 dower. (2) 
 
 50. The purchaser of an equity of redemption at an execution sale, 
 who afterwards takes an assignment of the mortgage, may recover 
 possession of the land, by a suit commenced before expiration of the 
 year, within which the "mortgagor has a right to redeem, although 
 neither such purchaser nor the mortgagee ever entered on the land. 
 There is no merger of the mortgage.(3) 
 
 51. A and B, tenants in common, mortgaged to and D to secure 
 $400. Afterwards, their equity of redemption was sold to E, upon an 
 execution in favor of another creditor. C and D recovered a judgment 
 for possession of the land ; and afterwards conveyed all his interest 
 in the land to E, and B conveyed one-half of the right in equity of A 
 and B, which he had purchased at the execution sale, to F. Subse- 
 quently, the execution in the suit of and D was served, by deliver- 
 ing possession of the land to the parties entitled. Afterwards, E con- 
 veyed to D all his interest in the land, thereby uniting in D the titles 
 of mortgagor and mortgagee of half the land. This conveyance, F 
 treated as payment of one-half of the debt ; and, having tendered the 
 amount of the other half, he brought a bill in equity against D to re- 
 deem. Held, as D purchased only a moiety of the equity of redemp- 
 tion, only a moiety of the mortgage could be held as extinguished ; 
 that the recovery of a judgment upon the mortgage by C and D, being 
 previous to D's acquiring any interest in the equity, was no indication 
 of his intention, as to an extinguishment or otherwise ; and, as there 
 was nothing to show that D would in any way gain by keeping alive 
 a moiety of the mortgage, it should be held extinguishec'.(4)(a) 
 
 52. Where a mortgagor executes a release of the equity of redemp- 
 tion to the mortgagee, and receives from him the note secured ; this 
 does not extinguish the mortgagee's title under the mortgage, or his 
 right to recover damages, for breach of the covenants of warranty 
 contained therein. The fact that the mortgage deed contains such 
 covenants, while the deed of release does not, constitutes a sufficient 
 ground for keeping the mortgage alive. (5) 
 
 53. If, after a conveyance to a wife of an equity of redemption, she 
 and the husband take possession, and the husband takes an assignment 
 
 (1) Popkin V. Bumstead, 8 Mass. 491. 
 
 (2) Eaton i;. Simonds, 14 Pick. 98. 
 
 (3) TuHle V. Brown, 14 Pick. 514. See 
 West, &c V. Clie.ster, 1 Jones, 282 ; Berg:er«. 
 Hiester, 6 Wliart. 210; Mooro v. Sliultz, 1 
 
 Harris, 96 ; Waddle v. Cureton, 2 Speers, 53. 
 
 (4) Freeman v. Paul. ?, Greeiil. 260. 
 
 (6) Lockwood v. Sturdevant, 6 Conn. 374.; 
 Baldwin v. Norton, 2 Conn. 161 ; Marsiiall v. 
 Wood, 5 Verm. 250 ;* Van Deuseu v. Prink, 
 15 Pick. 453. 
 
 * Tlie marginal note states that the release of the equity was by a warranty deed ; but 
 the case does not so find. 
 
 (a) Where the purchaser of an equity of redemption, under two distinct mortgages, takes 
 an assignment of the fir.st, this is no merger, nor will it give the second mortgagee a priority 
 in the proceeds of a sale. Millspaugh v. McBride, 1 Paige, 509. 
 
CHAP. XXXIII.] PAYMENT, ETC. 449 
 
 of the mortgage, there is no merger, but she holds under the mort- 
 gagor, and he under the mortgagee.(l) 
 
 54. It is the general rule, that a court of law will not permit an 
 outstanding satisfied mortgage to be set up against the mortgagor. 
 But, as the legal title is not technically released by receiving the 
 money, this rule must be founded on an equitable control by courts 
 of law over parties in ejectment ; and is therefore subject to excep- 
 tions, where equity so demands. 
 
 55. Land was sold by trustees, for payment of the debts of one 
 deceased. The land was mortgaged by him before his death, and 
 the mortgagee brings ejectment upon the mortgage, against the trus- 
 tees, and the heirs of the mortgagor. The purchaser had received no 
 deed from the trustees, and therefore gained no legal title, but he had 
 paid most of the purchase-money. The mortgagee having obtained a 
 decree for foreclosure and sale, the purchaser, with the consent and in 
 presence of one of the trustees, paid the whole amount due upon the 
 mortgage ; the sum being considered as part of the purchase-money 
 due under the sale made by the trustees. The mortgagee gave the 
 purchaser a receipt, and an order to enter the suit " settled," which 
 was done. In an action of ejectment by the heirs of the mortgagor 
 against the purchaser, held, although a stranger could not set up a 
 mortgage, satisfied by the mortgagor, to defeat his title, yet he might 
 thus use a mortgage bought in by himself; that, in this case, the pur- 
 chaser owning the equitable estate, and having paid off the mortgage 
 on his own account, the incumbrance belonged to him, and the mort- 
 gagor could not have demanded a reconveyance from the mortgagee ; 
 and that the action would not lie.(2) 
 
 56. Where a third person purchases mortgaged property, nominally 
 as from the mortgagor, but really from the mortgagee, or with his con- 
 currence and by his request ; the latter will not be allowed to set up a 
 title under his mortgage. 
 
 57. A mortgages to B, to secure the purchase-money of property 
 bought from B. Afterwards, A being unable to pay the purchase- 
 money, application was made to C, with the knowledge and by the 
 desire of B, who himself wrote to C on the subject, to buy a portion of 
 the property at an advanced price. C accordingly bought it, and paid 
 the price ; but the receipts were expressed to be on account of A's 
 debt to B. Before the purchase was completed, B expressed to C his 
 perfect confidence in his fulfilling his engagements. Most of the prop- 
 erty was delivered to C with B's consent, and a part of it by B him- 
 self. The portion remaining in B's hands having been sold at a re- 
 duced price, and his debt against A being, therefore, unsatisfied; B 
 claimed to hold the part conveyed to C, under his mortgage from A. 
 C files a bill for a perpetual injunction against this claim. Held, B 
 was a party to the contract between A and C, and the portion of the 
 property sold to was discharged from the mortgage.(3) 
 
 58. Where a release of a mortgage is made to distinct parties, it will 
 take effect according to their respective interests in the land, inde- 
 pendent of such mortgage. 
 
 (1\ Cooper V. Whitney, 3 Hill, 95. , (3) Skirving v. NeuMIe, 2 Dea. 194i 
 
 (2) Peltz V. Clarke, 5 Pet. 481. ) 
 
 Vol. I. 29 
 
450 
 
 MORTGAGE— FEOM WHAT 
 
 [CHAP, sxxiy. 
 
 59. A mortgaged land to B. Afterwards, A and B joined in mort- 
 gaging to 0. C entered for condition broken, but, before tlie three 
 years requisite for foreclosure had elapsed, according to a previous 
 agreement, tendered a release of his mortgage, which they refused to 
 receive, until five years bad passed from C's entry. Held, the re- 
 lease reinstated A and B in their former relation of mortgagor and 
 mortgagee, as if the mortgage to C had never been made.(l) 
 
 CHAPTER XXXIV, 
 
 MORTGAGE— FROM WHAT FtJIjrD TO BE PAID. 
 
 1. Debt paid from the fund benefited — exe- 
 
 cutor and lieir. 
 
 2. Mortgage by father and son. 
 
 3. Devised lands. 
 
 6. Personal estate may be expressly exempt- 
 ed. 
 
 8. Exceptions to the rule of applying the 
 
 personal estate. 
 
 9. Rule in New Tork. 
 
 10. In Pennsylvania. 
 
 11. Recapitulation of cases. 
 
 41. Application of payments in equity. 
 
 1. It is a rule in equity, that wbere a person dies, leaving a variety 
 of funds, one of which must be charged with a debt ; it shall be paid 
 out of that fund which received the benefit. Hence the personal estate, 
 in the hands of the executor, shall be applied to discharge a mortgage 
 upon the real estate, in the hands of the heir; because the money bor- 
 rowed went to increase the personal estate. And it is immaterial, 
 whether there is any personal obligation for payment of the money or 
 Bot ; because there was a debt contracted by the borro\ving.(2)((/) 
 
 2. If a father and son join in a mortgage of the father's land, without 
 covenant, the father receiving the money, and the son convej'ing for a 
 nominal consideration ; the real assets of the father will not be charged 
 in the hands of the son, an heir not being bound even by an express 
 obligation, unless specially named ; nor the real or personal assets of 
 the son, who had received no part of the money borrowed. (3) 
 
 3. The principle above stated, (sec. 1,) requires the discharge of a 
 mortgage, upon lands devised, as well as those descended, out of the 
 personal estate of the testator.(4) 
 
 4. The personal estate is liable to payment of a riiortgage debt, though 
 the land is devised subject to the incumbrance, or the personal estate be- 
 queathed, or the land expressly charged with payment of debts, or the 
 
 (1) Baylies v. Bussey, 5 Greenl. 163. 
 
 (2) 2 Cruise, 146, 147. See Halsey v. 
 Reed, 9 Paige, 446 ; Goodhue v. Barnwell, 
 
 Rice, 198 ; Quennell v. Turner, 4 Bng. L. & 
 Equ. 84. 
 
 (3) 2 Cruise, 146, 147. 
 
 (4) 2 Cruise, 147. 
 
 (a) Upon a sale by the mortgagee, .for the purpose of foreclosing ; if in the lifetime of 
 the mortgagor, the surplus, after satisfying incumbrances, is personal estate; if after his 
 death, it belongs, with the equity of redemption, to the heir. Wright v. Rose, 2 Sim. & Stu. 
 323. In New Hampsliire, an administrator must redeem a mortgage, unless licensed to sell 
 subject thereto. Rey. St. 318. 
 
CHAP. XSXIY.] 
 
 FUND TO BE PAID. 
 
 451 
 
 real estate limited in trust, either ia fee or for a term, for payment of 
 debts.(L) 
 
 5. If the personal estate is deficient, a mortgage shall be discharged 
 from the proceeds of land devised for payment of debts,(2) 
 
 And where a mortgaged estate is devised, and another estate de- 
 scends to the heir, the latter shall be applied in payment of the mort- 
 gage.(8)(a) 
 
 6. A testator may, however, exempt the personal estate from pay- 
 ment of the mortgage debt, by substitnting the real estate in its stead. 
 And this may be done, either by expressed words, or by a manifest in- 
 tent appearing upon the will. (4) 
 
 7. So, the specific bequest of a chattel will exempt it from liability 
 for a mortgage debt.(5) 
 
 8. The rule above stated, being founded on the consideration that 
 the debt was originally a personal one, and the charge on the land 
 merely collateral, is not applicable where the mortgage debt was con-^ 
 tracted by one person, and the land descends to another.(6) Thus, if a 
 grandfather mortgage, with a covenant to pay the money, and the land 
 descend to his son, who dies without paying the mortgage, leaving per- 
 sonal estate and a son ; the father's personal estate shall not be applied 
 inpayment of the mortgage. So, a covenant by one person to pay the 
 debt of another, which is secured by mortgage, will not subject the per- 
 sonal estate of the former, primarily, to the pa3'ment of the debt. And 
 even though a person expressly charge his real and personal estate 
 with his debts, this will not render the personal estate liable to the pay- 
 ment of a mortgage made by another. Upon the same principle, 
 where one purchases an equity of redemption, his personal estate will 
 not be applied to payment of the mortgage-money, even though be have 
 expressly covenanted to pay it, unless it appears to have been his in- 
 tention to make the debt his own. So, in case of a deed given, subject 
 to a mortgage, the land is the primary fund for payment. Equity ef- 
 fects a subrogation in favor of the mortgagor. So also, as against a se- 
 cond purchaser from the first grantee, though the second deed does 
 not mention the mortgage. So, in case of sale of the eqaity of 
 redemption on execution, the land, in equity, is the primary fund ; 
 and, if a suit is brought upon the bond, and judgment given for 
 the defendant, this is no bar to a subsequent bill for foreclosure. If 
 a wife joins her husband in a mortgage of her own estate, and the money 
 goes to his benefit, his personal estate will be first applied in payment 
 of it. But, where money is borrowed on the wife's estate, partly to pay 
 her debts, and partly for the husband's use, the latter is not bound to 
 indemnify the wife's estate against any part of it. And, if it appear not 
 to have been the wife's intention to stand as a creditor for the mortgage- 
 money, the husband's personal estate will not be liable.(7) 
 
 9. In New York, the heir or devisee of a mortgaged estate shall 
 
 (1) 2 Cruise, 148. 
 
 (2) Ibid. 149. 
 
 (3) Ibid. 152. 
 
 (4) Ibid. 152-60; 2 Atk. 424. 
 
 (5) Ibid. 161, 162. 
 
 (6) 2 Cruise. 163. 
 
 (7) 2 Cruise, 164-5-6-8-70-73-5; Jumel 
 V. Jumel, 7 Paige, 59 1 ; Hayer v. Pruen, lb. 
 465. See Cox v. Wheeler, lb. 248 ; Slieel v. 
 Spraker, 8, 182. 
 
 (a) This point was settled by Lord Hardwicke, upon reconsideration of a decree to the 
 contrary, in regard to which he remarked, that, "not to confess an error, ia much worse 
 than to err." 
 
452 • MORTGAGE— PROM "WHAT [CHAP. XXXIY. 
 
 not call upon the executor to redeem it, unless the will expressly so 
 direct.(l)(cA 
 
 10. In Pennsj'lvania, A mortgaged to the plaintiff one lot of land, 
 and then devised all his estate, comprising many other lots, to B. B 
 died, having devised the mortgaged tract to C, and the rest of her estate 
 to her executors. The plaintiff having recovered judgment upon the 
 bond which accompanied the mortgage, a motion was made that the 
 sum due should be levied upon the land mortgaged, and the rest of the 
 estate discharged. Held, that all the lands which had belonged to A 
 should contribute, according to their respective values ; that there was 
 nothing in the Avill of B, showing an intention that C should take the 
 estate cum onere, and therefore it should share equally with the other 
 lands in payment of the mortgage debt; and that to charge C with 
 the whole debt, she being a specific devisee, would plainly defeat the 
 intention of B, while to charge the lands held by the residuary lega- 
 tees would not have that effect.(2) 
 
 11. As between heir and executor, the rules above stated are of 
 comparatively little consequence in the United States ; because, in 
 general, real and personal estates, at the death of the owner, pass to 
 the same heirs. As between devisee and executor, they may be im- 
 portant ; but very few cases have been decided. There is, however, 
 one opinion of extraordinary ability and value ; being that delivered 
 by Chancellor Kent in Cumberland v. Codnvgton,{3) in which case he 
 presents at leng'h the English doctrine and decisions upon this subject, 
 as fallows. 
 
 12. As between the representatives of the real and personal estate 
 of the deceased purchaser of a mortgage, the land is the primary fund 
 to pay off the mortgage. 
 
 13. In S/iaflo V. Shafto,{'i) decided by Lord Thurlow in 1786, the 
 devisee of land, mortgaged by the testator, covenanted with the holdeir 
 of the mortgage, that the estate should remain as security for the debt 
 and interest, with an additional one per cent, of interest. The question 
 was, whether the personal estate of the devisee, who had died in the 
 meantime, should not pay the debt and interest, or at least the arrears 
 of interest, with the additional one per cent. Held, the land was the 
 primary fund to discharge the mortgage, that the interest must follow 
 the nature of the principal, and that the contract for additional interest 
 was also in the nature of a real charge. 
 
 14. In Tanherville v. Fawce(t,{o) Lord Kenyon declared, that, where 
 an estate descends or comes to one, subject to a mortgage, although the 
 mortgage is afterwards assigned, and the party covenants to pay the 
 
 (1) 1 N. T. Rev. St. 149; Halaey v. Reed, r (3) 3 John. Cha, 252. 
 
 9 Paige, 446. (4) 2 P. Wms. 664, n. 1. 
 
 (2) Morris v. McConnaugliy, 2 Dall. 189. I (5, 2 Bro. 57. 
 
 (a) In 1824, A gave a bond, secured by mortgage. B purchased the land, subject to pay- 
 ment of the mortgage, and conveyed to a trustee for tlie benefit of A's wife. After A's 
 death, the cestui que trust, being legal owner, under the Revised [Statutes, administered upon 
 the estate. Held, in equity, tlie land was the primary fund for payment of the mortgage, 
 and the administratrix, owning subject thereto, was not allowed for a payment of the mort- 
 gaue. Jumel v. Jumel. 7 PiiiEe, 591. In Missouri, the court niHy order redemption with 
 the personal assets, if the will makes no provision therelor, and it will be beneficial to the 
 estate, and not injurious to creditors. Otherwise, the court may order a sale of the equity. 
 Misso.St. 51. 
 
CHAP. XTKIV.] FUND TO BE PAID, 453 
 
 money, Bis personal estate will not be bound. The devisee of land 
 having voluntarily charged a simple contract debt of the testator upon 
 the land devised, and died ; held, the debt was not the proper debt of 
 the devisee, and his personal estate was not liable. 
 
 15. In Tweddell v. Tweddell,{l) A purchased the equity of redemption 
 of a mortgaged estate, and agreed with the mortgagor to pay, in part 
 consideration of the purchase, the mortgage debt to the son and heir 
 of the mortgagee, and the rest of the purchase-money to the mort- 
 gagor. He also covenanted with the mortgagor, that he would thus 
 pay the mortgage debt, and indemnify the mortgagor from the mort- 
 gage. A died, having devised the estate. Upon a bill by the devisee, 
 to have the mortgage discharged from the personal estate ; held, the 
 personal estate was not thus liable ; that the personal estate is never 
 charged in equity, where it is not at law ; that A took the land subject 
 to the charge, but the debt, as to him, was a real, not a personal one ; 
 and that his contract with the mortgagor was a mere contract of indem- 
 nity, which would have been implied, if not expressly made. 
 
 16. In Billinghurst v. Walker, {2) an estate was held by a lease for 
 lives, subject to a charge of £2,200 to A. It was conveyed by the 
 holder to B, subject to this charge, and subject to a charge of £900 to 
 C ; and B, in the indenture of conveyance to which A was party, cove- 
 nanted to pay both charges. B paid the debt to C, and afterwards gave 
 bond to pay A the interest of her claim for life, and the principal at 
 his death. The lease having been repeatedly renewed, B died, having 
 devised the estate to two of the defendants, and appointed two others 
 of the defendants his executors. The charge being called in, and paid 
 to a legatee of A, by the executors of B, the defendants were called on 
 by the plaintiffs, pecuniary legatees of B, who were unpaid, to have 
 £2,200 replaced by the devisees of the land, and paid over to them. 
 Held, notwithstanding the covenant by B to pay the debt, contained in 
 an instrument to which A, the holder of the debt, was a party, and the 
 subsequent bond, altering and extending the original time of payment ; 
 the nature of the charge was not varied, but it remained primarily a 
 debt upon the land ; that though B incurred a personal liability to the 
 creditor, this did not subject his personal estate, because such intention 
 did not appear ; and the defendants were decreed to pay over the money. 
 
 17. Hence, it seenis, to charge the personal estate, the assumption of 
 the debt must be accompanied with evidence of an intention to assume 
 it, as a. personal debt, detached, as it were, from the land. (8) 
 
 18. In Mattheson v. Eardwicke,{\) the testator devised land to A and 
 B in fee, charged with the payment of debts and legacies. A paid all 
 of them but one legacy, for which he gave his note, and died. It was 
 admitted that he had paid off the other incumbrances, in order to re- 
 lieve the land from them entirely. Held, the note was merely col- 
 lateral security, and the land the primary fund for payment of the 
 legacy. 
 
 19. The question in the latter cases seems to be, not whether the 
 party acquiring the mortgaged or charged estate lias made himself 
 personally liable for the debt, but whether the land or the personal 
 estate shall be treated as the primary fund for payment. The distiac- 
 
 (l)2Bro. 101, 152. 1 (3) 3 John Cha. 256. 
 
 (2) 2 Bro. 604 | (4) 2 P. "Wms. 664, n. 
 
454 MORTGAGE— FROM WHAT [CHAP. XXXIV. 
 
 tion is this : that where one mortgages land as security for his own 
 debt, the debt is the principal, and the mortgage merely collateral. 
 But, on the other hand, where one acquires an estate already mortgaged, 
 even though he personally assume the debt, and covenant to pay it, he 
 is understood to become a debtor only in respect to the land, and his 
 promise to be made on account of the land, which therefore is the pri- 
 mary fund for payment. The cases establishing each of these proposi- 
 tions are said to be equally numerous and decisive.(l) 
 
 20. In Woods v. Huniwgford,{1) A had mortgaged land to raise 
 money for his son, B. The land was afterwards conveyed, subject to 
 the mortgage, to the use of B, who joined with his father in a covenant 
 for payment of the money. The land was next reconveyed to A, who 
 covenanted to discharge the mortgage, and afterwards borrowed a 
 further sum from the mortgagee, and made a new mortgage for the 
 whole debt. The question was between the heir and personal represen- 
 tative of A, which should pay the debt. Lord Alvanley, M. R., held, 
 that though the debt belonged primarily to B in equity, and to, A and 
 B together at law, A had made it his own ; and that it was as strong a 
 case as could exist, without express declaration. He was careful not 
 to contradict in any degree the principle established in Tweddell v. 
 Tweddell, which was a very governing case. In that case, there was 
 no communica.tion with the mortgagee, but only a covenant of in- 
 demnity ; and the purchaser did not thereby personally assume the 
 debt.(3) 
 
 21. In Buthr v. Butler,{i) the purchaser of an equity of redemption 
 agreed with the vendor, to pay the mortgage debt of £2,000, and also 
 £1,000 to the vendor ; but there was no communication with the 
 mortgagee. The authority of Tweddell v. Tweddell was recognized, as 
 showing that the land was primarily chargeable with the debt, which 
 did not become the debt of the purchaser, as a personal liability. Lord 
 Alvanley collected from the decisions, that the purchaser of land, 
 charged with a debt, by a mere covenant to indemnify the vendor, 
 does not make the debt his own, except in respect to the estate ; and the 
 estate, not his personal property, must bear it. The purchaser might 
 be circuitously liable to the vendor for his indemnity, but the decree 
 would have been, in such case, for a sale of the land. (5) 
 
 22. In Waring v. Ward,{6) the testator, having purchased a mort- 
 gaged estate, borrowed a further sum, and gave a new bond and mort- 
 gage for it. Held, the debt should be paid from the personal estate, 
 because the personal contract was primary, and the real contract only 
 secondary. Lord Eldon, in giving judgment, remarked, that in general 
 the personal estate was primarily liable, because the contract was pri- 
 marily a personal contract, and the land bound only in aid of the per- 
 sonal obligation. That Lord Thurlow carried the doctrine so far as to 
 hold, that if the purchaser of an equity of redemption covenants to 
 pay the mortgage debt, and also to raise the interest from four to five 
 per cent. ; yet, as between his real and personal representatives, even 
 the additional interest is not primarily a charge upon the personal 
 estate, being incident to the charge. That, even without any express 
 
 (1) 3 John. Cha. 256-t. 
 
 (2) 3 Yes. 128. 
 
 (3) 3 John. Cha. 258. 
 
 (4) 5 Tea. 534. 
 
 (5) 3 John. Cha. 258. 
 
 (6) 5 Vea. 670; 1, 332. 
 
CHAP. XXXIT.] FUND TO BE PAID. 455 
 
 covenant, the purchaser of an equity is bound to indemnify the vendor 
 against any personal obligation, and pay a debt charged upon the 
 land. That the case of Tweddell v. Tweddell proceeded upon the 
 ground, that the debt, due tho mortgagee was never a debt directly 
 from the purchaser. That il Lord Thurlovv was right upon the fact, 
 the case was a clear authority, that the purchase of an equity will 
 not make the mortgage debt the debt of the purchaser. That in his 
 hands it is the debt oi the estate, and a mortgage interest, as between his 
 representatives. 
 
 23. In the Earl of Oxford v. Lady Rodney,{l) the testator purchased 
 a mortgaged estate, paid the consideration remaining for the vendor 
 beyond the mortgage, and then covenanted with the mortgagee to pay 
 him the mortgage debt. After his death, upon the question whether 
 the personal estate should go to pay the debt, Sir William Grant, M. R., 
 remarked, that it was not very easy to reconcile the case of Tweddell v. 
 Tweddell, with the decision in Parsons r. Freeman, by Lord Hardwicke, 
 that where the mortgage-money is taken as part of the price, the charge 
 becomes a debt from the purchaser. Bat he admits that Lord Thur- 
 low's principle was right, in a case where the contract of the purchaser 
 gives to the mortgagee no direct and immediate right against himself, but 
 is a mere contract of indemnity. 
 
 2i. Chancellor Kent remarks upon these observationi3,(2) that the 
 mortgage debt is always fart of the -price, unless the vendor agrees to 
 remove the incumbrance. By covenanting to indemnify the vendor, 
 the purchaser takes the land cum onere, and the value of the incum- 
 brancd is of coarse deducted from the value of the land. This was the 
 fact in many of the cases already cited. 
 
 25. From this series of cases, Chancellor Kent deduces the general 
 principle,(3) that a covenant by the purchaser of an equity of redemption, 
 10 indemnify the vendor against the mortgage, does not make the debt 
 his own, so as to render it primarily chargeable upon his personal as- 
 sets. To produce this effect, there must be a direct communication and 
 contract with the mortgagee, and moreover some decided evidence of 
 an intention to charge primarily the personal estate ; as where the ori- 
 ginal contract is essentially changed, and lost or merged in the new and 
 distinct engagement with the mortgagee ; and the party shows that he 
 meant to take upon himself the debt, absolutely and at all events, as a 
 personal debt of his own. 
 
 26. Chancellor Kent then proceeds to a consideration of the older 
 cases upon this subject, and concludes that they establish the same doc- 
 trine. (4) 
 
 27. In Pockley v. PocJdey,{5) the testator had purchased an annuity 
 out of mortgaged lands, and taken an assignment of the mortgage to 
 protect his purchase. By his will, he directed that the mortgage 
 debt should be paid from his personal estate. Lord Chancellor Notting- 
 ham decreed, that it should be thus paid, in consequence of this express 
 direction. 
 
 28. Chancellor Kent remarks,(6) that this case shows, that the pur- 
 chase of land mortgaged did not at that day make the debt a personal 
 
 (1) 14 Tes. 417. 
 
 (2) 3 John. Cha. 260, 261. 
 
 (3) 3 John. Cha. 261, 262. 
 
 (4) Ibid. 263, 264. 
 
 (5) 1 Vera. 36. 
 
 (6) Ibid. 264. 
 
456 
 
 MORTGAGE— FROM WHAT 
 
 [OHAP. XXXIT. 
 
 one, but an express direction by will was required to have this efifect. 
 This view is confirmed by the observation of the counsel in the case, 
 that the purchaser of an equity of redemption must hold the land sub- 
 ject to the debt, but was not personally liable, as for his own proper 
 debt. 
 
 29. In Coventry v. Ooventry,(l) A had a life estate, with power to set- 
 tle a jointure upon his wife. He covenanted to settle lands according- 
 ly, but died before doing it. The plaintiffs brought a bill against the 
 heir for a specific execution. Held, the assets of A should not be ap- 
 plied to relieve the settled estate, because, wherever assets were thus 
 applied, the debt originally charged the personalty. The covenant 
 remained as a real lien on the settled estate, and the personal es- 
 tate could not be applied, since there was no debt from which this es- 
 tate was to be relieved. 
 
 30. In Bagot v. Oughion,{'2,) the ancestor mortgaged his estate, and 
 died. His daughter and heir married; and the husband settled the es- 
 tate by fine on himself and his wife, joined in an assignment of the 
 mortgage, and covenanted to pay the money, and died. Lord Chan- 
 cellor Cowper held, that the mortgage was not to be paid from the per- 
 sonal estate of the husband, the covenant being only an additional se- 
 curity to the lender, and not designed to change the nature of the 
 debt. 
 
 81. In Evelyn v. Evelyn,{3) A mortgaged his land, and his son B af- 
 terwards covenanted with an assignee of the mortgage to pay the debt. 
 Upon the death of A, B came to the estate by settlement, and died in- 
 testate. Held, B's personal estate should not be applied to the debt, for 
 it was still A's debt, and B's covenant was merely a surety for the 
 land, 
 
 32. In Ancaster v. Mayer,{4:) Lord Thurlow was inclined to think, 
 that, in the preceding case, B, by his covenant, had assumed the debt ; 
 and he supposed the idea of the court was, that the covenant was by 
 way of accommodating the charge, and not of making the debt his own. 
 But Chancellor Kent considers the decision as conformable to those in 
 other cases.(5) 
 
 83. In Leman v. Newnham,{6) the same point was settled, where a 
 son, inheriting a mortgaged estate, covenanted with the mortgagee to 
 pay the debt. 
 
 34. lu Parsons v. Freeman, {7)TiOTd Hardwicke remarked that where 
 an ancestor has not charged himself personally with a mortgage debt, 
 the heir shall take cum onere. So, if one purchase the equity of re- 
 demption, with usual covenants to pay the mortgage, he knew of no 
 decision to that effect, but was inclined to think the heir could not 
 claim to have the land relieved. But where, as in that case, the pur- 
 chaser agreed with the vendor to pay a part of the price to him, and 
 the rest to the mortgagee, this made the debt his own, and the personal 
 estate should be first applied to pay it. 
 
 35. Chancellor Kent supposes,(8) that this case is imperfectl}'^ reported, 
 no facts being given, and a very brief note of the opinion. He remarks 
 
 (1) 9 Mod, 12 ; 2 p. "Wms. 222; Str. 596. 
 
 (2) 1 P. Wms. 347. 
 
 (3) 2 P. Wms. 659. 
 
 (4) 1 Bro. 454. 
 
 (5) 3 John. Cha. 266. 
 
 (6) 1 Ves. 57. 
 
 (7) Ambl. 115; 2 P. Wms. 664 n. 
 
 (8) lb, 266, 267. 
 
CHAP. XXXIY.] FUND TO BE PAID. 457 
 
 that, as it stands, it is repugnant to most of the cases which preceded 
 and followed it ; and that Lord Hardwicke himself soon afterwards 
 made a contrary decision. Thus, in Lewis v. Nangle,{l) a mortgaged es- 
 tate came to a married woman. The husband borrowed money by bond 
 and mortgage of the land, the wife joining, and the money being ap- 
 plied partly for his use and partly to pav her debts. The husband gave 
 a bond, and covenanted to pay the whole mortgage debt. Lord Hard- 
 wicke held, according to the presumed intention of the parties, that the 
 land was still the primary fund for payment, and that the husband was 
 not bound to relieve it. 
 
 36. In Fon-ester v. Leigh,{2) a testator purchased several mortgaged 
 estates, and covenanted to pay the debt due upon one of them. He 
 purchased only a part of another of the estates, and he and his co-pur- 
 chaser covenanted to pay their several shares, and to indemnify each 
 other. Held, by Lord Hardwicke, as between legatees and devisees of 
 the testator, the debts should be paid from the land. 
 
 37. In the case of the Earl of Belvedere v. Boch/ord,{3) A mortgaged 
 to B, and afterwards sold to C. In the covenant of warranty in the 
 latter deed, the mortgage was excepted, and the deed stated, that the 
 mortgage debt was to be paid by C out of the purchase-money. An 
 indorsement also acknowledged payment of a part of the price on per- 
 fection oftlie deed, and the rest allowed on account of the mortgage. C, by 
 
 his will, gave a large personal estate to his wife, and also devised to 
 her the mortgaged land for life, then to his oldest son George in fee, 
 subject to debts and legacies, declaring that his wife should hold, free 
 from incumbrance, and that Greorge should pay the interest of the mort- 
 gage debt from other lands devised to him. After some legacies, he 
 bequeathed the rest of his personal estate, after payment of all his just 
 debts, and all his real estate, to George, whom he appointed his execu- 
 tor. George paid the interest, but not the principal, of the mortgage 
 debt. His mother also released her interest in the land to him. He 
 made a will, giving small annuities to his younger sons ; the mortgaged 
 land, according to his estate therein, to his youngest son William ; and 
 the principal part of his estate, being very large, to his eldest son Robert. 
 After the death of George, Robert refused to pay the principal or inte- 
 rest of the mortgage debt, and, William being unable to pay it, the 
 mortgage was sold, and afterwards the estate also, under a decree. 
 William then filed a bill against the executors of the father (of whom 
 Robert was one) and of the grandfather, to have the mortgage debt 
 paid from the personal assets, in relief of the land. Lord Chancellor 
 Liflford decreed, that the mortgage debt was the debt of the grandfather 
 at his death; and that his personal estate, which came first to the son 
 and afterwards to the grandson, should be applied to pay it. The de- 
 cree was af&rmed in the House of Lords. 
 
 38. Chancellor Kent(4:) questions the authority of this case as a pre- 
 cedent, although a different decision would have operated with extreme 
 hardship under the circumstances. " But hard cases often make bad 
 
 Precedents." He remarks, that it has been disregarded or rejected by 
 lonl Thurlow, Lord Alvanley, Lord Eldon, and Sir William Grant ; 
 and also that no precise account is given of the reasons upon which the 
 
 (1) Arab. 150 ; 2 P. Wms. 664, n. 1 (3) 6 Bro. Pari. 520. 
 
 (2) Amb. Ill ; 2 P. Wms. 664, n. | (4) 3 John. Cha. 270, 211, 212. 
 
458 
 
 MORTG-AGE— PROM WHAT FUND, ETC. [CHAP. XXXEV. 
 
 decision was founded, and it may periiaps be considered as turning 
 upon the construction of a will, and its very special provisions. 
 
 39. The result of the cases, as staled by Chancellor Kent, ip(l) that 
 as to wills, the testator may charge an incumbrance upon his personal 
 assets, by express directions, or by disposition and language equivalent 
 to such directions — as where a charge upon the land would oppose or 
 defeat other provisions in the will. And, in order to charge the per- 
 sonal assets by acts done in his lifetime, he must become directly liable 
 to the creditor, and also indicate in some way an intention to make the 
 debt his own.(a) 
 
 40. Although an heir is entitled to the aid of the personal property 
 of the mortgagor in paying off mortgages, yet, if he disposes of the 
 mortgaged estate, he cannot afterwards come upon the personal estate 
 for assistance. And there seems to be no authority, requiring an ad- 
 ministrator to redeem mortgaged estates in foreign countries; inasmuch 
 as he would have no power to do any act, as administrator, in those 
 countries (2) 
 
 41. In connection with the subject of this chapter, may properly be 
 stated the rules of law regulating the application of moneys paid by a 
 party who is indebted upon mortgage, and also upon other securities, 
 to the same creditor; and likewise the appropriation of payments, with 
 reference to the conflicting interests of successive mortgagees. 
 
 42. Where a creditor, holding several debts, some of which are se- 
 cured by mortgage and others not, joins them in one suit, and recovers 
 judgment, and the execution is satisfied only in part; a court of equity 
 will first apply the moneys received, to extinguish those parts of the 
 claim which are not secured by the mortgage. And whenever the 
 mortgage is enforced in a suit for foreclosure, upon the hearing in 
 equity to ascertain the amount due, -every consideration, as to the ap- 
 plication of payments and partial satisfaction, will arise, which could be 
 entertained in the ordinary course of a bill in equity. The case is one, 
 not of voluntary payment, but of a satisfaction pro taiito in vnvitum, 
 and the plaintiff may well be presumed to make the application, in the 
 manner most beneficial to himself (3) 
 
 43. Bill in equity brought by A against B and 0, to foreclose a mort- 
 gage, made by B to A, January 1, iyi7, to secure a note for $1,116. 
 C was a purchaser of B's right of redemption. C filed a cross bill, in 
 which he alleged, that the mortgaged premises consisted of two distinct 
 parcels of land, one of which was of much greater value than the other; 
 that lot No. 1, being the less valuable parcel, had been sold to him in 
 November, 1821, upon an execution against B and himself, as B's secu- 
 rity, for $175 ; and he prayed that the mortgage debt, due to A, might 
 
 (1) 3 John. Cha. 212. 
 
 (2) Haven v. Foster, 9 Pick. 133-4. 
 Jennison v. Hapgood, 10 Pick. 11; 1 
 318. 
 
 Lit. 
 
 (3) Williama v. Reed, 3 Mas. 423-4 ; 
 Norton v. Soule, 2 Greenl. 341. 
 
 (a) A mortgagor by bis will ordered payment of his debts, and devised his residuary 
 lands, including the land mortgaged, and all his residuary personal property, to his oldest 
 son, who was the executor. The eon dies intestate, the mortgage not being paid. The 
 father and son leave sufficient personal property to pay the mortgage. Held, as between 
 the heir and administrator of the son, the mortgaged estate was the pricaary fund for pay- 
 ment. Clarendon v. Barham, 1 Y. & Coll. Cha. 688. 
 
CHAP. XXXV.] SALE OF EQUITIES OF REDEMPTION, ETC. 459 
 
 be apportioned upon No. 1 and No. 2, according to their respective 
 value, and the former discharged from the mortgage, upon payment of 
 the amount thus charged upon it ; or that A might be decreed to ac- 
 cept his debt from C, and assign the mortgage to him. It appeared that 
 m July, 1821, B sold No. 2, the purchaser having received a verbal 
 promise from A to release his claim to it under the mortgage. In Feb- 
 ruary, 1822, after O's purchase of No. 1, A, without consideratiim, ac- 
 cordingly made a release. Held, this was not a case, where C, as a 
 party interested in one of two mortgaged estates, might, by the aid of 
 equity, throw the -burden upon the other, because A's interest would 
 be thereby injured ; but that C was entitled to relief, either by paying 
 A his debt, and taking a conveyance of all the property stiU incum- 
 bered by the mortgage ; or by paying such proportion of the debt, as 
 the value of C's purchase bore to that of all the estate holden in securi- 
 ty ; that the court were bound to regard the equitable situation of the 
 property at the time of C's purchase, taking into view A's parol obliga- 
 tion to release a part of it, as any other course would be punishing him 
 for the benevolent act of relinquishing a part of his security ; and that 
 C, not being a mere speculator or volunteer, but having purchased in 
 consequence of his being bail for B, was entitled to the privilege, which 
 A would otherwise have had, of electing between the two modes of re- 
 lief above named.(l) 
 
 41. A mortgaged two estates to B, then one to C, then both to B, 
 for the former, and also another debt ; then both to D, with notice of 
 the prior incumbrances. The property was not sufficient to pay all 
 the claims, but No. 32 was sufficient to pay B. Held, as between C 
 and D, the court would not require B to satisfy his whole claim from 
 No. 32, so as to give C a prior Jien upon the other land, but B's claim 
 might be charged, rateably, upon both estates.(2)(a) 
 
 CHAPTER XXXV. 
 
 SALE OF EQUITIES OP REDEMPTION ON EXECUTION. 
 
 1. Estate of mortgagor — universally liable 
 
 to execution. 
 
 2. Effect of sale — mortgagor's right after 
 
 sale. 
 1. Levy upon two executions, 
 
 8. Levy in case of disseizin. 
 
 9. No ouskr of mortgagee. 
 10. Purcliaser becomes seized. 
 
 12. Attachment of equity — mortgage dis- 
 charged before sale. 
 
 15-21. Redemption from purchaser — when, 
 and on what terms. 
 
 16. Fraudulent mortgage; sale of equity 
 void. 
 
 18. Right to redeem subsequent mortgages. 
 
 1. The right of a mortgagor to redeem his estate is almost univer- 
 sally liable, in the United States, to be taken upon execution by his 
 
 (1) Chittenden v. Barney, 1 Verm. 28. | (2) Barnes v. Raester, 1 T. & Coll. Clia. 401. 
 
 (a) See further, as to the subject of this chapter, Halliwell v. Tanner, 1 iluss. & My. 633 ; 
 G-oodburn v. Stevens, 1 Md. Ch. 420 ; Symons v. James, 2 T. & Coll. (N.S.) 301 : Mansell, 
 &e., 1 Pars. 371 ; Mason, &o., 1 Pars. 132 ; Jones v. Bruce, 11 Sim. 221 ; Ouseley v. An- 
 Btruther, 10 Beav. 453; Ibbetson v. Ibbetson, 12 Sim. 206; Blount v. Hipkins, 7, 43. 
 
460 SALE OF EQUITIES [CHAP. XXXT. 
 
 creclitors.(a) This liability seems to be a necessary incident or conse- 
 quence of the principle, already considered at length, that the mort- 
 gagor, until foreclosure, and as to third persons, remains the owner of 
 the land, while the mortgagee has a mere lien, which is rtot subject to 
 legal process. The mortgagor's actual possession is unnecessary to 
 such liability.(l) The provisions of law in the several States, relating 
 to the seizure and sale of equities of redemption upon execution, will 
 be particularly stated hereafter. (Yol. II.) A few general principles 
 on the subject are stated in this chapter. 
 
 2 In Massachusetts, by Statute 1783, c. 57, an equity of redemp- 
 tion might be set off, as land subject to incumbrance, to the judgment 
 creditor, and the debtor might redeem the right in equity by paying 
 the debt. By a later statute, (1798, c. 77,) a right in equity might be 
 sold, and the proceeds applied to payment of the debt; and the debtor 
 was allowed three years to redeem. The provisions of the Revised 
 Statutes upon the subject will be stated hereafter. The former statu- 
 tory rules are stated by the court,(2) as above mentioned ; and are re- 
 ferred to in this place, not because now in force, but merely as intro- 
 ductory to Other observations of the court in the same case, which 
 seem to be of permanent applicability, and probably are adopted, in 
 substance, in all the States. 
 
 3. Where an equity of redemption is taken on execution, the whole 
 estate of the debtor is taken from him. A mortgagor is considered as 
 the owner, against all but the mortgagee. But a debtor, after such 
 levy, has not, strictly speaking, any estate or interest in the land. He, 
 is not a freeholder. He has only s. possibility, or right to an estate, on 
 payment of a certain sum of money. The law presumes that he has re- 
 ceived the full value of his estate ; and the right of redemption, still 
 reserved to him, is a mere personal privilege to keep his own land, if 
 he does not wish to part with it at its full value. He is under no 
 obligation to redeem. There is no reciprocity between him and the 
 
 (1) "Watkins v. Gregory, 6 Blacks 113. | (2) Kelly v. Beers, 12 Mass. 388-9. 
 
 (a) In New Hampshire, equities of redemption have always been held liable to execution, 
 and the Statute of July 3, 1822, merely has the effect to change the mode of levy, from an 
 extent to a sale. Pritohard v. Brown, 4 N. H. 402. So in Maryland, Kentucky, North 
 Carolina and New York. "Waters v. Stuart, 1 Gaines in Br. 47 ; 1 Ky. Rev. L. 653 ; Pratt 
 V. Lane, 9 Cranch, 456; 1 N. 0. Rev. Stat. 266. Whether in Indiana, qucere. Lasselle v. 
 Barnett, 1 Black. 153. 
 
 In Mississippi, it has been held that an equity of redemption is not subject to sale on exe- 
 cution, unless the whole debt has been paid. Boarman v. Catlett, 13 Sra. & M. 149 ; Tliorn- 
 hill V. Gilmer, 4, 153. See Wolfe v. Dowell, 13, 103; Henry v. Fullerton, lb. 631; 
 Farmers', &c. v. Commercial, &c., 10 Ohio, 11; Hunter v. Hunter, Walker, 194; State v. 
 Lawson, 1 Bng. 269; Morris v. Way, 16 Ohio, 469; Whitaker v. Sumner, 7 Pick. 551; 
 Pomeroy V. Winship, 12 Mass. 514; Atkins v. Sawyer, 1 Pick. 361; Thayer v. Felt, 4 
 Pick. 354 ; Commissioners, &c. v. Hart, 1 Brev. 492 ; State v. Laval, 4 McC. 336 ; Punder- 
 son V. Brown, 1 Day, 93 ; Hinman v. Leavenworth, 2 Conn. 244 ; Scripture v. Johnson, 3, 
 211; Kelly V. Burnham. 9 N. H. 20; Swift v. Dean, 11 Verm. 323; Naples v. Minier, 3 
 Penns. 475 ; Roberts v. Williams, 5 Whart. 170 ; Tower's, &o., 9 W. & S. 103 ; Kimball v. 
 Smith, 21 "Verm. 449; Jones v. Thomas, 4 Ired. 12 ; Allen v. Parish, 3 Ham. 526; Dough- 
 erty v. Lithioum, 8 Dana, 194; Trudear v. MoVicar, 1 La. Ann. R. 426; Governor v, 
 Powell, 9 Ala. 83; Steward v. Allen, 6 Greenl. 103; Warren v. Childs, 11 Mass. 222; 
 White V. Bond, 16 Mass. 400 ; Jenks v. Ward, 4 Met. 404 ; Brown v. Worcester, Ac, 8, 47 ; 
 SloGum V. Catlin, 22 Verm. 137 ; Franklin, &o. v. Blossom, 10 Shepl. 546; Swift v. Dean, 
 11 Verm. 323 ; Kimball v. Smith, 21 Verm. 449 ; Houghton v. Bartholomew, 10 Met. 138; 
 Phelps V. Butler, 2 Ohio, 331 ; Ely v. McGuire, lb. 330 ; Davis v. Evans, 5 Ired. 525. 
 
CHAP. XXXT.] OF REDEMPTION, ETC. 
 
 461 
 
 creditor. The creditor cannot demand the money, but is merely 
 bound to convey the land, on receiving payment in a certain time. 
 
 4. Upon these grounds, the right in question was held not liable to 
 be again taken upon execution.(a) The court, in their opinion, remark 
 that the legislature might have made it thus liable ; but have not done 
 so, probably because it was considered of no value. Real estate mort- 
 gaged IS made subject to execution ; because land is usually mortgaged 
 for less than its value, and the right of redemption, therefore, is a 
 valuable interest. Nor can it be said that the debtor, after such sale, 
 still owns his former right of redemption, but subject to a new lien by 
 the purchaser. This is not the language of the statutes. His whole 
 estate is taken from him. His remaining right is like a right of pre- 
 emption, as if the purchaser had covenanted to convey to him at a cer- 
 tain price, paid in a certain time.(l) 
 
 5. The following case further illustrates the same general principle. 
 
 6. A made a mortgage of certain land. August 8, 1811, bis equity 
 of redemption was sold on execution to B. Afterwards, on the same 
 day, another deputy shtriS' undertook to sell the same right, upon 
 another execution, to C, and gave him a deed of it. August 13, the 
 same right was sold and conveyed upon a third execution to D. D 
 brings a real action for the land against A. Held, no title had vested 
 in D.(2) 
 
 7. But where the same equity of redemption is simultaneously at- 
 tached by two creditors, both executions may be levied upon it, and 
 each creditor will be entitled to a moiety of the proceeds, without 
 reference to the relative amount, of the debts. They bold, not in shares 
 or proportion, h\xt per mie et per tout. But as the attachment constitutes 
 merely a lien in security of a debt, if the moiety which either can 
 hold is more than sufficient to satisfy his debt, the sui'plus will go to 
 the other.(8)(6) 
 
 (1) 1« Mass. 389-90. I (3) Sigourney v. Eaton, 14 Pick, 414. 
 
 (2) Kelly tj. Beers, 12 Mass. 387. | 
 
 (a) But, if mortgaged anew, the new equity of redemption may be taken. Reed ¥. Bige- 
 low, 5 Pick. 281. In Kentucky, the debtor may validly convey fiis interest, after an execu- 
 tion sale of his equity of redemption. Hibbet v. Spurrier, 3 B. Monr. 470. In Maine, such 
 interest is liable to be taken on execution. Me. Rev. St. 390. 
 
 (6) In levying executions, where simultaneous attachments have been made, an ofScer 
 may seize the whole estate, but should only return a moiety, in case of two such executions, 
 upon either of the executions. Perry v. Adams, (Mass,) Law Rep. Jan. 1842, p. 354. 
 Where land is simultaneously attached upon two writs, and one of the attaching creditors 
 levies upon tlie whole land by metes and bounds, the other may levy upon an undivided 
 moiety or an undivided share, not exceeding sucii moiety, sufficient to sati.sfy his execution. 
 Durant V. Johnson, 19 Pick. 544. Two executions were simultaneously levied : one upon 
 the whole land by metes and bounds, the other upon fourteen-fifteenths of one undivided 
 half of it. Held, the latter made the execution creditor a tenant in common with the 
 former creditor of the whole, and not a moiety only, of the fourteen-fifteenths of an undivided 
 half. Perry v. Adams, 3 Met. 51. 
 
 It has been held, tliat where an equity of redemption is successively attached by different 
 creditors, a Sf le on execution by the second, before the first has recovered judgment, is void 
 against all the others; and the third acquires the rights of the second. Pease v. Baiicroft, 
 5 Met. 90. (But see Mass. Rev. Sts. ch. 99, sees. 3-t, 3 5.) An officer may legally seize an 
 equity (jf redemption on two executions, sell it on one, satisfy this one with a purt of the 
 proceeds, and apply the balance to the other. Bacon v. Leonard, 4 Pick. 277. If an equity 
 is taken by different officers, and the proceeds are more than sufBoient to satisfy the execu- 
 tions in the hands of the officer selling, he is bound to pay the surplus to the other officers. 
 Denny v. Hamilton, 16 Mass 402. See Forbusli v. Willard, 16 Pick. 42; Littlefield v. 
 Kimball, 5 Shejil. 313; Wade v. Merwin, 11 Pick. 280. 
 
462 
 
 SALE OP EQUITIES 
 
 [CHAP. XXXY. 
 
 8. It has been held, that a right in equity to redeem, being a mere 
 incorporeal hereditament, will pass by sale on execution, though the land 
 have been long in the possession of a disseizor.(l) In an earlier case, 
 however, or a previous hearing of the same case, it was remarked, that 
 an execution purchaser might maintain a real action for the land against 
 a stranger, iinless the latter had disseized the mortgagor before the sale.(2) 
 The true principle upon this subject, and one which seems to reconcile 
 the apparent contradiction between the former cases, has been settled 
 in a case long subsequent to both of them.(3) It is here held, that if 
 the mortgagor is seized, at the time of the sale on execution, the sheriff's 
 deed conveys to the purchaser the mongagov^s actual seizin, precisely as 
 a deed by the mortgagor himself would have done; but if the mort- 
 gagor is not seized, then the sheriff's deed passes not a seizin, but a 
 right of entry. In the latter case, it seems, the deed of the sheriff is not 
 invalid, on account of an adverse possession by a stranger ;(a) because, 
 if this were the case, creditors would have no power to take an equity 
 of redemption for their debts, where the mortgagor is disseized. The 
 entry of the sheriff could not purge the disseizin, no entry being neces- 
 sary to a sale. The judgment creditor could not enter, having no right 
 before the levy ; and the purchaser has no interest till after the sale. 
 The mortgagor could not be expected to enter for the purpose of 
 having the land taken from him by execution. Hence, the sheriff's 
 deed must pass a seizin in law. The purchaser may enter, and then 
 bring a writ of entry upon his own seizin; or, perhaps, before entry, 
 he might bring an action, founded upon the seizin of the mortgagor, to 
 whose rights he has succeeded. 
 
 9. The sale on execution, of a right in equity to redeem, will not 
 operate as an ouster of the mortgagee, who has previously entered 
 under his mortgage. Such sale is effectual in passing to the purchaser 
 all the rights of the mortgagor; and an entry for the purpose of 
 seizing and levying upon such right is no trespass. It is consistent 
 with the rights of the mortgagee. But, for any subsequent entry, the 
 mortgagee may maintain trespass against the purchaser, without a re- 
 enUj.{-i){b) 
 
 10. The Statute of 1798, c. 76, provided, that the sheriff's deed of a 
 right in equity should pass the title, in the same manner as a deed exe- 
 cuted by the debtor himself. Hence such purchaser becomes seized 
 except as against the mortgagee, and may maintain an action for the 
 land, without actual entry .(5) 
 
 11. So, where the purchaser of an equity, sold upon execution, had 
 tendered to the holder of the mortgage the amount due upon it; held, 
 he had acquired a seizin, sufficient to sustain an action for the land 
 against the mortgagor.(6) 
 
 12. The form, in which executions are to be levied in the several 
 
 (1) Willington v. Gale, 13 Mass. 483. 
 
 (2) Willington v. Gale, 7 Mass. 139. 
 
 (3) Poignard v. Smith, 6 Pick. 172. See 
 sees. 10, 11. 
 
 (4) Shepard v. Pratt, 15 Pick. 32. 
 
 (5) Willington v. Gale, 7 Mass. 138. 
 
 (6) Porter v. Millett, 9 Mass. 101. (See 
 see. 8.) 
 
 (a) See Mass. Eev. St. 463. 
 
 (b) It has been held in Kentucky, that an equity of redemption cannot legally be sold, 
 pending a suit to foreclose the mortgage, and if sold, though upon an execution prior to such 
 suit, the mortgagee's title has priority. Addison v. Crow, 5 Dana, 279. 
 
CHAP. XXXT.] OF EEDBMPTION, ETC. 463 
 
 States upon equities of redemption, will be particularly stated in an- 
 other part of this work. Equities being subject to atlachment as well 
 as execution, in those States where this method of securing debts is 
 adopted, the question has arisen, how an execution is to be levied, 
 where a mortgage is discharged after attachment, and before sale.(a) 
 
 13. A mortgaged to B on the 15th of December, 1808, to secure 
 $500, and on the 29th of April, 18U7, mortgaged the same land to B, 
 to secure $300. On the 18ih of July, 1807, A conveyed the land to 
 C, subject to the mortgages. On the 23d of July, 1807, C mortgaged 
 the land to B, to secure 'the sums of $1,500 and $837. On the 2rtth of 
 July, 1807, B discharged A's mortgages, acknowledging full satisfac- 
 tion. The sums secured by A's mortgages made a part of those se- 
 cured by C's mortgage. On the 18th of May, 1807, D, a creditor of 
 A, caused A's estate in the land mortgaged to be attached ; and, in 
 December, 1807, levied his execution upon A's equity of redemption, 
 which was sold by the officer to E. Neither D nor the officer knew 
 the fact, that B had discharged the mortgages made to him by A. E 
 brings an action against B to recover the land. Held, if at the time of 
 the sale on execution, there was no subsisting incumbrance except the 
 mortgage by C, which arose after the attachment, then the levy was 
 void, being made in the form prescribed in relation to equities of re- 
 demption ; and if B's mortgage was still in force, then the purchaser's 
 proper remed\- was by a bill in equity to redeem. B either still con- 
 tinued the mortgagee, notwithstanding the discharge, or the assignee of 
 C, for whose benefit the mortgages were still to be considered in ibrce. 
 And E could not be held to gain an equitable title by his purchase, 
 and at the same time treat the mortgages as extinguished, without any 
 expense to him. Upon the possible supposition, that the mortgage 
 had been redeemed by A, E could make no title except upon the 
 ground that the incumbrances still subsisted for A's benefit, and to 
 secure to him the money paid for E's use. E came in the right of A, 
 and could not claim against the mortgages to B, who, if E had any 
 title, was a mortgagee in possession, or the assignee of a subsisting 
 mortgage, originally made to himself; and, as to E, claimed under 
 mortgages not redeemed or discharged, and subject to which his title 
 was acquired. As a general rule, it may perhaps be said, that the pur- 
 chaser of an equity ot redemption can aver no seizin or title against 
 any other person than the execution debtor, or his immediate tenants 
 or assigns. Hence, though E might recover against C, he could not 
 recoVer against B, having no legal seizin or title, till B's mortgage was 
 redeemed.(l) 
 
 14. In this case it is laid down, that the mode of levying the execu- 
 tion upon the interest of a mortgagor, is to be determined by the 
 situation of bis estate at the time of attachment; and, if at that time 
 the mortgage was extinguished, though before the levy a new mort- 
 gage was made, a levy as upon an equity of redemption is void. From 
 this decision, it would seem to be a necessary inference, that the con- 
 verse of the proposition must also be true; and, if the land is subject 
 
 (1) Forster v. Mellen, 10 Mass. 421. 
 
 (a) In Maine, where an equity of redemption is attaclied, the creditor may require the 
 mortgagee to state an account of his claim. Me. Rev. St. 584. 
 
464 
 
 SALE OF EQUITIES 
 
 [CHAP. XXXV. 
 
 to mortgage at the time of attachment, but the mortgage is extinguished 
 before the sale, that the levj' cannot be made by metes and bounds, as 
 upon a legal estate, but only by the sale of an equity of redemption. 
 But, in a later case, a contrary doctrine seems to be advanced. It is 
 said, that the attachment merely fixes a lien on the premises, without 
 transferring the title or affecting the nature of the estate. The mode 
 of levy, the act by which a title is to be transferred, it would seem, 
 must be determined by the nature of the debtor's title at the time of the 
 levy, and not at the time of the attachment. The equity of redemption 
 is in fact gone, and it would seem to be absurd to pursue a mode solely 
 applicable to a subsisting equitable estate, when such estate no longer 
 exists. These remarks are made, without reference to any statutory 
 provision, but the court consider the case as provided for by an express 
 statute.(l)(a.) 
 
 15. The lien, created by the attachment of an equity of redemption, 
 may extend beyond the amount of the judgment recovered in the suit, 
 and cover the whole amount for which the equity is sold upon execu- 
 tion. Thus, where the mortgagor, after such attachment, convej's his 
 right in equity to a third person, and the equity is afterwards sold on 
 execution, for a much larger sura than the amount of the excution ; as 
 the surplus belonged to the mortgagor, not to the purchaser from him, 
 the latter cannot redeem, without paying the whole purcbase-money 
 paid to the sheriff (2) 
 
 16. A mortgage, made to defraud creditors, is as to them void, and 
 creates no equity of redemption, liable to be taken on execution. 
 
 17. A mortgaged land to defraud his creditors. B, one of the 
 creditors, attached A's equity of redemption. Pending this attachment, 
 C, another creditor, extended an execution upon the land, treating it - 
 as unincumbered property. Afterwards, A's equity of redemption 
 was sold on execution, and in completion of the attachment, to an 
 innocent purchaser, D. In an action to recover the land, brought by 
 C against D; held, the sheriff's sale was void, no equity of redemption 
 having been created by the mortgage, and that had a good title to 
 the laud. If D had claimed by a dii-ect purchase from A himself, he 
 would have taken the land free of incumbrance, as an innocent pur- 
 chaser. But, claiming by a statute title, he was bound to prove every- 
 thing necessary to constitute such title. In authorizing the sale of an 
 equity of redemption, the legislature contemplate the existence of a 
 valid mortgage. Moreover, a creditor may levy upon the land of his 
 debtor, and thereby acquire as good title as the latter had therein ; and, 
 in regard to his creditors, a frauduleat grantor has a perfect title. Nor 
 can one creditor, by attaching an equity of redemption, and thereby 
 
 (1) Freeman v. McGaw, 15 Pick. 83-4. 
 (See Mass. Kev. St. 550; Litchfield)/. Cud- 
 worth, 15 Pick, 2A; Mechanics', &c. v. Wil- 
 liams, 17, 438; N. H. Rev. St. 369.) Pills- 
 bury V. Smith, 25 Maine, 427 ; Goodall v. 
 
 Rowell, 15 N. H 572; Abbott v. Sturtevant, 
 30 Maine, 40; Dougherty v. Smithicum, 8 
 Dana, 194. 
 (2) Gilbert v. Merrill, S Greenl. 295. 
 
 («■> Where an equity of redemption is seized on execution, and the mortgage debt is then 
 paid before sale, there may still be a sale of the equity, the proceedings hiwing relation to 
 the seizure. Bagley v. Bailey, 4 Shepl. 151. 
 
CHAP. X2XY.] 
 
 OP EBDEMPTION, ETC. 
 
 465 
 
 recognizing th.e mortgage as valid, deprive others of tlie right to treat 
 it as void, by seizing the land itself.(l)(a) 
 
 18. The right of redeeming subsequent mortgages may be taken in 
 execution. 
 
 19. The creditor of a mortgagor having attached an equity of re- 
 demption, the debtor made another mortgage, after which all his 
 interest in the land was attached by another creditor. The equity first 
 attached was then sold on execution, which was satisfied by a part of 
 the proceeds ; and, before the officer had paid over the surplus, the 
 execution of the second creditor was delivered to him. Held, the 
 surplus belonged to the second mortgagee ; and the second creditor 
 might levy on the right of redeeming the second mortgage.(2) 
 
 20. In Massachusetts, if the mortgagor does not within a year redeem 
 his equity of redemption, sold on execution, his whole interest is lost, 
 and he cannot redeem the mortgage, though the purchaser does not 
 redeem.(3)(6) 
 
 21. Where rights in equity, of redeeming distinct parcels of land 
 from several mortgages, are sold upon one execution, they ought to be 
 sold separately, and not for a gross sum ; for the debtor has a right to 
 redeem one without redeeming others. But a third person cannot 
 object to a joint sale. (4:)(c) 
 
 (1) BuUard v. Hinkley, 6 GreenL 289. See 
 ch. 36, sec. 14. 
 
 (2) Clark v. Austin, 2 Pick. 528. 
 
 (3) IngersoU v. Sawyer, 2 Pick. 216. 
 
 (4) Fletcher v. Stone, 3 Pick. 250. 
 
 (a) An execution purchaser of an equity of redemption, who receives a deed from the 
 officer for the benefit of the creditor, cannot dispute the mortgage as fraudulent, and on that 
 ground claim the land as unincumbered. Russell v. Dudley, 3 Met. U7. 
 
 The court remark, it was at the option of the creditor to treat the mortgage as invalid, 
 and set ofif the estate by appraisement; or to treat it as valid, and sell the right o( redemp- 
 tion. But he could not treat the mortgage as subsisting, so as to warrant a sale, and^ then, 
 when he had taken his deed, treat the mortgage as a nullity, and claim the estate m fee. 
 The creditor, by treating it as a subsisting mortgage, is afterwards estopped to deny its 
 existence; and the demandant, purchasing ■veit'' 
 
 And 
 
 v^>=,.....», .„. ..= ...„.,..„.„, ^ ^ ^ith notice for his use, is also estopped. 
 
 even if he had purchased without notice, having purchased the premises asaneqmty of re- 
 dempiion, which could not exist without a subsisting mortgage, he would be as much 
 estopped to contest the mortgage as ifit had befin recited ^ his deed. lb. 
 
 B^t where A, a second mortgagee, took an assignment o the first "lortgage and a release 
 of the equity of redemption from B, the mortgagor, and afterwards a creditor of B levied 
 an execution unon hiseauitv and purchased it himself; held, in support of his title, such 
 "edH^r might Lwth^rA^obtaine'd his mortgage and release by fraud upon B, though B 
 
 ^t^rnnr rCisTd '^res, or,3?:r .I; "S^ l:^..^. to release the 
 equiiy, upon a tender by the debtor or his assignee of the sum due him therefor, a writ of 
 entrv ies to recover the equity. Hooker v. Hudson, 19 Pick. 467. 
 
 A subseauent demand for the money, made by the purchaser, but a/fer dark, is unseason- 
 abit, and dTes notTvoid L tender. ^Tucker v.^Buffum, 16 Pick 46. In Maine, where the 
 execution purchaser redeems the mortgage, and within the year the mortgagor redeems the 
 equity, the latter may redeem the mortgage from the former as he might from the mortgagee. 
 
 '^Tci'^The right to redeem an equity of redemption, sold on execution, is validly assigned 
 in eauitv by a common quit-claim deed, which remises, releases and quit-claims the party s 
 rio-ht and interest in and to the mortgaged premises, habendum to the grantee, his heirs and 
 assigns Tucker v. Buffam, 16 Pick. 46. Where an equity is sold on execution, the pur- 
 chaser takes the place of the debtor, and holds subject to all incumbrances. Crow v. Tins- 
 ley, 6 Dana, 402. 
 
 Vol. I. SO 
 
466 MORTGAaE, WHEN [CHAP. XXXVI. 
 
 CHAPTER XXXVI. 
 
 MORTGAGE, WHEN VOID OR VOIDABLE. 
 
 1. General remarks. 
 
 2. Usury. 
 11. Infancy. 
 
 13. Eviction. 
 
 14. Fraud. 
 
 1. In many respects, a mortgage is not distinguishable, with refer- 
 ence to the circumstances which render it void or voidable, from an 
 absolute deed. The extensive title of Deed will be considered hereafter, 
 (see Vol. II.,) and therefore the subject will be very briefly noticed m 
 the present connection. 
 
 2. It has been held, in the Supreme Court of the United States, 
 that, upon a bill for foreclosure, the mortgage may be declared void 
 for usury. {V) 
 
 3. The doctrine is laid down in New York, that if a lender seeks to 
 enforce his securities in equity against the mortgagor or his assignee, 
 usury is a defence, and, if it be made out, the court will order that the 
 securities be delivered up and cancelled.(a) But where a mortgage 
 contains a power of sale, under which the mortgagee is proceeding to 
 foreclose, without the aid of a court of equity, and the borrower files a 
 bill for relief; he has been held to pay so much as is lawfully due, 
 before relief will be granted.(2) A vendee under such power has the 
 better equity, and will acquire a good title, though the mortgage is 
 usurious.(3) But if the mortgagee himself purchase through an agent, 
 
 Livingston, 2 Gaines' Cases in Error, 66 ; De 
 Butts V. Bacon, 6 Oranch, 252 ; Nichols v. 
 Cosset, 1 Root, 294; Sherman v. Gassett, 4 
 Gilm. 521; Righter i). Statt, 3 Sandf. Cha. 
 608 ; Cotheal v. Blydenburgh, 1 Halst. Cha. 
 n, 631; Gambril «. Rose, 8 Blackf. 140; 
 Brooks V. Avery, 4 Comst. 225 ; Fox v. Lipe, 
 24 Wend. 164; Stoney V. American, &e., 11 
 Paige, 655 ; Neefus v. Vandorveer, 3 Sandf. 
 Oh. 268; Jackson.!;. Golden, 4 Cow. 266; 
 Warner v. Gouverneur, 1 Barb. 36. 
 
 (2) 'Fanning v. Dunham, 5 John. Cha. 122; 
 Wilson V. Hardesty, 1 Md. Oh. 66. 
 
 (1) De Butts V. Bacon, 6 Cranoh, 252. See 
 Dyer i;. Lincoln, 11 Verm. 200; I'earsaU v. 
 Kingsland, 3 Edw. 195 ; Hodgkinson v. Wyatt, 
 4 Ad. & Ell. (N. S.)74:9; Blackburn v. War- 
 wick, 2 T. & Coll. 92; Morris ^. Way, 16 
 Ohio, 469; N. Y., &c. v. American, &c,, 3 
 Sandf. Ch. 215; Mumford v. American, &c., 
 4 Comst. 463 ; Mitchell v. Preston, 5 Day, 
 100; Tyson v. Rickard, 3 Harr. & J. 109 ; 
 Morgan v. Tipton, 3 McL. 339 ; Lane v. 
 Losee, 2 Barb. 56 ; Miller v. Hull, 4 Denio, 
 104; Robertson t;. Campbell, 2 Call, 354; 
 Thomes v. Cleaves, 1 Mass. 361 ; Jackson v. 
 
 Packard, 6 Wend. 415; Hodgkinson i;. I (3) Jackson j). Henry, 10 John. 185 
 Wyatt, 4 Ad. & Ell. (N. S.) 749; Bush v. ' 
 
 (a) If a borrower of money upon usurious interest seeks to have the aid of a court of 
 equity in cancelling or procuring the instrument to be delivered up, the court will not inter- 
 fere in his favor, unless upon the terras that he will pay the lender what is really and bona 
 fide due to him. But if the lender comes into equity, to assert and enforce his own claim, 
 under the instrument, there the borrower may show the invalidity of the instrument, and 
 have a decree in his favor and a dismissal of the bill, without paying the lender anything; 
 for the court will never as.sist a wrong-doer in effectuating his wrongful and illegal purpose. 
 1 Story on Equ. (3d ed i 77. Contra, Cunningham v. Davis, 7 Ired. Kqu. 5. But see Bal- 
 linger v. Edwards, 4 '■ .d. Equ. 449. It is held, that parol evidence is admissible, to prove 
 a deed absolute in P .n to have been given as security tor usurious interest. Stapp v. Phelps, 
 7 Dana, 300; Coo v. Colyer, 2 B. Mon. 72. But see 13 Mass. 443 ; 6 Greenl. 3(13. 
 
 In Massachu- its, it has been lately suggested as a doubtful point whether, in a bill to 
 redeem, the p' .ntiff can deduct penalties for usury from ..lO mortgage debt. Robinson v. 
 Guild, 12 M t. 328. 
 
CHAP. XXXYI.] TOID OR TOIDABLE. 467 
 
 the mortgagor may recover the land. Usury between the mortgagee 
 and his assignee is no defence for the mortgagor.(l) 
 
 4. It has been doubted by high authority, whether the purchaser of 
 an equity of redemption can object, that the mortgage was made upon 
 usurious consideration, or, as plaintiff, can have any relief in equity, 
 without offering to pay the amount due.(2)(a) 
 
 5. Where a mortgage is assigued for the amount due upon it, and 
 the mortgagor agrees to repay the assignee a sum exceeding this amount 
 and legal interest, he cannot avoid the mortgage upon this ground, but 
 will be required to pay only the lawful sum due.(3) 
 
 6. A mortgage, made upon usurious consideration, is void only as 
 against the mortgagor, and those lawfully holding under him. Thus, 
 it is good in the hands of a lessee of the assignee of the mortgage, 
 A subsequent mortgagee cannot impeach it ; nor a purchaser of the 
 equity of redemption, subject to payment of the mortgage. But a pur- 
 chaser from the mortgagor may make this defence against an assignee 
 of the mortgage. So, a judgment creditor of the mortgagor.(4) 
 
 7. If a judgment has been recovered upon a usurious contract se- 
 cured by mortgage, and a new mortgage given, the mortgagor cannot 
 resist a suit on the latter, upon the ground of usury. (5) 
 
 8. So, where a mortgagee sues upon a mortgage, and the mortgagor 
 defends upon the ground of usury, but fails, and afterwards conveys 
 his right in the land ; the assignee cannot maintain ejectment against 
 the mortgagee upon this ground, being estopped by the former judg- 
 ment.(6) 
 
 9. It is said, that after foreclosure by entry and continued possession, 
 the mortgagee has a perfect title to the land, though the mortgage debt 
 was usurious. (7) But a mortgagor shall always be allowed to avail 
 himself of the defence of usury, unless he has been guilty of laches. 
 Thus, where an equity of redemption was sold on execution, and after 
 a year the purchaser took an assignment of the mortgage, the mort- 
 gagor having always retained possession ; held, the latter might set up 
 usury as a defence to an action of ejectment for the land. (8) 
 
 10. In Pennsylvania, a usurious contract is not absolutely void. 
 Hence, a mortgagee, in such case, may recover the amount loaned, with 
 legal interest.(9)(J) 
 
 11. The mortgage of an infant is voidable only, not void. Hence, 
 where an infant naortgaged his land, and, after coming of age, made a 
 
 (1) Jackson D. Dominick, 14 John. 435. , Ch. 564; Briggs v. Sholes, 15 N. H. 52; 
 
 (2) Gordon v. Hobart, 2 Sumn. 401. Post v. Dart, 8 Paige, 639, 
 
 (3) Bush V. Livingston, 2 Cainea' Caa. in 
 E. 66. 
 
 (4) Green v. Kemp, 13 Mass. 515 ; Bridge 
 D.Hubbard, 15, 103; Jackson v. Bowen, 7 
 Cow. 13 ; Mechanics, &o. o. Edwards, 1 Barb. 
 27; Morris v. Floyd, 5 Barb. 130; Thomas- 
 ton, Ac. V. Stimpson, 8 Shepl. 195; Doub v. 
 Barnes, 1 Md. Oli. 127 ; Brooks v. Avery, 4 
 Comst.' 225 ; Helfield v. Newton, 3 Saudf. 
 
 (5) Thacher v. Gammon, 12' Mass. 268 ; 
 Mumford v. American, &c., 4 Comst. 463. 
 
 (6) Adams V. Barnes, 17 Mass. 365. See 
 Grow 11. Albee, 19 Verm. 540. 
 
 (7) Flint t,. Sheldon, 13 Mass. 450. See 
 Bard v. Fort, 3 Barb. Ch. 632. 
 
 (8) Richardson v. Field. 6 Greenl. 35. 
 See Hyland v. Stafford. 10 Barb. 658. 
 
 (9) Turner v. Calvert, 12 Ser. & R. 46; 
 Wycofff. Longhead, 2 Dall. 92. 
 
 (a) In North Carolina, usury cannot be set up as against a 5cmo j?(ie purchaser of. land. 
 N. C. St, 1842-43, 107. -^ :, , 
 
 (6) 111 Massachusetts, mortgages made for a gamUmg consideration are void; and, when 
 declared void, the lands pass to the heirs of the mortgagor. Rev. St.. 387. 
 
468 
 
 MORTGAGE, WHEN 
 
 [CHAP. XXXTI 
 
 deed of the land, recognizing and subject to the mortgage ; the latter 
 deed was held to be a confirmation of the former one, and the mort- 
 gagee recovered judgment against the second grantee.(l) 
 
 12. So, where A conveyed land to B, an infant, at the same time 
 taking back a mortgage for the purchase-money ; and B occupied 
 after coming of age, and conveyed with warranty to C ; held, both 
 the occupancy and the conveyance amounted to a confirmation of the 
 mortgage.(2) 
 
 13. To an action of ejectment by a mortgagee against the mortgagor, 
 it is a good defence, that the latter has been evicted from the land by a 
 paramount title ; notwithstanding he has become a purchaser under 
 such title, and continues to occupy the land.(3)(a) 
 
 14. It will be seen hereafter, that all deeds made to defraud creditors 
 are void. There is no diflerence, in this respect, between mortgages 
 and absolute deeds. But a distinction has been taken, with respect to 
 this ground of avoiding a mortgage, between a suit at law and a bill in 
 equity. 
 
 15. In New York, it is held, that, where a mortgage is made to one 
 as trustee, upon a bill for foreclosure, the mortgagor is estopped to 
 question the validity of the trust.(4) So, in Connecticut,(5) upon a bill 
 for foreclosure, it is held that the title of the mortgagee cannot be in- 
 quired into. Hence, where, after production of the note and mortgage, 
 certain attaching creditors of the mortgagor set up as a defenceto such 
 bill, that the mortgage was fraudulent and void against creditors ; it 
 was held that such evidence was admissible. The court remarked, 
 that if the title to land might be brought in question in this process, 
 then it must be local ; whereas, by the established law, a bill for fore- 
 
 (1) President, &o. v. Chamberliu, 15 Mass. 
 220 ; Rotbins v. Eaton, 10 F. H. 561 ; 
 Richardson ii. Boright, 9 Term. 368. See 
 Hillyer v. Bennett, 3 Edw. 222 ; Story v. 
 Jolinson, 2 Y. & Coll. 586 ; Loomer v. Wheel- 
 wright, 3 Sandf. Ch. 135 ; Barnard v. Eaton, 
 2 Cusb. 294. 
 
 (2) Hubbard v. Cummings, 1 Greenl. Hi 
 ace. 10 N. H. 561. 
 
 (3) Jackson v. Marsh, 5 Wend. 44 ; Poynt- 
 nell u Spencer, 6 Barr, 254. 
 
 (4) Schenck ii. Ellingwood, 3 Edw. 175; 
 Bailey v. Lincoln, &c., 12 Miss. 174. 
 
 (5) Palmer v. Mead, 7 Conn. 149. 
 
 (a) Mortgage, in consideration of land purchased by the mortgagor, the title to a part of 
 which fails, but without fraud on the part of the grantor. The mortgagor having entered, 
 and the conveyance containing covenants of warranty ; held, the facts furnished no defence 
 to a bill for foreclosure. Edwards v. Bodine, 26 Wend. 109; Withers v. Morrell, 3 Edw, 
 560 ; Bumpus v. Platner, 1 John. Cha. 213 ; Davison v. De Freest, 2 Sandf. Cha. 456 ; Tan 
 Waggoner v. M'Bwen, 1 Green Cha. 412 ; Jaques v. Elsler, 3, 462 ; Satchez v. Minor, 9 S. 
 & M. 544 ; Banks v. Walker, 2 Sandf. Ch. 344 ; Johnson v. Gene, 2 John. Cha. 546 ; Brad- 
 ford V. Potts, 9 Barr, 37. But see Van Riper v. Williams, 1 Green Ch. 407. 
 
 It has been held, that want of consideration for the note secured by a mortgage, is a 
 good defence to a suit for foreclosure, brought by the mortgagee's administrator, even though 
 the mortgage was given to defraud creditors. So, where the consideration is less than the 
 amount of the mortgage, the decree shall be rendered only for the real amount of such con- 
 sideration. And the fact may be proved by admissions of tVie mortgagee. Wease v. Pierce, 
 24 Pick. 141 ; Abbe v. Newton, 19 Oonn. 20 ; Maokey v. Browndeld, 13 S. & R. 239 ; Rood 
 V. Winslow, 1 Dougl. (Mich.) 68. See Gilleland v. Failing, 5 Benio, 308. 
 
 Fraud upon a mortgagor avoids the mortgage, and a bill in equity lies to set aside a fraud- 
 ulent mortgage, though the plaintiff is in possession, and might maintain it against the 
 mortgagee at law. But the fraud must be committed by the mortgagee or his agents, or 
 with His knowledge at the time. Marston v. Brackett, 9 N. H. 337 ; Briggs v. French, 1 
 Sumn. 505; Wooden v. Haviland, 18 Conn. 101 ; Burns v. Hobbs, 29 Maine, 273; Aikin 
 T. Morris, 2 Barb. Ch. 140. As to mortgages obtaiaed by threats or duress, see James v. 
 Roberts, 18 Ohio, 548 ; K J. Rev. Sts. 324. 
 
CHAP. XXXYI.] 
 
 YOID OR VOIDABLE. 
 
 469 
 
 closure need not be brought in the county where the land lies. In such 
 bill, It IS sufficient to aver, that the defendant executed a deed on con- 
 dition; and of course any circumstances, showing the instrument to be 
 no deed— sach as forgery, want of witnesses, duress, fraud, coverture, 
 &c. may be shown in defence ; but not circumstances merely impair- 
 ing its effect. (Two justices dissented.)(a) 
 
 16. Where one mortgages laud, to defeat the dower of his wife, and 
 without consideration, tlie mortgage is void as to the widow and as to 
 his creditors, but valid against himself and liis administrator. A court 
 of chancery, in such case, will enjoin the mortgagee from proceeding to a 
 judgment and sale of the whole mortgaged premises, but will suffer 
 him to sell, subject to the widow's dower. And, in Pennsylvania, 
 where a sale on mortgage defeats the right of dower, the court, upon a 
 scire jacias by the mortgagee against the administrator to foreclose, will 
 let in the widow to defend; and, if there is a real debt, there shall be a 
 verdict and judgment, giving to the mortgagee a lien on the whole in- 
 terest as to the real debt, and for the whole amount subject to the wi- 
 dow's thirds ; or, if the mortgage was fraudulently given, without con- 
 sideration, and for the purpose of defeating the wife, a verdict andjudg- 
 rnent for the plaintiff, subject to the widow's dower. But the same prin- 
 ciple dues not apply to the provision made for the widow in that State 
 by the intestate acts, in lieu of dower. This is a contingent right, with 
 none of the common law privileges of dower, and subject to be defeated 
 by the husband's acts. Therefore, in the case supposed, the mortgage 
 cannot be wholly avoided, merely upon the ground that the widow 
 might, in case the intestate died without kindred, have been entitled to 
 the whole estate.(l) 
 
 17. Upon a bill to redeem, brought by a subsequent, against a prior 
 mortgagee, the latter cannot defend, upon the ground that the second 
 mortgage is fraudulent as against creditors ; but, as showing the inten- 
 tion of certain acts, and in connection with a want of delivery of the 
 deed, the evidence is admissible.(2)(i) 
 
 (1) Killinger v. Reidenhauer, 6 Ser. & R. 
 531. 
 (2j Powers v. Russell, 13 Pick. 69. See 
 
 Howard v. Howard, 3 Met. 548 ; 
 V. Graham, 29 Maine, 160. 
 
 Sprague 
 
 (o) In New Harapstiire, it is held, that a bill in equity lies to set aside a fraudulent mort- 
 gage, though the plaintiff is in possession, and might make a defence at law to a suit for the 
 land. Maraton t. Brackett, 9 N. H. 336. 
 
 iV) A promise by a mortgagee to creditors of the mortgagor, to surrender his title, if they 
 will take another mortgage from the mortgagor, and give him time of payment, is prima fa- 
 cie evidence that the first mortgage was not bonafide. Parker v. Earlier, 2 Met. 423. 
 
 A conveyance from A to B is sufScient consideration for a mortgage of the land from B to 
 C; and the payment by Oof debts due to A, and of other sums, at the request of one having an 
 interest in the land, is a good consideration on the part of C to sustain the mortgage to the 
 extent of such payments, in the absence of fraud. And though the consideration named in 
 the mortgage much exceeds the sum paid, this is only evidence of fraud, and mav be rebut- 
 ted : lb. 
 
 A mortgage to secure another's debt, is not per se fraudulent, for want of consideration. 
 Harden v. Baboock, 2 Met. 99. Where a mortgage was given, on the eve of bankruptcy, 
 for a very old debt, the circumstances were deemed so suspicious, that the court would not 
 interfere for a sale, upon the mortgagee's petition. Dewdney, 2 Mont. & Ayr. 72. See Wil- 
 liams V. Kelsey, 6 Geo. 365; Prior v. "White, 12 lUin. 261; Kennaird v. Adams, 11 B. 
 Mon. 102; Robinson v. Collier, 11 B. Mon. 332. 
 
470 
 
 MOKTGAaB, WHEN VOID OR TOIDARLE. [CHAP. XXXVI 
 
 18. Another species of fraud, which will avoid a mortgage, as against 
 third persons, is a misrepresentation or concealment, on the part ot the 
 mortgagee, with respect to his incumbrance upon the land, whereby 
 other parties are induced to purchase or advance money upon it, sup- 
 posing the title to be clear. This kind of fraud is chiefly cognizable in 
 equity, though even courts of law will often take notice of it. _ In many 
 cases, equity and law have concurrent jurisdiction. The principle of 
 equity is, that where one seeks by misrepresentation or even improper 
 concealment of facts, in the course of a transaction, to mislead the judg- 
 ment of another to his prejudice, the court will generally interfere. 
 Mere concealment, or looking on, has the same effect as using express 
 woi-ds of inducement. But, in general, it must appear, that the acts 
 would not have been done, and that the party must have conceived 
 they would not have been done, except upon such encouragement ; 
 though, in some cases, even the ignorance of the party misleading has 
 been held to make no difference. In a case of this kind. Chancery 
 will not only refuse its aid to enforce the mortgage, but, upon a bill by 
 the party injured, to quiet his title, will decree a perpetual injunction 
 against enforcing the mortgage, declare it void, or order a release or 
 recon vey ance.( l)(o:) 
 
 19. A, having a mortgage of a leasehold estate, the mortgagor, B, 
 borrowed the original lease of him, with the intention of obtaining 
 another loan upon the land. Held, if A was privy to B's intention of 
 taking up more money, A's mortgage should be postponed. (2) 
 
 20. The purchaser of mortgaged land, who had no notice of the 
 mortgage, brings a bill in equity against the mortgagee, charging that 
 the mortgagee fravdulenily stood by, and witnessed the making of val- 
 uable improvements by the purchaser, and did not disclose his lien, or 
 
 (1) Jeremy on Eq. Juris. 385, 7, 8 ; 1 Story 
 on Bq. 375, 377, et seq. See Briggs v. 
 Prencli, 1 Srnnn. 504 ; Bettea v. Dana, 2 lb. 
 383; Posters. Briggs, 3 Mass. 313: Barnard 
 V. Pope, 14, 437 ; Spear v. Hubbard, 4 Pick. 
 143 ; Stone v. Lincoln, Middlesex, Oct. T., 
 1835 ; Evans v. Bicknell, 6 Ves. 182 ; Storra 
 V. Barker, 6 John. Gha. 166 ; Wendell v. Van 
 Eensellaer, 1 lb. 344 ; Lee v. Munroe, 7 
 
 Crancli, 368 ; 2 Joluj. R. 573 ; Hobbs v. Nor- 
 ton, 1 Vern., 136 ; 2 lb. 725 ; Dewey v. Pi'eld, 
 4 Met. 381; Wliittaker j). Williams, 20 Conn. 
 98 ; Dyer V. Cady, lb. 563 ; Pennell v. 
 Hinman, 7 Barb. 644 ; Lamb v. Goodwin. 10 
 Ired. 320 ; Grace v. Mercer, 10 B. Mon. 157 ; 
 Brace v. Barclay, lb. 261 ; Martin v. Angell, 
 7 Barb. 407. 
 
 (2) Peter v. Euasell, 2 Verm. 726. 
 
 (a) Equity will relieve against a fraud of this nature, notwithstanding the constructive no- 
 tice arising from registration of the prior incumbrance. Napier v. Elam, 6 Terg. 108. The 
 same principle renders void an attachment of land, as against a subsequent incumbrancer, 
 who has discharged a prior security by the advice of the attaching creditor, and takes a new 
 mortgage after the attachment. Bnswell v. Davis, 10 N. H. 413. The principle of estoppel, 
 arising from notice, does not apply to a feme covert, whose landa her husband undertakes 
 to convey. Rangeley v. Spring, 8 Shepl. 130. See Piokard v. Sears, 6 Ad. & Ell. 469 ; 
 Gregg V. Wells, 10 lb. 90. Nor does it preclude one from asserting a title to land, who has 
 merely aided in effecting a valuation and division of it. Wade v. Green, 3 Humph. 547. 
 See further Jones v. Smith, 1 Hare, 43 ; Meux v. Bell, lb. 73 ; Feloh v. Hooper, 2 Appl. 
 169. If a mortgagee consents to the sale of the premises under an administration suit, he 
 may atill claim priority, in the dislribution of the proceeds. Hepworth v. Healop, 3 Hare, 
 485. See Buchannon v. Upshaw, 1 How. 56. A and B, tenants in common, conveyed to 
 C, with warranty, A at the time holding a mortgage on B'a share. Held, he was estopped 
 to oliiim under the mortgage. Durham v. Alden, 2 Apple. 228. But where a mortgagee 
 knew of a purchase of the land, stood by and saw improvements, but the mortgage was on 
 record, and it did not appear that he knew the purchaser was ignorant of it ; held, he was 
 not estopped. Marston v. Brackett, 9 (N. H.) 336. 
 
CHAP, xxxvn.] 
 
 MORTGAGE— REMEDIES OP, ETC. 
 
 471 
 
 intimate that he had any interest in the property. Held, the charge of 
 fraud required an answer, and a demurrer to the bill was overruled.(i) 
 
 21. A held a mortgage upon certain land. B, proposing to take 
 another mortgage, consulted with A, who informed him that his (A's) 
 mortgage was satisfied, and that B might safely take a mortgage. Held, 
 neither A nor his assignee, with notice, could set up a prior mortgage 
 against B.(2) 
 
 22. A mortgagee promised by a writing not under seal to extend 
 the time of payment ; and a third person in conseq-uence bought the 
 estate from the mortgagor. Held, the mortgagee was bound by his 
 promise.(3) 
 
 23. An attorney at law, holding a mortgage upon land, drew a con- 
 veyance of part of it to A, who had no notice of the mortgage, the 
 attorney knowing that A paid a full price for the land. Held, neither 
 the mortgagee nor his assignee could set up the mortgage against 
 A.(4) 
 
 CHAPTER XXXVII. 
 
 MORTGAGE— REMEDIES OP MORTGAGEE AND MORTGAGOR AT LAW. 
 
 1. Distinction between a mortgage and trust 
 
 as to remedy. 
 
 2. Action at law by mortgagor, after pay- 
 
 ment. 
 
 4. Action at law by mortgagee, after pay- 
 
 ment. 
 
 5. Concurrent remedies. 
 
 6. Form of judgment for mortgagee. 
 
 8. Possession under a judgment, no pay- 
 ment. 
 
 9. Title of mortgagee under a third person, 
 no payment. 
 11. No action at law by mortgagee in New 
 Yorlt and Soutli Carolina. 
 
 13. Tender in court by mortgagor. 
 
 14. Suit Viy execution purchaser. 
 
 15. Assumpsit by mortpragor. 
 
 16. Remedy by scire facias, &c. 
 21. Commitment of mortgagor. 
 
 1. It has already been remarked (ch. 31, sec. 1) that a mortgagee 
 is often called a trustee for the mortgagor ; that in some respects he is 
 such, while, in others, the relation which he sustains is very different 
 from that of a trust. One striking point of difference may be properly 
 noticed here. A mortgagee may enforce his right by adverse suit, in 
 inviturn, against the mortgagor — which can never take place between 
 trustee and cestui que trust. They have always an identity and unity 
 of interest, and are never opposed in contest to each other. In general, 
 a trustee is not allowed to deprive his cestui que trust of the possession ; 
 but a court of equity never interferes to prevent the mortgagee from 
 assuming possession," because the mortgagor and mortgagee do not, in 
 this instance, stand in the relation of trustee and cestui. The mortgagee, 
 when he takes the possession, is not acting as a trustee for the mort- 
 gagor, but independently and adversely, for his owii use and benefit. 
 A trustee is stopped in equity from dispossessing his cestui, because 
 
 (1) Cater v. Longworth, 4 Ohio, 385. 
 
 (2) Lasselle v. Barnett, 1 Black. 153. 
 
 (3) Hoffman v. Lee, 3 Watts, 352. 
 
 (4) L'Amoureux v. Van Denburgh, '7 Paige, 
 316. 
 
472 
 
 MORTGAaE— REMEDIES OF 
 
 [CHAP. XXXYir. 
 
 such dispossession would be a breach of trust. A mortgagee cannot be 
 stopped, because in him it is no breach of trust, but in strict conformity 
 to his contract, which would be directly violated by any impediment 
 thrown in the way of the exercise of his right. So the mortgagee is 
 not prevented but assisted in equity, when he proceeds, not only to 
 obtain possession, but absolute title by foreclosure.(l) 
 
 2. Some remarks have already been made (ch. 33, sec. 6, etseq.) upon 
 the point, whether payment of the mortgage debt, after condition 
 broken, ipso facto; revests the estate in the mortgagor.(a) With this 
 question is of course connected the further inquiry, what is the proper 
 remedy for a mortgagor, after such payment, to regain possession of 
 the land. If, by payment, the legal estate is revested in him, he is of 
 course entitled to maintain an action at law upon his legal title ; but if 
 otherwise, his only remedy is a bill in equity. 
 
 3. In Massachusetts, it was early held, that the only remedy of the 
 mortgagor in the case supposed, is a bill in equity. And this doctrine 
 has been adhered to in subsequent cases. It is placed upon the grounds, 
 that the statute law provides for the discharge of a mortgage, after pay- 
 ment, upon the record, thereby implying that the legal estate remains 
 in the mortgagee ; and chiefly, that the bill in equity is an adequate 
 and convenient i-emedy, and well adapted to the doing of impartial 
 justice to all parties ; on the one hand moderating the rigor of the 
 common law for the benefit of the mortgagor, and on the other com- 
 pelling him to do justice to the mortgagee. It is as beneficial to the 
 mortgagor as a suit at law, and may sometimes be more so; for, if the 
 evidence of payment be doubtful, the mortgagee may be compelled to 
 answer under oath to the fact. It is certainly more beneficial to the 
 mortgagee. If the mortgagor brought ejectment, the mortgagee could 
 obtain no allowance for repairs ; such allowance depending either upon 
 the statute, or the rules of equity. It is unknown to the common law, 
 which considers the mortgagee as absolute ovvner.(2) 
 
 4. In the case from which these remarks are taken, the court pro- 
 ceeded to notice the objection, that, upon this principle, the mortgagee, 
 after payment, might recover the land from the mortgagor, thereby 
 working manifest injustice; and the fact, that he might so recover it, 
 seemed to be admitted. But in a later case, it is said, that this admission 
 was inadvertently made; and distinctly decided, that if the mortgagor, 
 after condition broken, have paid the debt, the mortgagee cannot re- 
 cover possession of the land, because the conditional judgment, provided 
 by statute, which authorizes a writ of possession, sinless the defendant, 
 within a certain time, pay the debt, &c., cannot, in such case, consistently 
 be rendered. (3) 
 
 5. In New Jersey, it is said, a bond and a mortgage given to secure it, 
 are to be considered, for some purposes, as separate obligations for the 
 same debt. The creditor in enforcing payment may consider them as 
 
 (1) 2 Story on Eq. 2'?8, n. 3; Cholmon- 
 deley v. Clinton, 2 Jac • Walk. 182 to 189, 
 
 (2) Hill V. Payson, 3 Mass. 560 ; Parsons 
 
 V. "Welles, It Mass. 419; Sherman v. Abbot, 
 18 Pick, 451. 
 (3) Wade v. Howard, 11 Pick. 297. 
 
 (a) See Breekenridge v. Ormsby, 1 Mar. 53 ; Paxon v. Paul, 3 H. & MoHen. 399, that 
 it does, in Kentucky and Maryland ; and Phelpa v Sage, 2 Day, 161, contra, in Conneotieut 
 
CHAP. XXXVII.] MORTGAGEE AND MORTGAGOR AT LAW. 478 
 
 distinct. He may proceed singly upon the obligation ; or he may pro- 
 ceed singly upon the mortgage, either by ejectment to recover posses- 
 sion, or by bill in Chancery to foreclose ; or he may proceed upon both 
 securities at the same time.(a) If the mortgagee proceeds by ejectment, 
 he will recover possession of the land, and retain it only till the debt 
 is paid. He gains no title, but is a trustee for the mortgagor, being ac- 
 countable for the rents and profits. If he proceed simply to sue on his 
 bond, the execution may be levied indiscriminately on all the defend- 
 ant's property, whether included in the mortgage or not. If the mort- 
 gaged premises are sold, the estate conveyed by the sheriff to the pur- 
 chaser, is in no manner affected by the circumstance that a mortgage 
 had been previously given. The mortgagee may be considered as a 
 party to the proceedings, and it would be questionable, at least, whether, 
 having treated the property as the estate of the mortgagor, he should 
 not be estopped from ever after setting up a claim under the mortgage. 
 This is the general understanding of the country ; the purchaser bids 
 as if there were no mortgage; all parties are considered as joining in 
 the sale ; and, in case of any deficiency, the estate is considered as dis- 
 charged of the claim.(l) 
 
 6. A statute in Massachusetts provides, that, in suits upon mortgages 
 after condition broken, the court shall render judgment for the plaintiff, 
 to recover so much as is due according to equity and good conscience. 
 
 7. A and B, tenants in common, mortgaged to C, to secure a joint 
 and several bond. Afterward-s, A mortgaged an undivided half of the 
 farm to D. D assigned the latter mortgage to 0, who took possession 
 of the land thereupon for condition broken. C then brings a writ of 
 entry against B, for an undivided half of the land, upon the first mort- 
 gage. Held, if the suit had been brought for the whole land against 
 both A and B, B might have redeemed, by paying the whole debt, and 
 
 (1) Harrison v. Eldridge, 2 Halst. 408-9. 
 
 (a) This is undoubtedly the general rule. So an entry for condition broken, though the 
 land be worth more than the note, will be no bar to a suit upon the note. Portland, &c. y. 
 Fox, 1 Appl. 99. In Vermont, a suit to foreclose the mortgage is regarded as a suit for the 
 money due thereupon, and a tender is valid as in other cases. Powers v. Powers, 11 
 Verm. 262. In Maryland, the mortgagee cannot sue on the bond and obtain a foreclosure 
 at the same time. Andrews v. Scotton, 2 Bland, 665. In Kentucky, the mortgagee may 
 elect between three remedies ; taking possession and receiving the profits ; a suit at law ; 
 and a bill for foreclosure and sale. Caufman v. Sayre, 2 B. Monr. 205. In Indiana, one 
 holding a bond, secured by mortgage, after proceeding upon the latter, cannot resort to any 
 other action. But he may, in the first instance, commence a suit on the bond, sell the land 
 mortgaged upon execution, and thus abandon his right under the mortgage. Touse y. 
 M'Creary, 2 Blackf 245. The purchnser, in such case, will take a clear title. lb. Or, in 
 a suit upon the bond, the mortgagee may resort to any other property of the mortgagor, 
 and still retain his mortgage lien. Markle v. Rapp, 2 Blackf 268 & n. Upon a mortgage 
 given as security for a note, a decree of foreclosure and sale was rendered, and a writ of 
 error brought by the defendant to reverse such decree. Pending this writ, a suit was 
 brought on the note. Held, these facts were no defence. Brown v. Wernwag, 4, 1 ; (aca 
 Russell v. Hamilton, 2 Scam. 57.) So, in Illinois and Alabama, the mortgagee may bring 
 an action of ejectment, a suit to foreclose, and a suit on the bond, all at the same time. 
 Delahay v. Clement, 3 Seam. 203 ; Doe v. M'Loskey, 1 Alab. (K S.) 108. In New Hamp- 
 shire, the mortgagee, pending an action at law upon the mortgage, may brmg a bill in 
 equity against the same defendant, as claiming under a fraudulent title. Tappan v. Evans, 
 UN. H. 311; aoo. Burnell v. Martin, Doug. 417; Hale v. Rider, 5 Gush. 231; Hughes 
 V. Edwards, 9 Wheat. 489 ; Wihis v. Levott, 1 De Gex & Sm. 392 ; Copperthwait v. Dum- 
 mer, 3 Harr. 268 ; Att'y, <fco. v. Winstanley, 5 Bligh, 144 ; Brainn v. Stewart, 1 Sandf. 
 Cba. 87. 
 
474 
 
 MORTGAGE— REMEDIES' OF 
 
 [CHAP. XXXVII. 
 
 would then have stood, in equity, as assignee of the mortgage, not only 
 as against A to compel contribution, but as against any subsequent 
 mortgagee — otherwise, by means of a second mortgage from _A, B 
 might be deprived of all security ; and that, instead of compelling'B 
 to adopt this course, and afterwards bring an action or bill against G, 
 claiming under the second mortgage, to enforce his rights under the 
 first, more especially as had entered to foreclose for a debt volun- 
 tarily created after the first mortgage ; the court would exercise its 
 equitable powers in this suit, and render judgment only for the amount 
 equitably due in relation to the land, which was one moiety of the debt, 
 a moiety of the land having been taken by C to secure another debt 
 from A alone. Judgment for possession, unless the defendant within 
 two months pay half the money due on the bond. It was remarked 
 that such judgment would be no bar to a suit against B, upon the bond, 
 for the balance due, because the facts upon which the judgment was 
 founded were specially set forth. If A had been a mere surety for B, 
 the whole amount being equitably due from B, a different rule would be 
 adopted. (1) 
 
 8. Entry and possession, under a judgment upon mortgage, cannot 
 be construed a payment of the mortgage debt. The whole is but a pro- 
 cess to compel payment, and is only equivalent to an entry to foreclose, 
 without a judgment. To consider it payment, would be to compel the 
 mortgagee to become a purchaser, when he might choose to hold the 
 land as security. But, after foreclosure, the estate may be valued, and 
 he may be deemed to have received payment ^ro tanto.{2) 
 
 9. Where a second mortgagee takes a conveyance of the land, from 
 another person, holding a first and third mortgage, after the latter has 
 entered and foreclosed the first and third mortgages ; to a suit by the 
 second mortgagee upon his note, it is no defence, that the land and the 
 rents and profits thereof, are of greater value than the aggregate of the 
 amounts secured by all the mortgages ; because the plaintiff has ac- 
 quired an absolute title to the land, wholly independent of his own 
 mortgage. (3)(a) 
 
 10. In Massachusetts, Maine, New Hampshire(6) and Ehode Isl- 
 and, (4) in all real actions upon mortgage, after condition broken, the 
 judgment shall or may be a conditional one, that if the mortgagor, &c. 
 
 (1) Sargeut v. McParland, 8 Pick. 500. 
 
 (2) West V. Chamberlin, 8 Pick. 336; 
 ge V. Holmes, 10 Pick. 381; Ewer ii. 
 
 Hobbs, 5 Met. 1. (See ch. 38, sec. 31.) 
 
 (3) Hedge i). Holmes, 10 Pick. 380. 
 
 (4) Mass Rev. St. 634 ; 1 Smith's St. 163- 
 
 4 ; N. H. L. 63 ; R. I. L. 210 ; Me. Rev. St. 
 555 ; York, &o. v. Cutts, 6 Shepl. 204. la 
 Maine, unless tlie mortgage is set forth in the 
 writ, the judgment will be absolute, if the 
 defendant does not claim a right to redeem. 
 Rackleffv. Norton, 1 Appl 274. 
 
 (a) Where husband and wife mortgage her land, and remain in possession till breach of 
 condition, a suit to foreclose is properly brought against them both. Swan v. Wiswall, 15 
 Pick. 126. 
 
 Where A and B, holding distinct claims against 0, take one mortgage to secure them, the 
 mortgage is not joint, but several; each may enforce his claim by the appropriate remedy; 
 and therefore, upon the death of A, B cannot maintain an action upon the mortgage, to 
 enforce payment of A's debt. Burnett v. Pratt, 22 Pick. 556. 
 
 (6) Where a mortgage is given to secure several notes, and an action brought for non- 
 payment of one, and possession taken ; the mortgagor cannot redeem, without paying such 
 other notes as fall due while lie remains in possession, within one year from the time they 
 are payable. The same rule holds, in case of taking possession without suit. Deming T. 
 Comings, 11 N. H. 474. 
 
CHAP. XXXVII.] MORTGAGEE AND MORTGAGOR AT LAW. 
 
 475 
 
 pay to the mortgagee, &c., the sum adjudged due, within two months, 
 no writ of possession shall issue— otherwise such writ shall issue. In 
 Massachusetts, such judgment must be moved for by one of the par- 
 ties ;(«) and, in that State and in Maine, cannot be claimed by a defend- 
 ant who is not the mortgagor, and does not claim under him. In Ver- 
 mont,(l) judgment, in such case, is rendered in common form, but the 
 court, on application of the defendant, stay execution ; and order that, 
 if he pay the amount due in a time not exceeding one year, the judg- 
 ment shall be vacated. Payment is to be made to the clerk, who shall 
 give a certificate thereof, to be recorded, and also take a receipt from 
 the plaintiff. No redemption is allowed after a writ of possession. 
 
 11. In New York, the action of ejectment cannot be brought upon 
 a mortgage. Nor can a mortgagee at the same time maintain suits 
 upon his bond and mortgage, on the ground that the mortgaged pre- 
 mises have been partially consumed by fire.(2) 
 
 12. In South Carolina,(3) mortgagees are expressly prohibited from 
 bringing any possessory action for the land ; the mortgagor being 
 deemed owner of the land, even after condition broken, and the mort- 
 gagee owner ot the debt. Upon the recovery of judgment on the per- 
 sonal security, the judges of the court may order a sale of the land, 
 giving, if they see fit, a reasonable extension of time, not exceeding 
 six months ; and allowing a credit of not more than twelve months. 
 This proceeding is to operate as a perfect foreclosure. But, at any 
 time before sale, the mortgagor may prevent it, and entitle himself to 
 an entry of satisfaction on the mortgage, by paying the debt and costs. 
 
 13. In New Jersey, where a mortgagee brings a suit either upon the 
 mortgage or the bond secured thereby, if no suit in equity is pending 
 at the time, and if the defendant bring into court the amount of debt 
 and costs, the court will discharge him from the mortgage, and order a 
 reconveyance of the premises, and a delivery to the mortgagor of all 
 evidences of title.(4) 
 
 14. Where lands have been sold on execution, and the purchaser 
 brings ejectment against the judgment debtor, the defendant cannot 
 set up in defence an outstanding mortgage given by himself, before 
 the judgment lien attached to the land. (5) 
 
 15. In New Hampshire, it has been held, that a mortgagor cannot 
 have assumpsit against the mortgagee for the profits of the land, re- 
 ceived by the latter between the time of entry to foreclose, and the 
 time when the land was redeemed.(6) 
 
 16. In Pennsylvania, after twelve months from the day of payment 
 of the debt, or performance of the condition, named in the mortgage, 
 a scire facias may be issued against the mortgagor, and, upon execu- 
 tion issued thereon, the land may be sold as upon other executions, 
 or, for want of purchasers, delivered to the mortgagee, not subject to 
 redemption.(7) If the mortgagee have released a part of the land, he 
 
 (1) 1 Terra. L. 84; Rev. St. 215. 
 
 (2) 2 N. T. Rev. St. 312 : Engle v. TJn- 
 derhill, 3 Edw. 249. See Van Sljkev. Shel- 
 don, 9 Barb. 278. 
 
 (3) 1 Brev. Dig. 114-5. 
 
 (4) 1 N. J. L. 162; Den v. Spinning, 1 
 Halst. 471. 
 
 (5) Lessee, &c. v. Butler, 2 Ohio, 225. 
 
 (6) Robinson v. Robinson, 1 N. H. 161. 
 
 (7) Purd. Dig. 194; St. 1842, 66. 
 
 (o) In Rhode Island, by tho defendant. 
 
476 
 
 MORTGAGE— REMEDIES OF, ETC. [CHAP. XXXYII. 
 
 may proceed against the remainder, but the mortgagor may plead, that 
 the sum claimed is greater than ought proportionably to be charged 
 upon the ]and.(l) No sale or delivery of the mortgaged premises shall 
 give any further term or estate in the land, than the land is mortgaged 
 for.(2) A sale upon a mortgage shall not affect the prior lien of any 
 other mortgagee. (The latter provision is made by an act passed April 
 6, 1830.) It had been previously held, that a sale on execution dis- 
 charged all liens, prior and subsequent.(3)(a) 
 
 17. In Delaware, a mortgagee may have a writ of scire facias, after 
 twelve months from breach of condition. The land is sold, as upon 
 other executions. But the sale passes only the interest owned by the 
 mortgagee. (4) 
 
 18. In Illinois, the same remedy by scire facias may be had upon a 
 mortgage. If the debt is payable by instalments, the last must be due. 
 The land is sold, and subject to the same right of redemption, as upon 
 execution. (_5) 
 
 19. In Indiana, the mortgagee files a bill according to the course of the 
 common law, upon which the court may render an equitable decree, and 
 may order a sale of the land at auction. The statute provides, that 
 the purchaser shall take the land free from incumbrances, and not subject 
 to redemption, and that, in all sales on execution, the surplus proceeds 
 shall be paid over to the debtor; but it further provides, (p. 245,) that 
 no sale of property on the execution, by virtue of sec. 25, shall create 
 any further term or estate in vendees, mortgagees or creditors, to whom 
 it is sold or delivered, than the estate was mortgaged for.(6) 
 
 20. In Ohio, for the purpose of foreclosure, the land is appraised as 
 for sale upon execution, and, if two-thirds of the valuation exceed the 
 debt and interest, sold at auction, and the surplus proceeds paid over 
 to the mortgagor ; if not, the absolute title is transferred to the mort- 
 gagee, with no right of redemption. In the latter case, he may still 
 recover the balance of his debt. (7) 
 
 21. In Missouri, where the debt exceeds fifty dollars, the mortgagee 
 may file a petition against the mortgagor and the tenant, to wliich any 
 person interested may be a party. Judgment is rendered for the debt, 
 &c., and an order passed for the sale of the property. If this is insuf- 
 ficient, execution may issue again.st other property. If payment is made 
 to the officer, he gives a certificate, which is recorded. (8) 
 
 (1) Purcl. Dig. 204. 
 
 (2) lb. 292. 
 
 (3) lb. 297. 
 
 (4) Del. St. 1829, 205-6-7. 
 
 (5) Illin. Rev. L. 376 ; St. 1841, 171. See 
 Aldrich V. Sharp, 3 Soam. 263; Belingall «. 
 Gear, 3 Scam. 575 ; Marshall v. Maury, 1, 
 231 ; State, &c. v. Wilson, 4 Gilra. 57 ; Dela- 
 hay V. Clement, 3 Scam. 203 ; M'Ouraber v. 
 Gilman, 13 lUiu. 542; Coates!;. Woodworth, 
 
 lb. 654. 
 
 (6) Ind. Rev. L. 244. See Shaw v. Hoadley, 
 8 Blaokf. 165 ; Grimes v. Doe, lb. 371 ; Mor- 
 gan V, Woodward, 1 Smith, 321 ; Hough v. 
 Doyle, 8 Blackf. 300. 
 
 (7) Walk. 303; 1 Ohio R. 235, 3, 187; 
 Heighway v. Pendleton, 15, 735 ; Prische v. 
 Kranier, 16, 141. 
 
 (8) Misso. St. 409-10. See Ayres v. Shan- 
 non, 5 Mis. 282. 
 
 (a) The purchaser holds the land discharged from the lien of the mortgage, under which 
 the sale occurs. Pierce v. Potter, 7 Watts, 475 ; Berger v. Hiester, 6 Whart. 210. In case 
 of ejectment on mortgage, the plaintiff acquires a mere possession oi" the land, and his right 
 cea.ses upon payment of the debt. Colwell v. Hamilton, 10 Watts, 417. See Penns. Sts. 
 1845, 489; 1849, 621, 681. 
 
CHAP. XXXVIII.] MOETaAGE— REMEDIES, ETC. 
 
 477 
 
 22. It has been held ia England, that, after a mortgagee has proceeded 
 to commitment of the mortgagor in a suit upon the debt, he may still 
 have a remedy upon the mortgage.(l)(a) 
 
 CHAPTER XXXVIII. 
 
 MORTGAGE— REMEDIES— IN EQUITY— FORECLOSURE AND REDEMPTION, 
 
 1-14. Lapse of time. 
 
 2. General principles of foreclosure. 
 
 5—24. Massachusetts. 
 
 9-30. Maine. 
 
 11. New Hampshire. 
 
 13. Rhode Island. 
 
 16. Vermont and Connecticut. 
 
 17. New York. 
 
 19. New Jersey. 
 
 20. Georgia. 
 
 21. North Carolina. 
 
 22. Ohio and Tennessee. 
 
 31. Foreclosure: whether payment of dobt, 
 
 &.C. 
 
 40. Right of redemption may be revived. 
 
 44. Mortgage cancelled by mistake. 
 
 46. Equity will not relieve, where there is a 
 
 legal right. 
 
 41 Fraud. 
 
 48. Payment into court. 
 
 49. Mortgagor cannot redeem on payment 
 
 by a third person. 
 
 1. It has been already stated, (ch. 31, s. 38,) that a mortgagor may 
 be barred of his right of redemption by lapse of time, and undisturbed 
 possession of the land by the mortgagee. In addition to this general 
 limitation, the law has provided more specific modes of barring or fore- 
 closing an equity of redemption. 
 
 ^" 2. Chancellor Kent says, a mortgagor's right of redemption may be 
 barred or foreclosed by the mortgagee, after giving due notice to re- 
 deem. The ancient practice was, by bill in Chancery to procure a de- 
 cree for strict foreclosure, which had the effect of giving an absolute 
 
 (1) Davis V. Battine, 2 Russ. & M. 76; ace. Tappan v. Evans, 11 N. H. 311. 
 
 (a) It is said, that, as a mortgage creates a contract concerning a debt, as well as a con- 
 veyance of an estate, the means of coercing the debtor by a suit upon it ought not to be 
 trammelled by the nice teohnical rules which govern real actions in general. Penniman v. 
 Holhs, 13 Mass. 430; "Wearse v. Pierce, 21 Pick. 143; Peek v. Hapgood, 10 Met. 173; 
 Keith V. Swan, 11 Mass. 216; Miner v. Stevens, 1 Gush. 482; Blanohard v. Kimball, 13 
 Met. 300; Goodtitle v. Bailey, Cowp. 597; Smith v. Edminster, 13 N. H. 410; Amidovvn 
 V. Peck, 11 Met. 467. 
 
 Upon this principle, it is no defence to a suit for foreclosure, as it is to other real actions, 
 that the defendant is not tenant of the freehold, or that he is a mere reversioner. lb. 
 
 But where, in a writ of entryo n a mortgage, it appeared that the mortgagors were blind, 
 and the defendant, their father, lived on the land with them, cultivated and improved it, as 
 the sole manager and efflcient agent; held, he was not a tenant, nor liable to the action. 
 Churchill v. Loring, 19 Pick. 465. See, also, "Wheelwright v. Freeman, 12 Met. 154; Rayn- 
 ham V. Snow, lb. 157 n. ; Root v. Bancroft, 10 Met. 44; Bradley v. Fuller, 23 Pick.'l *■ 
 Lowell V. Daniels, 2 Cush. 234. 
 
 In Maine, a mortgagee may maintain a writ of entry against the owner of the equity, 
 though, both at the time of the mortgage and the suit, a stranger was in possession, by title 
 paramount to both plaintiff and defendant. Whittier v. Dow, 2 Shepl. 298. 
 
 If an action for foreclosure of a mortgage is brought against a tenant in possession, mora 
 especially where he is the mortgagor himself, such tenant cannot prevent a judgment for 
 the plaintiff by transferring the whole or a part of the land, but his grantee will be bound by 
 the judgment, and possession taken under it. Hunt v. Hunt, 17 Pick. 118. See Sigourney 
 V. Stock well, 4 Met. 518. 
 
478 MORTGAGE— REMEDIES [CHAP. XXXVIIL 
 
 title to the mortgagee. This still continues to be the usual English 
 practice ; though, in some cases, the mortgagee obtains a decree for a 
 sale of the land, under the direction of an officer of the court, in which 
 case the proceeds are applied to the discharge of incumbrances accord- 
 ing to priority. (a) The latter practice is adopted in JSTew York, Mary- 
 
 (a) To a bill for foreclosure, all incumbrancers should be made parties, in order to prevent 
 a multiplicity of suits, effect proper distribution of the proceeds, and give security and sta- 
 bility to the purchaser's title. So, all persons interested in the mortgage or the property 
 should be made parties; including the heir, or devisee, or assignee, and personal represen- 
 tatives of the mortgagor ; tenants for life and remainder-men ; for they may all bo interested 
 in the right of redemption, or in taking the accounts. 4 Kent, 184; Slaughter v. Foust, 4 
 Blackf. 381; Wilkins v. Wilkins, 4 Port, 215; Hall v. Cushman, 14 N. H. 171; Champlin 
 v. Foster, 7 B Mon. 104; Smack v. Duncan, 4 Sandf. Ch. 621; Weed v. Beebe, 21 Verm. 
 495 ; Telverton v. Shelden. 2 Sandf Cha. 481 ; Williamson v. Field, lb. 533 ; Goodrich v. 
 Staples, 2 Cush. 258 ; Calverley v. Phelp, 6 Madd. 232 ; Miller v. M'Galligan, 1 Greene, 527; 
 Brindernagle v. German, &e., 1 Barb. Ch. 15; Osbourn v. Fallows, 1 Russ. & My. 741; 
 Hunter V. Macklew, 5 Hare, 238 ; Smeathman v. Bray, 8 Eng. L. & Equ. 46 ; Burgess v. 
 Sturgis, lb, 271 ; Eafferty v King, 1 Keen, 618. 
 
 So, in general, the mortgagor must make all persons interested in the mortgage parties to 
 his bill for redemption. In case of truft, it has beer, a matter of somewhat conflicting de- 
 cision, whether the legal owner alone is to be made a party, or whether those equitably in- 
 terested are to be joined. The latter course is recommended as necessary or desirable, 
 unless thecestui que trusts are too numerous to be made parties, or the trust is a general one, 
 for creditors. Williamson v. Field, 2 Sandf Cha. 533 ; King v. M'Vickar, 3, 192 ; Tylee v. 
 Webb, 6 Beav. 557 ; Wood v. Williams, 4 Madd. 186 ; Coote, 575, 534, 588, 589. 
 
 So, it is held in England, that subsequent judgment creditors of the mortgagor must be 
 made parties to a bill for foreclosure. Adams v. Paynter, I Coll. 530. But a different doc- 
 trine has been adopted in this country, Felder v. Murphy, 2 Rich. Equ. 58 ; Mims v. Mims, 
 1 Humph. 425. 
 
 So, it is said, if two estates are embraced in one mortgage, and the equities of redemption 
 devolve on different parties, the equitable owner of one cannot redeem without making the 
 other owner a party. Coote, 602. So, several mortgagees, joint tenants, must be partite 
 to a Ibreclosure. Lowe v. Morgan, 1 Bro. 368. So, if the estates of two persons are mort- 
 gaged together, both must be included in a bill to foreclose. Coote, 577. So, where a bill 
 to foreclose was brought by one of two mortgagees, each having but a certain sum ; held, 
 there could be no foreclosure or redemption, unless both mortgagees were before the court. 
 Palmer v. Carlisle, 1 Sim, & St. 423, So, where a joint mortgage is made to two, to secure 
 several debts: they may file a joint bill for foreclosure. Shirkey v. Hauna, 3 Blackf. 403. 
 But each creditor 7nay foreclose alone ; nor can he join the other as defendant. Thayer v. 
 Campbell, 9 Mis. 280. Nor can parties to the mortgage note, who did not join in the mort- 
 gage, be joined as defendants. Wilkerson v. Daniels, 1 Iowa, 179. 
 
 As to the proper parties where a mortgage has been assigned, see Coote, 354, 577 ; Christie 
 r. Herrick, 1 Barb. Ch. 254; Hobart v. Abbot, 2 P. Wms. 643; M'Guffey v. Finley, 20 Ohio, 
 474; Borst V. Boyd, 3 Sandf Cli. 501 ; Whitbeck v. Edgar, 4 Sandf Ch. 427 ; Piatt v. Squire, 
 12 Met 494 ; Browning ,v. Clymer, 1 Smith, 298 ; Cushing v. Ayer, 25 Maine, 383 ; Lane v. 
 Erskine, 13 Uliu, 501 ; Gray v. Schenck, 4 Comst. 460 ; Sliackleford v. Stockton, 6 B. Mon. 
 390 ; Glidden v. Andrews, 10 Ala. 166 ; Frische v. Kramer, 16 Ohio, 125 ; Comley v. Hen- 
 dricks, 8 Blackf 189 ; Watson v. Spence, 20 Wend. 260 ; Mann v. Cooper, 1 Barb. Ch. 185 ; 
 Jones v. Steinbergh, lb. 250. 
 
 As to the proper parties in case of the death of mortgagee or mortgagor, see Van Horn 
 V. Duckworth, 7 Ired, Equ, 261 ; Greenwood v. Kothwell, 7 Beav. 280; Lane v. Erskine, 13 
 Illin. 501; Shaw v. MeN"ish, 1 Barb. Ch. 326; Mclver v. Clierry, 8 Humph. 713; Guthrie 
 V. Sorrell, 6 Ired. Equ. 13 ; Martin v. Harrison, 2 Texas, 406 ; Smith v. Webb, 1 B;irb. 230 ; 
 Batehelor v. Middleton, 6 Hare, 75. 
 
 Whether the widow or wife of a party to a mortgage is to be made party to a suit by 
 mortgagor or mortgagee, see Minis v, Mims, 1 Humph. 4 25; Lewis v. Smith, 11 Barb. 152; 
 *Bard v. Fort. 3 Barb. Oh. 632; Carwardine v. Wishlade, 6 Eng. L. & Equ. 103; Denniston, 
 V, Potts, 11 S. & M. 30; Wood v. Mann, 3 Sumn. 318. 
 
 As to the proper party iu case of guardianship, see Pardee v. Van Arken, 3 Barb. 534 
 In case of insolvency. Collins v. Shirley, 1 R. & My. 638 ; Singleton v. Cox, 4 Hare, 326 ; 
 Kerrick v. Saffery, 7 Sim. 317 ; Steele v. Maunder, 1 Coll. 535, 
 
 In a bill for foreclosure, one claiming adversely to the mortgagor, and by title prior to the 
 mortgage, cannot be made a party defendant, tor the purpose of trying his title, Holuomb 
 v. Holcumb, 2 Barb. 20; Jones v. St. John, 4 Sandf Ch. 208 ; Lewis v. Smith, 11 Bar j, 152. 
 
 Where a second mortgagee brings a bill in equity for sale or foreclosure of the premises, 
 ■whether the first must be a party; see Mims v. Mims, 1 Humph. 425; Judson v. Emanuel, 
 
CHAP. XXXTIIL] 
 
 IN EQUITY, ETC. 
 
 479 
 
 land,(ff) Virginia, the Carolinas, Tennessee, Kentucky, Indiana, Michi- 
 gan,(i) and Alabama.(l) 
 
 3. Ii is said, " if a freehold estate be held by way of mortgage for a 
 debt, it may be laid down as an invariable rule, that (in order to a sale) 
 the creditor must first obtain a decree for a sale under a bill of fore- 
 closure. There never was an instance, where a creditor, holding, and 
 in pledge, was allowed to sell at his own will and pleastire. It would 
 open a door to the most shameful imposition and abuse."(2)(c) 
 
 4. Where the practice prevails, of foreclosure without sale, its seve- 
 rity is mitigated, by enlarging the time of redemption from six months 
 
 (1) 4 Kent 180-1; Mich. St. 1839, 222-3; 
 Green v. Crockett, 2 Dev. & B. Equ. 393 ; 
 Massina v. Bartlelt, 8 Porr. 271. 
 
 (2) Per Kent. Chr. 
 John. Cha> 100. 
 
 Hart V. Ten Eyck, 2 
 
 1 Alab. (N. S) 598; Vanderkemp v. Shelton, U Paigo, 28; Holcomb v. Holoorab, 2 Barb. 
 23; Shineley v. Jones, 6 B, Mon. 274; Richards v. Cooper, 5 Beav. 304; Archdeacon t. 
 Bowes, il'Clel. 153. It hag been held, that he need not be, where the second mortgagee 
 sues the mortgagor and subsequent mortgagees. Richards v. Cooper, 5 Beav. 304. Where 
 a mortgagor upon his marriage settled the land upon his wife and issue, and became bank- 
 rupt ; held, his assignee need not be a party to a suit for foreclosure. Steele v. Mawder, 1 
 CoU. Cha. 535. 
 
 How far, in a bill for foreclosure, a decree shall be delayed, for the purpose of adjusting 
 the respective rights and interests of different parties, defendants; see Renwich v. Macomb, 
 1 Hopk 277 ; K. T. &c. v. Cutler, 3 Saudf. Ch. 176; Duberly v. Day, 7 Eng. L. & Equ. 
 188 ; Robinson v. Turner, lb. 138. 
 
 So, tlie grantee of an easement by a conveyance prior to the mortgage. Combs v. Stewart, 
 10 B. Mon. 46,3. 
 
 (o) III this State, in case of a creditor's bill for sale of mortgaged land, if the defendant 
 in his answer assents to a sale, the court may decree an immediate sale for payment of the 
 mortgage. Gibson v. M'Cormick, 10 Gill & J. 65. Time will be granted, only when the 
 mortgagee applies for a sale. lb. If the mortgage is payable by instalments, it may be 
 foreclosed when the first falls due. Salmon v. Clagett, 3 Bland. 179. The sale of an infant's 
 mortgaged estate must always be for his benefit. Williams, lb. 194. In case of a decree 
 for sale, the mortgagor must be allowed time to pay the debt. Jones v. Betsworth, 3 Bland. 
 194. But see 196 n. See, also, Worthington v. Lee, 2, 603 ; Lausdale v. Gierke, 2, 358 ; 
 Atkinson v. Hall, lb. 372 ; Wadrop v. Hall, lb. 666 ; Hunter v. Grant, lb. 667 ; Buchanan 
 V. Shannon, lb.; Worthington v. Lee, lb. 681. The mortgagee must be made a party, 
 unless his whole interest is divested. lb. 682. See Md. L. 18?, 213, 1261. 
 
 (6) In this State, where a mortgage is payable by instalments, and the land consists of a 
 single eighty acre lot or a farm, and a sale becomes necessary for any but the last instalment, 
 portions may be sold as nearly square, and as near to the north-east corner, as possible. 
 Mich. St. 1839, 227. A mortgao;e payable by instalments is to be treated like distinct 
 mortgages. lb. 228. In case of foreclosure, the sheriff immediately makes a deed to the 
 purchaser, which is left with the register of deeds, and after one year delivered to the 
 grantee, (or after two years, unless tlie mortgage was made as security for the price of the 
 land,) in case the mortgagor does not in the meantime redeem. St. 1840, 146. If the land 
 consists of distinct lots, they are separately sold, and only enough of them to satisfy the 
 claim. A deed is made by the ofBcer and recorded, and, unless the debtor redeem in two 
 years, paying seven per cent, interest, is delivered to the purchaser. St. 1844, 38 ; Rev. St. 
 500-3. yoe Caswell v. Ward, 2 Dougl. 374. 
 
 In Arkansas, tlie mortgagee files a petition, upon which a sale is ordered,, like that on 
 other executions. If the property proves insufficient, a new execution issues, on which 
 other property may be taken. The olHcer gives a certiBcate, which is acknowledged and 
 recorded. Before a sale takes place the property may be redeemed. Ark. Rev. St. 580. 
 In AlMbama, in case of sale by order of Chancery upon an incumbrance, one claiming under 
 the morogiigor, but not a party, may redeem within five years. Clay, 329. The same right 
 of redemption is allowed to a mortgagor as to an execution debtor ; provided, the defendant 
 in the executirai, if in possession at the time of sale, shall deliver it without suit to the 
 vendee An execution creditor, whose debt is unsatisfied, may redeem, as in other cases of 
 execution sale. One wlio redeems is bound to pay the occupant for his improvements. lb, 
 503. See .\la. L 1849-50, 68. 
 
 (c) An express power to sell is an exception to the rule. 
 
480 
 
 MORTGAGE— REMEDIES 
 
 [OHAP. XXXYIII. 
 
 to six months, or for shorter periods, according to the equity arising 
 from circumstances.(l) 
 
 5. In Massachusetts, the mortgagee, after condition broken, may re- 
 cover possession by action, or may enter openly and peaceably, if not 
 opposed by the mortgagor or other person claiming the premises ; and 
 a continued peaceable possession for three years will foreclose the mort- 
 gage.(a) 
 
 6. In case of entry without a judgment, a memorandum or certificate 
 thereof is made upon the deed, signed by the mortgagor or party claim- 
 ing under him, and recorded ; or else a certificate of two competent 
 witnesses to prove the entry, is made and sworn to, and recorded ; and 
 no entry is effectual for foreclosure, unless a certificate or deposition in 
 proof thereof is thus made and recorded. (2) 
 
 7. In case of entry before condition broken, the three years, limited 
 for redemption, will not begin to run till breach of condition, and writ- 
 ten notice that the possession is thenceforth to be held for condition 
 broken or for foreclosure ; unless the mortgagee make a new entry or 
 commence an action. The same certificate or deposition, to prove such 
 notice or new entry, shall be made and recorded, as above provided in 
 case of other entries.(3) 
 
 8. A mortgagee, pending an action upon the mortgage, entered upon 
 the land in pais for condition broken, and afterwards entered under a 
 judgment in the suit. Held, the latter entry was a waiver of the former, 
 and the three years for foreclosure dated from the latter.(4)(6) 
 
 (1) 4 Kent, 181-2; Coote, 569; Jonea v. 
 Creswicke, 9 Sim. 304. 
 
 (2) Mass. Rev. St. 634. See Boyd u. Shaw, 
 2 Sliepl. 58. 
 
 (3) lb. 635-6. 
 
 (4) Pay V. Valentine, 5 Pick. 418. See 
 Cutts I). York, &o., 6 Shepl. 190; Smith ii. 
 Kelley, 27 Maine, 231 ; Bellows v. Stone, 14 
 N. H. 175; Doming v. Comings, 11 N. H. 
 474; Rangely v. Spring, 28 Maine, 127.* 
 
 * Entry by an attorney, not duly authorized, will be sufficient, if afterwards adopted in 
 writing by the mortgagee. Cutts v. York, &o., 6 Shepl. 190. 
 
 It has been held in Massachusetts, before the statute referred to in the text, that, if the 
 mortgagee enter before, and continue in possession after, breach of condition, the three years 
 began to run, upon the mortgagor's receiving actual or implied notice of his intention to hold 
 for tlie purpo.se of foreclosure. Erskine v. Townsend, 2 Mass. 495 ; Scott v. Mo'Earland, 13, 
 309; Pomeroy v. Winship, 12, 514. See Taylor y. Weld, 5, 109; Thayer v. Smith, 17, 
 429. It is not a sufficient entry for foreolcsure, that the mortgagor signs a paper containing 
 the words, "I hereby give possession." Pease v. Benson, 28 Maine, 336. But, where a 
 statute provides, that a certificate shall be evidence of entry and possession ; proof is not ad- 
 missible against such certificate, that there was no actual entry. Oakham v. Rutland, 4 
 Cush. 172. Entry on one of several lots, in the same county and town, for the purpose of 
 foreclosure, is sufficient for all. Shapley v. Rangeley, 1 W. & M. 213. The mortgagee need 
 not have his deed with him, nor make any express declaration of his intent, when he enters. 
 An autliority from the mortgagor to deliver possession may be verbal. It is sufficient, if the 
 mortgagee goes to the land at the time, and afterwards takes possession and occupies, with 
 the mortgagor's assent. Skinner v. Brewer, 4 Pick. 468. See further, Wright v. Tukey, 3 
 Cush. 290; Colby v. Poor, 15 N. H. 198; Merriam v. Merriam, Mass. S. J. 0. Oct. 1850, 
 Law Eep. July, 52, p. 169. 
 
 (a) Entry after breach of condition is presumed to be for the purpose of foreclosure. Hunt 
 V. Stiles, 10 N. H. 466. 
 
 (6) Where a mortgagee, having entered for breach of condition, is placed under guardian- 
 ship as a spendthrilt, the guardian may restore possession to the mortgage, and thus pre- 
 vent a foreclosure. Botham v. Mclntier, 19 Pick. 346. 
 
 The assignee of a mortgage having received rent from the tenant in possession, his admin- 
 istrator, on his deatli, called on the tenant to attorn or surrender, but he denied the right of 
 the administrator, and refused to do it. The administrator then brought au action against 
 
CHAP. XXXVIII.] 
 
 IN EQUITY, ETC. 
 
 481 
 
 9. In Maine, an entry to foreclose shall be made by process of law, 
 by the written consent of the mortgagor, &c., or by the mortgagee's 
 taking open and peaceable possession before two witnesses. Fore- 
 closure may also be effected by a public notice in the newspaper, or a 
 notice regularly served on the mortgagor, &c. ; in each case to be re- 
 cord ed.(l)(a) 
 
 10. Where a mortgagee, in Maine, took possession of the land, under 
 an execution, in presence of his own agent and the sheriff only ; held, 
 they were not the two witnesses required by law.(2) 
 
 11. In New Hampshire, the mortgagee may hold for foreclosure, by 
 a peaceable entry with or without legal process, after condition broken; 
 provided, in the former case, he publish a notice ; or by remaining in 
 possession, with notice of his purpose, if he entered before breach of 
 condition. The time of redemption is one year. And this rule is not 
 affected by a subsequent statute, giving the court full Chancery power 
 over mortgages. 
 
 12. If the mortgagee remain in possession, a year after condition 
 broken, with the mortgagor; this is a sufficient possession to foreclose 
 the mortgage. (3) 
 
 13. In Rhode Island, three years' possession is sufficient to foreclose 
 a mortgage. Possession is to be taken, either by legal process, or by 
 peaceable and open entry in presence of two witnesses, who shall give 
 a certificate of the fact. The party giving possession shall acknowledge 
 it to be voluntarily done before a magistrate, and both the certificate 
 and acknowledgment shall be recorded. The court are empowered to 
 hear in equity all bills of foreclosure, brought after the mortgagee has 
 taken possession, by consent of parties, without legal process. (4)(6) 
 
 14. In this State, the general doctrine of foreclosure by lapse of time, 
 independently of statutory provisions, has also been recognized. Thus, 
 where a mortgagee had been in visible possession of the land for ten 
 years, nine of them after condition broken, and, four years after the 
 death of the mortgagor, conveyed to one having no actual notice of the 
 mortgage, and affected by it only so far as it varied constructively from 
 the registry ; and the purchaser occupied eighteen years and made 
 valuable improvements ; and the mortgagor's estate, being insolvent, 
 was administered by the mortgagee ; held, the right of redemption, as 
 against the purchaser, must be deemed to have been abandoned by all 
 parties interested, and a bill for that purpose, brought by a devisee of 
 one of the mortgagor's heirs, was dismissed.(5) 
 
 (1) 1 Smith's St. 161-2 ; Me. Rev. St. 555. 
 See Sts. 1852, 226; Custiing u Ayer, 25 
 Maine, 383; Chase u. Palmer, 25 Maine, 341. 
 
 (2) Gordon v. Hobart, 2 Sumn. 401. 
 
 (3) N. H. 8t. 1829, 529-30; Rev. St 246; 
 Gibson v. Bailey, 9 N. H. 168; Wendall v. 
 New Hampshire, &c., 9 N. H. 404 ; Gilman 
 
 V. Hadden, 5 N. H. 30. See Gushing v. 
 Smith, 3 Story Rep. 556 ; Deming v. Com- 
 ings, 11 N. H. 474. 
 
 (4) E. I. L. 210-11. See Daniels i;. Mowry, 
 1 R.I. 151. 
 
 (5) Dexter v. Arnold, 1 Sumu. 109. 
 
 him on the mortgage, without notice to the heirs or representatives of the mortgagor, who 
 was dead, recovered a conditional judgment, sued out an execution, entered, and remained 
 in possession three years. Held, the mortgage was foreclosed. Shelton v. Atkins, 22 
 Pick. 71. 
 
 (a) A written surrender, not recorded within thirty days, is wholly inoperative. South- 
 ard V. Wilson, 29 Maine, 56. 
 
 (6) This statute is adopted by the U. S. Court. Dexter v. Arnold, 3 Sumn. 162. 
 
 Vol. I. 31 
 
482 
 
 MORTGAGE— REMEDIE3 
 
 [CHAP. XXXVIII. 
 
 15. But where a part of several parcels of land, mortgaged by one 
 deed, have been convej'ed by the mortgagee to a bona fide purchaser, 
 against whom the right of redemption is barred by lapse of time; the 
 mortgagor may still redeem such portions of the land as remain in the 
 mortgagee's possession. (1) 
 
 16. In Vermont, the mortgagor is allowed by the decree a definitive 
 time, sometimes one and two years, to redeem, and in default, the 
 equity of redemption is foreclosed. In Connecticut, the land mortgaged, 
 upon foreclosure, is never decreed to be sold. The bill of foreclosure 
 is not a proceeding in rem ; there is no sale, and possession is not en- 
 forced. The mortgagor is allowed fifteen years to redeem, after entry 
 by the mortgagee for breach of condition. Where, before foreclosing, 
 a suit has been brought on the note, the costs of such suit become part 
 of the mortgage debt. By a late act, in case of a suit upon a mortgage 
 before it is due, a tender of the debt and costs defeats the action. So, 
 if a part only is due, a tender of such part defeats the action, and stops 
 the interest.(2) 
 
 17. In New York, upon a bill for foreclosure or satisfaction, the 
 court may decree a sale of the whole or a part of the land. (a) When a 
 bill is filed for satisfaction, the court may not only compel a delivery of 
 the land to a purchaser, but, on the return of the report of sale, may 
 decree payment of any balance remaining due, and recoverable bylaw, 
 either from the mortgagor or a surety, if the latter be joined in the bill ; 
 and issue executions, as in other cases. During and after such process, 
 no suit at law shall be brought for the debt, unless authorized by 
 Chancery. (6) The bill must set forth whether any proceedings have 
 been had at law upon the debt; and if judgment has been recovered, 
 the bill will be dismissed, unless the sheriff has returned on execution, 
 that the debtor has no property except the mortgaged premises. Sales 
 shall be made, and deeds given, by a master, and shall vest the same 
 title in the purchaser that a foreclosure would have vested in the mort- 
 gagee, and shall be as valid as if executed by both mortgagor and mort- 
 gagee.(c) The surplus proceeds shall be brought into court, for the 
 
 (1) 1 Sumii. 109. 
 
 (2) Palmer V. Mead 1 Conn. 152-3; Smith 
 V. Bailey, 1 Shaw, 163 ; lb. 267 ; 4 Kent, 
 181; Pettibone v. Stevens, 15 Conn. 19; 
 
 Conn. St. 1840, 30-1. See Preston v.Briggs, 
 16 Venn. 124; Conn. L. 1849, 51, 62; lb. 
 1850, 34; Conn. Sts. 1849, 26. 
 
 (a) It is held in Alabama, that the decree cannot properly leave it discretionary with the 
 master to sell the whole or a part of the land. Walker v. Hallett, 1 A lab. (N. S.)380. 
 
 (6) If a suit at law has been commenced on the bond, a bill for foreclosure may be brought 
 without discontinuing it ; but no judgment will be rendered or execution issued in such 
 suit, without leave of Chancery. If the suit is against one not party to the bill, against 
 whom it is doubtful whether there could be a decree over, in case of deficiency, tliough 
 made a party ; and if the land is insufficient security for the wliole debt; the court will 
 allow the suit to proceed ;n order to settle tlie validity of a defence, but will not issue exe- 
 cution without leave of Chancery. Suydam v. Bartle, 9 Paige, 294. See Thomas v Brown 
 lb. 320. 
 
 (c) A decree of foreclosure and consequent sale, upon a bill filed against the mortgagor 
 alone, do not bind purchasers from him. WaLson v. Spenee, 20 Wend. 260. Nor can they 
 be ejected upon execution. Puller v. Van Geesen, 4 Hill, 171. 
 
 A purchaser under a void decree, in po,ssession of land, is regarded as a stranger, and 
 cannot set up agiiinst the owner of the equity an outstaciding title in the mortgagee, at 
 whoso suit the decree was obtained. lb. The deed takes effect immediately, though the 
 masti-r's report is made afterwards. Fuller v. Van Geesen, 4 Hill, 171. 
 
 If tlie mortgagee become the purchaser, and agree in writing to convey to a third person, 
 no redemption will be allowed, though the deed have not actually passed. Merritt v Lam- 
 bert, 7 Paige, 344. 
 
CHAP. XXXVIII.] 
 
 m EQUITY, ETC. 
 
 488 
 
 use of the defendant or other party entitled, and, if not taken out in 
 three months, invested for their benefit. If the bill is filed for the pay- 
 ment of an instalment or of interest, it shall be dismissed, upon the de- 
 tendant s paying the amount due, with costs, before the decree for a 
 sale. If paid afterwards, proceedings shall be stayed, but a decree of 
 foreclosure and sale entered, to be enforced upon any subsequent de- 
 fault, on a new petition, and by a furtiier order. In such case, the 
 court will ascertain, through a master, whether a portion of the land 
 may be sold, sufficient to pay what is due, and decree accordingly. If 
 a sale of the whole will be most beneficial, such sale will be decreed, 
 and the whole debt paid, deducting interest on the portion not due, if 
 not payable on interest; or the court may order such portion to be put 
 out at interest for the benefit of the parti es.(l)(a) 
 
 18. By later statutes, land sold under mortgage, or a decree thereon, 
 may be redeemed in one year. So any distinctly sold portion of the 
 whole. Ten per cent, interest shall be paid. A tender may be made 
 either to the officer or the purchaser, who shall give a certificate of the 
 payment; or,>in case of their refusal, absence, or disability, or if they 
 are unknown, to the public treasurer. The certificate to be recorded. 
 The mortgagee has possession after a sale, unless in eight days the 
 mortgagor gives security against waste, &c. Creditors may redeem in 
 succession, according to their respective priority, paying seven per cent, 
 interest. The mortgagee need not make a claimant under a subsequent 
 decree party to the bill. Provision is made for foreclosure by means of 
 a public advertisement. Within fifteen months after an execution sale, 
 the mortgagor may redeem the whole of the premises or any part 
 separately sold, subject to redemption by any other creditor.(2) 
 
 19. In New Jersey, the statute provides, that possession by the 
 mortgagee twenty years after default of payment shall bar the right 
 of redemption. Upon a bill for foreclosure, the court may order a 
 sale of the whole, or a sufficient portion of the land, either by a Master, 
 or by a sheriff upon fieri facias. But the sale shall pass no greater 
 estate, than the mortgagee would have acquired by foreclosure. Where 
 a mortgagee sues either upon the mortgage or the bond, if there is no 
 suit in equity pending at the time, and the defendant brings into court 
 the amount of debt and cost; the court will discharge him from the 
 mortgage, and order a reconveyance and a delivery to him of all evi- 
 dences of title. The purchaser takes no greater estate, than the mort- 
 gagee would have done by foreclosure. If a part of the debt is not 
 
 (1) 2 N". Y. Rev. St. 191-3. See William- 
 soti V. Champlin, 8 Paige, TO; Shufelt v. 
 Shufelt, 9, 137 ; Sabin v. Sdckney, 9 Term. 
 155; Harris u. Fly, 7,421; M'Carthyi;. Gra- 
 liam, 8, 480 ; Van Hook v. Throckmorton, 
 lb. 33 ; Vechtei). Browuell, lb. 212; Korton 
 V. Stone, lb. 222 ; Beekman v. Gibbs, lb. 
 511 ; Post V. Leet, lb 337: Seaman «. Hicks, 
 lb. 655; Torrey v. Bank, Ac, 9, 149; Far- 
 mers, &c. V. Millard, lb. 620 ; Ruckman v. 
 
 Astor, lb. 517 ; Manliattan, &c. v. Greenwich, 
 &c., 4 Edw. Ch. 315 ; Barr v. Stanley, 4 Edw. 
 (Jt). 27 
 
 (2) N. Y. L. 1837, 455-6 ; 1838, 261-3 ; 
 1840, 289-90; 1842, 383, 4 09; 1844, 529; 
 Sts. 1847, 508. See Cameron v. Irwin, 5 
 Hill, 276 ; Wilson v. Troup, 2 Cow. 196 ; 
 Arnot V. Post, 6 Hill, 65 ; Lamerson v. Mar- 
 vin, 8 Barb. 9 ; Van Slyks v. Slielden, 9, 278. 
 
 (a) In Kentucky, where a mortgage is payable by instalments, tlie mortgagee may enter 
 upon the first breach and remain in possession, subject to account, but shall not have a 
 foreclosure of the whole land. Caufman v. Sayre, 2 B. Monr. 203. See Massinav. Bartlett 
 8 Por. 277 ; Leverett v. Redwood, 9, 79 ; Walker v. Hallett, 1 Ala. (N. S.) 379. Adopting 
 the same practice as in New York. 
 
484 
 
 MORTGAGE— REMEDIES 
 
 [CHAP. XXXYIII. 
 
 due, the whole land may be sold and the whole debt paid with a rebate 
 of interest.(l) 
 
 20. In Georgia, where application is made to the court for fore- 
 closure of a mortgage, the court shall, order that the debt be paid on 
 or before the first day of the next term — the order to be served and 
 published in a newspaper ; and, if not complied with, the court may 
 render judgment for the amount due, and pass a rule absolute for a 
 sale of the land, as upon execution. The surplus money, if any, shall 
 be paid to the mortgagor. If the mortgagor make affidavit of payments 
 or set-offs, which ought to be allowed him, the court shall submit the 
 matter to auditors.(2) 
 
 21. In North Carolina, a strict foreclosure has been allowed. (3) 
 
 22. In Ohio, the mortgagee may have a decree of foreclosure, where 
 the debt equals two-thirds of the value of the land ; and he may de- 
 mand a sale. In Tennessee, the mortgagor has two years to redeem, 
 after confirmation of the master's sale, under a decree of foreclosure.(4) 
 
 23. By the English law, an equity of redemption may be foreclosed 
 by the act of the mortgagor himself; for, upon a bill to redeem, the 
 plaintiff is required to pay the debt by a given time, usually six rnonths 
 from liquidation of the debt, in default of which the bill is dismissed; 
 and this proceeding is a bar to a new bill, and equivalent to a foreclo- 
 sure. (5) 
 
 24. In Massachusetts, a tender for the purpose of redemption may 
 be made, even before entry for breach of condition. If not accepted, 
 a tender shall not prevent a foreclosure, unless a suit thereon is com- 
 menced within one year thereafterwards. A bill for redemption, offer- 
 ing to pay the money due, may be brought without previous tender ; 
 but the plaintiff shall pay costs, unless the defendant has unreasonably 
 neglected or refused to render an account.(a) Where, after entry of 
 the mortgagee, it appears that he has not unreasonably neglected or 
 refused to render an account, the court, upon a bill to redeem, may 
 award to him, in addition to the balance due on the mortgage, interest 
 thereon, from the expiration of three years after entry, to the time of 
 rendering judgment, at a rate not exceeding 12 per cent, a year. Sub- 
 stantially the same provision as to tender is made in Maine. In the 
 latter State, if the mortgage is given to secure the paj^ment of money 
 only, and the whole is due, after payment or tender, the mortgagor 
 may, by a bill in equity, compel the mortgagee to give a deed of release, 
 if he has neglected or refused to do it, though not in possession ; or he 
 may proceed, as above provided, without atender.(&) Where the mort- 
 gagee or one claiming under him has entered for breach of condition, 
 the mortgagor or any one claiming under him may redeem within 
 
 (1) 1 N. J. L. 412, tOS, 162; K J. 1 Rev. 
 Sts. 917-18-20. 
 
 (2) Prince, 168, 423-4. See Hobby v. 
 PembertoD, Dudl. 212 ; Butt v. Maddox, 7 
 Geo. 495. 
 
 (3) Spiller v. Spiller, 1 Playw. 482. See 
 ch. 37 ; Ingram v. Smith, 6 Ired. Equ. 97. 
 
 (4) 4 Kent, 181, n. ; 5 Ham. 356; Hen- 
 derson V. Lowry, 5 Terg. 240. 
 
 (5) 4 Kent, 185. 
 
 (a) See Bourne v. Littlefield, 29 Maine, 302. Filing a bill is the commencement of suit. 
 Tan Tronker v. Eastman, 7 Met. 157. 
 
 (6) In the same State, a bill in equity to redeem lies against the State. The statute 
 ' relating to tender does not apply to suits in the United States Court. Gordon t. Hobart, 2 
 Sumn. 401. 
 
CHAP. XXXVIII.] 
 
 IN EQUITY, ETC. 
 
 485 
 
 three yeans, by bringing a bill in equity. The court, upon a hearing, 
 may render judgment according to equity and good conscience, and 
 award execution accordingly ; and, if the defendant fails to appear, or 
 refuses to comply with the order or judgment, the money shall be paid 
 into court, and execution issue. In ISlew Hampshire, payment or ten- 
 der will render the mortgage void. If the mortgagee refuse to release 
 or to state an account upon a written request, the mortgagor may petition 
 the court, and, upon his bringing the money into court, if merely ten- 
 dered previously, the court shall order a discharge, and an attested 
 copy of the decree shall be recorded in the Registry of Deeds. If the 
 mortgagee refuse to state an account, the court shall ascertain the 
 amount due, and make a similar decree.(l)(a) 
 
 25. In Massachusetts, after the death of the mortgagor, only his heir 
 or assignee can redeem. In Maine, the executor also may do it.(2) 
 
 26. The statutory provision in Massachusetts, authorizing a mortga- 
 gor to bring a bill for redemption, without actual tender, after having 
 demanded an account from the mortgagee, has been the subject of judi- 
 cial construction in several cases. 
 
 27. A mortgagee was asked by the assignee of the mortgagor, at the 
 ofBce of the former, in W., what was due on the mortgage. He an- 
 swered that he owned the whole estate ; and, to a second inquiry, that 
 the records would show. Being asked what money would answer, he 
 replied, nothing but specie; and that, if tendered, he should act his 
 pleasure about receiving it ; and, if he took it, he would discharge upon 
 the records. He also said, that his papers were at C, (distant eight or 
 nine miles from W.,) and he could not ascertain the sum due. Held, a 
 sufficient demand and refusal, to sustain the bill ; but not such an un- 
 reasonable refusal, as would subject the defendant to costs.(3) 
 
 28. A mortgagor asked the mortgagee, when absent from the town 
 where the latter resided, to make out and furnish in reasonable time an 
 account of" the sum due. He replied, that, if the mortgagor would call 
 upon him at home, he would furnish all the information in his power. 
 Without thus applying, the mortgagor brought a bill to redeem. Held, 
 it would not lie. (4) 
 
 29. But where, upon a demand made, the mortgagee said, he had no 
 other account to render than one rendered two years before, which 
 turned out to be erroneous ; held, a sufficient demand and refusal to 
 sustain a bill for redemption.(5)(&) 
 
 (1) Mass. Rev. St. 636; St3. 1850, Ch. 
 21. (See Sts. 1853, 909;) Me. L. 1837, 439- 
 40 ; Rev. St. 555 ; N. H. St. 1829, 530-1 ; 
 Rev. St. 246. 
 
 (2) Smith V. Manning, 9 Mass. 422 ; Me. 
 Rev. St 557. 
 
 (3) Willard v. Piske, 2 Pick. 540. 
 
 (4) Fay «. Valentine, 2 Pick. 546. 
 
 (5) Battle v. Griffin, 4 Pick. 6. 
 
 (o) If tlie mortg-agor would avail himself of a tender made by a third person, he must 
 brin<' a bill in reasonable time. Bailey v. Willard, 8 N. H. 429. A tender must be uncon- 
 ditional. Wendell v. N. H., &o., 9, 404. Holton v. Brown, 18 Verm. 224. If a mortgage 
 is assigned just before the right of redemption expires, for the purpose of preventing a ten- 
 der, the time may be enlarged. Demlng v. Comings, 11 N. H. 474. 
 
 (6) Such demand may be valid, though accompanied by other demands and proposals, 
 which the mortgagee is not bound to notice. Allen v. Clark, 17 Pick. 47. The account 
 should state, not only the amount due, but the items. lb. In New Hampshire, unless the 
 demand for an account is immediately complied with, the right of redemption lasts till it is. 
 Wendell v. N. H. ic, 9 N. H. 404. 
 
486 
 
 MORTGAGE— REMEDIES 
 
 [CHAP. XXXVIII. 
 
 30. In Maine, where the mortgagee, or any one claiming under him, 
 h:is entered for condition broken, the mortgagor, or any one claiming 
 under him, may redeem within three years after such entry, by bring- 
 ing a bill in equity. The court, upon a hearing of the bill, may render 
 judgment according to equity and good conscience, and award execu- 
 tion accordingly ; and, if the defendant does not appear, or refuses to 
 comply with the order or judgment, the money shall be paid into court, 
 and execution issue.{l)(a) 
 
 31. The question has frequently arisen, whether the foreclosure of a 
 mortgage operates as payment or extinguishment of the debt,(6) or 
 whether the mortgagee may still maintain an action at law, for the bal- 
 ance due him, after deducting the fair value of the property. The 
 better opinion is said to be, that such action may be brought.(c) This 
 question also involves the further one, whether the foreclosure is there- 
 by opened, and the right of redemption revived. (2) 
 
 32. Judge Story says, if foreclosure of a mortgage operated as pay- 
 ment of the debt, it would frequently prove, in literal exactness of lan- 
 guage, mortuum vadium, a dead and worthless security. If the mort- 
 gagee is compellable to make an election, the pursuit of a remedy upon 
 the personal security is an abandonment of the pledge, while an appro- 
 priation of the latter is an abandonment of the debt. In a case there- 
 fore of suspected insolvency, he would be encircled with perils on every 
 side ; and, instead of a double security for his debt, would be left with 
 scarcely a single plank to save himself in the shipwreck.(3) 
 
 33. The English authorities, upon both the points above stated, seem 
 somewhat confused and contradictory. 
 
 34. It was held, in an early case, that a suit upon the bond after fore- 
 closure opened the foreclosure, and let in the mortgagor to redeem. 
 And Lord Thurlow is said to have declared, that after foreclosure, so 
 long as the mortgagee kept the estate, he must take it in satisfaction, 
 because there was no means of ascertaining how far it paid the debt \{d) 
 but, after having sold it, he might recover the balance due, in a suit 
 upon the bond. On the other hand, in the case of Perry v. Barker, 
 Lord Bldon inclined to the opinion, that, after sale, no suit would lie 
 upon the bond, because the plaintiff had disabled himself to reconvey 
 the estate ; but, at the same time, he remarked that Lord Thurlow had 
 decided that such action would lie, either with or without a sale. In a 
 subsequent hearing of the same case. Lord Erskine held, that a foreclo- 
 sure was no bar to a suit upon the bond; but, that the mortgagor was 
 thereby enabled to redeem, and, if the mortgagee had sold the land, he 
 
 (1) 1 Smith's St. 159-63. 
 
 (2) 4 Kent, 183. See Coote, 570-1. 
 
 (3) Hatch V. White, 2 Galli. 154; (Omaly 
 
 V. Swan, 3 Mas. 414.) See Cullum v. Eman- 
 uel, 1 Ala. (N. S.) 23. 
 
 (a) If a mortgagee of land in Maine, in possession for breach of condition, require, as the 
 terms of redemption, payment of more than is due, the party paying may recover back the 
 money in Massachusetts, in an action for money had and received. Cazenove v. Cutler, 4 
 Met. 246. See Gushing v. Ayer, 25 Maine, 383 ; Pease v. Benson, 28 Mass. 336. 
 
 (6) It does so operate, if the property equals the debt in value, even though the foreclosure 
 is effected by an assignee, holding only a p.)rt of the mortgage debt. Johnson v. Candage, 
 31 Maine, 28 ; Bassett v. Mason, 18 Conn. 131. 
 
 (c) A fortiori, after mere entry to foreclose. See ch. 3T, sec. 4. 
 
 (d) In the case of Lockhart v. Hardy, 3 Beav. 349, the Master of the Rolls expressed the 
 same opinion. 
 
OHAP. XXXVIII.] 
 
 IN EQUITY, ETC. 
 
 487 
 
 would be allowed time to get it back. But he also held, that, where 
 this was impracticable, Chancery would restrain the suit by a perpetual 
 injunction.(l) 
 
 35. Judge Story questions the correctness of the rule, which allows 
 a court of equity to restrain such suit, before the creditor has received 
 full satisfaction ; and also that, by which the suit is held to have the 
 effect of opening the foreclosure. A foreclosure may well be deemed a 
 purchase, at the full value of the land, if less than the debt, and, if 
 greater, at the amount of the debt. Where the value much exceeds 
 the debt, a foreclosure can very rarely take place ; it is, therefore, of 
 itself, prima facie evidence of inferior value. By taking the land the 
 creditor incurs an inconvenience. If it afterwards fall in value, he is 
 the loser, and, therefore, he ought to be benefited by any rise in value. 
 If, after foreclosure, the mortgagee should seek further relief in equity, 
 there might be ground for enforcing the principle of reciprocal equity ; 
 but there seems to be no ground, upon which equity should decree an 
 injunction, in such case, against the enforcement of legal rights. And, 
 even if it should thus interfere, where the mortgagee still retains the 
 estate, it would seem that, after a sale, he ought to recover the balance 
 remaining due. But, at all events, all decisions concur in the principle, 
 that at law foreclosure does not bar a suit for the balance of the debt.(2) 
 
 36. Judge Story proceeds to remark, that, whatever may be the 
 doctrine of Chancery upon the subject, when acting upon its own 
 peculiar principles alone, yet, where a statute expressly limits the 
 right of redemption to a certain time after possession taken, and 
 negatives it afterwards, a foreclosure cannot be opened by a suit upon 
 the bond. 
 
 37. In Connecticut and Mississippi, after foreclosure, the mortgagee 
 may maintain an action for so much of his debt as the estate is insuffi- 
 cient to satisfy, estimating the value at the time when the right of 
 redemption expires. And in Connecticut, the bringing of such action 
 shall not open the foreclosure.(3) 
 
 38. In New York, it has been decided that a foreclosure is not 
 opened by bringing a suit for the debt.(4)(ff) 
 
 39. But, in Vermont, it was held to be reasonable, though not 
 actually decided, that the foreclosure should be opened, and that the 
 mortgagor, on being sued, might file his bill to redeem, on payment 
 of debt and costs ; and that the mortgagee, when he brings the suit, 
 should have power to reconvey. In the same State, an action may be 
 maintained upon promissory notes, though secured by a mortgage 
 which has been foreclosed, and though, with others secured in the 
 
 (1) Dashwood v. Blythway, 1 Eq. Cas. Abr. 
 
 317; Tookeu. , 2 Dick. 785; Perry v. 
 
 Barker, 8 Vea. 527 ; lb. 13 Tea. 197. 
 
 (2) Hatch V. White, 2 Galli. 159-60-1. 
 
 (3) Conn. St. 194. See The Derby, &c. v. 
 
 London, 3 Conn. 62; Coit v. Jitoh, Kirby, 
 254 ; McEwen v. Wellea, 1 Root, 202 ; Soutii- 
 ard V. Wilaon, 29 Maine, 55 ; Stark v. Mercer, 
 3 How. 377. 
 
 (4) Lansing v. Goelet, 9 Cow. 346. 
 
 (a) Declaration on a bond. Plea, that the bond was executed to aeeure a mortgage, 
 ■which waa foreclosed, and the premises sold, whereby the debt was satisfied. Replication 
 and proof, that the premises did not sell for enough to pay the bond and mortgage. Gene- 
 ral demurrer and joinder. Judgment for the plaintifis. The Globe, &o. v. Lansing, 5 Cow. 
 380. 
 
488 
 
 MORTaAGE— REMEDIES 
 
 [CHAP. XXXVIII. 
 
 same way, they were described in the bill of foreclosure ; if not pre- 
 sented to the Master on taking the account, nor included in the 
 decree.(l) In Massachusetts,(2) the Eevised Statutes provide, that 
 where a mortgagee sues after foreclosure for the balance of his debt, 
 the mortgage shall have the right to redeem at any time within one 
 year from judgment recovered. (a) 
 
 40. The right of redemption may be revived by the acts of the 
 mortgagee, or by special agreement, even after foreclosure. 
 
 41. Thus, the foreclosure is waived by a subsequent acceptance of 
 the money due, or a part of it.(3) 
 
 42. A mortgagee, having taken legal possession of the land for fore- 
 closure, afterwards agreed in writing with the mortgagor, that he 
 would reconvey, whenever his debt should be satisfied from the rents 
 and profits, or otherwise. After the lapse of three years from entry, 
 the mortgagor brought a bill to redeem, and a redemption was 
 decreed.(4) 
 
 43. So, where the assignee of a mortgage, having purchased the 
 land at a sale made under a decree for foreclosure, agreed with the 
 mortgagee, for valuable consideration, to hold the land as security for 
 the sum paid for the assignment, and in trust for the assignor ; decreed 
 in equity, that the assignee should reconvey to the assignor upon pay- 
 ment of the sum stipulated, deducting equitable allowances for profits 
 and waste.(5) 
 
 44. On the other hand, where a mortgaged estate has been sold, 
 and the mortgagee discharges the mortgage, upon the supposition 
 that the sale is valid, and it is afterwards set aside, the mortgage will 
 be revived in equity. 
 
 45. A mortgagee purchased the mortgaged estate at a sale upon 
 execution, and, having received a deed from the ofScer, entered satis- 
 faction on the mortgage. Upon a bill in equity filed by the debtor, 
 to set aside the sale as irregular and void, it was decreed that the sale 
 be set aside, and the deed cancelled ; but also, that the complainant 
 should pay the amount due to the defendant, within a certain, time, or 
 else the mortgage be foreclosed and the land sold.(6) 
 
 46. In Massachusetts, a widow, claiming dower, cannot maintain 
 a bill in equity to redeem, where, under the circumstances, she might 
 maintain a suit at law. Hence, the bill must allege, either that the 
 husband mortgaged the land before marriage, or that the wife joined 
 
 (1) Lovell V. Leland, 3 Verm. 581 ; Lang- 
 don V. Paul, 20 Verm. 217. See Lawrence 
 V. Fletcher, 8 Met. 165 ; 10, :-i44; Leland v. 
 Loring, 10, 125. 
 
 (2) Mass. Rev. St. 638. 
 
 (3) Batchelder v. Robinf3on, 6 N. H. 12 j 
 Deming v. Comings, 11, 414. 
 
 (4) Quint i;. Little, 4 Greenl.495. 
 
 (5) Southgate v. Taylor, 5 Muni. 420. 
 
 (6) Zylstra v. Keith, 2 Des. 141. 
 
 (a) The mortgagee may sue upon the mortgage note, after entry for condition broken, 
 and before foreclosure. It is no defence, that the value of the property equals the amount 
 of the note. Bank, &c. v. Pox, Maine S. J. C, April T. 1841— Law Rep. July, '41, p. 121. 
 See Briggs v. Richmond, 10 Pick. 396. In New Hampshire, after foreclosure, the property 
 is treated as payment pro tanto. If more notes than one were secured, and one only was 
 due at the time of entry, the payment shall be applied to this one. Hunt v. Stiles, 10 N. H. 
 466. In Maine, where a mortgage is foreclosed, the value of the land shall go to extinguish 
 ' ''« debt, wholly or pro tanto. Southard v. Wilson, 29 Maine, 66. 
 
CHAP. XXXVIII] IN EQUITY, ETC. 489 
 
 in a mortgage made after marriage ; in either case, the title of the 
 wife being a mere equity, and not a legal estate.(l)(a) 
 
 47. In Virginia, a mortgagor may in general redeem, after the 
 mortgagee has purchased the land, at a sale made under a judgment 
 for the debt. But if the judgment was recovered as against an ab- 
 sconding and fraudulent debtor, redemption will be refused, upon the 
 maxim, that " he who hath done iniquity, shall not have eqaity."(2) 
 
 48. Where the mortgagor, in a suit for redemption, pays money 
 into court, and the defendant disputes his right to redeem, and pre- 
 vails, the defendant is not entitled to retain the money. The payment 
 is a provisional one, an offer to pay money in discharge of the debt, 
 and for the purpose of removing the incumbrance. The defendant, by 
 his defence, denies that there is any debt secured by mortgage, and his 
 own formal act shows that he has no claim to the money.(3) 
 
 49. Where the mortgagor has contracted to convey the right in 
 equity to a third person, who thereupon, on his own account, pays 
 the mortgage debt to the mortgagee, and the mortgagor afterwards 
 rescinds the bargain ; the latter cannot avail himself of such payments, 
 on a bill in equity to recover the land. 
 
 50. Bill in equity to redeem a mortgage. Two of the plaintiffs, 
 purchasers of an equity of redemption, contracted with one B,ichardson, 
 to sell him the land for $5,000, he providing for the redemption and for 
 payment of the mortgage debt, amounting to $3,000 nearly, and secu- 
 ring the surplus to the plaintiffs ; the defendants, the mortgagees, having 
 agreed to convey the land to Eichardson, if not redeemed, and to pay 
 him the amount due for redemption, if it should be seasonably demanded. 
 Eichardson paid the mortgage debt to the defendants ; who, in fulfil- 
 ment of their agreement, gave a bond to Eichardson conformable thereto. 
 Two of the plaintiffs were parties to this arrangement. Their induce- 
 ment was, that the third plaintiff was absent at sea, and therefore a title 
 could not be made to Eichardson except through the defendants, and 
 also an apprehension by the defendants, that the mortgagors might have 
 a right to redeem without the consent of the plaintiffs. Hence, it was 
 agreed that Eichardson should take his title from the defendants, after 
 a foreclosure of their mortgage. Held, the intention and effect of the 
 transaction was, that the defendants assigned the mortgage to Eichard- 
 son, subject to the remaining equity, the plaintiffs releasing their equity 
 of redemption, on being paid or secured their shares of the surplus 
 over the mortgage debt ; that the bargain between two of the plaintiffs 
 and Eichardson did not depend upon the consent of the absent plaintiff, 
 as the title was to come through the defendants ; that Eichardson's 
 payment to the defendants must be considered as made for himself, 
 upon a purchase of the land, not in discharge of the mortgage, which 
 would defeat the object ; that, although the absent plaintiff had no 
 opportunity to assent to the bargain or otherwise, yet, as the other 
 
 (1) Measiter v. Wright, 16 Pick. 151. i (3) Putnam v. Putnam, 13 Pick. 131, 132. 
 
 (2) Dabney v. Green, 4 H. A; Mun. 101. | 
 
 (a) On the other hand, in case of a mortgage made before marriage, the widow cannot 
 have a remedy at law against the mortgagee, or one holding under him. Van Duyne v. 
 Thayre, 19 Wend. 162. See Collins v. Torry, 7 John. 218; Coates v. Cheever, 1 C(Jw. 475 ; 
 Cooper V. Whitney, 3 Hill, 95. 
 
490 
 
 MORTGAGE —EQUITABLE 
 
 [CHAP. XXXIX. 
 
 plaintiffs were unable to redeem, the transaction was the bestj;hat could 
 be done for him in preventing a foreclosure ; and that the plaintiffs 
 were not entitled to redemption.(l) 
 
 CHAPTER XXXIX. 
 
 MORTGAGE— EQUITABLE MORTGAGES AND LIENS. 
 
 1. Deposit of title deeds. 
 
 9. Lieu for purcliase-moDey. 
 
 45. Lien of purchaser after payment. 
 
 1. In Equity, if the owner of an estate deposit the title deeds with a 
 creditor, this constitutes a mortgage of such estate, as against the owner 
 himself, and any purchaser from him having actual or constructive 
 notice of the fact ; which mortgage, like others, may be enforced by a 
 bill and decree for sale or foreclosiire.(a) This doctrine has been strongly 
 opposed, since its first introduction in 1783, by very distinguished 
 judges; but is said to be now firmly established. The rule, however, 
 is construed strictly, and not extended by any implication. Thus, it is 
 held, that all the deeds must be actually and bona fide deposited with 
 the mortgagee himself. Nor will a mere parol agreement to deposit or 
 to mortgage be enforced.(2) 
 
 2. A lease having been pledged by a person, who afterwards became 
 bankrupt, to the plaintiff, as security for a loan, the pledgee filed his 
 bill for a sale of the leasehold. Held, this was a delivery of the title 
 for a valuable consideration. The court had nothing to do but to sup- 
 ply the legal formalities ; and, in all these cases, the contract is not to 
 he performed, but is executed. The court afterwards ordered the lease 
 to be sold, and that the plaintiff be paid his money. (8) 
 
 8. In a note to this case, it is said. Lord Thurlow held, the deposit 
 of deeds entitled the holder to have a mortgage^ and to have his lien effec- 
 tuated ; and, although there was no special agreement to assign, the 
 deposit affords a presumption that such was the intent. 
 
 4. So, where the title-deeds of an estate were deposited with the 
 
 (1) Howard v. Agry, 9 Mass. 179. 
 
 (2) 4 Kent, 149-50 ; Pain v. Smith, 2 My. 
 & K. 41"; ; Lewthwaite v. Clarkaon, 2 Y. & 
 Coll. 312. See 3 lb. 55 ; Hodge v. Atl'y- 
 Gen., lb. 342 ; Tylee v. Webb, 6 Beav. 552 ; 
 Rogers v. Maule, 1 T. & Coll, Cba. 4 ; Ede v. 
 Enowles, 2 lb. 112 ; Meggison v. Foster, lb. 
 336 ; RoUestone v. Morton, 1 Dr. & War. 195 ; 
 Mandeville v. Welch, 5 Wheat. 284; Hock- 
 ley V. Bantock, 1 Rusa. 141 ; Langston, 11 
 Tez, 230; Ashton v. Dalton, 2 Coll. 565; 
 
 Brizick v. Manners, 9 Mod. 284; Sims v. 
 Helling, 9 Eng. L. k Equ. 45 ; Hiern v. Mill, 
 13 Vez. 114; Boson v. Williams, 3 Y. & J. 
 150. 
 
 Whether the rule is adopted in the United 
 States, see 2 Greenl. v. Cruise, 85 n. ; Rook- 
 well V. Hobby, 2 Sandf. Ch. 9 ; Day v. Per- 
 kins, lb. 359; Hallv. M'Duff, llShepl. 311; 
 Clabaugh V- Byerly, 1 Gil), 354. 
 
 (3) Russell V. Russell, 1 Bro. 269, & D. 
 
 (a) As to equitable mortgages, see 2 Dea & Chit. 393 ; 2 My. & K. 411 ; 8 You. & Coll. 
 55. In case of foreclosure of an equitable mortgage, six months are allowed to redeem. 
 Thorpe v. Gardside, 2 You. & Coll. 130. See Coote, 220. Such mortgage cannot prevail 
 against « creditor without notice, who afterwards recovers a judgment. Whitworth v. 
 Gaugain, 3 Hare, 416. 
 
CHAP. XXXIX.] 
 
 MORTGAGES AND LIENS. 
 
 491 
 
 plaintiff as security, and the defendant, fourteen years afterwards, when 
 the owner was upon the eve of bankruptcy, took a mortgage, aute-dated, 
 and purporting, but untruly, to be for money then advanced ; and the 
 defendant had notice of the deposit, but avoided inquiring for what 
 purpose it was made; held, in a bill brought by the plaintiff against 
 ,. '^^i^^'i^^^ ^^r foreclosure, that the latter should either pay the 
 plaintitt s demand, or stand foreclosed, &c. The court remarked, that 
 tne deposit of title-deeds as security is evidence of an agreement to 
 make a mortgage, and the agreement is to be carried into execution by 
 the court against the mortgagor, or any one claiming under him, with 
 notice express or irn plied. (1) 
 
 5. Lord Eldon said, the decision, that a mere deposit of deeds shall 
 be evidence of an agreement for a mortgage, is much to be lamented. 
 It has led to discussion upon the truth and probability of evidence, which 
 the very object of the statute of frauds was entirely to exclude. In 
 another case, the same judge declared, that a deposit of deeds should 
 not be considered as a mortgage, except in a clear case ; and he refused 
 so to treat it in the cause before him. (2) 
 
 _ 6. Sir William Grant remarked, that the mere fact, that one man's 
 title deeds are found in another's possession, is not conclusive of any 
 purpose to mortgage the estate. It may exist without any contract 
 whatever. Where the deposit is made when the money is advanced, it 
 is obvious that the purpose of the deposit must be, to secure the repay- 
 ment of the money, and there is little to be supplied by other evidence. 
 The connection is not so direct, between a debt antecedently due and a 
 subsequent deposit; nor is the inference so plain. And, where the 
 deeds are delivered, not as a present security, but only for the purpose 
 of enabling the attorney to draw a mortgage, which has been agreed 
 for ; the principle is wholly inapplicable.(a) The deposit of deeds is 
 indeed held to imply an obligation to execute a conveyance, whenever 
 required. But, in such case, the primary intention is, to execute an im- 
 mediate pledge ; with an implied engagement to do all that may be ne- 
 cessary to render the pledge effectual for its purpose. But, in the case 
 supposed, there was no intention to put the deeds into pledge. Nor 
 does the death of the owner, before making the proposed mortgage, 
 give any effect to the transaction as a deposit.(3) 
 
 7. So Lord Eldon remarked, that it was an error to suppose, that a 
 deposit of deeds can refer to nothing but an intention to subject the es- 
 tate. A deposit may be of considerable use, without any such object. 
 The right to hold the deeds, and so to work out payment, is of great 
 value. (4) 
 
 8. It is understood to have been the old rule in the English Chan- 
 cery, that, if a first mortgagee voluntarily left the title deeds with the 
 mortgagor, he should be postponed to a subsequent mortgagee without 
 notice, and in possession of the deeds ; because he thereby enabled the 
 mortgagor to impose upon others, who, in the absence of a registry. 
 
 (1) Birch V. Ellames, 2 Anst. 42"?. 
 
 (2) Ex parte Haigh, 11 Ves. 403-4, and n. 
 See Whitbread'B case, 19 Vez. 211 ; Coote, 
 222. 
 
 (3), Norris o. Wilkinson, 12 Vee. 197-8-9. 
 See Cliapman v. Ctiapman, 3 Eng. L. &, Equ. 
 10 
 
 (4) Ex parte Hooper, 19 Vea. il9. 
 
 (a) See ^6763 v. ■Williams, 3 T. & Coll. 55. 
 
492 
 
 MORTGAGE— EQUITABLE 
 
 [CHAP. XXXIX. 
 
 could look for their security only to the deed, and the possession of the 
 mortgagor. Chancellor Kent, however, is of opinion, upon a review 
 of the cases, that there is not the requisite evidence of the existence of 
 any such rule in equity, as has been stated by some of the judges; or, if it 
 once existed, that it has been changed. He says, the settled rule is now, 
 that this circumstance will not defeat a prior mortgage, unless accom- 
 panied with fraud or gross negligence, or a voluntary, distinct and un- 
 justifiable concurrence, on the part of the first mortgagee, to the retain- 
 ing of the deeds. And, in the United States, where the registry sys- 
 tem generally prevails, the alleged rule is still less applicable. Hence, 
 where a leasehold is mortgaged, the leaving of the lease with the mort- 
 gagor is no evidence of fraud, because the registry is a beneficial sub- 
 stitute for the deposit of the deed, and gives better and more effectual 
 security to subsequent mortgagees.(l)(«) 
 
 9. Analogous to the lien just mentioned, is the equitable lien which 
 the vendor of land has against the purchaser, for the price of the land, 
 or such part of it as remains unpaid. Cbancellor Kent says, this right, 
 said to be derived from the civil law, is well established in England, 
 and has been recognized in the States of Kentucky, New York, Con- 
 necticut, Ohio, Tennessee, North Carolina, Indiana,(&) and by the Su- 
 preme Court of the United States. In Connecticut, however, it has 
 been somewhat qualified. In Pennsylvania, the right was formerlj'- as- 
 sumed to exist, but has been since denied. The same author and Judge 
 Story give the following general view of the law upon this subject.(2) 
 
 10. To constitute this lieu, no possession is required, and it applies 
 equally, whether the transaction is a sale, or a mere executory contract. 
 Although sometimes placed upon the footing of an express agreement 
 or assent, it is now held to be independent of any such consideration. 
 
 (I) Berry v. Mutual, &c., 2 John. Cha. 608- 
 9 ; Johnson v. Stap;g, 2 John. 510. See Head 
 V. Egerton, 3 P. Wma. 279 ; Tan Meter v. 
 McPaddin, 8 B. Mon. 435 ; Shilz v. D.effen- 
 baoh, 3 Barr,|233 ; Ryall v. RoUe, 1 Atk. 168 ; 
 Coote, 214, 486 ; Hewitt v, Loosemore, 9 Eng. 
 L. & Kqu. 35 ; Hooper v. Ramsbottom, 6 Taun. 
 12 ; Goodtitle v. Morgan, 1 T .R. 165 ■ Sump- 
 ter ». Cooper, 2 B. & Ad. 223 ; Harrington v. 
 Price, 3, 110 ; "Womble v. Battle, 3 Ired. Equ. 
 183 ; Miras v. Macon, &e., 3 Kelly, 341 ; Man- 
 ly V. Slason, 21 Verm. 271 ; Glower v. Raw- 
 lings, 9 Sm. & M. 122 ; Atwood i;. yinoent. 
 
 17 Conn. 583 ; Weed v. Beebe, 21 Vern. 495 ; 
 Conover v. Warren, 1 Gilm. 498 ; Hepburn 
 V. Snyder, 3 Barr, 72; Watson v. Wells. 5 
 Conn. 468; School, &c. v. Wright, 12 Illin. 
 432 ; Williams v. Stratton, 10 Sm. & M. 418. 
 (2) 4 Kent, 151-3 ; 2 Story, 461-71. See 
 11 Gill & J. 217; Kleisert). Scott, 6 Dana, 
 137 ; Howlett v. Thompson, 1 Ired. Equ. 
 369; Nazareth, &o. v. Lowe, 1 B. Monr. 
 259; Williams v. Woods, 1 Humph. 408; 
 Roberts v. Rose, 2, 145 ; Campbell v. Bald- 
 win, lb. 253; Stewart v. Ives, 1 Sm. & M. 
 197. 
 
 (a) It has been held in Massachusetts, that the Supreme Court has no jurisdiction of suits 
 in equity for foreclogure or redemption of equitable mortgages. Eaton t. Green, 22 Pick. 
 526. 
 
 (b) And in Alabama, Mississippi, Virginia and Georgia, (2 Yerg. 85 ;) Haley v. Bennet, 
 
 5 Por. 452; Graham v. McCampbell, Meigs, 52. Also in Maryland, Missouri, Michigan, Illin- 
 ois and Vermont, 2 Sugd, (Araer.) 324, n. But in Virginia, by a recent statute, it does not 
 exist, unless expressly reserved. Vir. Code, 510. So in Vermont, it is now expressly abol- 
 ished. Sts. 1851, 42. And in North Carolina, a late decision has settled that the English 
 rule is not in force in that State. Cameron v. Mason, 7 Ired. Equ. 180. The lien is said to 
 exist only in equity ; and not where the vendor has a legal remedy. Pratt v. Van Wyck, 
 
 6 Gill & J. 498; Colquitt v. Thomas, 8 Geo. 258; Rowntree v. Jacob, 2 Taun. 141. It 
 applies to forced sales by operation of law. Mims v. Macon, &o. 3 Kelly, 342. Whether 
 it applies to a mortgage, or the assignment of one, see Pratt v. Van Wyck, 6 Gill & J. 498 ; 
 Mount v. Suydam, 4 Sandf. Ch. 399. Judge Marshall says, it has not been extensively re- 
 cognized. 7 Wheat. 52. 
 
CHAP. XXXIS.] MORTGAGES AND LIEKS. 49S 
 
 11. The lien in question is prima facie presumed to exist, but may be 
 negatived by special circumstances. Thus it does not exist where the 
 object of the sale was not money, but some collateral benefit. It was 
 once held, that the lion was defeated by the vendor's taking an express 
 and distinct security, such as a bond or note, for the price ; but this 
 rule is now so far qualified, that the lien is destroyed only by the ta- 
 king of collateral security, whether in property or in the engagement of 
 some third person. (a) The giving of a receipt upon the deed for the 
 consideration does not destroy the lien. 
 
 12. This lien is valid as against the purchaser, his heirs, &c., and 
 widow, and all subsequent purchasers from him with notice or without 
 consideration ; but not against creditors holding under a bona fide con- 
 veyance, or subsequent purchasers without notice. To avail himself 
 of notice to a subsequent purchaser, the law does not require the ven- 
 dor to attend such subsequent sale, nor is the lien defeated, if such 
 purchaser have notice before payment of the purchase-money. {b) 
 
 V6. The lien of a vendor upon land sold, for the purchase-money, 
 may be classed as a constructive trust, not within the statute of frauds. 
 It is said to be neither y'.(s in re, nor jus ad rem, neither property nor a 
 right of action ; but a charge. 
 
 11. The history of the doctrine, that the vendor of land has a lien 
 for tlie unpaid purchase money, is thus given by Chancellor Walworth, 
 in the case of Fish v. Howland.{\) 
 
 (1) 1 Paige, 24-30. 
 
 (a) In Marj'land, taking a note with an indorser is no waiver of the lien. Magruder v. 
 Peter. 11 Gill & J. 217. But where, upon a aale of land, there is a written declaration that 
 the vendor takes an assignment of a certain mortgage securitj', without recourse to the 
 mortgagee for payment of the mortgage debt; there is no lien for the purchase-money. 
 Richardson v. Bidgely, 8, 87. An express lien excludes an implied one. Ridgely v. Igle- 
 hart, 3 Bland, 547. The lien referred to is paramount even to the claim of the vendee's 
 widow for dower. Bllicott v. Welch, 2, 244. It may be taken advantage of as against the 
 vendee, by a surety who pays for the land, even as against a second purchaser with notice. 
 Melny v. Cooper, 2 Bland, 199; Magruder v. Peter, 11 Gill & J. 217. Where a vendor 
 has not conveyed the legal title, and the vendee does not live in the State, the former may 
 maintain a bill in equity for a sale of tlie land, without first proceeding at law. G.een v. 
 Fowler, 11 Gill and. J, 103. Prima facie, the law implies a lien for the purchase-money of 
 land sold. And a provision in the contract of sale, reserving the legal title in the vendor 
 till payment of the whole price, is conclusive evidence of such lien. Magruder v. Peter, 11 
 Gill k J. 217. In Alabama, the lien is waived by taking personal, or a distinct collateral 
 security. Foster v. Tru.itees, Ac., 3 Alab. (N. S.) 302. In Kentucky, where there are several 
 purchasers from the original vendee, the lien shall be apportioned among them pro rata. 
 Burks V. Chrisman, 3 B. Monr. 50. Whether there shall be an entire lien upon separate lots 
 conveyed by one transfer; see Dawson v. Mitchell, 4, 213. If a .suit is brought to enforce 
 the lien again.st a subsequent purchaser, the former one must be made a party. Singleton 
 V. Gayle, 8 Por. 271. See 1 Sm. & M. 197 ; Gilman v. Brown, 1 Mas. 191 ; 4 Wheat. 255; 
 Williams v. Roberts, 5 Ham. 25 ; Foster v. Trustees, &c., 3 Alab. (N. S.) 302 ; Marshall v. 
 Christmas, 3 Humph. 316. 
 
 (6) See Hallock v. Smith, 3 Barb. 267 ; Briscoe v. Bronaugh, 1 Tex. 326 ; Manly v. 
 Slason, 21 Verm. 271 ; Honore v. Bakewell, 6 B. Monr. 67; Hopkins v. Garrard, 7, 312 ; 
 Thornton v Knox, 6, 74; Woodward v. Woodward, 7, 116; Ewingv. Beauchamp, 6,422 ; 
 Hofgalt V. Wade, Hi Sm. & M. 143: Kilpatrick v. Kilpatrick, 23 Miss. 124; TliredgiU v. 
 Pintard, 12 How. 24; Scott v. M'Cullock, 13 Miss. 13; Boon v. Barnes, 23 Miss. 136; 
 Beirne v. Campbell, 4 Gratt. 125 ; Glasscock v. Robinson, 13 Sm. & M. 85 ; Way v. Patty, 
 1 Smith, 44 ; Taft v. Stephenson, 9 Kng. L. & Equ. 80 ; Miller v. Stump, 3 Gill, 304 ; Lynam 
 V. Green, 9 B. Mon. 363; Crane v. Palmer, 8 Blackf. 120; Bisknd v. Hewett, 11 S. & M. 
 164. Ad to the parties iy whom the lien may be enforced, see Kleiser v. Scott, 6 Dana, 
 138; Betton v. Williams, 4 Flor. 11; Growning v. Behn, 10 B. Mon. 383 j Planters', &o. v. 
 Dodson, 9 Sm. & M. 527 ; Green v. Demoss, 10 Hump. 371; Wellborn v. Williams, 9 Geo. 
 86 ; Dixon v. Dixon, 1 Md. Ch. 220. 
 
494 MORTGAGE— EQUITABLE [CHAP. XXXIX 
 
 15. The earliest case is Ghapman-v. Ihnner, in 1684.(1) In that case, 
 Lord Guilford held, that the vendor of land, to one who had become 
 bankrupt, had a lien for the price, upon a principle of natural equity, 
 and did not stand as a general creditor. But it is said, there was a 
 special agreement that the seller should retain the title deeds.(2) 
 
 16. In Bo7id V. Kent,{S) a mortgage was given for a part of the 
 price, and a note for the rest. Held, there was no lien for the latter 
 sum. 
 
 17. In Coppin V. Cop2nn,{4:) Lord King held, there was a lien, 
 notwithstanding the indorsement of a receipt for the price upon the 
 deed. 
 
 18. In PoUexfen v. Moore,{5) Lord Hardwicke charged the land with 
 the lien in the hands of an heir. But the conveyances were there 
 retained. 
 
 19. In Burgess v. Wheai,{6) the general principle is recognized. 
 
 20. In Tardiffy. Schrugan,{7) a man conveyed an estate to his two 
 daughters, in consideration of an annuity, and they gave a joint bond 
 therefor. One of them married and died, and her husband, having a 
 life interest in a moiety of the land, refused to pay any part of the an- 
 nuity. Upon a bill filed by the other .sister and her husband. Lord 
 Camden held, that a moiety of the annuity was a lien upon the land in 
 the hands of the defendant; and decreed, that he should pay a moiety 
 of the arrears, and keep down a moiet}' of the future payments. 
 
 21. In Farwell v. IIeel{s,{ti) Lord Bathurst held, that taking the bond 
 of the purchaser, payable at a future time, was a discharge of the lien. 
 (It is said, however, that this case has been often overruled. )(a) 
 
 22. In Blackburn v. Gregson,{9) the same question was agitated, but 
 not decided. 
 
 23. In Austin y.Halsey,{10) where a legatee claimed the privileges of 
 the vendor in asserting a lien. Lord Eldon recognized the rule, that the 
 vendor has such lien, as against the purchaser, unless the contract 
 clearly shows a contrary intent. 
 
 24. In Nairn v. Eouse,{ll) Sir William Grant admitted the general 
 rule, but remarked, that if the vendor does not trust to the lien, but 
 carves out a security for himself, it is doubtful whether the lien is or 
 is not waived. 
 
 (1) 1 Tern. 2G7. 
 
 (2) Amb. 726, 1 Bro. -124, n. b. 
 
 (3) 2 Vera. 281. 
 
 (4) 2 P. Wms. 291. 
 
 (5) 3 .Atk. 272. 
 
 (6) 1 Eden, 211. 
 
 (7) Cited 1 Bro. 423. 
 
 (8) Amb. 724. 
 
 (9) 1 Bro. 420, 1 Cox, 90. 
 
 (10) 6 Ves. 475. 
 
 (11) GVes. 752. 
 
 (a) Upon the question, wlietlier the lien is waived by taking other security, see Honore 
 V. Bakewell, 6 B. Mon. 67; Thornton v. Knox, lb. 74; Palmer, 1 Dougl. (Micli.) 422; 
 Clower V. Rawlings, 9 Sni. & M. 122; Jolmson v. Sugg, 13, 346; Manly v. Slason, 21 
 Verm. 271 ; Roon v. Murpliy, 6 Blackf, 272 ; Halloek v. Smith, 3 Barb. 267 ; Mackreth v. 
 Symmons, 15 Ves. 344; Hanna v. Wilson, 3 Gratt. 243; Follett v. Reese, 20 Ohio, 546; 
 McKillip V. McKillip, 8 Barb. 552; Young v. Wood, 11 B. Mon. 123 ; Shelton v. Tiffin, 6 
 How. 163; Aldridge V. Dunn, 7 Blackf. 249 ; Boos v. Ewing, 17 Oliio, 500; Kinsley v. 
 Williams, 3 Gratt. 265; Watson v. VViliard, 9 Barr, 89; Anthony v. Smitli, 9 Humph. 508; 
 Vail V. Foster. 4 Comst. 312; McClure v. Harris, 12 B, Mon. 261; Russell'.i, &o., 3 Harri,«, 
 319 ; Hoggatt v. Wade, 10 Sm. & M. 143 ; Sharp v. Kerns, 2 Gratt. 348 ; Parker v Kelly, 
 10 Sm. & M. 184; White v. Stover, 10 Ala. 441; Graggs v. Bailey, lb. 341; Bradford v. 
 Marvin, 2 Flori. 463; Wilder ^. Smith, 12 B. Mon. 94; Woods v. Bailey, 3 Fieri. 41 ; Kyles 
 V. Tait, 6 Gratt. 44; Kirksey v. Mitchell, 8 Ala. 402. 
 
CHAP. XXXIS.] 
 
 MORTGAGES AND LIENS. 
 
 495 
 
 25. In Elhott v. Mwards,{l) the holder of a lease a.ssigned it, with a 
 proviso that the assignee should not transfer, &c., until payment of the 
 price, and took security from a third person. Held, the vendor still 
 had a lien for the price. 
 
 26. In Hughes v. Kenrney,{2) the purchaser gave his note for the 
 purchase-money, which was put into the hands of a third person as 
 trustee, until the incumbrances upon the estate could be ascertained 
 and paid off therefrom, and the balance to be paid to the vendor. Held, 
 the balance of the purchase-money, included in the note, was a lien 
 upon the land in the hands of an heir. 
 
 27. In Mackreth v. Sym,mom,{S) where a bond was given for the 
 purchase-money, there was held to be a lien. Lord Eldon intimated, 
 that taking a mortgage upon another estate, as security, might not be 
 a waiver. 
 
 28. In Grant v. Alills,^^) the lien was held not to be waived, by the 
 purchaser's drawing bills upon himself and partner, obtaining an accep- 
 tance of them, payable at a future time, and delivering them to the 
 vendor. The bills were viewed, not as security, but only as a mode of 
 payment. So, in Ex parte Feake,{o) it was held, that a bill, and in Ex 
 parte Loaring,{6) that a negotiable note, on time, which was discounted 
 and afterwards dishonored, was no waiver of the lien. The same point 
 was settled as to a note or bond, payable on time, in Sanders v. Leslie.iJ) 
 A more recent case is referred to in a note of Simons & Stuart, settling 
 the same point as to a bond, although in that case there were peculiar 
 covenants, and other circumstances which were held to make an excep- 
 tion to the rule.(8) But in Winter v. Lord Anson,{2) where the pur- 
 chaser gave his bond, payable at the death of the vendor, with interest 
 annually, and a receipt for the money was indorsed upon the deed; 
 held, the vendor's mtention was evidently to part with the estate im- 
 mediately, and to wait for the price, and therefore there was no lien. 
 
 29. The American cases upon the subject are said to be uniform, (10) 
 with a single exception in South Carolina,(ll) where it was held, that a 
 bond payable on time defeated the lien. 
 
 30. In Kentucky, (a) the general rule is recognized in Francis v. 
 Eazlerigg,{\2) and Cox v. Fenwick,{l2>)hn\. it is also held, that if the ven- 
 dor takes distinct and independent security, such as the promise of a 
 third person ; or if other circumstances indicate that the vendor does 
 not rely upon the land, the lien is waived. The same principle is re- 
 cognized in Virginia, (14) and by the Circuit and Supreme Courts of the 
 United States ; and the general rule by Chancellor Kent.(15) 
 
 (1) 3 Bos. k P. 181. 
 
 (2) 1 Sch.&Lef. 132. 
 
 (3) 15 Vea. 329. 
 
 (4) 2 Ves. & Bea. 306. 
 
 (5) 1 Mad. 346. 
 
 (6) 2 Rose's Gas. in Bank. Tg. 
 
 (7) 2 Ball & Bea. 514. 
 
 (8) Ex pane Parkes, 1 Glynn & Jame. 228. 
 
 (9) 1 Sim. & Stu. 434. 
 
 (10) 1 Paige, 29. 
 
 (11) Representatives, &c. v. Comptroller, 2 
 Des, 509. 
 
 (12) Hard. 48. 
 
 (13) 3 Bibb, 183. 
 
 (14) Cole V. Scott, 2 Wash. 141 ; Willson v. 
 Graham, 5 Munf. 29'?. 
 
 (15) Garson v. Green, 1 John. Cha. 308. 
 
 (a) So in Missouri— Marsh v. Turner, 4 MIsso. 253; Maryland— 11 Gill & J. 217; Ten- 
 nessee-Campbell V. Baldwin, 2 Humph. 248; Ohio— Jackman v. Hallock, 1 Ham. 318; 
 Patterson v. John, 7, 226 ; and North Carolina — Wynne v. Alston, 1 Dev. 416. See Burks 
 V. Cbrisman, 3 B. Monr. 50 ; Portwood v. Oulton, lb. 249 ; Broadwell v. King, lb. 452. 
 
496 MOETGAGE— EQCriTABLB [CHAP. XXXIX. 
 
 31. A deed was made by a grandfather to his grandson, in con- 
 sideration of love and affection and divers other good considerations, 
 and with the purpose of disposing of the grandfather's property after 
 his death, and securing a legacy to his son ; and that he in the mean- 
 time might retain control of the land, so far as to secure a support. 
 For this purpose, the grandfather took back a life lease at a nominal 
 rent, and a bond conditioned (virtually) that, whenever the grandson 
 neglected to provide a support for him, he might resume possession or 
 claim rent. Held, these facts showed that the vendor did not rely upon 
 any implied lien, but carved out his own security for his support by 
 a direct incumbrance upon the land ; and this express lien for a 
 part of the consideration negatived the right of any implied lien for the 
 residue.(l) 
 
 32. The death of the vendee of real estate does not avoid the lien 
 for the purchase-money. For the heir cannot be permitted to hold, 
 what his ancestor unconscientiously obtained. And, after recovering 
 a judgment at law against the administrator of the vendee, upon a note 
 given for the purchase-money ; upon a deficiency of personal estate, 
 the vendor may have a decree in Chancery to have the estate sold. (2) 
 It has been contended that the English law, enforcing such lien against 
 aji heir of the vendee, could not be regarded as applicable, in a State 
 where the lands of one deceased are bound for his debts in the hands 
 of the heir, without any express obligation upon the latter. But the 
 objection was considered by the court as without weight.(3) 
 
 33. It has been already stated, (sec. 11,) that a vendor has no lien upon 
 the land for his purchase-money, unless his object is money. And he 
 must rely upon his lien on the land, there being no other security. 
 Hence, where a father conveyed to his son, taking back a bond for the 
 support of himself and bis wife for life, and a lease of a part of the 
 premises for the same term ; held, such lien did not exist.(4) 
 
 34. A purchased land of B, without paying for it, and conveyed it 
 to C. C. gave back two mortgages to A of equal date, for parts of 
 the consideration, intending that one of them should be assigned to B, 
 as security for the purchase-money, and have priority, according to an 
 original agreement between A and B. The mortgages were simulta- 
 neously recorded ; but the one designed for B was first assigned to 
 him, and afterwards the other was assigned to D, bona fide, and for full 
 value. Held, D took his mortgage, subject to B's equity against A; 
 that the statute of registry had no application to this case, as between 
 B and D ; that A took B's mortgage as trustee for B ; that the princi- 
 ple, by which a lien is waived by the taking of collateral personal secu- 
 rity from a third person, did not apply here, because C was in fact the 
 vendee, and the mortgage was upon the land itself; that the imphed 
 waiver of a lien (it seems) can be set up only by purchasers without 
 notice ; and that B's title should prevail.(5) 
 
 35. The assignee of a vendor may enforce a lien upon the land for 
 the purchase-money, as well as the vendor himsel£(a) 
 
 (1) Fish V. Howland, 1 Paige, 20. 
 
 (2) Garson v. Green, 1 John. Cha. 308 ; 
 Hughes V. Kearney, 1 Sell. & Lef. 132. 
 
 (3) Kskridge v. McClure, 2 Yerg. 84 
 
 (4) Meigs V. Dimock, 6 Conn. 458. 
 
 (5) Stafford v. Tan Rensselaer, 9 Cow. 
 316; Van Rensselaer v. Stafford, 1 Hopk. 
 569. 
 
 (a) So the sureties of the vendee for the purchase-money, may sometimes have the benefit 
 
CHAP. XXXIX.J MORTGAGES AND LIENS. 497 
 
 36. A conveyed to B, who paid $1,000, and gave a bond for $2,000, 
 payable in two years, and containing a memorandum, below the seal, 
 that the land should be liable for the $2,000, till paid. A assigned the 
 bond to C, but, a few days previously, B conveyed the land to D, who 
 had loaned him $1,200, taking back a bond of defeasance. D had notice 
 of the bond from B to A, and of its indorsement. G brings a bill in 
 equity against B and D, praying a sale of the land. Held, D, as an as- 
 signee with notice, was chargeable with the lien ; and, on a similar prin- 
 ciple, C, as an assignee of A, should have the benefit of it ; that an 
 equitable lien was assignable, as well as a legal mortgage. Decreed, 
 that C should recover the amount due, or, if not paid in a certain time, 
 the land to be sold.(l) 
 
 37. It has been doubted, whether creditors of a vendee, acquiring his 
 land, shall, like purchasers without notice, hold it discharged from the 
 equitable lien of the vendor for the purchase-money. But the Supreme 
 Court of the United States have decided, that as against creditors, as 
 well as purchasers, the lien does not exist, more especially where they 
 hold under a mortgage. 
 
 38. In 1792, A purchased land from B, and sold it to 0, who took 
 his title from B. C gave A a bond for the price, which, in March, 1796, 
 was surrendered, upon his accepting bills for the amount, some of which . 
 were never paid. In September, 1796, C conveyed the land, with other 
 lands, to D, in trust for E, who was a surety for C to a large amount, 
 and also to secure him for future advances and liabilities. In March, 
 1797, D conveyed the land to F, in trust, for the purposes mentioned 
 in the deed from C to D. In June, 1797, (with two others) conveyed 
 the land, together with other lands, to F, for the payment of their debts. 
 Some doubt having arisen respecting the registration of these deeds, F 
 brought a suit against 0, and recovered judgment, and the land was 
 bought upon execution for them, and afterwards conveyed to them 
 upon the former trusts. Both A and C had become insolvent, and had 
 been discharged under the bankrupt or insolvent laws. A, and a trus- 
 tee for the creditors of A, bring a bill in equity against C and F, to 
 subject the land to payment of the original purchase-money. F alleges 
 that he had contracted to sell the land to C, but, as he had not paid the 
 price, he (F) still retained the legal title. Held, that the lien of the 
 plaintiff should not prevail, against the claim of F on behalf of credi- 
 tors. Chief Justice Marshall remarks, that, whether the lien of the ven- 
 dor be established as a natural equity, or from analogy to the principle, 
 that a bargainor holds in trust for the bargainee, till payment of the 
 price; still it is a secret, invisible trust. The vendee appears to hold, 
 divested of any trust ; and gains credit, upon the confidence that he is 
 the owner in equity as well as at law. A vendor ought to take a mort- 
 gage, for the purpose of general notice; otherwise, he is in some de- 
 gree accessory to a fraud. It would seem inconsistent with the princi- 
 ples of equity, and with the general spirit of our laws, that such a lien 
 
 (1) Eskridge v. MoClure, 2 Terg. 84. 
 
 of euoh lien Kleiger t. Scott, 6 Dana, 137 ; Burks v. Chrisman, 3 B. Monr. 50; Carter v. 
 "Welch, 4 244. But see Poster v. Trustees, &c., 3 Alab. (N. S.) 302. So wherean adminis- 
 trator puruliases land sold by liimself, the parties beneficially interested have a hen for the 
 purchase-money. Baines v. McG-ee, 1 Sm. & M. 208. 
 
 Vol. I. 32 
 
598 
 
 MOETGAG-E— EQUITABLE 
 
 [CHAP. ZXXIX 
 
 should be set up in a court of chancery, to the exclusion of bona fide 
 creditors. In the United States, the claims of creditors stand on high 
 grouud. There is not, perhaps, a State in the Union, the laws of which 
 do not make all conveyances not recorded, and all secret trusts, void, as 
 to creditors, as well as subsequent purchasers without notice. To sup- 
 port the secret lien of the vendor against, a creditor, who is a mortgagee, 
 would be to counteract the spirit of these laws. Judge Marshall ex- 
 amines the conflicting English decisions upon this subject, and also the 
 observations of Mr. Sugden, which seem to favor an opinion contrary 
 to the judgment in this case ; and he draws a distinction between an 
 assignment made under a bankrupt or insolvent law, which is not re- 
 garded ;i3 made for valuable consideration, but merely places the as- 
 signee in precisely the same situation with the assignor ; and a convey- 
 ance made by the mere act of the party, for the security of one or more 
 creditors, or of creditors generall3'.(l) 
 
 39. Whether, if A sells an estate to B, which A purchased from C, 
 but B takes his title directly from C, A can enforce an equitable lien 
 upon the land, never having had a legal title, gw.(2) 
 
 40. In Indiana, it would seem, a valid title to real estate may pass by 
 mere agreement, accompanied with delivery of possession. But, in case 
 of such agreement, the vendor may reserve an express lien upon the 
 property, for payment of the purchase-money. 
 
 41. A agreed with B, by a sealed instrument, to sell B certain land 
 and a steam-engine, the price to be paid in three years ; B to have im- 
 mediate possession of the land, and, after erecting a mill-house, to have 
 the engine also, which was to remain on the land till payment of the 
 purchase-money, when a title was to be made. B took possession of 
 the land, built tiiie house, and pat the engine in operation. In Septam- 
 ber, 1821, A assigned the agreement to C, and in July, 1824, Cassiged 
 it to D. In March, 1823, a judgment was recovered against A, and the 
 land sold on execution. D brings a bill in equity against the execution 
 purchaser, claiming a lien upon, and praying a sale of the property, to 
 satisfy the claim for the purchase-money. Held, the doctrine of implied 
 lien was inapplicable to this case ; that the agreement not to remove 
 the engine gave an express lien upon it, and the express covenant, that 
 the title should remain in A till the price was paid, created a lien upon 
 the land; that the lien was assignable, and, after the assignment to C 
 there remained in A only the bare legal title, which he held in trust 
 for the purposes of the contract ; and that the execution purchaser, hav- 
 ing notice, took the estate, subject to the same trust. Sale decreed , 
 with an injunction to the persons in possession, &o.(3)(a) 
 
 42. In Pennsylvania, (4) where a writing had been executed, con- 
 
 (1) Bayley v. Greeiileaf; 7 Wheat. 46;aec. 
 Roberts v. Rose, 2 Humph. 145 ; Roberts v. 
 Slisbury, 3 afU k J. 425; Gann v. Chester, 
 5 Terg. 205 ; 4 Kent, 154, n. : contra, Twel- 
 Tes V. Williams, 3 Wliart. 493 ; Shirley v. Su- 
 gar, &c., 2 Edw. 511. See Hoagland v. La- 
 tourette, 1 Green, 254; Aldridge i;. Dunn, 7 
 Blackf. 249; Taylor v. Baldwin, 10 Barb. 
 
 626; Badham v. Cox, 11 Ired. 456; Green v 
 Demoss, 10 Humph. 371 ; Fawell v. Heelis, 
 Ambl. 724 ; Chapman v. Tanner, 1 Vern. 
 267 : Dwight v. Newell, 3 Comst. 185; Kline 
 V. Lewis, 1 Ashra. 31. 
 
 (2) Bayley !;. Greenleaf; 7 Wheat. 60. 
 
 (3) Lagowt). BadoUet, 1 Blackf. 416. 
 
 (4) Stouffer v. Coleman, 1 Yeates, 393. 
 
 (a) Since held, in the same State, that the vendor retains an equitable lien on the land for 
 •the price (unless he voluntarily parts with it,) against the vendee and subsequent pure-basers 
 with notice. Delbler v. Berwick, 4 Blackf. 339. 
 
CHAP. XXXIX.] 
 
 MORTGAGES AND LIENS. 
 
 499 
 
 veying by. words of actual grant, but called an article of agreevient, and 
 looking to a future conveyance, there being a covenant to convey after- 
 wards by good and sufficient deed ; Chief Justice McKean stated the 
 question as being, whether the party did sell and convey, or only agree to 
 do it ; and then suggested the further doubt, whether the taking of a 
 bond for the price was not a waiver of the lien.(a) In a subsequent 
 case,(l) however, the court remark, that the doctrine of equitable lien 
 could not apply, in that case, because the legal title still remained in the 
 proposed vendor. In the same case, the English doctrine upon the 
 subject is rejected, as having being first introduced in England, three 
 years after the charter to William Penn ; as impracticable in a State, 
 having no court with full equity powers ; as being alike opposed to the 
 • general understanding and practice of the people, and to the universal 
 policy of the law in regard to the registration of deeds, the liens of 
 mechanics, judgment creditors, creditors of deceased persons, &c. ; and 
 as leading to the utmost confusion and uncertainty of titles. It is said, 
 that only two cases in Pennsylvania have ever recognized the doctrine 
 in question ; one of them being that already referred to ; and the other, 
 Irvine v. Oampbell,(2) being also a case of the purchase of a mere 
 equitable title, inasmuch as the instrument was in the form of an exe- 
 cutory agreement, and contained a covenant for further assurance. 
 
 43. In Maryland, it has been held, that, where a vendee gave a bond 
 for the price, taking a bond for a deed, and left the State, after selling 
 to a third person, with notice that a part of the price was unpaid ; the 
 first vendor might enforce a lien. (3) 
 
 44. In the same State, where a creditor of one deceased has a claim 
 for the price of land conveyed to him, and makes application to have 
 the land sold for payment of debts: the land in question shall be first 
 disposed o£(4) 
 
 45. A lien, similar to that just described, is the lien of a purchaser 
 of land, who has paid the purchase-money prematurely or by surprise, 
 that is, before receiving a conveyance. This right, however, has 
 been asserted in very few cases, and the existence of it seriously 
 questioned. (5)(i) 
 
 (1) Kauffett V. Bower, 1 Ser. & R. 64; ace. 
 Green v. Crockett, 2 Dev. & B. 393. 
 
 (2) 6 Bin. 118. 
 
 (3) Wright V. "Woodland, 10 G. & J. 387. 
 
 (4) Spencer ». Pearce, 10 Gill & J. 294. 
 
 (5) 2 Story, 463, u. 
 
 (a) It has been since held, that, in ease of an actual conveyance and a bond for the price, 
 ejectment will not lie to compel payment. Megargel v. Saul, 3 Whart. 19. But, if the deed 
 provide that the land shall be subject to the condition of sale, viz., a lien in favor of the 
 vendor ; upon an execution sale of the property, as the purchaser's, the vendor has a 
 claim upon the proceeds, prior to that of the judgment creditors of the vendee. Barnilz v. 
 Smith, 1 W. & Serg. 142. 
 
 (6) It has been held in Kentucky, that, where an execution sale is void, the purchaser still 
 has a lien upon the land for the purchase-money, because it has gone to the debtor's use ; 
 and Chancery will restrain a suit for the land by injunction, till it is paid. Shepherd v. 
 Mclntire, 5 Dana, 576. See Christopher v. Blackford, 1 B. Monr. 197 ; Burgess v. Wheate, 
 1 W Bl 150 ■ Su<yd. 258 ; Mackreth v. Symmons, 15 Tes. 345 ; Oxenham v. Esdaile, 3 T. 
 & J. 254- Ludlow V. Grayall, U Price, 58; Finch v. Winohelsea, 1 P. Wms. 284; Small 
 V. Attwood, 1 Tounge, 507 ; Rockwell v. Hobby, 2 Sandf. Cha. 9 ; Blackburn v. Penning- 
 ton, 8 B, Mon. 217. 
 
500 LIEN OF MECHANICS, ETC. [CHAP. XL. 
 
 CHAPTER XL. 
 
 LIEN OF MECHANICS, ETC., FOR LABOR AND MATERIALS. 
 
 1. Lien by legal process. 11. Illinois. 
 
 2. Lien of mechanics, &o. 12. Missouri. 
 
 3. Mussachuaetta. 13. Tennessee. 
 
 4. Connecticut. 14. Kentucky. 
 
 5. New Hampshire. 15. Michigan. 
 
 6. Rliode Island. 16. Arkansas. 
 
 7. Maine. 17. Mississippi. 
 
 8. Pennsylvania. 18. Georgia. 
 
 9. Ohio. 19. Alabama. 
 10. Indiana. 
 
 1. Under the general title of estates on condition, and in immediate 
 connection with the subject of mortgages, may properly be considered 
 certain other liens, which one raan may acquire upon the land of 
 another as security for a debt. Of these, perhaps the most important 
 is the lien acquired by means of legal process — consisti% either in an 
 attachment, made at the commencement of a suit, or in a judgment or 
 execution, in which the suit terminates. These, however, will be con- 
 sidered in another portion of this work, relating to the methods of ac- 
 ■quiring tith to real property. 
 
 2. There is another species of lien, unknown to the common law, 
 :and originated of late years by express statutes in many of the States ; 
 viz., the lien of mechanics and material-men or furnishers of materials, 
 upon the buildings which they erect or provide for. There is a gene- 
 ral similarity in the laws of those States which have legislated upon 
 this subject, but it may be worth while briefly to state their respective 
 specific provisions.(a) 
 
 3. In Massachu setts, (1) any person furnishing labor or materials, by 
 contract with the owner of land, for erecting or repairing any building 
 thereupon, may acquire a lien upon the same. The contract must be 
 written, signed by or for the owner of the land, and recorded. (6) The 
 lien continues only six months after the money is finally payable, unless 
 during that time a suit has been brought. When any sum remains 
 unpaid sixty days after it is due by the contract, the creditor may by 
 petition obtain a decree for a sale of the land. The petition may be 
 fi.led in court, or in the clerk's office. It shall contain a brief statement 
 of the contract, and the sum due, and a description of the land. The 
 court shall order notice to the debtor, and to all others holding 
 similar liens upon the land. The owner may contest any or all the 
 claims, and the several claimants may contest those of each other. The 
 court shall allow the several demands, whether immediately payable 
 or not, if not conditional ; with a rebate of interest if payable at a fu- 
 
 (1) Mass. Rev. St. 684-9; Ste. 1851, 849. 
 
 (a) It is said, rules, both of law and equity, are applicable to a proceeding to enforce a 
 mechanic's lien. Greenough v. Wigginton, 2 Greene, 435. But whether equity can inter- 
 fere in this class of cases, see Coteman v. Freeman, 3 Kelly, 137. 
 
 (6i The lien in question may exist, though the contract be not recorded till after tlie death 
 of the owner of the Innd. Foster, &c., 20 Pick. 542. The registry of a hen is not a record. 
 Davis V. Church, 1 W. & S. 24. 
 
CHAP. XL.] 
 
 LIEN OF MECHANICS, ETC. 
 
 501 
 
 ture time. If the creditor has been prevented from an entire perform- 
 ance, without his own default, by the failure of the debtor to perform, 
 the former shall recover a proportional part of the amount contracted 
 for. If either of the creditors establishes his lien, the court orders a 
 sale by an officer of the whole land, or sucli part as will satisfy the 
 claims, if for the interest of the parties. The mode of selling and the 
 right of redemption are the same as in case of the sale of equities of 
 redemption. The officer may be ordered to make distribution of the 
 proceeds, or, if the claims are not all ascertained at the time of sale, to 
 bring the money into court ; and, if circumstances so require, the court 
 may make several orders of distribution. The surplus proceeds are 
 paid over to the debtor, but are liable to attachment or execution be- 
 fore such payment. Where the property has been attached before the 
 contract was recorded, the attachment shall be a prior lien upon the value 
 of the property as it was when attached ; and the creditor, having recov- 
 ered judgment, shall be paid the proportion due him according to this es- 
 timate. If the attachment is subsequent to the recording, the latter has 
 the same priority as any attachment would have. Attachments are 
 paid according to priority : but, when lien creditors have equal rights 
 among themselves, and the fund is insufficient to pay the whole, they 
 are paid proportionally. The lien shall attach to estates less than a 
 fee, and to equities of redemption, if the employer has these interests 
 in the land. If the employer die, or convey away his estate, his heirs 
 ■ or assignee may be made parties to the suit. If he die after suit brought, 
 it may proceed against his heirs or assigns. If the creditor die before 
 or after suit brought, it may be commenced or prosecuted by his exe- 
 cutor, &c. If the petitioning creditor fail in his suit, other creditors, 
 made parties, may still recover. If the former commence the suit within 
 the sixty days, but other creditors prosecute it, he may still recover, 
 but shall have no costs, and may be required to pay them. These pro- 
 visions are no bar to a common law remedy for the debt. After payment, 
 satisfaction shall be entered or a release given, as of mortgages. By a 
 subsequent act, any person working upon a building, under a contract 
 with the owner, or with one who has contracted with the owner for the 
 erection, &c., or the purchase of the land to build upon, shall have a 
 lien for his personal wages. He must, within sixty days after doing 
 the work, file in the registry of deeds a true account of his claim, and 
 description of the property, subscribed and sworn to, and sue in seventy 
 days from the doing of the work. By St. 1852, 874, the privilege is 
 extended to one furnishing labor and maimals to the owner or other 
 party authorized to contract therefor. In case of materials, written 
 notice must be given of the proposed lien, before furnishing them. 
 Different laborers may join in one petition. 
 
 4. In Connecticut,(l) where a person performs_ labor, or furnishes 
 materials, in the erecting or repairing of a building, to the value of 
 more than two hundred dollars, he shall have a lien upon the land and 
 building, paramount to any other lien wich is acquired subsequently to 
 the commencement of such services. Upon this lien, the property is 
 
 (1) Conn. St. 1836, 22; Conn. L. ISST, 38; 
 Si. of Conn. 402-3 ; lb. 1639, 31-2. See 
 Bank, &o v. Curtiss, 18 Conn. 342. By Sta. 
 1852, there ie a lien on buildings for their 
 construction, erection or repairs, if the ma- 
 
 terials or services exceed $25. It takes 
 precedence of liens arising after the com- 
 mencement of the services, and is to be fore- 
 closed as a mortgage. A certificate shall be 
 filed within sixty days with the town clerk. 
 
502 LIEN OF MECHANICS, ETC. [CHAP. XL. 
 
 subject to foreclosure, as on a mortgage. The lien of any claimant con- 
 tinues only sixty days after the completion of his- work, unless he lodge 
 with the town clerk a written notice or certificate, describing the prem- 
 ises and the amount claimed, which shall be sworn to and recorded. 
 After satisfaction of the lien, or a judgment that nothing is due, the 
 claimant, on request of any party interested, shall file a certificate of 
 such fact, which shall be recorded, and operate as a discharge. For a 
 neglect to file such certificate in ten days, he forfeits a sum not exceed- 
 ing one-half of the debt claimed. Any sub-contractor, having a claim 
 exceeding $50, and a written agreement with his employer, and the 
 written assent of the owner, may acquire a lien by recording his con- 
 tract within sixty da\s, (as above,) but not beyond the amount due 
 from the owner. If several thus acquire a lien, for an amount ex- 
 ceeding that due from the owner ; they shall be paid proportionally. 
 If the employer is insolvent, the owner is required, upon notice of the 
 lien, to withhold the money from him. The lien in question is made a 
 subject of chancery jurisdiction. 
 
 5. In ISTew Hampshire, a lien is acquired, by recording a written 
 contract with the town clerk, where the property lies, within thirty 
 days after the claim is due. An attachment is afterwards made upon 
 legal process, and relates to the time of recording, subject to prior in- 
 cumbrances. If the owner fails to perform in full, and in consequence 
 the creditor does the same, he has a lien pro tanio.iV) 
 
 6. In Ehode Island, mechanics and material-men may have a lien • 
 upon buildings, canals, turnpikes and railroads, and the land over 
 which they are constructed. If the party claiming a lien is a sub-con- 
 tractor, he must notify the proprietors that he has been employed, 
 within thirty days from the time of being thus employed, and that he 
 claims a lien. The lien continues four months from the time when the 
 last payment falls due. In three months from completion of the work, 
 an account shall be filed in the office of the town or city clerk. Oth- 
 erwise, there shall be a lien only against the employer. The remedy 
 is a suit for sale of the property. But this is subject to the claim 
 of any prior attaching creditor, upon the value of the property as it 
 was at the time of his attachment. Notice is given to all lien creditors, 
 and all recover their claims, and may contest those of each other. If 
 the whole services have not been rendered, without fault of the creditor, 
 he has a claim for a part. A tenant shall have no lien for repairs of 
 the demised premises, unless assented to by the landlord. (2) 
 
 7. In Maine,(3) a person agreeing, in writing, to erect, repair, or 
 alter a building, or to furnish labor or materials therefor, may acquire 
 a lien upon the house and land, or the equity of redemption therein. 
 Within ninety days from the time stipulated for payment, the lien 
 shall be secured by attachment, and shall have precedence of all other 
 attachments. The contract must have been recorded, within ten days 
 from the making, in the ofiice of the town clerk. A tender of the sum 
 due discharges the land. Where one hires a lot or mill-privilege for 
 the purpose of erecting a building thereon; an attachment, within six 
 months from the time the mechanic's claim is due, gives a prior lien 
 upon the tenant's interest in the land and upon the building. 
 
 (1) Rev. St. 250. I (3) Maine St. IBS'?, 418-19. Conner u. 
 
 (2) R. I. St. 1834, 829 ; lb. 1836, 939. | Lewis, 4 Shepl. 268 ; Rev. St. 559. 
 
CHAP. XL.] 
 
 LIEN OP MECHANICS, ETC. 
 
 503 
 
 8. In Pennsylvania, mechanics and material-men, (a) including those 
 who furnish curb-stone for pavement, have a lien from the commeuce- 
 rnent of the building. It continues only two years therefrom, unless in 
 SIX months from the performance of the work, &c., a suit is brought, 
 or claim filed with the prothonotary of the county.(6) And satisfac- 
 tion, when made, shall be entered upon the record, under penalty of 
 one-half the sum sued for or claimed by the creditor. The suit may 
 be a personal action, or a writ of scire facias. In the latter, the build- 
 ing itself is alone liable. The statutes are limited in their operation to 
 certain enumerated towns, cities and counties ; and bind only the estate 
 of the contracting party .(1) 
 
 9. In Ohio, any person furnishing labor or materials for building has 
 a lien, by making out an account within four months from the date of 
 his claim, which is to be sworn to and registered in the office of the 
 county recorder. The lien continues two years from commencement 
 of the work, &c. If there was a written contract, it must also be filed. 
 In case of a suit and judgment upon the account, the lien continues till 
 it is terminated. If the owner has a mere equitable title, the court 
 may order a lease of the property to satisfy the liens. So where the 
 officer fails to sell on execution. The lien may be discharged, like a 
 mortgage, on the record. (2) 
 
 10. In Indiana, mechanics, &c., have such lien, jointly or severally, 
 for any amount over thirty dollars. The remedy is a bill in Chancery, 
 commenced in one year from the furnishing of materials or completion 
 of the work. All may join in such bill, or one may file a bill alone 
 against the others and the employer. The property shall be sold, and 
 the proceeds proportionably distributed. But the lien may be dis- 
 charged by the filing of a bond. The act applies only to new erections, 
 or contracts for repairs made with the owner, not those made with a 
 
 (1) Purd. Dig. 595-6-7. See Biokel v. 
 James, 7 Watts, 9; Walter v. Streeper, 2 
 Miles, 348; Keppel v. Jackson, 3 Watts & S. 
 320; Lepman u. Thomas, 5, 262; Pentland 
 
 V. Kelly, R, 483; Sts. 1S44, 140, 665; 1843, 
 357; 1842, 66, 22, 197, 464, 213; 1840, 
 412. 
 
 (2) St. 1841, 66-70. 
 
 (a) A journeyman is not entitled to a lieu. Jobsen v. Boden, 8 Barr, 463. But the 
 word employed (in furnishing materials, &c.,) does not mean one wlio follows the supplying 
 of such materials as a regular business, but applies to any one who actually supplies them. 
 Savoy V. Jones, 2 Rawie, 343. 
 
 Where a building contract provides, that the contractor shall give security in $500 that 
 no liens shall be entered on the houses, a lien filed by the contractor himself is nevertheless 
 valid; the provision applying only to liens of other persons and sub-contractors. Young v. 
 Lyman, 9 Barr, 449. 
 
 Where several mechanics file liens against the same buildings, a sheriff's sale upon one of 
 them defeats and discharges all the others, and the purchaser takes a clear title. The 
 proceeds of sale are rateably divided among the whole. Anshutz v. McClelland, 5 
 Watts, 487. 
 
 A scire facias, being in rem, does not lie after a judicial sale of the property. lb. 
 
 Where a mechanic, &a, has agreed with a builder or architect to furnish labor or ma- 
 terials for the building of a third person, such builder, &o., must be made a party. Barnes 
 V. Wright, 2 Miles, 193. 
 
 Where one specially contracts to furnish all materials and erect "a building for a certain 
 sum, it has been held, that he cannot recover a balance due upon its completion by filing a 
 claim under the lien law. Hoatz v. Patterson, 5 Watts & S. 537. 
 
 (6) Where materials were furnished Jan. 22d, and the claim filed July 23d ; held, this was 
 too late to secure a lien. Hoops v. Parsons, 2 Miles, 241. 
 
504 WEN OF MECHANICS, ETC. [CHAP. XL 
 
 mere tenant. Notice shall be filed and recorded in a public office, within 
 sixty days from the time when the debt becomes due.(l)(a) 
 
 11. In Illinois, a lien is given to any one who contracts with the 
 owner of land to erect or repair a building or machinery, or to furnish 
 labor or materials ; also to any one who supplies materials which are 
 used for this purpose. A suit shall be brought within three months 
 from the time fixed for payment, and execution issue against the pro- 
 perty only. The time ot completing is not to go more than three years, 
 or of payment more than one year, beyond the time stipulated for com- 
 pletion. A suit is brought to enforce the right, to which all persons 
 interested may become parties. No priority of title arises from priority 
 of contract. Each creditor's share shall be ascertained ; and, if practi- 
 cable, such part only sold as will satisfy the liens. The act applies to 
 owners of limited or incumbered estates, as well as those in fee ; and 
 embraces the executors, &c., of both parties. No incumbrance, either 
 prior or subsequent, shall have priority, with regard to the building or 
 materials, over the claim of the person who erected or supplied them ; 
 and no lien shall continue in force, as against a creditor or incumbrancer, 
 more than six months from the last payment, unless a suit be corn- 
 menced.(2)(5) 
 
 12. In Missouri, artizans, builders, mechanics and laborers, doing 
 labor or furnishing materials for a building, under a contract with the 
 proprietor, shall have a lien upon such materials and work, each for 
 his own. A sworn account shall be filed with the clerk of the court, 
 within six months from th.e time when the debt falls due, and by him 
 recorded. The account shall contain a description of the property. A 
 suit may be brought within twelve months from completion of the work; 
 either in common form, in which case execution shall issue against the 
 property in question, only to the amount of the plaintiff's proportional 
 lien, if the defendant was owner or possessor of the property at the 
 
 (1) Ind. St. 1834, 165-7. I 50. See Logan v. Dunlap, 3 Seam. 189; 
 
 (2) Illin. Eev. L. 447; St. 1839-40, 147- | Delabay v. Clement, 3, 203. 
 
 (a) "Workmen upon a building may, by giving notice to the owner, hold him liable for 
 any amount due at that time to their employer — the latter being indebted to them. Rev. 
 St. 412-13. 
 
 A bill must be filed within a year from the time of furnishing the materials. Close v. 
 Hunt, 8 Blaokf. 254. 
 
 The party must file in the recorder's office of the proper county, within sixty days 
 after the debt became due, a notice of his intention to botd the lien Pifer v Ward 8 
 Blaekf 252, ' 
 
 (h) The work must be done or the materials furnished before such lien can attach, and the 
 petition must make judgment creditors parties, in order to defeat their rio-hts McLagau v 
 Brown, 11 111. 519. 
 
 Only those who furnish labor or materials, by contract with the owner, have a lien for 
 the price. 'Dawson v. Harrington, 12 lU. 300. 
 
 Although it might be proper to order a sale by a master or commissioner, yet the same 
 result is produced by a special exc-cution to the sheriff. The return of that officer would be 
 a report of the sale, which, if not made in pursuance of law, might be set aside, and another 
 sale ordered. Kelly v. Chapman, 13 111. 530. 
 
 The decree need not direct to whom the surplus money, if any, arising from the sale, 
 should be paid ; that may remain subject to a future order of the court. lb. 
 
 The rights of a person not made a party are not affected by the decree or any proceed- 
 ings under it. lb. 
 
 It is the duty of the party who complains of the verdict, to preserve the evidence in the 
 record, either by a bill of exceptions' or a certificate of the judge. lb. 
 
CHAP. XL.] LIEN OP MECHANICS, ETC. 505 
 
 time of the contract, and also against his property generally ; or by 
 scire facias against the original debtor and all persons owning or posses- 
 sing the property, and in this case execution shall run against the pro- 
 perty alone. When a claim of this kind has been paid, the creditor 
 shall,^ under penalty of forfeiting the amount of his lien, acknowledge 
 satisfaction, to be put upon the record, as in case of mortgages. The 
 lien extends to a convenient space of land, not exceeding five hundred 
 square feet clear of the building, if owned by the contractor. A late 
 statute gives a lien to svb-contractors, who do work, &c., upon buildings, 
 provided, that upon making settlement with their employer they give 
 notice of their claims to the owner. Such parly must also have given 
 written notice of his intention to work, and, within ten days of the 
 lime when his claim is due, file a copy of the settlement, lie may then 
 enforce his demand by a suit. By another act, the lien of mechanics, 
 &c., operates upon any qualified interest in the property, and every me- 
 chanic, &c., has a lien, whether employed by the owner, his agent, the 
 contractor, or sub-contractor. In case of leased land, the building will 
 be held, and also the lessee's interest in the lease, unless forfeited, in 
 which case the buildirjg may be removed, a ground-rent being paid to 
 the lessor. The land is also liable, unless the lease was recorded before 
 the debt was incurred. Notice must be given within thirty days from 
 the contracting of the debt or completion of the work. Such notice 
 must either be personal, or, if this is impracticable, posted on the build- 
 ing, and, within six months afterwards, a statement filed with the clerk 
 of St. Louis county. The lien will have priority of all claims arising 
 since the work was commenced. A suit must be commenced within 
 ninety days from the filing of the account, and the lien ceases in twelve 
 months from completion of the work, unless a suit is brought. The 
 liens to be discharged upon the record.(l) 
 
 13. In Tennessee, a mechanic, supplying work and materials by 
 special contract, has a lien upon the building and the land, not exceed- 
 ing one acre. The lien is paramount to all legal process, except a 
 judgment prior to the commencement of the building. A suit must be 
 brought in one year from completion of the work ; or within six months, 
 in Davidson county. Courts of law have jurisdiction, and enforce the 
 lien hy fieri facias. {2){a) 
 
 (1) Misso. St. 108-9; St. 1840-1, 105-6; I (2) Ten. St. 1825, 32; 1829, 4Y ; Fouat v. 
 1843, 83-4. I Wilson, 3 Humph. 31. 
 
 fa) The act applies, only where one person undertakes and completes the building. A 
 suit must be instituted within ninety days after filing the lien. Lee v. Chambers, 13 Mis. 
 238. Where the lien is filed and a judgment obtained before a justice, the clerk can issue 
 an execution without a return oC nulla bona, on an execution issued by the justice. lUing- 
 worth T. Miltenberger, 11 Mis. 80. 
 
 The provisions, which require a sub-contractor to give notice to the owner of his intention 
 to do work, Ac, before commencing, are repealed by the act of 1843, so far as St. Louis 
 county is concerned; and tliis last act is specially applicable to St. Louis county, and is not 
 repealed by the general law of 1845. Speilman v. Shook, 11 Mis. 340. 
 
 There need be no contract between the owner of a house and a aub-contractor, to give the 
 latter a lien. He has only to give the notice required by the statute, after doing the work. 
 Urin v. Waugh, 11 Mis. 412. 
 
 A mechanic, under a special contract, furnished certain articles and did certain work for 
 the erection of a house, and, within six months after completing the contract, filed his ac- 
 count. Held, his lien was good, and his deed from the sheriff, given after a sale under a 
 judgment rendered on his account, was valid. Viti v. Dixon, 12 Mis. 419. 
 
 The court of common pleas of St. Louis county has not jurisdiction of actions to enforce 
 mechanics' liens, under the Missouri statute of 184S. Hammond v. Barnum, 13 Mis. 325. 
 
506 LIEN OF MECHANICS, ETC. [CHAP. XL. 
 
 14. In Kentucky,(l) persons furnishing labor or materials {journey- 
 men excepted,) for the construction or repair of any building in Lex- 
 ington, have a lien upon the land according to their respective interests, 
 and to the extent of the employer's estate therein. If the latter claim 
 the land by an executory contract, which is afterwards set aside or re- 
 scinded, the lien shall continue against the owner of the land, so flir as 
 he is benefited by the services. If the employer is evicted from the 
 land, and has a claim for improvements against the owner, the person 
 claiming a lien shall be substituted for him to the extent of his lien. 
 Private corporations, trustees for charity, &c., are included in the act. 
 In six months from the completion of erecting, repairing, or furnishing 
 materials, or from the cessation of services by order of the employer, 
 an account shall be filed with the clerk of the court, specifying the lien, 
 which shall be notice to all the world. The party gains no lien, unless 
 he follows this course, or proceeds by suit to enforce the lien ; in which 
 case the lis pendens commences with the filing of the bill. The pro- 
 ceeding is governed by equity rules as to liens and priorities. 
 
 15. In Michigan, mechanics, &c., may acquire a lien by contract in 
 writing. A suit may be brought in sixty days from the debt's becoin- 
 ing due, and must be brought in six months after the last instalment is 
 payable. Notice is given to the owner and other parties having liens. 
 If the plaintiff, in consequence of the defendant's not complying with 
 his contract, has fulfilled his own only in part, his lien is effectual ^ro 
 tanto. A portion of the propej'ty is sold, if circumstances make it proper. 
 The sanie redemption is allowed, as in case of execution sales of equi- 
 ties of redemption. The lien may attach to estates mortgaged or less 
 than a fee; and is subject to any prior attachment. It is discharged on 
 the margin of the record.(2) 
 
 16. In Arkansas, mechanics, &c., whocontract verbally or in writing, 
 if for over $100, have a lien, by filing an account within three months 
 from the accruing of their claim. A scire facias is commenced, and the 
 plaintiff takes upon execution his share of the property, in proportion 
 to the amount and order of his lien. If the property is insufficient, a 
 new scire facias issues. A suit must be brought withm one year from 
 completion of the work. The lien includes the land around the build- 
 ing, not exceeding two acres, exclusive of the building. The lien is 
 subject to incumbrances, existing before the work commenced, and re- 
 corded or known to the party : and sale is made accordingly. Con- 
 current jurisdiction is given to courts of law and equity. Where several 
 mechanics have a lien on the same property, priority is allowed in the 
 order of time. If the property is insufficient to satisfy the claim, exe- 
 cution issues against any property of the debtor. A judgment upon 
 the lien gives a lien upon all his real estate in the county. The claim- 
 ant may at the same time bring suits upon the debt, and to enforce his 
 lien. The lien embraces only the interest of the party contracting. (3) 
 
 17. In Mississippi, mechanics, &c., have a lien in the city of Natchez. 
 
 (1) Ky. St. 1837, 215-6. Seo Laviolette v. | There can be no separate sale of a house, ir- 
 Redding, 4 B. Monr. 81; Pinch v. Redding, respective of the owner's interest in the land, 
 lb. 88 ; Longest v. Breden, 9 Dana, 141 ; i'etter v. Wilson, 1 2 B. Monr. 90. 
 
 Graham «. Holt, 4 B. Monr. 6. Where a bill 
 is pending upon a mechanic's lien, the prop- 
 erly may still be sold on execution, subject 
 to such lien. Glenn «. Coleman, 3 lb. 134. 
 
 (2) Mich. Rev. St. 53'?-42 ; St. 1839, 231, 
 232. 
 
 (3) Ark. Rev. St. 642; St. 1842-3, 69-11; 
 1844, 5, 19; 1846, 82. 
 
CHAP. XL.] 
 
 LIEN OF MEOHA.NICS, ETC. 
 
 507 
 
 The proceeds of sale are distributed among the several claimants. The 
 lien continues only two years from commencement of the building, un- 
 less a suit is brought or claim filed within six months from the doing 
 of the_ work or finding of materials. " A written contract of agree- 
 ment" is to_ be recorded within three months from the time of making it. 
 And the lien is discharged, like a mortgage, upon the record. By a 
 late act, mechanics erecting or repairing buildings in any way, whether 
 by special agreement or not, have a lien prior to all others. So 
 upon the land, subject to prior incumbrances. There must be a suit 
 or registration within twelve months from the time the debt falls due. 
 Execution runs against the property, and equitable distribution is made 
 of the proceeds. Justices of the peace have jurisdiction of an account 
 within their usual power. In such cases, the contract is filed with 
 them.(l) 
 
 18. In Georgia, an act passed in 1835 provides, that the second sec- 
 tion of a former act shall not affect any claim which does not ex- 
 ceed thirty dollars. If the claim is for a less sum, the lien may be 
 preserved without recording. The requisition, also, in the fourth sec- 
 tion, that a suit be brought in six months, is repealed. But in Prince's 
 revision of the laws of Georgia, which purports to come down to 1837, 
 there is contained no statute upon this subject. Steam saw-mills, at or 
 near any water-course, are subject to lien, for services therein, timber 
 or firewood used in them, or provisions or supplies furnished to them. 
 Millwrights and builders of gold machines also have a lien. (2) 
 
 19. In Alabama, (3) all master builders and mechanics, contracting 
 to erect buildings, or to do jobs of work upon the same, shall have a 
 lien thereupon for all their dues, unless the contrary is agreed when the 
 contract is made. But the contract must be written and signed, or the 
 amount liquidated between the parties, and a net balance struck in fa- 
 vor of the claimant; or an award made in his favor upon submission 
 to arbitration ; or a judgment recovered by him. And, if his claim is 
 contested, even where a net balance is struck, he shall proceed at law 
 to judgment and execution, as also where there has been a reference to 
 arbitration, and an award in his favor. The contract shall be recorded 
 with the clerk of the court, within thirty days from the time of ma- 
 king.(a) 
 
 (1) Miasi. St. 1819, p. 32; 1840, 58-60. 
 See Andrews v. Washburn, 3 Sra. & M. 109 ; 
 Planters, &o. v. Dodson, 9, 527 ; Jones v. Al- 
 exander, 10, 627. 
 
 (2) Geo. St. 1835, 146; 1842, 122. 
 Coleman v. Freeman, 3 Kelly, 137. 
 
 (3) Aik. Dig. 308. 
 
 See 
 
 (a) Tarious decisions have been made, in construction of the statutes above referred to ; but 
 most of them are predicated upon the particular phraseology of the several acts, and involve 
 few general principles. . • , ,j 
 
 With regard to the party -who is liable to be affected by the hen in question ; it is held, 
 that, if the employer is either an intruder upon, or a particular tenant of the land, the gene- 
 ral owner cannot be affected by the lien. A law, giving this effect to a contract between 
 third persons would be void for unconstitutionality. Hence, to a petition in such case, the 
 general oven'er may become a party defendant. Thaxter v. Williams, 14 Pick. 49. See 
 Holdship V Abercrombie, 9 Watts, 52. So, an execution sale under the hen law passes only 
 the title of the party in possession, when the building was erected. O'Connor v. Weaver, 4 
 W. & S. 223 ; Evans V. Montgomery, Ibid. 218. . 
 
 So, it is held, that the lien law only prefers such lien to every other lien or incumbrance, 
 which attached' upon the building afterits commencement. Jones v. Hancock, 1 Md. Ch. 187. 
 
 If, when the lien attaches, the person causing the building to be erected has no title to 
 
508 I-IEN OF MECHANICS, ETC. [CHAP. XL. 
 
 the premises, but a mere right, resting in contract, to a conveyance, on performance of a 
 condition, which is afterwards lost by his failure to perform tlie condition ; subsequent pro- 
 ceedings to enforce the lien will convey no right or title to tlie purchase. Scales v. Griffiin, 
 2 Doug. B4. 
 
 So, a mortgage is not affected by a lien subsequently accruing. Hoover v. Wheeler, 23 
 Miss. (1 Cush.) 314; Troth v. Hunt, 8 Blackf 580 ; Zyle v. Ducomb, 5 Bin. B85 ; Leigb v. 
 Bean, Ash. 201 ; Browne v. Smith, 2 Browne, 229 n. 
 
 But rents accruing after the lien attached, and rightfully received by the administrator 
 of the mortgagor, may be subjected to the lien. lb. 
 
 In September, a party filed a claim for work done between May and September, and of- 
 fered in evidence a written admission made in September, that the claim was correct. In 
 July, he had mortgaged the property. Held, such admission could not prejudice the inter- 
 est of the mortgagee, and the mortgagee, claiming the property, might appear to and defend 
 the action. Carson v. White, 6 Gill, 11. 
 
 If the property be ordered to be sold, and some of the defendants hold incumbrances older 
 than the lien, those incumbrances, in the order of the dates, should be preferred to the com- 
 plainant's. Close V. Hunt, 6 Blackf. 254. 
 
 The defendants, in such case, who are incumbrancers, not being in fault, are not liable for 
 costs. lb. 
 
 But where a carpenter finished a dwelling-house on the Hth of November, 1842, and 
 filed his claim in the office of the clerk of the county, on the 17th of January, 1843, and 
 on the 22d of December, 1842, the owner, then in possession of the house, mortgaged it to 
 a person having no actual knowledge of the lien; held, the lien was prior to that of the 
 mortgage. Tandyne v. Vanneas, 1 Halst. Ch. 485. 
 
 February 25, A and B, to secure their lien, filed their account in the clerk's office, as re- 
 quired by the statute, an abstract of which was entered on the judgment docket.^ At the 
 April term, they instituted an action of assumpsit on the account, and obtained judgment 
 against the owner of the land; execution was issued against the specific property, and sale 
 made. On the 19th of March, the owner had executed a mortgage on the property. Held, 
 the title acquired under the sale was paramount to the mortgage ; that the bringing of 
 an action of assumpsit did not waive the lien ; that the declaration in such action may be in 
 the usual form, and need not refer to the Men ; that the execution may issue against the spe- 
 cific property, and that the filing of the account and affidavit, and entering an abstract upon 
 the judgment docket, is notice to all the world of the lien. Spence v. Btter, 3 Bng. 69. 
 
 An unfinished house was sold and a mortgage given back for the price, and immediately 
 recorded. The mortgagee proceeded with the building. Held, persons furnishing labor and 
 materials, after the mortgage was recorded, had a claim prior to the mortgage. American, 
 &c. v. Pringle, 2 S. i R. 138. 
 
 Where the ownerof land subject to a mechanic's lien mortgages it, but remains in posses- 
 sion, the mortgagee is not entitled to notice of the petition. Howard v. Robinson, 5 
 Cush. 119. 
 
 The lien of a judgment recovered against the proprietor, after the commencement of the 
 work, and before its completion, is paramount to that acquired by the mechanic, by filing 
 bis account, &o., after the completion of the work. McCullough v. Caldwell, 3 Eng. 231. 
 
 A building partly completed was bought at sheriflf's sale by A, and a deed given 
 him. A judgment being recovered against A, after completion of the building, it was 
 sold thereupon, as A's. Held, in distributing the proceeds, tlie judgment creditor had priori- 
 ty of a mechanic, who worked for A, in completing the building. Stevenson v. Stonehill, 
 5 Whart. 301. 
 
 With regard to the forms of proceeding in suits upon the lien law, the description of the 
 debt and the premises, joinder of parties, claims and property; numerous cases have been 
 decided, often turning upon points of mere local application, and, therefore, not requiring ex- 
 tended notice. It has been held, in'general, that the statute must be strictly pursued; and 
 the particulars of the claim fully stated. Greene v. Ely, 2 Greene, (Iowa,) 508. So, the 
 petitioner must prove the contract as alleged, and he cannot abandon the contract set out, 
 and recover upon a quantum meruit. Carroll v. Craine, 4 Gilm. 563. 
 
 The same strictness has been required, in stating the place where the property is located. 
 Hence, where the statute extended the provision to the village ofL., and a building was de- 
 scribed in the original lien and the scire facias, as ietween the turnpike and the village, and 
 was proved to be upon an out-lot adjoining it ; held, the act did not apply. Tilford v. Wal- 
 lace, 3 Watts, 141. But see Springer v. Keyser, 6 Whart. 187; Davis v. Church, 1 W. & S. 
 24; Sullivan v. Johns, 5 Whart. 366. 
 
 But, if there is a want of common certainty in a description of alot of land by the number 
 thereof, the defendant must show wherein the defect or uncertainty consists. O'Halloran v. 
 Sullivan, 1 lb. 75. 
 
 A claim for materials, under the Pennsylvania statute, without specification of kind or 
 quantity is bad. Lauman, 4c., 8 Barr, 473. See NoU v. Swinaford, 6 Barr, 107, But, a 
 
CHAP. XL.] LIEN O}? MECHANICS, ETC. 509 
 
 reference to a special contract, in a meclianic's claim, ig unnecessary, under the Pennsylva- 
 nia statute of 1S45. O'Brien V. Logan, 9 Barr, 97. 
 
 Items of claims were set forth thus: "June 30, 1847. To building 63 2-3 perches, at $1 50 
 and materials, 1?95 50." "July 29. To 13 perches in cellar doors, at $1 50, $19 50." 
 Held, the date was presumed to be tlie time when the work was completed, and the quan- 
 tity ascertained. Donahoo v. Scott, 2 Jones, 45. 
 
 A mechanic who adopts a statement of his claim, signed by his attorney at law, is entitled 
 to the benefit of it by his 5C!;./o. lb. 
 
 A petition alleged, that payment was to be made as the work progressed, and, if any bal- 
 ance should remain when the work was completed, that was to be paid as the parties could 
 agree. Held, this was a sufficient statement of the time of payment. Mix v. Ely, 2 Greene 
 (Iowa,) 513. ' 
 
 The omission, from the body of a mechanic's claim, of the initial letter of the middle name 
 of the owner, is immaterial. Knabb's Appeal, 10 Barr, 186. 
 
 Claim against a hou.se, (describing it,) "and the lot of ground and curtilage appurtenant 
 to said building," " for work and labor done within six months last past, for and about the 
 erection and construction of the said building and appurtenance." Held, not sufBciently cer- 
 tain. Barclay, &e., 1 Harr. 495. See Shaw v. Barnes, 5 Barr, 18. 
 
 "Where there is a contract to erect houses for a specified sum, and it has been wholly or 
 partially performed, if the completion has been dispensed with by the owners, it is not neces- 
 sary to set forth the items of work, materials, &c., in the cl»im filed. Young v Lvman 
 9 Barr, 449. ' ' 
 
 Where the copy of a bill annexed to a mechanic's claim sets forth an impossible date, as 
 " 1846," for " 1845," the varifince is not fatal, if the real date of furnishing the materials' be 
 proved. Hillary v. Pollock, 1 Harr. 1 86. 
 
 Where a claim for a lien on buildings, *c., under the Pennsylvania act of 1826, on account 
 of bricks furnished, was dated Nov. 7, 1847, and alleged that the whole number was furn- 
 ished within six months last past, and a bill of particulars was aniie.xed which specified June 
 3, 1847, as the date of the last delivery; held, the time when the -bricks were furnish- 
 ed was alleged with sufficient certaiuty. Calhoun v. Mahon, 2 Harr. 56. 
 
 A description of the lot, as "number 751, in the city of Dubuque," is sufficient; so also "a 
 brick house upon the snid lot, to be 20 feet by 30, two stories high, and a cellar." O'ilallo- 
 ran v. Sullivan, 1 Greene, 75. 
 
 Where a plaintifij in a sci. fa. upon a mechanic's claim, in Pennsylvania, has been non- 
 suited, he may file another claim (or the same demand, and proceed thereon, though the for- 
 mer claim remains on the records of the court. BournonviUe v. Goodall, 10 Barr, 133. 
 
 Taking a bond with warrant of attorney, and entering judgment on it, are not filing a claim 
 or instituting a suit, within tlie meaning of the lien law. Williams v. Tearney, 8 S. & It. 58. 
 
 In a suit to enforce a mechanic's lien, the defendant may set off a claim for unliquidated 
 damages, founded upon the plaintifl's breach of contract to erect the building. Bayne r. 
 Gaylord, 3 Watts, 301. 
 
 So in scire facias against the owner and the contractor, the contractor may set off a claim 
 due him from the plaintiff. Gable v. Parry, 1 Harr. 181. 
 
 A joint lien may be filed against several houses belonging to one person. If two houses, 
 contracted for together, are contiguous, the party may either file one lien against all, or a 
 separate one against each, making a fair and rateable apportionment of the amount claimed. 
 Pennock V. Hoover, 5 Rawle, 291. See Croskey v. Coryell, 2 Whart. 223; Mc'Call v. East- 
 wick, 2 Miles, 45 ; Donahoo v. Scott, 2 Jones, 45. 
 
 The thirteenth section of the Pennsylvania act of 1836 authorizes a joint chiim against two 
 or more buildings owned by the same person, but not a joint claim against two or more sep- 
 arate blocks of buildings, situate on different streets. Chambers v. Yarnall, 3 Harr., 266. 
 Tou%v. Chambers. lb. 
 
 In the case of a claim against a block of buildings, joint entries in the book of original en- 
 tries of the material-man, for lumber furnished for the same and another block, unaccom- 
 panied by ;iny other evidence that the lumber was furnished for the block in question, are 
 not admissible in evidence. lb. 
 
 A material-man filed his claim in scire facias, against A as owner, and B as con- 
 tractor, in which the defendants prevailed. A new «cw'e/oaas was then brought against C 
 as owner, and B as contractor. Held, the judgment was no bar, as a former recovery. Hamp- 
 ton v. Broom, 1 Miles, 241. 
 
 Where a mechanic's claim is filed against a mansion-house, barn, wagon-house, &o., on one 
 farm, to which they are all appurtenant, and are intended to be occupied and used together, 
 there is no necessity for an apportionment of the claim among the several buildings. Lau- 
 man's Appeal, 8 Barr, 473. 
 
 A mMterial-man, who has indiscriminately furnished materials to a contractor, for the erec- 
 tion of two licjuses, belonging to diflerent owners, may divide his bill, and file a separate lien 
 against each house. Davis v. Farr, 1 Harr. 167. 
 
510 LIEN OF MECHANICS, ETC. [CHAP. XL. 
 
 There is no mechanic's L'en against a lessee for years, for work and materials for buildings 
 erected by him on the ground leased. Haworth v. "Wallace, 2 Harr. 118. 
 
 So, buildings and fixtures, erected by a lessee for years, for the purposes of trade, are not the 
 subject of a mechanic's lien in favor of creditors of the lessee. Church v. Griffith, 9 Barr, 117, 
 
 Nor on an alteration of, or addition to, a house. Matter of Howett, 10 Barr, 379; Lan^ 
 dis' Appeal. lb. 
 
 A carpenter's lien extends to so much of the tract of land on which the house is built, as, 
 with the house, would be required to discharge it. Van Dyne T. Van Ness, 1 Halst. Ch, 
 485. 
 
 A church is the subject of a mechanic's lien. Presbyterian Church v. Allison, 1 Barr, 413, 
 
 A lien embraces the quantity of ground necessary to the proper use of the biiilding, as 
 intended at its commencement. It is also limited to the description in the claim filed, 
 Pennock v. Hoover, 5 Rawle, 291 ; Mc'Donald v. Lindall, 3 Rawle, 492. 
 
 A building, partly brick and partly frame, having been repaired, was removed, and after- 
 wards a cellar was dug under it and walled up, a new chimney built, and the house newly 
 weather-boarded and plastered. Held, this was a building erected and constructed v/ithin the 
 meaning of the lien law. Burling, &c., Ashm. 377 ; Olympic, &c., 2 Browne, 275. 
 
 But, the addition of a basement to a frame house, fitted for occupancy, is not an erection 
 within the law. Miller v. Oliver, 8 Watts, 514. 
 
 The lien attaches to an engine, by which a steam saw-mill is propelled, it being part of the 
 building. Morgan v. Arthurs, 3 Watts, 140. So, it seems, one who furnishes lumber for the 
 shelves of a vault has a lien. Harker v, Conrad, 12 S. & R. 301. But, not in Pennsylvania, 
 on a steamboat. Walker v. Anshutz, 6 W. & S 519. The lumber may be delivered at a 
 shop, distant from the building. So, it need not be actually used, or in a usual or necessary 
 manner. Hinohman v. Graham, 2 S. & R. 170; Harker v. Conrad, 12, 301. 
 
 A wife, by joining with her husband in a written contract with a mechanic, for furnishing 
 labor or materials for erecting a building on her land, does not thereby create a lien on her 
 estate, and therefore cannot properly be joined with her husband in a petition. But such 
 contract creates a lien on the husband's estate, and, if she be joined, the petitioner may dis- 
 continue as to her, and proceed against the husband. Kirby v. Tead, 13 Met. 149; Rogers 
 V. Phillips, 3 Eng. 366. Contra, Greenough v. Wigginton, 2 Greene, 435. 
 
 By such a contract it was provided, that the last payment should be made "upon the 
 entire fulfilment of the contract, in all its parts, on or before the first day of May," 1844, 
 also, that if any difficulty should arise, it should be submitted to two housewrights. The 
 building was not completed on the first of May, but was completed on or before the tenth 
 day of June. A difficulty arose, as to the construction and execution of the contract, and 
 the parties submitted it, on the twelfth day of June, to two housewrights, who decided, on 
 the fourteenth day, that the husband and wife should pay to the mechanic a balance less 
 than $430 ; and, on the thirteenth day of December, the mechanic filed a petition, tliat the 
 land might be sold, and the proceeds applied to the discharge of the balance found due him. 
 Held, the lien on the husband's estate was not dissolved at the filing of the petition, by vir- 
 tue of the provision, "that the lien shall be dissolved at the expiration of six months after 
 the time when the money due by the contract, or the last instalment thereof, shall become 
 payable, unless a suit for enforcing the lien shall have been commenced within the said six 
 months." lb, 
 
 At the time of the contract, the parties had not had a child born alive ; but, after the 
 mechanic filed a petition, they had a child born alive. Held, the lien extended to the hus- 
 band's estate as tenant by the curtesy initiate. lb. 
 
 A married woman cannot be an employer, so as to charge the land, unless she has a sepa- 
 rate estate therein, with a power of charging it ; neither can a husband, since the statute of 
 1846, in regard to property of married women, charge his estate in the curtesy in his wife's 
 lands, unless she join with him in the contract for labor. Fetter v. Wilson, 12 B. Mon. 90. 
 
 So, the lien does not attach to the separate property of a wife, upon her contract, either 
 separate or jointly with her husband, and her separate property cannot be made liable at 
 law for such contract. She has no power thus to contract. U. S. Dig. 1852, H. & Wife. 
 
 The fact that the materials furnished, for which a lien is claimed, were charged to the 
 contractor individually, without reference to the building, does not preclude the plaintiff 
 from showing, that they were furnished on the credit of the building; and, whether the 
 materials so furnished were actually used in the construction, is immaterial. Presbyterian 
 Ac. V. AUison, 10 Barr, 413. The acceptance of a note by a mechanic is not a waiver of 
 his lien, unless it was so intended. Greene v. Ely, 2 Greene, (Iowa,) 508. Mix v. Ely, 
 ib. 513. 
 
 Where a promissory note has been given for part of the debt for which a mechanics' 
 lien has been filed, the amount may be recovered by the claimant, who holds the note 
 which had been dishonored. Johns v. Bolton, 12 Penn State R. (2 Jones,) 339. 
 
 Nor is an agreement to receive payment, partly in cash, and the balance in lumber at fair 
 prices, whenever called for, &c., and the acceptance of a guarantee from a third person, for 
 the fulfilment of this contract, a waiver. Hinchman v. Lybrand, 14 S. & R. 
 
CHAP. XL] LIEN OF MECHANICS, ETC. 511 
 
 It lias been held in New Jersey, that proceeding by personal action againat the debtor is 
 not a waiver of a. carpenter's lien. Van Dyne v. Van Ness, 1 Halst. Ch. 485. But it is 
 decided otherwise in Pennsylvania, where the defendant prevails in the first suit. Whelan 
 T. Hi)], 2 Whart. 118. 
 
 A, having purchased lumber from B, to be uned in a building, came into possession of a 
 note signed by B, payable in lumber to a larger amount than that received by A, and after- 
 wards purchased of B more lumber, exceeding the amount of the note. A and B agreed that 
 the note should go to the account of another building, upon which B lost his lien by neg- 
 lecting to file his claim seasonably. C purchased the former building before the latter was 
 commenced. B files a lien claim against the former building, for the whole amount of lum- 
 ber furnished. Held, B's claim was extinguished pro ianto by the note, and could not be 
 enforced for the whole, as against C. Hopkins v. Conrad, 2 Rawle, 316. 
 
 The lien commences with the completion of the work, or the delivery of the materials, 
 under the contract, the requisites of the act being complied with. MeCullough v. Caldwell, 
 3 Eng. 231. 
 
 The six months allowed for filing such claim does not begin to run, until extra work dona 
 at the request of the owners is finislied, although the work which had been specially con- 
 tracted for had been previously completed. Johns v. Bolton, 2 Jones, 339. 
 
 When a work was completed, the mechanic took a note for the price due, which note 
 became due May 1, 1848. Held, proceedings instituted March 27, 1849, were commenced 
 within a year after the wages became due. Mix v. Ely, 2 Greene, 513. 
 
 Under the lien law for the city of New York, (St. 1844, p. 339,) a mechanic's lien is 
 limited to one year from its commencement, notwithstanding the recovery of a judgment 
 th«reon against the owner, before the end of the year. Freeman v. Cram, 3 Comst. 305. 
 
 Tile commencement of a building within the meaning of the lien law, is the first labor done 
 on the ground, which is made the foundation, and to form a part of the work suitable and 
 necessary for its construction ; and this is unchanged by any change in the ownership of the 
 land and building, or in the plan, provided the original design of its character remains. 
 Pennock v. Hoover, 5 Rawle, 291. 
 
 If, after such lien has accrued, the employer die, a bill to enforce it may be filed against 
 the heirs. Pifer v. Ward, 8 Blackf. 252. 
 
 The administrator of the defendant may properly be made a party ; and, if tlie plaintiff 
 takes a judgment, without making the heirs a party, he does it at his peril Mix v. Ely, 2 
 Greene, 513. 
 
 A person entitled to a lien has no preference over the general creditors, when the debtor 
 has deceased, and his estate has been rendered insolvent within one year from the time of 
 granting administration. [Wells, J., dissenting.] Severance v. Hammatt, 28 Maine, 511. 
 As to the admission of parol evidence and books of charges, see Hills v. Elliott, 16 S. & 
 B. 56 ; Church v. Davis, 9 Watts, 304; Rehner v. Zeigler, 3 Watts & S. 258; Dickinson, 
 ka. V. Church, 1 Watts & S. 462. 
 
 As 10 the laws of New York and New Jersey upon this subject, see Haswell v. Good- 
 child, 12 Wend. 373; 3 N. Y. Rev. St. 273; St. 1844, 451, 339; 1853, 708; 1854, 953, 
 960; N. J. St, 1840, 75 ; Taylor v. Baldwin, 10 Barb. 626 ; Flanigan v. Feuring, 2 is". J. 387. 
 The word owner in the lien law is the correlative of contractor; meaning the person who 
 employs him, and for whom the work is done. McDermott v. Palmer, 11 Barb. 9. 
 
 A mechanic who proceeds, under the lien law of New York, against the owner of a build- 
 ing, for work done under the contractors, cannot recover, if nothing be due to the latter on 
 their contract. Pike v. Irwin, 1 Sandf 14. 
 
 Where proceedings were instituted by a mechanic against the owner, at the request of 
 the latter, for work°done under the contractors, and he promised to pay the demand, on 
 being furnished witli an order from the contractor.s, which was done ; held, the owner might 
 prove, in his defence, that there was nothing due from him to tlie contractors. lb. 
 
 If, after the workman has given notice of his demand to the owner, the contractor fails in 
 ten days to settle the demand, or to agree in writing to submit the matter to arbitration, the 
 owner becomes liable to pay the demand, no matter what the state of accounts may be be- 
 tween the mechanic and contractor. Monteith v. Evans, 3 Sandf. 65. 
 
 For the law of Iowa, see Code 1851, 154, Personal service of petition is necessary, when 
 
 the defendant can be found in the county ; if not to be found in the county, notice posted 
 
 on the buildings subject to the Uen ia a sufScient service ; in which case it must appear by 
 
 the officer's return that tlie defendant could not be found, Coloord v, Funck, 1 Morns, 1 1 8. 
 
 In Vermont, a written contract to build or repair a house gives a hen for three months. 
 
 Verm. Sts. 1849, 16. , , . • t. u 
 
 The statutes of Maryland, upon this subject, I have been unable to examine. It has 
 been held in that State, that, in order to have a hen, the mechanic must file with the clerk 
 of the county court a statement of his demand, with the items and particulars thereof, in- 
 cluding the sum due, the nature of the work, the kind and amount of materials, and the 
 time when the work was done, and the materials supplied. Carson v. White, 6 Gill, 17. 
 
512 
 
 REMAINDER— VESTED 
 
 [CHAP. XLI. 
 
 CHAPTER XLI. 
 
 REMAINDER— VESTED AND CONTINGENT REMAINDERS. 
 
 1. Definition — cannot be after a fee. 
 
 4. By what words created. 
 
 5. Vested or contingent. 
 1. When contingent. 
 
 9. Classification of contingent remainders. 
 
 20. Exception to third class — limitation for 
 
 a long term — remainder after the ter- 
 
 mination of a life. 
 
 24. Limitation after a life, where the term 
 for years is short. 
 
 28. Exceptions to fourth class— Shelley's 
 case — " designatio persons," &a. 
 
 34. Ch. J. Willea' division of contingent re- 
 mainders. 
 
 1. A REMAINDER is a remnant of an estate in lands or tenements, 
 expectant on a particular estate, created together with the same at one 
 time, and by the same instrument, and limited to arise immediately on 
 the determination of that estate, and not in abridgment of it. Thus, 
 if A, being an owner in fee, convey the land to B for ten years, re- 
 mainder to C and his heirs forever, B is tenant for years, with a re- 
 mainder to C in fee. Both these estates subsist at one time, and both 
 are parts of one entire estate, making together the absolute and perpet- 
 ual inheritance of the land. The former is said to be merely carved 
 out of the inheritance. Hence, where the fee-simple is first conveyed, 
 this being the whole estate, no remainder can be validly limited upon 
 it. Thus, where land is conveyed to A and his heirs, and, if he die 
 without heirs, remainder to B in fee, the remainder is void. So, where 
 land was devised to one corporation and its successors, so as they paid 
 a certain annual sum to another and its successors, on failure of which, 
 the estate of the former to cease, and the latter to have it ; held, the 
 latter limitation was void.(l) 
 
 2. The same rule applies to a limitation after a remainder in fee. 
 Thus, where a will, after giving an estate in fee in remainder to chil- 
 dren, provided that, if their mother survived them, it should go to her; 
 held, the children took a vested remainder in fee, and not a contingent 
 remainder.(2) 
 
 8. Upon the same principle, it has been held, that even upon a con- 
 ditional, base or qualified fee, no remainder can be limited, because the 
 entire fee passes, leaving only a possibility of reverter in the grantor. 
 Thus, if lands be given to A and his heirs, so long as B has heirs of 
 his body, or till B returns from Eome, remainder to in fee ; the re- 
 mainder is void as such, though it might be good as a shifting use, or 
 executory limitation. This principle, however, has been doubted. 
 And upon an estate tail, since the statute de doiiis, a remainder may be 
 validly limited. (3)(a) 
 
 4. The estate above described mav be created, without the use of 
 
 (1) Co. Lit. 143 a ; 4 Kent, 196-'? ; 1 Abr. 
 Eq. 186; Dyer, 33 a. Buist v. Dawes, 4 
 Strobh, Eq. 37. 
 
 (2) Blatichard v. Brooks, 12 Pick. 64. 
 
 (3) Co. Lit.. 18 a ; Edward Seymor's case, 
 
 70 Rep 97 b ; Gardner v. Sheldon, Vaugh. 
 269; Willion v. Berkley, Plow. 235; 4 Kent, 
 198-9 ; Peppercorn v. Peacock, 3 Man. S, G. 
 356 ; Doe v. Simpson, 5, 780. 
 
 (a) As to merger in case of conditional fees, see Doe v. Simpson, 4 Bing. N. 333. 
 
CHAP. XLI.] 
 
 AND CONTINGENT EEMAINDERS. 
 
 513 
 
 the word remainder, by any expressions of equivalent meaning; as, 
 tor instance, that after the death of A the land shall reva-t and descend 
 to B, &c.(l) 
 
 5. Eemaindersare either vested or contingent. The former is Avhen 
 there is a person in being, who would have an immediate right to the 
 possession of the lands, upon the ceasing of the intermediate or prece- 
 dent estate ; or where, if the precedent estate should terminate imme- 
 diately after its creation, the remainder would then take effect. In 
 other words, a vested remainder is a present interest, though to be 
 enjoyed in future ; an immediate right of present enjoyment, or a 
 present fixed right of future enjoyment. And there may be many 
 successive remainders, all of which shall be vested. Thus, if the land 
 be limited to A for life, remainder to B in tail, remainder to C in fee ; 
 B's remainder is vested, because, if A should immediately die, B 
 would take ; and C's is vested, because, if A should immediately die, 
 and also B, without heirs, C would take. A vested remainder is in 
 general subject to the same dispositions with an estate in possession. 
 It gives a legal or equitable seizin.(2) But it is said, that in some in- 
 stances a vested remainder would seem to possess the essential qualities 
 of a contingent estate.(3)(a) 
 
 6. Devise to the wife of the testator during widowhood ; and, upon 
 her marriage, one-half the estate to go to a son. Another clause de- 
 vised to the son, upon the death of the widow, the remaining part of 
 the testator's landed property. The introductory clause of the will 
 expressed an intent to dispose of all the testator's property. The 
 widow having married, held, the son was entitled to possession of one 
 moiety of the estate, and that he took a vested remainder in the other ; 
 that the remainder was subject to execution, and the purchaser entitled 
 to possession upon the death of the widow, notwithstanding the son's 
 death during her life. The son took a vested remainder in the whole 
 estate, because it depended upon a certain event, the death of the 
 widow, who took a life estate by implication, determinable as to a 
 moiety by her marriage. The conditional limitation to the precedent 
 estate, to wit, the second marriage, gave the son possession of a moiety 
 on the happening of that event.(4) 
 
 7. A remainder is contingent, when it is limited to take effect on a 
 condition, which may never happen or be performed, or not till after 
 the determination of the preceding estate.(5) 
 
 8. It was remarked by Lord Chief Justice Willes to the House of 
 Lords, that " the notion of a contingent remainder is a matter of a 
 good deal of nicety ; and if I should trouble you with all that is said 
 in the books concerning contingent remainders, and the instances that 
 are put of them, I am afraid it would rather tend to puzzle than en- 
 lighten the case."(6) 
 
 9. Mr. Fearne divides contingent remainders into four classes. 
 
 (1) 2 Cruise, 238. 
 
 (2) 1 N. T. Rev. St. 123 ; Willes, 337 ; 4 
 Kent, 201; 1 Preat. oa Est. 94-8; Bowling 
 V. Dobyn, 5 Dana, 438 ; Jackson v. Sublett, 
 10 B. Mod. 467. 
 
 (3) 4 Kent, 204. 
 
 (4) Chapin v. Marvin, 12 Wend. 538. 
 
 (5) 2 Cruise, 238. 
 
 (6) Willes, 337. 
 
 (ffi) A remainder in fee, limited upon an estate tail, is vested, because the latter must at 
 some time come to an end. 1 Steph. 302. 
 
 Vol. I. 33 
 
514 
 
 EEMAINDER— VESTED 
 
 [CHAP. XLL 
 
 10. First, where the remainder depends on a coutingent determina- 
 tion of the prior estate, by the act either of a t^iird person or of the 
 prior owner himself Thus, if A convey to the use of B till C returns 
 from Rome, and after such return to remain over to D in fee ; here 
 B's estate will end, and D's take effect, only upon a particular event, 
 which may possibly never happen. So, where one conveys to the use 
 of A in tail, until he does such an act ; then to B in tail ; B has a con- 
 tingent remainder.(l) 
 
 11. Second, the remainder may be limited to take effect only upon 
 the happening of an event, which is wholly independent of the mode 
 of termination of the prior estate. 
 
 12. Thus, if a lease for life be made to A, B and C, and, if B survive 
 0, remainder to B in fee, the remainder does not depend upon the 
 manner of termination of the prior estates, but upon B's survivorship. 
 In other words, the prior estates are subject to no contingency, but 
 must expire by their natural limitation. The contingency is in the 
 remainder only.(2) 
 
 13. Devise, to the use of A, the heir at law, for li/e ; and from and 
 after his death to the use of B in fee, in case B should survive A; but, 
 if she should die living A, to the use of A in fee. B has a contingent 
 remain der.(3) 
 
 14. Third, the remainder may be limited upon an event which, 
 though it must happen at some time, may not occur till after the ter- 
 mination of the prior estate, in which case, as will be seen hereafter, 
 the remainder becomes void. 
 
 15. Conveyance to A for life, and, after the death of B, remainder to 
 C in fee. If A should die before B, C's remainder could never take 
 effect. Hence it is contingent. (4) 
 
 16. A testator devised land to his wife, and proceeded to devise "to 
 any child or children of mine which I shall leave at my decease, and 
 to their heirs, and to all the G's (children of his wife) who shall be 
 living at my wife's decease, equally to be divided among them all, the 
 reversion and remainder of said real estate after the death of my wife, 
 in equal portions to each of them and their heirs in common ; and if 
 none of the G's be living at the decease of my wife, then the said re- 
 version shall remain to my said child or children and their heirs." 
 The wife survived all her own children, and the son and only child 
 (by a former wife) of the testator, and died. Held, the wife's children 
 had. only a contingent remainder, which never vested ; and the estate 
 vested in the testator's son, either as devisee or heir, and descended to 
 his heirs, not to the collateral relations of the testator.(5) 
 
 17. A testator gave his daughter the income, &c., during the life of 
 her husband ; and, if she survive him, to her, her heirs, &c., a moiety 
 of the estate — the other moiety to her children in fee; and, if she sur- 
 vive her husband and all her children, to her, her heirs, &c. ; and if 
 she should die, living her husband, then to him the income, &c., of a 
 moiety for life, and the residue of the estate to her children in fee. 
 The husband and four children of the daughter were living, at the 
 making of the will, the death of the testator, and at her death. Held, 
 
 (1) Fearne, 6 ; Arton v. Hare, Poph. 97 ; 
 Large's case, 3 Leo. 182. 
 
 (2) Co. Lit. 318 a; Ryder, 11 Paige, 185. 
 
 (3) Doe V. Scudamore, 2 B. & P. 289. 
 
 (4) Boraston's case, 3 Rep. 20 a. 
 (6) Dixon i;. Picket, 10 Pick, 517. 
 
CHAP. XLI.] 
 
 AND CONTINGENT REMAINDERS. 
 
 51 
 
 she took a life estate for the joint lives of herself and husband ; that 
 her children took a vested estate in one moiety ; that the remainder to 
 them in the other moiety was contingent, depending upon the event of 
 her dying before or after the husband ; that, if she should survive 
 him, she would take it in fee ; if he should survive her, he would 
 take a life estate in this moiety, with remainder to her children ; and 
 that, as he did survive her, the children took a vested remainder.(l) 
 
 17 a. Devises to two grandchildren, with this proviso, " if both my 
 said grandchildren shall happen to die under age and without any lawful 
 issue, then it is my will that three fourth parts shall be equally divided 
 between A, B and 0," &c. The grandchildren lived many years after 
 they arrived at fall age, and then both died without issue. Held, the 
 devise over to A, B and C, &c., never took effect.(2) 
 
 17 6. A testator gave all his personal estate to his wife ; also, all his real 
 estate in fee, except two lots of land. Those parcels he devised to his 
 wife for life, and, after her death, in case his daughter A (his only child) 
 should die without having married, or without leaving any child or 
 children, one parcel to his nephew B, and the other to his nephew C. 
 The daughter survived the mother, but afterwards died without issue. 
 Held, the nephews took contingent remainders in fee, which would 
 take effect, only in case the daughter died childless during the life of 
 the widow ; that the daughter, in the meantime, took the fee by descent ; 
 and that, on her surviving the widow, the remainders fell, and she be- 
 came entitled to the premises absolutely.(3) 
 
 17 c. A testator devised certain lands, slaves, bank stock, &c., to his 
 executors, in trust, to^ apply the rents and profits to the support of A 
 and his family, until he should be thirty-five years of age, and, if his 
 business habits should then be good, then to convey the same to A ab- 
 solutely ; otherwise, in trust, to settle the same^ so as to give the use 
 and profits to A for life, with remainder over to such child or children 
 as he might leave living at his death ; but, if he should leave no child, 
 then remainder over to the children of B. A died before he arrived 
 at the age of thirty-five. Held, A took only a life estate, subject to be 
 enlarged to an absolute estate on the contingency mentioned ; and that, 
 on his death before the happening of the contiugency, the remainder 
 took effect, and the absolute estate vested in his children. (■!) 
 
 18. Fourth, the remainder may be limited to persons not in existence 
 or ascertained at the time of such limitation. Conveyance to A fur 
 life, remainder to the right heirs of B, who is hving. Inasmuch as 
 nemo est hceres viventis, and until B's death it cannot be known who his 
 heirs will be, and he may die before A, the remainder is coiitingent.(5) 
 
 19. Conveyance to A and B for their joint lives, remainder to the 
 heirs of the survivor. Since it is uncertain which of them will survive 
 the other, the remainder is contingent.(6) 
 
 20. An exception to the thinl class above enumerated, is where the 
 prior estate is for a very long term, and the remainder is limited upon 
 the death of the particular tenant, or of a third person. Here, the im- 
 probability, of such person's outliving the prior estate, is so great, that 
 
 (1) Blanohard v. Brooks, 12 Pick. 47. 
 
 (2) Doe V. Watson, 8 How. (U. S.) 263. 
 
 (3) Wolfe V Tan Nostrand, 2 Comst. 436. 
 
 (4) Mooney v. Evans, 6 Ired. Eq. 363. 
 
 (5) See Woodson v. Haviland, 18 Conn. 
 101. 
 
 (6) Biggotj;. Smyth, Cro. Car. 102. 
 
516 
 
 REMAINDER— VESTED 
 
 [CHAP. XLI. 
 
 the remainder is held to be not contingent but vested. As the life 
 cannot exceed the term, and the term must determine with the life, the 
 limitation from the expiration of the life is in effect a limitation from 
 the end of the term.(l) 
 
 21. Conveyance to the use of A for ninety-nine years, if he live so 
 long, and, after his death, of B in fee. B's remainder is vested.(2) 
 
 22. A person covenants to stand seized to the use of himself for life, 
 remainder to A for eighty-nine years, if B, his son, should live so long; 
 remainder, after B's death, to C, another son, in tail. takes a vested 
 remainder.(3) 
 
 23. A conveyed to the use of himself for life, remainder to the feof- 
 fees for eighty years, if B, and C, his wife, should so long live ; if C 
 survived B, to the use of C for life ; after her death, to the use of the 
 son of and B in tail ; for default of such issue, to the use of D and 
 E in tail, remainder to A's right heirs. A died, and died leaving a 
 son, who died without issue. In a suit between D and E, and the heir 
 of A ; held, the remainder in tail to the first son of C and B, and the 
 remainder to D and B, were vested remainders, the law not regarding 
 the possibility that B and would outlive the term of eighty years.(4) 
 
 24. Where the term is so short that there is a probability of its ter- 
 minating before the life, the remainder is contingent. 
 
 25. Limitation to A for twenty-one years, if he live so long, after 
 his death to B in fee. The remainder is contingent.(5) 
 
 26. And, in some cases, the same rule has been adopted where the 
 possibility seemed very remote. 
 
 27. Devise to A for sixty years, if he live so long ; from and after his 
 death, to B, his son, in tail. A was forty years old (at the date of the 
 will.) Held, this limitation could not be construed to mean from the 
 death of A during the term, or to give A a term for sixty years, if he 
 should so long live, and vest the inheritance immediately in B ; but 
 that, if A should outlive the term, which was possible, B could not 
 •take, and therefore the remainder was contingent.(6) 
 
 28. To the fourth class of contingent remainders, there are three 
 exceptions. 
 
 29. The first arises out of the rule in Shelley's case, so called. (7) 
 
 30. The principle settled by that case is, that where a freehold estate 
 IS limited to a person, remainder to his heirs, or the heirs of his body ; 
 instead of his taking a particular estate, with a contingent remainder to 
 his heirs, the whole inheritance vests at once in him. This point, which 
 has been the subject of great discussion, will be more particularly con- 
 sidered hereafter.(a) 
 
 31. Upon a similar principle, where the grantor or devisor of an 
 estate limits the remainder to his own heirs ; instead of a contingent 
 
 (1) 2 Cruise, 244. 
 
 (2) Weale v. Lower, Pollexfen. 61. 
 
 (3) 2 Cruise, 244; cites Lord Derby's case, 
 Lit. R. 370. 
 
 (4) Napper v. Sanders, Hut. ] 19. 
 
 (5) Pollexfen, 61. 
 
 (6) Beverley v. Beverley, 2 Vern. 131. 
 (1) 1 Go. 104; 2 Rolle's Abr. 411. 
 
 (a) See Shelley's case — Deed, Devise. 
 
 TJnlertlie "act regulatinp; the descent of real estate," passed June 13, 1820, in New 
 Jersey, (R. L. 114, sec. 1,) the estate of the children of a devisee for life, with remainder to 
 his heirs, is a contingent, and not a vested remainder, during the ,life of the life tenant. 
 Den V. Demarest, 1 N. J. 625. 
 
CHAP. XLI.] 
 
 AND CONTINGENT REMAINDERS. 
 
 517 
 
 remainder to the heirs, the effect is, to leave the reversion in fee in 
 himself. 
 
 32. Thus, where one devised his estate to his widow during her 
 widowhood, and, after her death or marriage, ordered that it should be 
 distributed in the same manner as if it had not been devised; held, no 
 valid remainder was created, but the reversion in fee, expectant upon 
 the wife's life estate, descended to the testator's heirs at law.(l)(a) 
 
 33. A third exception is, where the term heirs is plainly used as 
 designatio personce ; as, for instance, in case of a limitation to a man and 
 the heirs of his body, now livirig. So, if an estate is devised to a per- 
 son and his heirs during his natural life ; remainder over after his death ; 
 the word heirs, if it have any legal effect, \s designatio personce, meaning 
 that those who are the heirs apparent shall enjoy with the devisee dnr'mg 
 his life ; and he takes only a life estate. This construction, however, 
 is confined to devises.{2) 
 
 34. Mr. Fearne's fourfold classification of contingent remainders is 
 simplified to two general classes by Lord Ch. J. Wiiles; viz: 1. Where 
 the person to whom the remainder is limited is not in esse ; 2. Where 
 the commencement of the remainder depends on some matter collateral 
 to the determination of the particular estate. His lordship's language 
 is, however, that there are but two sorts of contingent remainders wAi'cA 
 do not vest. This would hardly imply that he supposed there were any 
 other contingent remainders which do vest, were it not for some expres- 
 sions in a subsequent part of the same opinion ; where, putting the case 
 of the grant of an estate by A to B for ninety-nine years, determinable 
 in B's life ; he says, if B outlive the term, surrender, &o., A may enjoy 
 the estate again — therefore, he has a contingent freehold during B's life. 
 It must be a vested interest, for it was never out of him. If A had a 
 contingent freehold, he might grant it over; and if he do, it must be of 
 the same nature it was before — a vested freehold. In these remarks, the 
 words vested and cordingent seem to be used not as contradictory, but 
 synonymous, or at least consistent terms.(3) 
 
 (1) Whitney v. Whitney, U Mass. 88. But (3) Smith v. Parkhurst, 3 Atk. 138 ; Wiiles, 
 see Bates V. Webb, 8 Mass. 458. 337-9; Throop v. Williams, 5 Conn. 99; I 
 
 (2) 4 Kent, 212; Throop v. Williams, 5 N. T. R. St. 723; 1 Wooddeson, 191. 
 Conn. 98. 
 
 (a) See Reverswn. 
 
518 
 
 REMAINDER— TESTED 
 
 [CHAP. XLn. 
 
 CHAPTER XLII. 
 
 REMAINDER— VESTED AND CONTINGENT REMAINDERS. 
 
 1. Contingency of remainder depends on 
 
 present capacity of taking effect. 
 
 2. Law favorR vested remainders. 
 
 4. Remainder may be vested, though not to 
 take effect upon every possible termi- 
 nation of prior estate. 
 1. Intervention of contingent estate — re- 
 mainder not thereby contingent, unless 
 the estate is a fee. 
 
 11. Contingent estates may be devised, as sub- 
 stitutes for each other. 
 
 11. Cross remainders. 
 
 18. Prior limitation to trustees and their 
 heirs till a certain event. 
 
 20. "Where one of concurrent remainders, Ac., 
 
 vests — rest defeated. 
 
 21. Successive remainders — whether the con- 
 
 tingency named affects only one or 
 the whole. 
 
 22. Limitation after an estate, depending on 
 
 a contingency which never happens. 
 28. After the conditional termination of an 
 estate, which never takes effect. 
 
 30. After the conditional termination of an 
 
 estate which takes effect, but termi- 
 nates otherwise. 
 
 31. Words importing not a contingent re- 
 
 mainder, but when a remainder sliall 
 come into possession. 
 45. Remainder upon condition subsequent. 
 
 1. From the preceding remarks, it sufficiently appears that the ques- 
 tion, whether a remainder is vested or contingent, does not depend 
 upon the certainty or uncertainty of its ever taking effect in possession; 
 but upon its present capacity of thus taking effect, if the possession 
 were to become vacant.(a) Thus, if there be a lease for life to A, re- 
 mainder for life to B, B's remainder is vested, although he may die 
 before A. But, if there be a kase for life to A, remainder for life to B 
 after the death of C, inasmuch as B's estate would not necessarily vest 
 upon the present determination of A's estate, the remainder is contin- 
 gent. The latter illustration, however, shows how a remainder contin- 
 gent in its creation may become vested; for, upon the death ofC, B's 
 remainder undergoes this change, because, from that time, if at any 
 moment A's estate should cease, B's would immediately take effect. 
 Hence, also, it appears that a contingent remainder passes through two 
 stages before it becomes an estate in possession. Thus, in the case 
 supposed, upon the death of C, living A, B's contingent remainder be- 
 comes a vested remainder ; and then, upon the death of A, the vested 
 remainder becomes a vested estate.(i) So a remainder in fee, limited 
 by will to the eldest son of the first taker, to whom an intermediate 
 life estate is given, is contingent, until the birth of such son ; but, on 
 the happening of that event, before the termination of the life estate, it 
 becomes a vested estate in remainder.(2) 
 
 2. These observations lead naturally to a consideration of the more 
 minute distinctions between vested and contingent remainders. It may 
 be remarked at the outset, that, in England, as the court never con- 
 strues a limitation into an executory devise, where it may take effect as 
 a remainder, because the former puts the fee in abeyance ; so neither 
 
 (1) Fearne, 329, 331 ; Willes, 337 ; "Wil- 
 liamson V. Field, 2 Sandf. Ch. 533 ; Bentley 
 
 V. Long, 1 Strobh. Eq. 43. 
 
 (2) Wendell v. Ci-audall, 1 Comst. 491. 
 
 (a) It has been said, that, in some cases, even without this capacity, a remainder may be 
 vested. The true principle would therefore seem to be, that, with tliis quality, a remainder 
 miwi be vested, and maj/ be vested without it. Cornish, 102. 
 
CHAP. XLIL] AND CONTINGENT REMAINDERS. 519 
 
 does it construe a remainder to be contingent, where it can be taken 
 for vested, because the latter tends to support the estate, and the former 
 to destroy it, by putting it in the power of the particular tenant to 
 defeat the remainder by tine or feo£fmeut.(l) 
 
 3. Whenever the preceding estate is limited, so as to determine on 
 an event which certainly must happen, and the remainder is so limited 
 to a person in esse, and ascertained, that the preceding estate may by 
 any means determine before the expiration of the estate limited in 
 remainder, such remainder is vested. But whenever the preceding 
 estate, with the exceptions above named, (a) is limited so as to deter- 
 mine only on an event which is uncertain, and may never happen ; or 
 to a person not in esse or not ascertaiued ; or so as to require the con- 
 curreuce of some uncertain event, independent of the determination of 
 the preceding estate, and duration of the estate limited in remainder, to 
 give ifc a capacity of taking effect ; the remainder is contingeat.(2) 
 
 ■i. The definition, given above, of a vested remainder, does not re- 
 quire that it should be so limited as to take effect upon every possible 
 determination of the particular estate. It seems to be sufficient, that 
 the preceding estate is made to determine upon an event which certainly 
 must happen, although it may determine upon other events which may 
 not happen, and although it is only upon a determination in the latter 
 mode, that the remainder will take effect. Thus, if an estate be limited 
 to A for life, remainder to B for the life of A, inasmuch as the death 
 of A is a certain event, and, if A"s estate should terminate by for- 
 feiture or surrender, the remainder would take effect ; it is a vested 
 remainder.(3) 
 
 5. Conveyance to the use of A for ninety-nine years, if he should so 
 long live ; from and after his death, or other sooner determination of the 
 estate limited to hiinfor ninety-nine years, to the use of trustees and their 
 heirs during A's life, to preserve contingent remainders ; and, ajter the 
 end or other sooner determination of the said term, to the use of A's sons 
 in tail, remainder over. Held, first in the King's Bench, and after- 
 wards in the House of Lords, that the estate of the trustees was a vested, 
 not a contingent remainder, because the trustees were persons in esse 
 at the time, and the commencement of the remainder did not depend 
 on any matter collateral to the determination of the particular estate. 
 Lord Ch. J. Willes remarked, that, upon any other construction, in case 
 of the death of the trustees during A's life, no estate would vest in 
 their heirs, which would prove the universal practice of inserting the 
 word heirs in such settlements, to be wholly useless and unmeaning, 
 and that many thousand settlements would be overturned ; in pre- 
 ference to which he would adopt precedent for law, and follow the 
 maxim ^'communis error facit jus ^ That if a limitation were made to 
 A for ninety-nine years, determinable on his life, with no remainder, 
 the grantor would retain a vested reversionary interest, which would 
 take effect on the expiration, forfeiture, or surrender of the term, and 
 
 (1) "Wilkea v. Lion, 2 Cow. 333 ; Ives t). 
 Legge, 3 T. R. 489, n. ; Den v. Demarest, 1 
 N. J. 525 ; Wolfe v. "Van Nostrand, 2 Comst. 
 436 ; Johnson *. Valentine, 4 Sandf. 36. 
 
 (2) Fearne, 329 ; Chapin w. Marvin, 12 
 Wend. 538. 
 
 (3j Fearne, 279-86; 4 Kent, 202; Cholm- 
 ley'a Case, 2 Co. 51 ». 
 
 (a) See Chapter 41. 
 
520 
 
 REMAINDER— VESTED 
 
 [CHAP. XLII. 
 
 this interest he might grant over, and thereby create a vested remain- 
 der in the grantee.(l) 
 
 6. The limitation in this case seems to have been most inartificially 
 ■worded. The words "from and after A's death," were admitted on 
 both sides to be wholly senseless, being immediately followed by 
 "during A's life." Moreover, the limitations to the trustees and to 
 A's sons, though successive, were to take effect, it would sejm, upon 
 precisely the same contingency, the termination of the term for years. 
 
 7. Where a contingent limitation intervenes between the particular 
 estate and a remainder to a person in esse, the latter may be vested, 
 provided the intervening limitation be not in fee. So, where neither 
 remainder-man is in esse at the time, but the latter is born before any 
 one in whom the former estate can vest.(2) 
 
 8. Limitation to A for life, remainder to his first and other sons in 
 tail, remainder to B and his sons in the same way. B has a son born, 
 but A has none. B's son takes a vested remainder, subject to be de- 
 feated by the birth of a son to A. The last limitation is said to be 
 executed sub modo, so as to open and separate itself from the particular 
 estate, whenever the contingency happens.(3) 
 
 9. Where the intervening estate is contingent for some other cause 
 than that the party to whom it is limited is not in esse, if the contin- 
 gency does not extend also to a subsequent remainder, this may be 
 vested. (4) 
 
 10. But where the prior limitation is in fee, no subsequent remainder 
 can be vested. (5) 
 
 11. Although a remainder cannot be limited after a fee, yet it may 
 be created, to vest in the event of the first estate's never taking effect : 
 or several estates in fee may be limited contingently as substitutes for 
 each other ; some to take effect on failure of the others, and in their 
 room. Such remainders are said to be not expectant, but contempo- 
 rary ; the latter not contrary to, but concurrent with the former. It 
 is not a fee mounted upon a fee, but a contingent remainder with a 
 double aspect, or on a double contingency. And the limitation is not 
 good as a remainder, if it is to succeed, instead of being collateral to, the 
 contingent fee. Thus, in a limitation to A for life, remainder to his 
 issue in fee, and, in default of such issue, remainder to B, the remain- 
 der to B is good, being collateral to the contingent fee in the issue. 
 But, if the remainder to B is limited upon the event of the issue's dying 
 under age, though it may be good as an executory devise or shifting 
 use, it is void as a remainder, being dependent on an event, which 
 rescinds a prior vested fee.(6) 
 
 12. Devise to A for life, and, if he should have any issue male, to 
 such issue and his heirs forever ; and if he should die without issue 
 male, then a part of the lands to B in fee, and a part to in fee. Held, 
 all these several limitations in remainder created contingent remainders 
 
 (1) Berrinpcton v. Parkhurat, 3 Atk. 135; 
 WiDes, 327-39; 6 Bro. Pari. Ca. 352. 
 
 (2) Fearne, 222. 
 
 (3) Uvedall v. Uvedall, 2 Eolle Abr. 119 ; 
 Bowles' case, 11 Rep. 80. 
 
 (4) Napper v. Sanders, Hut. 119. 
 
 (5) Luddington v. Kyme, 1 Ld. Raym. 208 ; 
 12 Pick. 64. 
 
 (6) 1 Ld. Raym. 203; Doug. 505 ti.; 4 
 Kent, 199-201; Buist v. Dawes, 4 Strobh. 
 Equ. 37. 
 
CHAP. XLII.] 
 
 AND CONTINGENT REMAINDERS. 
 
 521 
 
 in fee. If A should have issue male, the fee would vest ia him ; if not, 
 then it would vest in B and 0.(1) 
 
 13. Devise to A for life, and, after his death, to his children equally, 
 and their heirs ; and in case he dies without issue, to B and C and their 
 heirs,_ equally, &;c. Held, the two last limitations were both contingent 
 reinainders in fee.(2) So, where there was a devise to A for life, re- 
 mainder to trustees, &c., remainder to all the children of A, begotten 
 or to be begotten by B, and their heirs forever, &c., remainder over ; 
 held, according to the clear intent, the children of A took a fee; but, 
 for want of such children, the subsequent limitation would have taken 
 effect (3) 
 
 li. A devised to his daughter B, for her life ; then to her male heiry 
 0, if alive at her death, in fee; otherwise, to her next male heir in fee. 
 Held, that B did not take an estate tail ; that nothing vested in 
 during the life of B, because he was to take only if he should be living 
 at her death, and therefore, till her death, the fee vested nowhere ; that 
 the estate to C was contingent, notwithstanding his being designated 
 by name ; that the fee-simple, which was to vest on the death of B, 
 was not an executory devise, but a contingent remainder, having a 
 preceding freehold to support it ; that it was not a limitation of a fee 
 after a fee, but a limitation of only one indefeasible estate in fee : that 
 the will presented a contingency with a double aspect, to be determined 
 immediately on the death of B, at which time an indefeasible estate 
 would vest, either in C, or in the next heir male of B, as the case might 
 be. In this case, Gibson, J., thus states the general rules of law per- 
 taining to the subject. Where, of two limitations, (in fee,) both are to 
 take effect ; the latter can do so only as an executory devise, for a re- 
 mainder, originally contingent, but afterwards vested by the happening 
 of the contingency, is essentially the same as if it had been vested at 
 its origin ; but, where both are limited alternately on the same event, 
 by the happening of which, one is to vest in exclusion of the other, 
 there both are contingent remainders.(4) 
 
 15. "Where the language used may be construed to create either 
 successive and alternative contingent estates in fee, or a contingent 
 preceding estate less than a fee, and a vested remainder in fee, the 
 latter construction will be adopted, as the more accordant with the 
 general policy of the law. 
 
 16. Devise to A, the testator's daughter, for life ; then to the children 
 of her bodv begotten, and their heirs ; in default thereof, to the testator^s 
 son B, his" heirs and assigns. B died, living A, having devised his 
 interest, and then A died without children. The question was, whether 
 B took a vested remainder, which could be devised, or only a contin- 
 gent remainder. Held, he took a vested remainder. The clause, in 
 default thereof was equally applicable to the failure of A's children and 
 of their heirs. If there had been no limitation over, or a limitation to 
 other parties, the devise would have made a contingent fee-simple to 
 the children of A. But, the subsequent remainder being limited to a 
 collateral heir of the children, they must take an estate tail, with a 
 
 (1) Luddington v. Kyme, 1 Ld. Rayra. 
 203 ; Barnnrdiston u. Carter, 3 Bro. Pari. 
 Ca. 64. See Blanohard v. Brooks, 12 Pick. 
 65. 
 
 (2) Goodrig-fit v. Dunliam, Doug. 265. 
 
 (3) Doe V. Perryn, 3 T. R. 484. 
 
 (4) Duriwoodie v. Reed, 3 Ser. & R. 435- 
 452 ; Den ii. Crawford, 3 Halst. 90. 
 
522 
 
 EEMAINDER— VESTED 
 
 [CHAP. XLII. 
 
 vested remainder to B. Had the devise in question applied to the 
 failure of A's children only, and not that of their heirs, then there 
 would have been two contingent fees simple, the one to take effect 
 only on failure of, or as a substitute for, the other. But the law- 
 would not adopt this construction, except where the language abso- 
 lutely required it.(l) 
 
 16 a. Although, where a fee is given by a vested limitation, a re- 
 mainder upon it must be an executory devise, and, if too remote, this 
 and all subsequent remainders are void; yet, if a fee be limited in 
 coniingency, and the estate given over upon a contingency divesting 
 the fee, if the fee so limited never vests, the gift over takes effect as a 
 contingent remainder.(2) 
 
 1 7. Cross-remainders are another qualification of expectant estates, 
 and they may be raised expressly by deed, and by implication in a 
 devise. Thus, if a devise be made of one lot to A, and another lot to 
 B, in fee, and if either dies without issue, the survivor to take, and if 
 both die without issue, to C in fee; A and B have cross-remainders 
 over by express terms, and, on the failure of either, the other, or his 
 issue, takes, and the remainder to is postponed. But if the devise 
 had been to A and B, of lots to each, remainder over on the death of 
 both of them, the cross-remainders to them would be implied. So, if 
 different parcels of land are conveyed to several persons by deed, and 
 by the limitation they are to have the parcels of each other when their 
 respective interests shall determine, they take by cross-remainders. 
 This subject will be more particularly considered hereafter.(c5)(a) 
 
 18. Where the preceding contingent remainder is limited not in fee 
 generally, but to trustees and their heirs, until the happening of a 
 certain event, the subsequent remainders may be not contingent but 
 vested. 
 
 19. Devise to A for life, and if she die without issue of her body liv- 
 ing at her death, to trustees and their heirs, till B should be twenty-one 
 years old. After which, devise to B for life, remainder to his sons in 
 tail male. In default of such issue, or if B should die under twenty- 
 one, and without issue, to 0, &c., persons in esse. Held, the limitation 
 to the trustees would take effect only upon A's dying without issue, 
 and in this event would be not an absolute but a determinable fee; that 
 B's estate was contingent only till he should come of age ; and in the 
 meantime, the subsequent remainders were vested. (4) 
 
 20. In case of concurrent remainders, or where a preceding contin- 
 gent remainder is in fee ; if, in the one case, one of such remainders, or, 
 in the other, such preceding remainder, becomes vested, the other re- 
 mainders thereby become void. Thus, where there is a devise to A 
 for life, remainder to his issue male, in default thereof remainder over; 
 upon the birth of such issue, the first remainder becomes vested, and 
 the latter thereby void, even though the issue die before A himself (5) 
 
 21. Where there is a limitation of several successive remainders, the 
 
 (1) Ives V. Legge, 3 T. E. 488 n. See 
 Blanchard v. Brooks, 12 Pick. 63. 
 
 (2) Evers t'. Ghallis, 2 Eng. L. & Equ. 
 215. 
 
 (3) 4 Kent, 201. See Packard v. Packard, 
 
 16 Pick. 191. 
 
 (4) Lettiieullier v. Tracy, 3 Atk. Ili : Amb. 
 204. 
 
 (5) Keene v. Dickson, 3 T. E. 495. 
 
 (a) See Deed; Devise; Gross- Remainder. 
 
CHAP. XLTI] 
 
 AND CONTINGENT REMAINDERS. 
 
 523 
 
 first of which is made to depend upon a certain contingencj, the impor- 
 tant question arises, whether this contingency applies only to the first 
 remainder, or to all the succeeding ones also. Cases of this kind are 
 divided into three classes. 1. Limitations after an estate which depends 
 on a contingency that never happens. 2. Limitations upon a condi- 
 tional termination of nn estate which never vests. 8. Limitations upon 
 a conditional termination of an estate, which, though the estate vests, 
 never happens. 
 
 22. In the case of Lethieullkr v. Tracy, cited above, (s. 19,) it was held, 
 that neither the condition of A's dying without issue, nor the condi- 
 tion of B's coming of age, affected the remote subsequent limitations, 
 which, accordingly, were vested remainders. 
 
 28. Devise, to the use of A for life, remainder to his first and other 
 sons by any future wife in tail male, &c.; and, if A should marry any 
 woman related to his then wife, all the above uses, so far as they re- 
 lated to the issue of A, to cease and be void ; and, in such case, though 
 A have issue, the trustees to stand seized to the use of C, &c. A died 
 soon after the testator, not having again married, and without issue. 
 Held, the remainder to C took effect, not being defeated by the want of 
 such second marriage.(l) 
 
 24. Devise to trustees, to pay over the rents and profits to A and B, 
 during the life of C, (A, B and 0, being sisters of the testator,) their 
 heirs and assigns ; and, after the decease of C's husband, in trust lor A, 
 B and C, each a third part, for life; remainders to their sons in tail 
 male, &c., cross-remainders over. C died, living her husband. The 
 question was, whether, by C's death, not only her own estate, but the 
 subsequent remainders also, were defeated. Held, the latter were not 
 defeated.(2) 
 
 25. A different rule is adopted, where the intention of the testator 
 seems so to require, or wht-re the court cannot find upon the whole 
 will sufficient to gather a different intent, so as to warrant them in sup- 
 plying omitted words.(3) 
 
 26. Devise to A, the testator's son, and the heirs of his body ; and, if 
 A should die without issue, and the testator^s wife B should survive A, 
 that she should enjoy the premises for her life ; after her decease to C 
 for life; after her decease, {A being dead without issue as aforesaid,) to D. 
 B died in the life of A. Held, the remainder of D was defeated, being 
 contingent upon A's dying without issue in the lifetime of B.(4) 
 
 27. Devise to trustees, in trust to pay a certain sum to A for life, 
 and the rest of the rents to B her husband ; and after her death, the 
 whole to him for life. It she shoidd happen to survive her husband, then 
 to stand seized of all the lands upon the trusts after merdioned, viz. : to A 
 for life, then to her son and the heirs of his body, remainder to the heirs 
 of the body of the husband by her, remainder over. A died before B. 
 Held, not only A's life estate, but all the subsequent remainders, were 
 defeated. (5) 
 
 28. The second class of cases, is where a remainder is limited upon 
 the conditional determination of a preceding estate, which never takes 
 
 (1) Bradford v. Foley, Doug. 53. 
 
 (2) llorton*. Whitaker, 1 T. E. 346. 
 
 (3) Doug. 18-9. 
 
 (4) Davis V. Norton, 2 P. "Wma. 390. 
 (5j Doe V. Shipphard, Doug. 75; Fearne, 
 236. 
 
524 
 
 REMAINDER— VESTED 
 
 [CHAP. XLII. 
 
 effect. And, here, ■whether the preceding estate is in fee or otherwise, 
 it is said, that by whatever means it is out of the case, the subsequent 
 limitation will take effect.(l) 
 
 29. Devise to trustees for years, remainder to the sons of A succes- 
 sively in tail male, provided they should take the testator's surname. 
 If they or their heirs should refuse so to do, or die without issue, to the 
 first son of B in tail male on the same condition. B had a son at the 
 time of the devise. A died without having had a son. Held, whether 
 the contingent limitation to persons not in esse, having only a term to 
 support it, were void or valid ; such limitation was not a condition pre- 
 cedent of the subsequent remainder, and that the son of B took a vested 
 remainder. (ji) 
 
 30. The third case, is where the remainder is limited upon a contin- 
 gent determination of a preceding estate, which actually takes eft'ect, 
 but does not terminate in the mode pointed out. In this case, the 
 remainder shall not take effect, unless the general intent of the testator 
 so require.(3)(a) 
 
 31. Words of limitation are often used, which, though seeming to 
 import a contingent remainder, the law construes merely as fixing the 
 time when a vested remainder shall become an estate in possession. 
 This construction is adopted, where an absolute property is given, and 
 a particular interest in the meantime; as, until the devisee shall come of 
 age, then to him, &c. And a remainder will always be construed as 
 vested, where the words admit of it. Thus, where there was a devise 
 to A for eight years, remainder to executors till such time as B shall 
 be of age ; and when B shall be of age, that he shall enjoy the same in 
 fee ; held, this was a vested remainder in B ; that the legal construction 
 was, a devise to executors till B reached twenty-one years, remainder 
 to B in fee ; and the remainder was no more contingent, than in the 
 common case of a lease for life or for j'cars, remainder over ; that, inas- 
 much as the term must certainly end, the adverb when created no con- 
 tingency, but merely denoted the time when B should have posses- 
 sion.(4) 
 
 32. Devise to A, when and so soon as he shall be twenty-one years 
 of age ; if he die under age, the property to go into the residue. Held, 
 A took a vested interest, subject to the condition. 
 
 33. Devise to A, till B reaches the age of twenty-one years ; when 
 B reaches that age, to him and his heirs. B dies under age. Held, a 
 vested remainder.(5) 
 
 34. Conveyance to the use of A for life, then to the first son of his 
 body and his heirs male, and to four sons successively in tail ; and if it 
 fortune the said fourth son to die without issue male, then to remain to 
 
 (1) Avelyn v. Ward, 1 Ves. 422. 
 
 (2) Scatterwood v. Edge, 1 Salk. 229 ; 1 
 Ves. 422. 
 
 (3) Pearne, 362. 
 
 (4) 4 Kent, 204 ; Driver v. Prank, 3 M. & 
 S. 32; Goodtitle v. Whitby, 1 Burr. 228; 
 Matthew Manning's case, 8 Rep. 95 b ; Drake 
 i>. Pell, 3 Edw. 253; Person v. Dodge, 23 
 Pick. 287. See Rich v. Waters, 22 Pick. 563 ; 
 
 Boraston's case, 3 Rep. 19; Pearne, 368; 
 Arnold v. Arnold, 11 B. Men. 81; Huo:hes v. 
 Hughes, 12 lb. 115; Taylor v. Frobisher, 10 
 Eng. L. Sc Equ. 116; Maxwell v Mc'Olin- 
 tock, 10 Barr, 237 ; Haggard v. Rout, 6 B. 
 Mon. 247; Childs v. Russell, 11 Met. 16; 
 Danforth v. Talbot, 7 B. Mon. 623. 
 
 (5) Mansfield v. Dugard, 1 Abr. Eq. 195 ; 
 Phipps V. Akera, 4 Mann. & G. 1107. 
 
 (a) Somethnes called adverbs of time, aa when, then, after, from, <&c. 
 -4Saadf. 36. ..'..'. 
 
 Johnson v. Valentine, 
 
CHAP. XLII.] AND CONTINGENT EEMAINDERS. 525 
 
 B. A died without issue male. Held, B's estate vested, the circum- 
 stance of A's having issue not being a condition precedent.(l) 
 
 _ 35. Devise to A for life, then to B ; and if my three daughters, or 
 either of them, overlive A and B, and his heirs, then they to have it : 
 and after them to C. B and two of the daughters died, living A. 
 Held, this was not a contingent limitation, but only a designation of 
 the time, when a vested remainder should become an estate in posses- 
 sion. (2) 
 
 3(i. Devise to the testator's wife for life, " to be for her own comfort, 
 &c., while she remains my widow, without any disturbance, &c., from 
 any of my children ; and in case she alters her condition by marriage, 
 then my said estate I will shall be divided as the law directs." Held, 
 the testator's children took a vested remainder at his death.(3) 
 
 37. Devise to four children of the testator of four several estates, to 
 each, one estate, and, when either of them shall die, the said estates to 
 be equally divided among them that are living. The eldest son and 
 heir died. Held, the remainder to the other children, in the estate given 
 for life to this son, was not contingent but vested, and therefore was 
 not void, in consequence of a merger of the son's life estate in the in- 
 heritance which descended to him. (4) 
 
 38. Devise to trustees, in trust, to apply the proceeds to the support and 
 education of children during minority : and when and as they should 
 come of age, to the use and behoof of them and their heir.s. Held, the 
 children took an immediate gift, with a trust interest during minority. (5) 
 
 39. Devise to the wife of the testator, of the use and improvement 
 of one third part of his estate for life ; " and I give and devise the 
 same, at her decease, to my children" in fee. Held, the children took 
 a vested remainder.(6) 
 
 40. Devise to the testator's three illegitimate sons, " if they should 
 live to come of age." Held, whether the sons took a vested remainder, 
 to become a vested estate afterwards, or only a contingent remainder ; ' 
 they had no estate in possession till they came of age, and, interme- 
 diately, the land descended to the heir at law.(7) 
 
 41. Devise of certain specified lands to the use of the testator's wife 
 for life, and of all the testator's lands to A in fee ; but, if he shall not 
 live to be of age, then in like manner to his surviving brother, ; but 
 if C shall die before of age, then, &c., to his surviving brother, D ; but 
 if D should die, &c., then to the first surviving son of B, in fee ; for de- 
 fault oT such issue, remainder to the testator's own right heirs forever. 
 If the wife shall die before A, or before his survivor is of age, to 
 take possession, then E to have the use and benefit of the lands, till 
 the testator's heir shall be of age to take possession. The wife and E 
 both died before A came of age. Held, upon the death of the widow, 
 the estate did not descend to the heirs at law, until A came of age, 
 but immediately vested in him ; that, as the devise to B of the use of 
 the land after the widow's death, till A should come of age, failed by 
 the death of E, it should be considered as out of the case ; and that the 
 object of this devise to B (who was the mother of A,) was not to bene- 
 
 (1) Holoroft's case, Moore, 486. 
 
 (2) "Webb V. Hearing, Cro. Jao. 416. 
 
 (3) Bates v. Webb, 8 Mass. 458. 
 
 (4) Eortescue v. Abbott, PoUexfen, 479; 
 
 T. Jones, 79; 2 Ventr. SBS. 
 
 (5) Goodtitle v. Whitby. 1 Burr. 228. 
 
 (6) Nasli V. Cutler, 16 Piolc. 491. 
 
 (7) Jackson v. Winne, 1 Wend. 47. 
 
526 
 
 REMAINDER— TESTED 
 
 [CHAP. XLIL 
 
 fit her, but to enable her to take the profits of the land during A's mi- 
 nority. (1) 
 
 42. Devise substantially as follows : " all nay debts to be paid from 
 my personal estate, the remainder I give to my wife for the support of 
 her and my minor children, during her widowhood, and the estate to 
 remain undivided till my youngest child shall come of age. But if my 
 wife should be still living and my widow, she shall have the whole in- 
 come of my estate, keeping it in repair, &c. ; but if she marry, she shall 
 have £30 per annum from my estate for life. And it is my will, that 
 all my children shall have an equal share of the whole of my estate 
 that I now possess, or may possess at my death, at the time before 
 mentioned for division ; and should any of them die without heir law- 
 fully begotten, their share shall be equally divided amongst the sur- 
 viving children." Held, the estate devised to the children did not re- 
 main contingent till the death of the widow, or the coming of age of 
 the youngest child ; but immediately, upon the testator's death, they 
 took a vested remainder, though not to taJce effect in possession till the hap- 
 pening of the last of the events referred to.(2)(a) 
 
 43. Where there is a devise to trustees and their heirs during the 
 minority of A, then to him in fee, or upon trust to convey to him ; 
 inasmuch as A takes a vested remainder, to vest in possession upon 
 his coming of age, the trustees have been held, notwithstanding the 
 words of inheritance, to take only an estate for so many years as 
 the minority of A shall last. But this doctrine has been questioned, 
 as an anomaly in the law ; and held wholly inapplicable to limitations 
 by deed. (3) 
 
 44. Upon the above-named principle, where land is given to one 
 for life, or any other estate upon which a remainder may be limited, 
 and after the determination of that estate to a person sustaining a 
 given character, as heir at law, heir male, or next of kin, of the te.s^tator, 
 or of another ; the remainder will vest in the person or persons who 
 fill that character at the death of the testator, and not remain contingent 
 
 (1) Jackson v. Durland, 2 John. Cas. 314. 
 
 (2) Tatem v. Tatem, 1 Miles,' 309. 
 
 (3) Stimloy «. Stanley, 16 Ves. 491; Dae 
 
 V. NicholLs, 1 Barn, k Cr. 336; 
 105-7 ; Doe v. Lea, 3 T. R. 41. 
 
 Cornish, 
 
 (a) Devise to A for life, and after his death to three others, or tlie survivors or survivor 
 of them, their heirs and assigns forever. Held, these were vested, not contingent re- 
 mainders, so that, if a remainder-man died before the tenant for lile, his heirs would inherit 
 his interest. Moore v. Lyons, 25 Wend. 119. See Doe v. Prigg, 8 Barn. & C. 231 ; King 
 V. King, 1 Watts & Serg. 205; People v. Conklin, 2 Hill, 67. But see also Cripps v. Wol- 
 cott, 4'Madd. 11. 
 
 Devise to the wife of the le.stator for her life or widowhood; upon her death or marriage 
 the property to be sold, and the proceeds divided among his children. Held, his ohildien 
 who survived him took a vested remainder. M'Ginnis v. Poster, 4 Geo. 377. 
 
 Devise to a wife for hfe,_ at her death the property to be equally diviiled among all the 
 testator's surviving cbildre'n, and the legal representatives of those deceased. Held, the 
 words of survivorship referred to the death of the testator, ncjt of the tenant for life; and 
 that all the testator's children living at his death took vested remainders, to be enjoyed 
 after the death of the tenant for life. Vickers v. Stone, 4 Geo. 461. 
 
 Devise to a wife for life, then to be sold at her death, and the proceeds to be distriVjuted 
 among children. One of them died before the tenant for life. Held, his interest in the 
 estate was vested, and lialjle for his debts. Field v. Hallnwell, 12 B. Mon. 517. 
 
 Devise for life, with intermediate remainders; then to "such person of the surnHmeof H, 
 as shall be the nearest male relation to A and his heirs." Held, the last remainder vested 
 at the testator's death. Stert v. Platel, 7 Scott, 422. 
 
OHAP. XLII.] 
 
 AND CONTINGENT REMAINDERS. 
 
 527 
 
 till the termination of the prior estate^ unless there is a clear intention to 
 the contrar\'.(l) But it is said, that the construction by which a limita- 
 tion, to take effect mfuturo, is construed as a vested, and not a contin- 
 gent remainder, cannot be adopted, unless there is an intermediate dis- 
 position of the estate, or the rents and profits, or a direction that it shall 
 go over, upon the party's dying before the specified time. Otherwise, 
 the limitation must take effect, if at all, as an executory devise.(2)(a) 
 
 46. A remainder is sometimes contingent upon a condition subsequent, 
 which operates to defeat it after being vested, instead of a condition 
 precedent, the performance of which is necessary to its vesting. But 
 it is said, a remainder cannot be thus divested, unless there are words 
 in the will capable of producing this effect, and showing such inten- 
 tion. Of this nature is a limitation subject to a power of appointment. 
 Thus, if an estate be limited to A for life, remainder to such use as A 
 shall appoint, and in default of appointment, remainder to B ; B's re- 
 mainder is vested, but subject to be defeated by execution of the 
 power.(3) 
 
 46. Limitation to the use of A for life ; after his death, of B in fee, 
 if B should live to be of age; provided and on condition, that if B 
 should die under age, remainder over. Held, the remainder vested in 
 B, subject to be divested by his dying under age.(-i) 
 
 47. Devise to A for lite, and, on his death, to and amongst his 
 children, equally, at the age of twenty-one, and their heirs, but if 
 only one child shall live to be of age, to him and his heirs at the age 
 of twenty-one. And if A die without issue, or such issue die before 
 twenty-one, devise over. Held, A's children took a vested remainder.(5) 
 
 48. Devise of land to A for the purpose of building a school-house, 
 provided it should be built in a certain place ; and of the residue of 
 the testator's property to B. A took possession, but, after B's death, 
 forfeited by breach of condition. Held, B had a contingent interest, 
 which passed to her heirs.(6) 
 
 49. Upon the same principle, a remainder once vested may be 
 defeated only in part by the happening of a subsequent event. Thus, 
 where there is a devise to A for life, remainder to his children ; the 
 children of A, living at the death of the testator, take vested remain- 
 ders, subject to be disturbed by after-born children, for T,\'hose benefit the 
 estate will open, and let them in to take their proportional shares.(7)(&) 
 
 (1) Doe V. Spratt, 5 Barn. & Adol. 139. 
 
 (2) 4 Kent, 205. 
 
 (3) Driver v. Frank, 6 Price, 73-5 ; Pack- 
 ard V. Packard, 16 Pick. 191 ; 4 Kent, 204. 
 
 (4) Edwards v. Hammond, 1 Bos. & Pul. 
 N. R. 313. 
 
 (5) Doe V. Nowell, 1 M. & S. 327 ; Ran- 
 dall V. Doe, 5 Dow. 202. 
 
 (6) Clapp V. Stoughton, 10 Pick. 463. See 
 Austin V. Carabridgeport, &e., 21, 215. 
 
 (7) Pearne, 394-6; Doe «. Perryn, 3 T. R. 
 484; Dingley t). Dingley, 5 Mass. 535; At- 
 
 (a) In the case ot Doe v. Lea, (3 T. R. 41,) a distinction was made, in reference to the 
 point above considered, between the expressions "when and so soon as, and the word 
 "if" which in Brownswords v. Edwards, (2 Ves. 243,) was held to create a condition pre- 
 cedent But this distinction seems to have been disregarded in several subsequent decisions. 
 
 (6) The general rule is stated to be, that where there is a devise to a class of persons, to 
 take effect m enjoyment at a future period, the estate vests in the persons as they come in 
 
 kins V. Beane, 14, 404: Denny v. AUenj 1 
 Pick. 147 ; Right v. Creber, 5 B. & 0. 866 ; 
 Sisson V. Seabury, 1 Sumn. 243 ; Hannan v. 
 Osborn, 4 Paige, 336 ; Nodine v. Greenfield, 
 1 Paige, 544 ; Turner v. Patterson, 5 Dana, 
 295 ; Haywood v. Moore, 2 Humph. 584 ; 
 Baker v. Lorillard, 4 Comst. 257 ; Johnson v. 
 Talentine, 4 Sandf. 36 ; Carpenter v. Scher- 
 merhorn, 2 Barb. Oh. 314; Williamson v. 
 Field, 2 Sandf. Ch. 533 ; Conklin v. Conk- 
 hn, 3, 64; Minniug v. Batdorff, 5 Barr, 503. 
 
528 BEMAINDEE— TESTED [CHAP. XLII. 
 
 60. Devise of all the remainder of my estate to my daughter, A, 
 and the children born of her body, including all my wife has the 
 improvement of, during her life, after her decease. A had three 
 children when the will was made, and a fourth was born afterwards, 
 all of whom survived the testator, and two more were born after his 
 death. Held, the children of A, living at the testator's death, took 
 a vested remainder in that portion of the estate devised to A for life, 
 which, upon the birth of the other children, opened and let in their 
 shares.(l) 
 
 51. Devise to A for life, and, immediately after her death, unto and 
 among all and every such child or children, as she shall have law- 
 fully begotten at the time of her death, in fee-simple, &c. Held, a 
 vested remainder was hereby given to every child of A, subject to 
 be in part divested by the birth of subsequent children ; and that, 
 upon the death of a child during A's life, his interest descended to 
 his heirs. The decision was founded, in part at least, upon the pre- 
 sumed intentions of the testator in favor of his grandchildren. 
 Spencer, J-., dissented. (2) 
 
 52. A devised to B for life, and after her death to G, to have the im- 
 provement to her and her heirs, during her natural life ; and declared, 
 that after C's death, D, her son, should be sole heir of the estate. D 
 died about ,a month after the testator, leaving a sister, B ; and four 
 years after his death, two other sisters, F and G, were born. Held, D 
 took a vested remainder in fee, to take effect upon the termination of 
 two preceding life interests ; that on D's death his title passed to E ; and 
 that after the birth of F and G, they took as joint heirs with her under 
 the devise.(3)(a) 
 
 (1) Annable v. Patch, 3 Pick. 360. I (3) Throop v. Williams, 5 Conn. 98. 
 
 (2) Doe V. ProTOOSt, 4 John. 61. j 
 
 esse, subject to open and let in others, as they are born afterwards. Johnson v. Valentine 
 4 Sandf. 36. 
 
 (n) Devise to the testator's sons, for ten years, of the improvement and income of a farm. 
 Then to his grandchildren, the sons and daughters of s.iid sons, after the expiration of ten 
 years, all the lands, &o., of which the improvement for ten years has been given to said 
 sons, in fee. Held, this passed a vested remainder to those grandchildren living at the tes- 
 tator's death, subject to open and let in those born afterwards, whether before or after the 
 termination of the particular estate ; and that the share of a grandchild, living at the testa- 
 tor's decease, but who died during the particular estate, descended to his father as heir 
 Ballard v. Ballard, 18 Pick. 41. 
 
 Devise to the testator's son, A, for life, if unmarried ; if married and having children, to 
 him, his heirs, &c. ; if he die unmarried, without ehilden, equally among the children of the 
 testator's sons, B, C and D. A survives the testator, and dies unmarried. B, C and D had 
 children at the testator's death, and born afterwards, some of whom died unmarried, minors 
 during their father's lives, before A's death. Held, A took a life estate; the children living 
 at the testator's death took, per capita, vested remainders, which opened, and let in after- 
 born children ; and the shares of the children of B, and D, who died, living A, passed to 
 their fathers. "Weston v. Foster, 1 Met. 297. 
 
 Devise to A, and his wife B, and 0, and their heirs forever, " to have and to hold to the 
 said, Ac, and to the survivor or survivors of them, and to the heirs of such survivor, as 
 joint tenants, and not as tenants in common, in trust to receive the rents, issues, and profits 
 thereof, and to pay the same to D during his natural life, and from and after the death of 
 D, in further trust, to convey the same in fee to the lawful issue of the said D, living at his 
 death." Held, the first born child of D, at its birth, took a vested estate in remainder, 
 which opened to let in his other children as they were successively born, and such vested 
 remainder became a fee-simple absolute, in the children living, on the death of their father. 
 Williamson v. Berry, 8 How. (U. S.) 495. 
 
 A devised as follows : " If I should have no child by my wife B, I do then give the use 
 
CHAP. XLII.] AND CONTINGENT REMAINDERS. 529 
 
 53. The same principle has been applied even in case of a deed. A, 
 in consideration of a sum of money and of natural love, conveyed to 
 
 B, and C, his wife, the daughter of A, and to the children and heirs of 
 and their heirs, &c., hahendum to B and 0, and to the children and 
 heirs of C, for the proper use, &c., of B and C, for their joint lives and 
 that of the survivor, and immediately from the decease of such sur- 
 vivor, to and for the use, &c., of the children and heirs of the body of 
 
 C, in fee, as tenants in common, &c. C had three children at the exe- 
 cution of the deed ; and subsequently several children and grand- 
 children were born. Held, a remainder vested in the three children, and , 
 upon the birth of the others, opened and admitted them to their shares ; 
 and that the share of any child, who diad living B or C, vested in the 
 issue of such child.(l) 
 
 54. So, where an estate is limited by deed of uses to parents during 
 their lives, and then to the use and behoof of such child or children 
 as may be procreated between them, an'd to his, her and their heirs 
 and assigns forever ; there is a remainder in fee to the children, which 
 ceases to be contingent upon the birth of the first, and opens to let in 
 the after-born children. The general rule of law, founded on public 
 policy, is, that limitations of this nature shall be construed to be vested, 
 when and as soon as they may.(2) 
 
 55. Devise to trustees, in trust to permit A to receive the rents for 
 life; and, after her death, devise " to the heirs of the body of A, share 
 and share alike," in fee. At the testator's death, A had one child, and 
 others were born afterwards. Held, by the " heirs of the body" was 
 meant children, and that the first child took a vested remainder in fee, 
 which, upon the birth of others, opened and let them in.(3) 
 
 66. Devise to A for life, remainder to the " second, third, fourth, and 
 all and every other the sons, of A, {except the first or eldest son,) succes- 
 sively in tail male," remainder over. At the testator's death, A had no 
 children. Held, the remainder was contingent till A had two sons, 
 both living, and then became vested, and not subject to be divested by 
 subsequent changes in the fainily of A.(4) 
 
 57. It follows, from the doctrine above laid down, that, where the par- 
 ticular estate terminates, before the time within which the condition 
 may happen that is to defeat the remainder, the remainder shall still be- 
 come a vested estate, liable to be defeated by the happening of the 
 
 condition. , , -,,.„,,. , , ^ 
 
 58 Devise to A for life, after his death to B, if he live to be of age. 
 A dies, living B. B takes a vested estate, determinable on his dying 
 under age.(5) 
 
 (1) ■Wager v. W»ger, 1 S. & R. 314. 
 
 (2) Carver v. Jaokaon, 4 Pet. 90-1-2. 
 
 (3) Right V. Creber, 6 Barn, t Creaa. 866. 
 
 (4) Driver v. Frank, 6 Price, 41. 
 
 (5) Bromfield v. Crowder, 1 B. * P. N. R: 
 313-4; (Doei). Moore, 15 B. 601.) 
 
 of all my personal estate not mentioued to my daughter 0, durmg her natural 1 fe, at her 
 deceasTL be eam»llr divided, share and share alike, amongst all her children, to them and 
 theX 8 andTl shou d hkve no child by my wife, I do then give and bequeath the use 
 ofallmv estate both real and personal, to C during her life, ond at her decease to be equally 
 d vi^e7a2ngst herVhildren, to them.'tc; if I should leave "o ob.ldren and my daughter 
 should dirand leave no children, then, at the decease of my wife, ' over. Held, at the 
 dea"hof A, withourotber children, those of his daughter took a vested remainder, which 
 opened to let in after-born children. McGregor v. Toomer, 2 Strobh. Eq. 61. 
 
 Vol. I. 34 
 
530 
 
 REMAmoER— TOID OONmTIONS. 
 
 [CHAP. XLIII. 
 
 59. As a remainder will not be construed to be contingent, where it 
 can be construed as vested ; so a vested remainder will not be divested, 
 without a special provision, or a clear intention, to that effect.(l) It 
 has been said, however, that the principle of favoring vested estates is 
 an entirely technical rule.(2) 
 
 CHAPTER XLIII. 
 
 4 
 REMAINDER— VOID CONDITIONS. 
 
 2. Illegality. 
 
 4. Bemoteneai of probability. 
 7. Abridgment, Ac, of preceding estate. 
 14. Or of preceding remainder. 
 
 16. Exception — enlargement of prior es- 
 tate. 
 19. Devise — conditional limitation. 
 23. Limitation by way of use. 
 
 1. There are several circumstances, pertaining to the condition upon 
 which a contingent remainder is limited, that will render auch limita- 
 tion void. 
 
 2. The contingency must be a lawful act. The law will never adjudge 
 a grant good, by reason of a possibility or expectation of a thing which 
 is against law ; for it is "poieniia remotissima et vana" which, by intend- 
 ment of law, " nunquam venit in actum /" besides being against public 
 policy.(3) 
 
 3. Hence a limitation to a bastard is void. So a limitation to the 
 children, legitimate or illegitimate, of A, by the grantor.(4) 
 
 4. The contingency must be not a remote, but a near or common pos- 
 sibility. And the ordinary legal distinction between these two kinds 
 of possibility is, that the latter is single and depends on only one uncer- 
 tain event, while the former is double, depending on more than one, 
 which are not independent, but the one requiring the previous exis- 
 tence of the other, and yet not necessarily arising out of it.(5) 
 
 5. Thus, a limitation to the heirs of A, there being at the time no 
 such person as A, is void, though A should be born and die during 
 the particular estate ; because there is first the contingency, whether 
 there would be any such person ; and second, whether he would die 
 during the continuance of the prior estate.(6) 
 
 6. A limitation, during the vacation of a mayoralty, to A for life, 
 remainder to the mayor and commonalty in fee, is good ; buD a limita- 
 tion to a corporation not in existence at the time, though afterwards 
 created, is void. So, a limitation to the right heirs or the first born 
 son of A, not naming them, is good ; but a limitation to B, the first 
 born son of A, is void, because there is first the contingency of A's 
 having a son, and second, of his being named B, which is a possibility 
 upon a possibility.(7) 
 
 (1) Doe V. Perryn, 3 T. R. ^94; Driver v. (6) Co. Lit. 26 b; 184 a; 2 Rep. 61 a; 
 Frank, 3 M. 4 S. 26. Feame, 3f 8. 
 
 (2) 6 Price, 13. (6) Cholmley's case, 2 Rep. 61 b. 
 
 (3) Cholmley's case, 2 Rep. 61 b. (7) Co. Lit. 264 » ; 2 Eep. 61 a, b | 
 
 (4) Blodwell V. Edwards, Cro. Eliz. 609. Fearne, 378. 
 
CHAP. XLIII] 
 
 REMAINDER— TOID CONDITIONS. 
 
 531 
 
 7. A remainder cannot be validly limited upon an event, which will 
 operate to abridge, defeat, or determine the preceding estate ; but must 
 be so limited, as to take effect only upon the natural expiration of such 
 estate. This rule is founded on the principle heretofore stated, that 
 the benefit of a condition can be reserved only to the grantor or his 
 heirs, who shall take advantage of any breach by entry. The effect of 
 such entry, is to revest the estate, avoiding not only the particular 
 estate, but also the remainder limited upon it.(l) 
 
 8. Conveyance to A for life, on condition that, if B pay the grantor 
 a certain sum, then the land shall immediately remain to him. The 
 remainder is void.(2) 
 
 9. Conveyance to A and B, remainder over, after the death of A, to 
 C in fee. This remainder is void, because repugnant to the rights of 
 B as survivor of A, by virtue of the first limitation. (3) 
 
 10. Conveyance to A, a widow, for life, remainder to B, in fee, on 
 condition that A continues a widow. This remainder is void, because 
 an entry, upon A's marrying, to defeat her estate, would defeat the 
 remainder also. But a grant to A during widowhood, remainder to B 
 upon A's marriage, makes a limitation, which will take effect by its 
 own operation without entry, and therefore the remainder is good.(4:) 
 
 11. Where the words used may be construed to change a contingent 
 remainder into a vested remainder, instead of converting a vested re- 
 mainder into a vested estate, and thereby defeating a prior limitation ; 
 this construction will be given. 
 
 12. Limitations to A for life, remainder to B for life ; if B die, living 
 A, the lands to remain to C. Held, the last limitation was valid, hav- 
 ing no effect to abridge A's estate.(5) 
 
 13. It is to be observed also, that there is a distinction between con- 
 ditions which operate to abridge or defeat a prior vested estate, and 
 those which merely provide in what manner estates shall go over, 
 which, by virtue of the prior limitation itself, are made dependent upon a 
 condition. Thus, if land be limited to A for twenty-one years, i/B 
 shall so hng live, and, in case of B's death during the term, to C in fee ; 
 this is a good remainder ; for the condition does not abridge an absolute 
 estate for years once vested, but a contingency is annexed to the estate 
 for years itself It must be admitted, however, that the dividing line 
 between conditions always allowed to be valid, and those which are 
 said to be void, as abridging the prior estate, is extremely nice. The 
 following remarks of Mr. Douglas, in a note to the case of Qoodtiile v. 
 Billington,{(o) throw some light upon the subject. He remarks, that a 
 limitation does not cease to be a remainder, because it may vest in 
 possession on an event, which, from the terms or from the legal nature of 
 the 07-iginal limitation, shall defeat the particular estate before its natural 
 or regular expiration. Every remainder, limited after an estate for life, 
 may vest in possession before the death of the tenant for life, which 
 is the term of the natural expiration of the particular estate ; namely, 
 
 consequence of any forfeiture which he may commit. Some have 
 -n incUned to consider conditional limitations after particular estates, 
 
 in 
 been 
 
 (1) I Cruise, 276; 4 Kent, 249-263. 
 
 (2) Colthirst v. Bejuahin, Plow. 29 ; Brent's 
 case, 2 Leon. 16. 
 
 (3) Plow. 24. 
 
 (4) Hardy v. Seyer, Cro. Eliz. 414 ; Fearne 
 363. 
 
 (5) Colthirst v. Bejushin, Plow. 23. 
 
 (6) Doug. 165. 
 
532 RBMAINDERr-VOIB CONDITIONS. [CHAP. XLIII. 
 
 as, for instance, after an estate for life, but limited to vest in possession 
 on a contingency which may happen before the death of tenant for life, 
 as not being remainders.(l) Thus, if an estate is given to A for life, 
 provided that when C returns from Rome, it shall thenceforth be to 
 the use of B in fee, it is said, this limitation over is not confined to the 
 remnant, expectant on the particular estate before given to A, but may 
 interfere with, and in part defeat and supersede that first estate, instead 
 of awaiting its regular determination ; and therefore it does not answer 
 the definition of a remainder in Co. Lit. 143 a. But this seems too 
 great a refinement. Every estate for life may, by the act of the tenant, 
 be defeated and abridged, before its regular expiration, and thereby let 
 in the remainder over in the manner above stated ; and the only differ- 
 ence between such limitations and the others is, that in the others, the 
 estate for life is not abridged by the act of the tenant for life, but by 
 some extrinsic event, which happens also to be the contingency on 
 which the limitation over depends. What difierence more than what 
 is merely verbal, can there be shown to be, between an estate to A till 
 B returns from Borne, then to remain over to C ; and an estate to A, pro- 
 vided that, when C returns from Rome, it shall thenceforth be to B. 
 Under both forms of expression, A takes an estate for life, defeasible 
 on the very same event. And Mr. Fearne himself adduces the former, 
 as an example of contingent remainder. Nor can it make any difference, 
 whether the prior estate is limited generally, or expressly for life ; be- 
 cause, in the former case a life estate is implied. 
 
 14. A condition, the effect of which is to defeat or abridge one vested 
 remainder and substitute another for it, is void. 
 
 15. A conveys to B for life, remainder to C for life, provided that if 
 A should have a son who should reach a certain age, then C's estate 
 should cease, and the land remain to such son. The latter remainder 
 is void.(2) 
 
 16. It has been said, that the rule above stated does not apply to 
 the case where, although iii terms the condition on which the remain- 
 der shall take effect will abridge the particular preceding estate, yet in 
 effect it will merely operate to enlarge such estate ; in other words, 
 where the remainder-man and the particular tenant are one and the 
 same -person. In such case, no injury arises to the preceding tenant, 
 and no entry on the part of the grantor or his heirs is necessary to 
 defeat the preceding estate, at the same time defeating the remainder 
 also. The operation is the same as if the remainder were limited to 
 take effect upon the determination of the prior estate by its own limi- 
 tation. Thus, if a conveyance be made to A and B, remainder in fee 
 to the survivor, this remainder is valid.(3) 
 
 17. In illustration of this exception to the general rule, the case of 
 Ooodtitle V. Billirigton{^) is cited. This was a devise to the testator's 
 wife. A, and his daughter B, for their lives, and the life of the survivor, 
 in equal proportions — but if B marry and have lawful issue, then, after 
 the death of A, to B in fee. But if B die unmarried and without 
 lawful issue, to A in fee. A and B both survived the testator, and 
 B survived A, but was never married. It was contended, that the 
 
 (1) Fearne, 9-10. (3) Pearne, 396; 2 Cruise, 111. 
 
 (2) Cogant). Cogan, Cro. Eliz. 360: Hall (4) Doug. 753 and n. 
 Ti. Tufts, 18 Pick. 455. | 
 
CHAP. XLni.] REMAINDER— VOID CONDITIONS.' 533 
 
 limitation to B, in case she should marry and have issue, was not to 
 wait till the natural expiration of the first estate for life to her, but was 
 to take effect in her lifetime, as soon as the contingency on which it 
 was limited should happen ; and that it was therefore not a contingent 
 remainder, but a conditional limitation ; because, although the condition, 
 on which a remainder is limited, may happen before the expiration of 
 the particular estate, and a contingency be thereby changed into a vested 
 remainder, as in the case of Luddington v. Kime', and other like cases, 
 (p. 503,) yet a remainder cannot operate to abridge the duration of the 
 prior estate, by taking effect in possession before the natural termination 
 of such estate. But Buller, J., remarked, that if B had married and 
 had issue, her life estate would not have merged, because it was not 
 limited to take effect till the death of the wife ; and Lord Mansfield, 
 that here the first limitation was to two persons and the survivor, so 
 that a preceding freehold will be in the survivor, and the estate over is 
 limited on a contingency, upon which a remainder may depend. It is 
 to B and her heirs if she should marry and have issue, and it must 
 have taken effect after the death of the survivor. Upon these grounds, 
 the limitation was held valid as a contingent remainder. There is 
 nothing in the case which indicates that it turned at all upon the con- 
 sideration, that the remainder was limited to B, the tenant for life, her- 
 self; and the note of the reporter shows that he regarded this circum- 
 stance as wholly immaterial. 
 
 18. To render valid a condition, which operates by way of enlarging 
 the prior estate, it is not necessary that the respective estates be of such 
 nature as to cause a merger. Thus, the prior estate may be in tail. 
 So, also, the remainder may be limited after other intervening remain- 
 ders. But the law requires, in order to effect such enlargement : 1. A 
 subsisting particular estate for its foundation, which is neither at will, 
 revocable, nor contingent. 2. That the particular estate remain in the 
 original grantee or his representatives unalienated, for the sake of 
 privity. 3. That the remainder take effect immediately on perform- 
 ance of the condition, without any other act or proceeding whatever. 
 4. The two estates must be created by one deed, or by several delivered 
 at one time.(l) 
 
 19. By devise, a condition may be made to defeat or abridge the 
 preceding particular estate, operating as a limitation, to vest the pro- 
 perty in the remainder-man, without the necessity of any entry by the 
 heirs of the devisor. This is termed a conditional limitation. And it 
 will be effectual even against the heirs of the devisor, to whom the 
 prior estate is limited.(2) It is said, that the expression and idea of a 
 conditional limitation are adopted to avoid the necessity of an entry by 
 the heir; and that, in strictness, all conditional limitations are either 
 executory devises or contingent remainders.(3)(a) 
 
 20. Devise to A for life, after her death to B in fee ; provided, that 
 if the testator's wife should have a son, the land should remain to him 
 in fee. Held, on the birth of the son, the remainder vested in him.(4) 
 
 (1) Lord Stafford's case, 8 Rep. 75. 
 
 (2) Fearne, 270, 407-9. 
 
 (3) Doug. 756, n. 1. 
 
 (4) Dyer, 33 a, 127 a; Pells v. Brown, Cro. 
 Jac. 592 ; Frye v. Porter, 1 Cha. C». 138 ; 1 
 Mod. 300. 
 
 (a) A conditional limitation is where an eitate is so expressly defined and limited by the 
 words of its creation, that it cannot endure for any longer time than till the contingency 
 happens, upon which the estate is to fail. 1 Steph. 278. 
 
584 
 
 REMAINDEIU-BT WHAT ESTATE SUPPORTED. [CHAP. XLIT. 
 
 21. More especially Avill this construction be given, where the estate 
 whch the condition operates to defeat is limited to the heir, who, there- 
 fore, if an entry were necessary, would have to enter upon himself; 
 and'where, consequently, the condition, as such, would be nugatory and 
 
 void. 1 -J. A 
 
 22. Devise to A, the heir, and another devise to B ; and if A molest 
 B, A shall lose his devise, and it shall go to B. A enters upon the 
 land devised to B. Held, A's land thereby vested immediately in B.(l) 
 
 23. A limitation in remainder, by way of use, may also be valid, as 
 & future or shifting use, though it operate to abridge or defeat the prior 
 estate. (2) 
 
 CHAPTER XLIV. 
 
 REMAINDER— BT WHAT ESTATE SUPPORTED. 
 
 1. Contingent freehold remainder must be 
 limited on a freeliold. 
 
 4. Contingent remainder for years. 
 
 5. Possession not necessary — a right of en- 
 
 try sufficient — to sustain a remainder. 
 
 9. Botli estates must be created by one in- 
 
 striiment. 
 13. Estate of trustees sufficient to support 
 remainder. 
 
 1. It has already been stated, (ch. 2,) that a freehold cannot be limi- 
 ted to commence infuturo. Hence it follows, that a freehold contingent 
 remainder, in order to be valid, must be preceded by a vested freehold 
 estate ; iu which case the whole interest conveyed passes out of the 
 grantor immediately, in connection with the prior estate. But if this 
 be less than freehold, a freehold interest cannot vest immediately any 
 where, and the remainder is therefore void.(3)(a) 
 
 2. Devise to A for fifty years, if he live so long, remainder to the 
 heirs male of his body. Held, the latter limitation was a void remain- 
 der.(4) 
 
 3. It has been seen, that where the particular estate is limited to A 
 for years, remainder to B after the death of A; if the term is so long 
 as to render it impossible or highly improbable that A should survive 
 its expiration, the remainder will be deemed to be vested and not con- 
 tingent. On the other hand, where the term is so short that the life 
 may probably outlast it, the remainder is contingent, and, being limited 
 upon an estate less than freehold, is void.(o) 
 
 4. The reason of the rule above stated is inapplicable, where a re- 
 mainder is not freehold, but only for years. Hence, the rule itself is 
 
 (1) 2 Mod. 1. 
 
 (2) 4 Kent, 249. 
 
 (3) Fearne, 281. 
 
 (4) Goodright v. Cornish, 1 Salt 226. 
 (6) Fearne, 24-5. 
 
 (a) In New York, a contingent remainder may be limited on a term of years, provided 
 the nature of the coniingency is such, that the remainder must vest in interest, if ever, dur- 
 ing the continuance, or upon the termination, of not more than two lives in being at the 
 time of the creation of such remainder. Butler v. Butler, 3 Barb. Ch. 304. 
 
CHAP. XLIT.] REMAINDER— BY WHAT BSTATB SUPPORTED. 
 
 5S5 
 
 stated not to apply to such a case.(l) In an early decision, (2) however, 
 it was held, that a contingent remainder for years could not be limited 
 upon a prior estate for years, not upon the ground above referred to, 
 but because a lease for years operates hy way of contract, and therefore 
 the particular estate and the remainder estate operate as two distinct 
 estates, grounded upon several contracts ; whereas, in case of a contin- 
 gent freehold remainder limited upon a preceding estate for life, the par- 
 ticular estate and the remainder is but as one estate in law, and is crea- 
 ted by the livery. 
 
 5. Although a contingent freehold remainder requires a preceding 
 freehold to support it, it is not necessary that the latter should remain 
 actually vested in possession in the tenant. It is sufficient, if, being 
 out of possession at the time when the remainder would vest, he still 
 retains a right of entry. Otherwise, if he has a mere right of action ; 
 for this supposes that the title is uncertain, and depends upon the doubt- 
 ful event of a suit, till the termination of which, another party has a 
 title apparently good. Thus, where the tenant is disseized, as he may 
 regain his estate by entry, the remainder is still good. But if the dis- 
 seizor die, as the possession of his heirs can be defeated only by an ac- 
 tion of the rightful owner, the remainder is destroyed. So, in England, 
 where tenant in tail, with contingent remainders, makes a feoffment in 
 fee, and dies; inasmuch as his issue are driven to an action to regain 
 their estate, the remainders are defeated. (3) 
 
 6. The right of entry, to support a contingent remainder, must be 
 a present right. It must also precede the happening of the contingency. 
 If it commence at the same time as the latter, this is not sufficieut.(4) 
 
 7. When once the right of entry is gone, the remainder is gone 
 forever ; and a new title of entry will not restore it. Thus, if there be 
 tenant for life, with contingent remainder over, and the tenant for life 
 make a feoffment upon condition, and the contingency happen before 
 the condition is broken, or before entry for breach ; the remainder is 
 wholly destroyed, though the tenant for life should afterwards enter for 
 condition broken, and regain his former estate.(5) 
 
 8. It would seem also, that, where the right of entry of the particular 
 tenant is defeated by an absolute conveyance, the contingent remainder 
 is destroyed, even though, before the contingency happens, the prece- 
 dent estate is restored. Thus, in England, if A, a tenant in tail, with 
 remainder to the right heirs of B, make a feoffment and die, and the 
 issue of A recover the land by action before the death of B, so that, 
 when the remainder would take effect by B's death, the prior estate is 
 restored ; still, it seems, the heirs of B cannot take.(6) 
 
 9. A remainder must be created by the same instrument which 
 creates the particular estate.(7) 
 
 10. A woman being tenant for life, her husband devised the estate 
 to the heirs of her body, if they reached fourteen years. Held, an 
 executory devise, and not a contingent remainder.(8) 
 
 11. A was tenant for life by marriage settlement, remainder to his 
 
 (1) 2 Cruise, 288 ; Fearne, 285, 430. 
 
 (2) Corbet ». Stone, T. Raym. 150-1. 
 
 (3) Fearne, 286; Archer'a case, 1 .Rep. 
 66 b. 
 
 (4) Fearne, 289. 
 
 (6) 4 Kent, 264, 255. 
 
 (6) See Fearne, 464 ; 2 Cruise, 296. 
 
 (7) Fearne, 302. 
 
 (8) Snow V. Cutler, T. Raym. 162. 
 
536 
 
 BKMAINDBR— AT WHAT 
 
 [CHAP. XLT. 
 
 wife for life, remainder to his sons by that marriage in tail. A's father, 
 the reversioner, by will reciting the settlement, devised the lands to 
 A's sons conformably to it ; and if A should die without such issue, to 
 A's sons by any other wife in tail male ; and if A should die without 
 issue, to his grandchildren in fee. Held, even if the words without 
 issue gave the heirs of the body of A an estate by implication, A would 
 not take an estate tail ; for nothing was devised to him, and the devise 
 could not be tacked to his estate for life, so as to produce the effect of 
 one entire limitation. (1) 
 
 12. A, being an owner in fee, and having previously limited a life 
 estate to B, conveys to the use of himself for life, and after the death 
 of B, and A her husband, to the use of C, son of A, for life. Held, 
 inasmuch as these limitations were made by distinct deeds, C did not 
 take a contingent remainder, as he otherwise would ; but it was a con- 
 veyance to C of a subsisting remainder, or reversion expectant upon 
 B's death, and the mention of this event merely indicated the time 
 when C should have possession, and did not make a contingency. (2) 
 
 13. The legal estate of trustees is sufficient to support contingent re- 
 mainders, without any preceding trust of freehold.(3) 
 
 CHAPTER XLV. 
 
 REMAINDER— AT WHAT TIME IT SHALL VEST. 
 
 1. Remainder must rest during, or imme- 
 diately upon termination of, the prior 
 estate. 
 
 6. Subsequent revival of prior estate does 
 not render valid the remainder. 
 
 6. Remainder void, though a prior estate 
 
 for years continues. 
 9. Posthumous child. 
 
 2. Tested remainder not affected by defeat 
 of prior estate. 
 Remainder may become void in part. 
 
 13, 
 
 1. The principle has been already alluded to, that a remainder, 
 in order to take effect at all, must vest either during the continuance, 
 or immediately upon the expiration, of the preceding estate. Thus, if 
 a conveyance be made to A for life, and, upon A's death and one day 
 after remainder to B ; the remainder is void. We have seen that this 
 rule is founded in feudal principles, and in the inconveniences of an 
 abeyance of the freehold. (Ch. 2.) 
 
 2. A remainder will be good, if it is to vest immediately upon the 
 termination of the preceding estate.(4) 
 
 3. Limitation to A for the life of B, remainder to the heirs of the 
 body of B. The remainder is good.(5) 
 
 4. Limitation to A and B for their joint lives, remainder to the heirs 
 of him who shall first die. The remainder is valid.(6) 
 
 5. If the preceding estate is terminated at the time when the con- 
 
 (1) Pearne, 301-2; Moore v. Parker, 
 Mod. 316; Doe v. Ponnereau, Doug. 486. 
 
 (2) Weale v. Lower, Pollexfen, 66. 
 
 (3) Pearne, 303. See ch. 46. 
 
 (4) Pearne, 310; 4 Kent, 248. 
 
 (5) Co. Lit. 298 a. 
 
 (6) lb. 378 b. 
 
CHAP. XLV.] 
 
 TIME IT SHALL VEST. 
 
 537 
 
 tingency happens, though it be afterwards restored, the remainder can- 
 not take effect.(l) 
 
 6. The termination of a preceding//-fe/io?c?, before the remainder can 
 vest, deteats the remamder, though a preceding estate for years still con- 
 
 ♦i,\ ^°°^«ya°ce to A for years, remainder to B in tail, remainder to 
 tbeheirsofA. This gives a contingent remainder to A's heirs. Hence, 
 It a die without issue before A, inasmuch as the preceding freehold 
 estate terminates before the remainder can vest, the latter becomes 
 void.(2) 
 
 8. A testator devises to his wife for life, remainder to A, his son, for 
 ninety-nine years, if he should so long live ; after the deaths of the wife 
 and A, to the heirs of the body of A, with a power to A of appointing 
 to all his children. The wife dies, living A. Held, the limitation to 
 the children of A was thereby defeated.(3) 
 
 9. In conformity with the principle above stated, it was formerly 
 held, that, under the limitation of a remainder to the children of the 
 particular tenant, a posthumous child could not take, not being in exis- 
 tence at the termination of the preceding estate. But a decision to this 
 effect, made by the Court of Common Pleas and the Court of King's 
 Bench, (Lord Somers dissenting,) in the case of a will, was reversed by 
 the House of Lords, all the judges dissenting. Afterwards, the Statute 
 14 Wm. Ill, c. 14, provided, that, where an estate is limited by any 
 settlement to a child or children of any person, remainder over,(a) a pos- 
 thumous child shall take.(4) 
 
 10. It is the established principle of American law, that a posthu- 
 mous child shall take both by descent and express limitation, equally 
 with others.(5) It was early held in New York,(6) that, although the 
 Statute of William is not in force in that State, having been expressly 
 repealed, yet, independently of this act, the English law is settled in 
 favor of the claim of a posthumous child. On principles of natural jus- 
 tice, such child has the same rights with others. The civil law never 
 makes a distinction, and the common law very rarely. Thus, a posthu- 
 mous child takes a share under the statute of distributions, and by de- 
 scent. So, the birth of such child, (with marriage,) revokes a will. 
 Independent of the Statute of William, the decision of the House of 
 Lords, which was the determination of the highest tribunal of the Eng- 
 lish law, must be considered as prescribing the rule at common law ; and, 
 inasmuch as the old technical rule, which requires a remainder to vest 
 at the very instant when the preceding estate terminates, was founded 
 on feudal reasons not now in force, this furnishes an additional ground 
 for adhering to the later doctrine. 
 
 11. A posthumous child is entitled, under the statute, to the profits 
 
 (1) Fearne, 46-t. 
 
 (2) Jenk. 248 ; 2 Rolle's Abr. 418. See 
 Festing V. Allen, 12 Mees. & W. 279. 
 
 (3) Doe V. Morgan, 3 T. B. 763. 
 
 (4) Thellusson v. Woodford, 4 Ves. 342 ; 
 Reeve v. Long, Salk. 227 ; Burdet v. Hope- 
 good, 1 P. Wma. 486. 
 
 (6) 4 Eent, 248. 
 
 (6) Stedfast v. Nicoll, 3 John. Cas. 18; 
 Swift!/. Duffield, 5 S. 4 E. 38 ; Marsellis v. 
 Thalhimer, 2 Paige, 35; Dingley v. DIngley, 
 5 Mass. 635 ; Burke v. Wilder, 1 M'Cord's 
 Cba. 561; Armistead v. Bangerfield, 3 Mun. 
 20 ; Aik. Dig. 94. 
 
 (a) But for a remainder, the children would take by descent. 
 for limiting the provisioa to cases of remainder. 
 
 This, it seems, is the reason 
 
538 
 
 REMAINDER. 
 
 [CHAP. XLVI. 
 
 of the estate accruing since the father's death. The act provides, that 
 he shall take as if born before the parent's death ; and this distinguishes 
 the case from that of an heir, who does not thus take. The same con- 
 struction necessarily arises from the provision in the statute, that trus- 
 tees, to preserve contingent remainders, shall not be necessary. The 
 estate is held to vest in the person next entitled after the father's death, 
 and upon the birth of a child to divest, hy relation ; as in the case of the 
 enrolment of a deed, which relates to the making. Hence the child may 
 either maintain ejectment, laying the demise from the father's death, 
 which the defendant will be estopped to deny ; or bring a bill in equity 
 for an account, as against a trustee.(l) 
 
 12. A vested remainder is not necessarily avoided by the defeating 
 of the preceding estate. Thus, A conveys to B for life ; and after- 
 wards, having disseized B, makes another conveyance to C for the life 
 of B, remainder to D. B enters and avoids the estate of C. D's re- 
 mainder is not thereby defeated. So, where the preceding estate is 
 limited to an infant, and, on coming of age, he disaffirms it ; a remain- 
 der limited after such estate is still good.(2) 
 
 13. Where the preceding estate is limited to several persons, if a part 
 of them die before the contingency happens, the remainder will be in 
 part defeated. On the other hand, where the remainder is limited to 
 persons not in esse, if some only are born during the particular estate, 
 the remainder as to the rest will be void. Thus, in case of limitation 
 for life to A, remainder to the heirs of B and C ; if B dies before A, and 
 C survives A, the heirs of B shall take ; but not those of C. This 
 principle, however, it seems, is not applicable to devises and uses.(3) 
 
 CHAPTER XLVI. 
 
 REMAmDBR. REMAINDER BY WAT OF USE. 
 
 Since the statute of uses, a freehold 
 trust necessary to support contingent 
 remainders. 
 
 Preceding trust must continue till the 
 contingency happens. 
 
 6. Resulting trusts sufficient to support 
 remainders. 
 
 1. Contingent uses arise out of seizin of 
 trustees — discussions upon this sub- 
 ject — Chudleigh's case, &c. 
 14. Springing and shifting uses. 
 
 1. Remainders may be limited by way of use, and are indeed more 
 often limited in this mode than in any other. 
 
 2. With respect to remainders by way of use, a very material altera- 
 tion in the law was effected by the statute of uses. Before this statute, 
 if a freehold legal estate was vested in trustees, although the preceding 
 or particular trust estate were less than freehold, the legal freehold of 
 the trustees was sufficient to support contingent remainders. Thus, a 
 limitation would be good to trustees and their heirs to the use of A for 
 years, remainder to the right heirs of B. But after the statute of uses, 
 
 (1) Basset v. Basset, 8 Vin. Abr. 8t ; 3 
 Atk. 203. 
 
 (2) Co. Lit. 298 a; 4 Kent, 234-6. 
 
 (3) Gilb Ten. 262; Pearae, 310; lb. 312; 
 Co. Lit. 9 a ; Matthews v. Temple, Comb. 
 467 ; 2 Cruise, 302. 
 
CHAP. XLTI.] 
 
 EEMAINDER BT "WAT OF USE. 
 
 589 
 
 the effect of which is immediately to divest the estate of the trustee, 
 such a limitation as to the heirs of B would be void. 
 
 3. A conveys by lease and release to trustees and their heirs, to the 
 use of himself for years, remainder to the use of trustees for years, re- 
 mainder to his heirs male. Held, the last remainder was void.(l) 
 
 4. Upon the same principle, a freehold estate in trustees is insufifieient 
 to support a contingent remainder, where the particular estate in trust 
 terminates before the contingency happens. 
 
 5. A, and B, his, wife, levy a fine of B's land to the use of the heirs 
 of the body of A on B begotten, remainder to the use of A's right 
 heirs. They had issue, which died ; then B died, then A. Held, the 
 limitation to A's heirs was void ; that, inasmuch as the land belonged 
 to B, no use resulted to A ; and though B might have a resulting free- 
 hold use, which woiild support the remainder to the issue, yet, as she 
 died living A, such freehold would not support the remainder to A's 
 heirs, since he could have no heirs during his life.(2) 
 
 6. But where a freehold estate results to the party who makes a 
 limitation to uses, it seems to be as effectual to support remainders, as 
 if expressly limited to a third person.{3) 
 
 7. On the other hand, it seems that a prior freehold limitation of a 
 use is not sufficient to sustain a subsequent contingent use ; upon the 
 principle, that a use cannot arise out of a use. Thus, although, as has 
 been seen, a limitation to A for life, remainder to the heirs of B, creates 
 a valid contingent remainder, supported by A's life estate ; yet, if the 
 limitation were made to A in fee, to the use of B for life, remainder to 
 the use of the heirs of C ; such remainder would not be supported by 
 B's life estate, but must rest upon the estate of the trustee. 
 
 8. Upon the question, in what manner future contingent uses are 
 supported and carried into effect by the estate of the trustees. Lord 
 Hardwicke remarks, in Oarth v. Cotton, (Dickens, 183,) that "the judges 
 entered into very refined and speculative reasonings, some of which (I 
 speak it with reverence) are not very easy to comprehend." These 
 reasonings, in the connection in which they were used, had a practical 
 bearing ; because they involved the question, as to the power of trus- 
 tees to destroy contingent remainders — a subject which will be con- 
 sidered in the next chapter. But, supposing no act to have been done 
 by the trustees to destroy the remainders, their validity, as having a 
 sufiicient preceding estate to support them, does not appear to have 
 been questioned. 
 
 9. Chancellor Kent gives substantially the following account of the 
 controversy referred to. (4) 
 
 10. Before the statute of uses, the feoffees to uses were seized of the 
 legal estate ; and, if disseized, no use could be executed, until by entry 
 they had regained their seizin, for the statute only executed those 
 uses which had a seizin to support them. After the statute of uses, 
 it was diflBcult to ascertain by what estate contingent uses were to 
 be supported. Some held, that the estate was vested in the first cestui 
 que use, subject to the uses which should be executed out of his seizin ; 
 
 (1) Adams v. Savage, Salk. 619. 
 
 (2) Davies v. Speed; Show. Part C. 104; 
 Salk. 675 n. 
 
 (3) Penkay v. Hurrell, 2 Freem. 268; 2 
 Cruise, 308. 
 
 (4) 4 Kent, 237-45. (See Garth v. CottOD, 
 Dickens, 183 ; Hales v. Rialey, Pollez&n, 
 386.) 
 
540 EEMAINDER. [CHAP. XLTI. 
 
 hut this opinion was untenable, for a use could not arise out of a use. 
 It was again held, the seizin to serve contingent uses was innuhibus or 
 in custodia legis, or had no substantial residence anywhere. Others were 
 of opinion, that so much of the inheritance as was limited to the con- 
 tingent uses, remained actually vested in the feoffees until the uses arose. 
 But the prevailing doctrine was, that there remained no actual estate, 
 and only a possibility of seizin, or scintilla juris, in the feoffees, or re- 
 leasees to uses, to serve the contingent uses as they arose. This doc- 
 trine was first started in Brent's case,(l) in 16 Eliz. In Manning and 
 Andrews' case,(2) the judges were equally unsettled in their notions 
 respecting the operation of the statute on contingent uses. Some of 
 them thought a sufficient seizin remained in the trustees to support the 
 future uses ; while others held, that no seizin remained in them, but 
 that the statute drew the confidence out of them, and reposed it upon 
 the land, which rendered the use to every person entitled in his due 
 season. In a few years, ChudleigKs case{S) arose, which is the lead- 
 ing case upon this subject. A minority of the judges here held, that 
 the notion of a scintilla remaining in the trustees was as imaginary as 
 the Utopia of Sir Thomas More ; that their original seizin was suffi- 
 cient to serve the future as well as present uses ; and that the future 
 uses were in the preservation of the law, till they became vested. But a 
 majorityof the judges held, that the statute could not execute any uses 
 that were not in esse ; that not a mere scintilla remained in the feoffees, 
 but a sufficient estate to serve the future uses, unless their possession 
 was disturbed, and their right of entry lost. From these several cases 
 the doctrine has been deduced, that future uses cannot be executed 
 without a remaining right or estate in the feoffee. The estate in the 
 land is supposed to be transferred to the person who has the estate in the 
 use, and not to tJie use ; and it is inferred, that no use can become a legal 
 interest, until there shall be a person in whom the estate may vest. 
 
 11. But this view of the subject has been opposed by very distin- 
 guished writers upon Keal Property, — Mr. Fearne and Mr. Sugden. 
 The latter takes the ground, that the doctrine of a scintilla juris was 
 never judicially decided, but has been deduced from extra-judicial 
 dicta ; that the statute draws the whole estate in the land out of the 
 feoffees, and the prior estates take effect as legal estates, and the con- 
 tingent uses take effect, as they arise, by force of the original seizin of 
 the feoffees. If there are any vested remainders, they take effect, 
 subject to open and let in contingent estates, when the contingency 
 occurs. Thus, in a conveyance in fee to A, to the use of B for life, 
 remainder to his unborn sons in tail, remainder to A in fee ; the statute 
 immediately draws the whole estate out of A, vesting it in B and C 
 respectively, which exhausts A's entire seizin. TJie estate to the sons 
 of B is no estate, till they are born ; and the statute did not intend to 
 execute contingent uses, but the contingent estates are supported, by 
 holding that the interests of B and are vested only sub modo, with a 
 liability to open. A retains no scintilla, but the contingent uses, when 
 they arise, take effect, by relation, out of the original seizin. 
 
 12. Mr. Preston is of opinion, that limitations of contingent uses give 
 
 (1) Dyer, 340 a; Brent's case, 2 Leon. 14. I (The latter report said to be indisputablj the 
 
 (2) Manning, Ac, 1 Leon. 256. best.) i Kent, 239 n. 
 
 (3) 1 Co. 120; DUlam v. Frain, 1 And. 309. I 
 
CHAP. XLVI.] EEMAINDEE BY WAT OF USB. 541 
 
 contingent interests, and that the estate may be executed to the use, 
 though there is no person in whom it can vest. The statute passes the 
 estate of the feoffees in the land to the estates and interests in the use, 
 and apportions the former estate accordingly. No scintilla, or the most 
 remote possibility of seizin, remains with the trustees. 
 
 13. Mr. Cornish asserts, that the doctrine of scintilla juris rests on 
 paramount authority. 
 
 14. Remainders limited by way of use may be vested in favor of 
 one person, and afterwards, on the birth of another person, or the hap- 
 pening of some other event, divested wholly or in part, and vested in 
 new parties. This point has been already adverted to under the title 
 of Uses and Trusts. Some of the cases, which will be mentioned in 
 illustration of the principle, are not strictly instances of remainder, but 
 they are not distinguishable in reason from those which are. 
 
 15. In the first place, where a remainder is limited by way of use 
 to several persons, or to a class of persons, who become capable of 
 taking at different times, though it vests wholly in one, it will become 
 divested in part, and let in the others to a proportional share. In this 
 respect, however, uses seem not to differ from legal estates created by 
 devise. 
 
 16. Limitation to the use of A for life, remainder to the use of B, 
 his wife, for life, remainder to all their issue female. Upon the birth 
 of a daughter, the remainder vests in her ; but, upon the birth of a 
 second daughter, the latter also shall take a share of the estate.(l) (See 
 p. 528.) 
 
 17. Another class of future uses are those limited to arise in 
 futuro, without any preceding estate to support them ; or uses which 
 change from one person to another by matter ex post facto, though 
 the first use were limited in fee. These, of course, are not strictly 
 remainders. 
 
 18. Limitation to the use of one, and of such wife as he shall 
 afterwards marry. Upon his marriage, the wife takes with the hus- 
 band.(2) 
 
 19. A, in consideration of love and affection to B, his brother, and 
 of £100 paid by him, granted, released and confirmed. to B, then in 
 possession as lessee for a year, in tail, after the death of A. Held, 
 good as a covenant to stand seized, though void as a lease and release, 
 and that the estate vested in B after A's death, as a springing use.(3) 
 
 20. Where the conveyance to uses operates without any change of 
 possession, the springing use arises oat of the seizin of the covenantor- 
 where there is a change of possession, out of that of the first grantee 
 to uses.(4) 
 
 21. The class of uses already referred to are called springing uses. 
 A few cases will be mentioned o^ shifting or secondary uses ; which are 
 defined, as uses limited so as to change by matter ex post facto. {5) The 
 distinction, however, between the different classes of future contingent 
 uses, seems to be very nice, and not always accurately observed by 
 
 (1) Mathews v. Temple, Comb. 467 ; Sussex 
 D. Temple, 1 Ld. Raym. 311; Doe «. Marlin, 
 4 T. E. 39, aco. 
 
 (2) Mutton's case, Dyer, 274 b ; "Woodliff 
 V. Drury, Cro. Eliz. 439. 
 
 (3) Eoe V. Tranmer, 2 Wils. 7&. 
 
 (4) 2 Cruise, 311. 
 (6) 2 Cruise, 311. 
 
642 REMAINDER BY WAY OP USE. [CHAP. XLYI. 
 
 ■writers of authority. Chancellor Kent says, springing uses arise on a 
 future event, where no preceding estate is limited ; while shifting or 
 secondary uses take effect in derogation of some other estate.(l) 
 
 22. A conveys to the use of B and his heirs, till G shall pay B £40, 
 then to the use of C and his heirs. Upon payment of this sum, held, 
 C should have the estate. The only doubt was, whether the right of 
 entry belonged to C himself, or to the feoffee to uses.(2) 
 
 23. So A may convey to trustees and their heirs to their own use ; 
 but, unless they pay a certain sum in a certain time, to the use of A, 
 with remainders over. Upon non-payment, the estate vests in A, and 
 the remainders take e£fect.(3) 
 
 24. Conveyance of two estates, S and T ; of the former to the use of 
 A in fee, and of the latter to the use of B in fee, until A should be 
 evicted from S by B's wife ; then T to the use of A, till his loss should 
 be satisfied from the profits of T. Held good.(4) 
 
 25. A, tenant for life, and B, the reversioner, covenant to levy a fine 
 to the use of A in fee, unless B pay A 10s. at a certain time; if he 
 should pay it, to the use of A for life, remainder to B in fee. A has a 
 fee till payment of the money.(5) 
 
 26. A and B, sisters, in consideration of £4,000 paid to A, and of a 
 marriage proposed between B and C, convey to trustees in fee, to the 
 use of C for life, remainder to B for life, remainder to the children in 
 tail, remainder to C in fee ; but if both B and C should die leaving no 
 issue, and the heirs of B should, within twelve months from the death 
 of the survivor of them, pay the heirs or assigns of C £4,000, the re- 
 mainder in fee to C and his heirs to cease, and the premises to remain 
 to the use of the heirs of B. Held, a good shifting use.(6) 
 
 27. Where there is any preceding estate to support a future use, it 
 will be construed as a contingent remainder, and not a springing or 
 shifting use.(7) 
 
 28. The remark already made (s. 18) as to the seizin, out of which 
 a springing use arises, is equally applicable to shifting uses.(8) 
 
 29. But such use cannot arise out of the seizin of the prior cestui que 
 use. Conveyance to A to the use of B in fee ; and if C pay B a certain 
 sum, B to stan4 seized to the use of C in fee. This is a void limitation 
 as to C (9) 
 
 (1) 4 Kent, '296-7. 
 
 (2) Bro. Abr. Feoffment al Use, pi. 30. 
 
 (3) Harwel v. Lucas, Moo. 99 ; Brace- 
 bridge's case, 1 Leo. 264 
 
 (4) Kent V. Steward, -2 Kolle's Abr. T82 ; 
 Cro. Car. 168. 
 
 ^5) Spring v. Cseaar, 1 RoUe's Abr. 413. 
 
 (6) Lloyd V. Carew, Show. Pari. Oas. 137. 
 
 (7) 2 Cruise, 315. 
 
 (8) Ibid. 
 
 (9) Chudleigh's case, 1 Rep. 137, a. 
 
[CHAP. XLYII. 
 
 REMAINDER— HOW DEFBATED. 
 
 543 
 
 CHAPTER XLVII. 
 
 REMAINDER— HOW DEFEATED. 
 
 1. By destroying the particular estate. 
 
 2. Whether by a mere change of estate. 
 
 3. Where the particular estate and a sub- 
 
 sequent remainder unite, whether 
 contingent remainders destroyed. 
 
 Distinction of cases. 
 
 10. Remainder by way of use, how des- 
 troyed ; whether actual seizin neces- 
 sary, Ac. 
 
 19. American opinions and cases. 
 
 1. Inasmuch as a remainder must take effect either before or imme- 
 diately upon the determination of the preceding estate ; it follows that 
 any act, which destroys such estate before the contingency happens, 
 will destroy the remainder also. Hence, in England, where a tenant 
 in tail or tenant for life, with remainders over, makes a feoffment, or 
 suffers a fine and recovery, or a recovery without fine or feoffment ; as 
 by these acts his estate is divested, the remainders also become void. 
 The same effect follows from a surrender, to the owner of the reversion 
 or a vested remainder, by tenant for life ; or a conveyance to hifti of 
 the reversion or a vested remainder, whereby his life estate is extin- 
 guished. But not from any such conveyance by tenant for life, as will 
 pass ohly the estate which he has ; such as a bargain and sale, or lease 
 and release. It has already been stated (ch. 4) as the general rule of 
 American law, that no conveyance by a particular tenant will be effec- 
 tual to pass more than his own estate. Hence, it seems, such convey- 
 ance will not in any case operate to defeat contingent remainders. But 
 perhaps the English law as to the effect of a surrender remains un- 
 changed.(l) 
 
 2. How far any mere change in the preceding estate will operate to 
 defeat contingent remainders, seems to be an unsettled point. Mr. 
 
 ♦ Fearne supposes that the change must be one of quantity, not merely 
 of qijMlity. Thus, where the preceding estate was limited to two per- 
 sons, a release from one to the other was held not to destroy the re- 
 mainders. But, on the other hand, where the particular estate de- 
 scended to parceners, who made partition, it was held, that the remain- 
 ders were defeated. (2) 
 
 3. The alterations in the estate preceding a contingent remainder, 
 above referred to, are those made by the act of the particular tenant 
 himself. Such changes may also arise from the acts of third persons ; 
 and, upon this point, the following distinctions have been made. 
 
 4. Where the same conveyance, which creates the particular estate 
 and the contingent remainder, creates also the subsequent vested re- 
 mainder- or where the reversion in fee descends, from a testator who 
 
 (1) Chudleigh'B ease, 1 Rep. 135 b ; Co. 
 Lit. 252 a; Archer's case, 1 Rep. 66; Lloyd 
 V. Brooking, 1 Tentr. 188 ; Hales v. Risley, 
 PoUexfen, 389; Thompson v. Leach, 2 Salk. 
 427 ; Fearne, 468, 323 ; Purefoy v. Rogers, 
 2 Saun. 380 ; Reeve v. Long, 4 Mod. 284 ; 
 BIoBse V. Clanmorris, 3 Bligb, 62; Doe v. 
 
 Gatacre, 6 Bing. N. 609; 1 Scott, 801 ; Hole 
 V. Escott, 2 Keen, 444. 
 
 (2) 2 Cruise, 319 ; Fearne, 337 ; 4 Leon. 
 237; Harrison V. Belsey, T. Ray. 413; Pure- 
 foy V. Rogers, 2 Saun. 386. Partition be- 
 tween tenants in common determines an es- 
 tate at will held under one of them. Big. 
 Dig. 480. 
 
544 
 
 EEMAINDEE— HOW DEFEATED. 
 
 [CHAP. XLTII, 
 
 limits such particular estate and contiDgent remainder, upon the par- 
 ticular tenant, there will be no merger, effectual to destroy the contin- 
 gent remainder ; but the two estates between which it is interposed will 
 unite sub modo, and, when the contingency happens, will open or sepa- 
 rate to let in the contingent remainder. Any other construction would 
 manifestly defeat the intention of the party limiting the estates, both 
 in regard to the particular estate, which would merge, and in regard" to 
 the contingent remainder, which would be destroyed, by the very act 
 which created them.(l) 
 
 5. Limitation to A, and B his wife, for their lives, after their decease 
 to their first issue male, &c., and for want of such issue, to the heirs 
 male of the body of A. A and B take an estate tail, subject, however, 
 to the condition, that upon the birth of issue male the estate shall open, 
 and leave an estate for life in A and B, remainder to their issue in tail 
 male, remainder to the heirs of the husband. (2) 
 
 6. Devise to A, the testator's eldest son, ibr life ; if he should die 
 without issue living at his death, then to B in fee ; but if he should 
 leave such issue, then to A's right heirs forever. Held, although the 
 reversion in fee descended upon A, he was still tenant for life, with 
 contingent remainders, which were not defeated. Nor could A's life 
 estate merge in the remainder to his heirs, the latter being contin- 
 gent.(3) 
 
 7. But where the particular tenant, upon whose estate contingent re- 
 mainders are limited, acquires a remainder or reversion in fee, not by a 
 limitation or a descent concurrent in time with the creation of his prior 
 estate, but by a subsequent descent, though acting through the party 
 who limited the estates ; as the same reason does not operate to prevent 
 a merger, which has already been stated in relation to the former case, 
 such merger will take place and the contingent remainders be destroyed. 
 
 8. A was tenant for life, remainder to B, his son, for life, remain- 
 der to B's first son in tail, remainder to the heirs of the body of A, 
 A dies before B has a son, and the estate tail descends upon B. The 
 remainder to B's son is destroyed.(4) , 
 
 9. Conveyance to the use of A and his wife for life, remainder to the 
 use of B, the son of A, for life, remainder to B's sons in tail, &c., re- 
 mainder to A in fee. A and his wife die, living B. Held, B's life es- 
 tate was merged in the fee which descended upon him, and the remain- 
 ders destroyed. (5) 
 
 10. With respect to contingent remainders, limited by way of use, 
 how far they are liable to be destroyed by acts affecting the estates 
 upon which they depend, is a point that has already been somewhat 
 considered. The celebrated controversy, noticed in the last chapter, as 
 to the scintilla juris, Chudleigh's case, &c., derives all or most of its prac- 
 tical importance from its connection with the question whether trustees 
 have power to destroy contingent remainders. Upon this subject, the 
 decided cases, as well as the statements and opinions of elementary 
 writers, are exceedingly confused and contradictory ; and there is great 
 
 (1) Feame, 603. 
 
 (2) Bowles' case, 11 Eep. 79; Archer's 
 case, 1 Rep. 66 ; Hales v. Bisley, PoUexfen, 
 389. 
 
 (3) Plunket v. Holmes, T. Riiym. 28 ; 2 
 
 Cruise, 321 ; 2 Bos. * P. 291. 
 
 (4) Kent v. Harpool, 1 Tent. 306 ; T. 
 Jones, 16. 
 
 (5) Hooker v. Hooker, Eep. Temp. Hardw. 
 13 ; (Duncomb v. Duacomb, 3 Lev. 431.) 
 
CHAP. XL^II.] 
 
 REAINDER— HOW DEFEATED. 
 
 545 
 
 reason for "the remark of Mr. Preston, that the doctrine requires to be 
 settled by judicial decision.(l) 
 
 11. With respect to contingent remainders hy way of use, Mr. Cruise 
 makes a distinction(a) between those which arise luithout any change of 
 po-'isession, that is, by a covenant to stand seized to uses, or bargain and 
 sale ; and those created by a change of possession, or by a feoffment or con- 
 veyance to uses.{2) In the former case he says, that actual seizin is ne- 
 cessary to give effect to the remainders, and not a mere right of entry, 
 as in case of legal estates^ because the use arises out of the estate of 
 the covenantor, and this, according to the language of the statute, must 
 be a seizin. Hence, any act or transfer of the covenantor, by which his 
 seizin is divested, defeats the subsequent contingent remainders. 
 
 12. A covenants to stand seized to the use of himself for life, remainder 
 to the use of B for life, remainder to the use of C for life, remainder 
 to the use of the first son of C in tail male, with the reversion in fee to 
 A. A grants the reversion to D, without consideration, and reciting 
 the uses; and afterwards makes a feoffment of the land. After A's 
 death, B enters, and dies seized, C having died previously. It was held, 
 that the contingent remainder to the son of C was not defeated by the 
 grant and feoffment of A ; that D took the reversion charged with the 
 uses, and the feoffment could not defeat D's right of entry ; and that 
 the entry of B operated to revest D's estate, and restore a seizin which 
 would support the contingent remainder. If A had made the feoffment 
 before granting the reversion, as the law would not allow him to re-en- 
 ter against his own deed, the entry of B would not enure to his benefit, 
 and the contingent remainders would therefore be destroyed.(3)(/;) 
 
 13. Mr. Cruise proceeds to remark,(4:) that, where a limitation to uses 
 is made by some conveyance which operates by a change of 'possession, 
 the doctrine established in ChudkigKs case would lead to the conclu- 
 sion, that any act which divests and turns to a right the particular, pre- 
 ceding estate, destroys the contingent uses, unless either the particular 
 tenant or the feoffee to uses re-enters ; for otherwise no possibility of 
 entry or ^^ scintilla juris," remains to constitute the seizin, out of which 
 uses must arise. The doctrine of that case is, that the grantee to uses 
 is considered the donor of all the contingent estates when they vest. 
 This principle, however, has been strongly contested by Lord Ch. J. 
 Pollexfen,(5) upon the grounds that it would place a dangerous power 
 in the hands of those who are seized to uses, who are said to be gener- 
 ally " strangers and mean persons," and greatly endanger the security 
 of titles; by enabling grantees to uses to deprive themselves, by their 
 own unlawful acts, of a right of entry, and thus defeat all contingent 
 estates limited by way of use. The same judge, and also Mr.Fearne,(6) 
 urge the still stronger consideration, in opposition to this prmciple, that 
 
 (1) Prest. on Est. 184. 
 
 (2) 2 Cruise, 324-5. 
 
 (3) Wegg V. Villers, 2 Rclle's Abr. ISG; 
 Lloyd V. Brooking, 1 Tent. 188. 
 
 (4) 2 Cruise, 325. 
 
 (5) Hales «. Risley, PoIIexfen, 383; Treat, 
 of Bq. B. 2, ch. 6, sec. 1. 
 
 (6) Fearne, 300. 
 
 (a) I have been unable to find any case where this distinction is expressly recognized. 
 
 (6) These limitations and subsequent transfers were made by Lord Coke, for the purpose 
 of enabling him to preserve or destroy the contin;.'ent remainder at his discretion, by pro- 
 ducing the grant and destroying the feoffmeat, or the converse. But, it is said, he died be- 
 fore executing his plan. 
 
 YoL. I. 35 
 
546 
 
 REMAINDER— HOW DEFEATED. 
 
 [CHAP. XLVIL 
 
 it is in direct contradiction to the words and uniform construction of 
 the statute of uses ; according to which, the grantee to uses is a mere 
 instrument or conduit pipe, all his estate being immediately taken and 
 transferred out of him, as if never vested. The cestui que vse is seized, 
 " to all intents, constructions and purposes in the law," as a grantee to 
 uses would be before the statute ; and one of the legal qualities of a 
 legal estate is, that where a particular tenant, though deprived of his 
 estate, has left in him a right of entry, this is sufficient to support sub- 
 sequent contingent remainders. Hence, where such right remains in 
 the cestui, no divesting of the estate from the trustees would seem suffi- 
 cient to defeat such remainders. 
 
 14. The doctrine that, where a limitation to uses operates by a change 
 of possession, (although no peculiar effect seems to have been attributed 
 to this circumstance,) contingent remainders may be defeated by the act 
 of the trustees in transferring the estate, derives its great support from 
 GhudhigKs case,{\.) which has been already several times referred to. 
 In this case, A enfeoffed several persons to the use of them and their 
 heirs, during the life of B, remainder to the use of the first and other 
 sons of B in tail. Before B had a son, the trustees conveyed to B in 
 fee, without consideration, and with notice of the uses.(a) B afterwards 
 had a son. Held, the remainder to this son was destroyed by the feoffment 
 of the trustees, which operated as a forfeiture of the particular estate. 
 
 15. Many other cases are to be found in the books,(2) which settle 
 substantially the same principle. These are generally cases of st, feoff- 
 ment made hj the trustee or by the particular tenant, whereby the par- 
 ticular estate is defeated. The same principle is applied to springing or 
 shifting uses, which are not strictly remainders, though hardly distin- 
 guishable from them. Thus, a devise of the land, from which such 
 uses are to arise, will defeat them ; though, it seems, a mere devise of 
 portions from it will not. 
 
 16. A levied a fine to the use of himself and his heirs, till a marriage 
 had between B, his son, and C, then to the use of A for life, remainder 
 to, B in tail, &c. The marriage took place. A, however, having previ- 
 ously devised portions from the land to his daughters, and died. Held, 
 a devise of the land itself would have defeated the future use ; but it 
 was doubted whether a mere devise of portions from it had this effect.(3) 
 
 17. Whether a mere lease for years, or the grant of a rent from the 
 land, will wholly defeat the future use, seems to be a doubtful point, 
 though the weight of authority is that it will not. But such transfer 
 has been held to bind the use when it arises, pro tanto. Even this point, 
 however, was disputed by Fenner, J., in Woody. Reignold,{'^) who said, 
 "the same freehold remains, and the use is amieooedto the lease, and there- 
 
 (1) 1 Eep. 120 ; Dillon v. Fraine, Poph. 
 
 70. 
 
 (2) Biggot V. Smjth, Cro. Car. 102 ; Brent's 
 
 case, Dyer, 340 a; Brent's case, 2 Leon. H. 
 
 (3) 2 Cruise, 328. 
 
 (4) Wood ». Eeiguold, Cro. Eiiz. 854. 
 
 (a) In another case, (Wood v. Eeignold, Cro. Eliz. 764,) though recognizing the general 
 doctrine, that contingent uses may be defeated by the feoffee, upon the grounds, that tlie use 
 ought to arise out of the estkte which the covenantor had at the time of the covenant, and 
 at th e statute executes only vested uses or those in esse, leaving contingent uses as at 
 mmon law; it is intimated that, according to the very reason of the rule last namad, a 
 arty taking the land, without consideration or with notice, is chargeable with the contingent 
 se when it arises. 
 
OHAP. XLYII.] 
 
 EEMAINDEE— HOW DEFEATJED. 
 
 547 
 
 fore the lease shall not disturb nor bind it." So, in Bould v. Winston,{l) 
 where the party covenanting to stand seized, remained seized of the re- 
 version m fee, and afterwards made a long lease to defeat the contin- 
 gent remamder ; it was held, that the lease should take efiect out of the 
 reversion, and not in such waj as to defeat the remainder. In another 
 case,(2) a lease was held wholly to defeat the contingent use. 
 
 18. The cases in which a conveyance made by a feoffee or covenan- 
 tor to contingent uses, has been held to defeat such uses, are said to be 
 very unsatisfactory, and to be contradicted by others of equal authority, 
 one of which was decided by the House of Lords.(3) 
 
 19. Chancellor Kent says,(-l) in equity, the tenant for life of a trust 
 cannot, even by a fine, destroy the contingent remainder dependent 
 thereon ; and it will only operate on the estate he can lawfully grant. 
 A court of equity does not countenance the destruction of contingent 
 remainders. So, any conveyance of a thing lying in grant does not bar 
 a contingent remainder ; nor a conveyance deriving effect fi-om the 
 statute of uses ; because neither of these passes anj thing more than the 
 grantor has a legal title to. There are also some acts of a tenant for 
 life, which, though amounting to a forfeiture, and authorizing an entry 
 by a subsequent vested remainder-man, do not destroy the contingent 
 remainder, unless such entry or other equivalent act be made or done. 
 The same author also remarks,(5) that Ghudkigh's case is a strong au- 
 thority to prove that a feoffment without consideration, and even with 
 notice in the feoffee of the trust, will destroy a contingent remainder. 
 It is a doctrine flagrantly unjust, and repugnant to every settled prin- 
 ciple in equity, as now understood. 
 
 20. Very few cases have occurred in the United States, in which 
 the question, as to the power of the particular tenant to defeat con- 
 tingent remainders, has arisen. In an early case in Pennsylvania,(6) 
 a tenant for life, with contingent remainders depending upon his 
 estate, had suffered a common recovery; and the judges were divided 
 in opinion as to the effect of this proceeding upon the remainders. 
 Ch. J. Tilghman, who was of opinion that the remainders were de- 
 stroyed, remarks as follows : — The great Hamilton estate, near Phila- 
 delphia, was tied up, by the late Gov. Hamilton's will, to a number of 
 life estates, with contingent remainders depending on them ; but he 
 omitted to appoint trustees for preserving the contingent remainders. 
 Under the direction of very able counsel, common recoveries were 
 suffered, for the purpose of destroying the contingent remainders, and 
 many estates were sold for valuable and full considerations, on the 
 faith of the common law, which had never been altered, either by act 
 of assembly or judicial decision. The objection, that the law of for- 
 feiture is founded on feudal principles, is of no weight. Those prin- 
 ciples are so interwoven with every part of our system of jurisprudence, 
 that to attempt to eradicate them would be to destroy the whole. They 
 are massy stones worked into the foundation of our legal edifice. Most 
 of the inconveniences attending them have been removed, and the few 
 
 (1) Bould V. ■Winston, Cro. Jac. 168; Noy, 
 122. 
 
 (2) Barton's case, Moo. 743. 
 
 (3) 2 Cruise, 332 ; Smith v. "Warren, Cro. 
 Bliz. 688. 
 
 (4) 4 Kent, 263-4. 
 
 (5) 4 Kent, 252, n. 
 
 (6) Dunwoodie v. Eeed, 3 S. & R. 441- 
 
548 EEMAINDER— HOW DEFEATED. [CHAP. XLVII. 
 
 that remain may easily be removed, by acts of the legislature. In that 
 way, the future may be provided for, without injuriug the past. But 
 should this court undertake to shake a principle which has become a 
 rule of property, the mischief would be incalculable. I doubt very 
 much, whether it be not the policy of this country to facilitate the de- 
 struction of contingent remainders, (as well as of estates tail.) They 
 tend to prevent the free enjoyment and alienation of land ; whereas, 
 the spirit of our constitution and laws has a direct contrary tendency. 
 They tend to throw large estates into one hand ; but the object of our 
 laws is to divide them among many. 
 
 21. On the other hand, in the same case,(l) Gibson, J., says, entail- 
 ment and contingent remainders stand on different ground. Indefinite 
 restriction on alienation is contrary to the genius of our laws ; but re- 
 striction to a reasonable extent is tolerated. Land ought not to be 
 transmissible like chattels. Convenience, and the state of society in 
 this country, begin to require a more complex settlement and disposi- 
 tion of real property than has hitherto prevailed. This, it is said, may 
 be effected, and these contingent interests secured, by interposing trus- 
 tees to preserve contingent remainders. But this is a form of limita- 
 tion rarely thought of, especially where the disposition of property is 
 the last act of a man's life. 
 
 22. In the case of Carver v. Jackson,{2) it seems to have been taken 
 for granted, that the confiscation of a preceding estate for life will de- 
 feat contingent remainders depending upon it. And in South Carolina 
 a feoffment, with livery of seizin, by tenant for life, bars contingent 
 remainders.(3)(a) 
 
 (1) Dunwoodie v. Reed, 3. S & R. 45T. I (3) Dehon v. Eedfern, Dudl. Eq. 115. See 
 
 (2) 4 Pet. 1. 1 Brewer v. Hardy, 22 Pick. 376. 
 
 (a) In Virginia, it is Baid, the law on this subject has been essentially changed by statute, 
 and the policy of the legislature has been, to place contingent remainders beyond the reach 
 of accident to the particular estate. Trustees to preserve contingent remainders are no 
 longer in much use. 1 Lom. 457, 463. In Massachusetts, no expectant estates shall be 
 barred (except in case of entailments) by any act of the immediate owner, or any destruc- 
 tion of his estate by disseizin, forfeiture, surrender or merger. Rev. St. 405. Devise to A 
 for life, remainder to B and C to preserve contingent remainders, remainder to the issue of 
 A in tail male. If A renounce or disclaim the life estate, B's and C's remainders take 
 effect, and preserve the contingent remainder. Webster v. Gilraan, 1 Story, 499. 
 
CHAP. XLYIII.] REMAINDER TRUSTEES TO PRESERTB, ETC. 
 
 549 
 
 CHAPTER XLVIII. 
 
 REMAINDER. TRUSTEES TO PRESERTB CONTINGENT REMAINDERS. 
 
 1. Origin and history. 
 
 3. Trustees take an estate. 
 
 4. May destroy the remainders ; but it is a 
 
 breach of trust. 
 
 5. Exoeptions-^remote relations may be 
 
 barred. 
 1. If remainder-men join ; no breach of 
 trust. 
 
 8. Chancery sometimes directs a convey- 
 ance in favor of mortgagees, credit- 
 ors, &o. 
 12. But generally will not interfere. 
 
 16. Trustees cannot safely defeat the re- 
 
 mainders. 
 
 17. Power and duty in case of waste. 
 
 1. From the rule, that the alienation or forfeiture of a preceding 
 estate for life would defeat contingent remainders limited upon such 
 estate, the practice arose, of limiting an intermediate estate to trustees, 
 to take effect upon the termination of the life estate before the death of 
 the tenant, and continue during his life. The invention is ascribed to 
 Sir Orlando Bridgeman and Sir Geoffrey Palmer, who, during the 
 civil wars, devoted themselves to the business of conveyancing. Such 
 trustees are called trustees to preserve contingent remainders.(l) 
 
 2. Lord Hardwicke remarks, that the practice in question arose from 
 the decision of two great cases, reported by Lord Coke, viz: Chud- 
 leigKs case and Archers' case, though it was several years after those 
 cases before that light was struck out ; and it was not brought into 
 general use till the time of the usurpation, when probably the providing 
 against forfeitures for what was then called treason and delinquency, 
 was an additional motive to it.(2) 
 
 3. It was formerly questioned, whether trustees to preserve remain- 
 ders, after a prior limitation for life, took any estate in the land, or 
 merely a right of entry upon the forfeiture or surrender of the tenant 
 for life; by reason that the limitation, being only during his life, could 
 not commence or take effect after his death. But it was settled in 
 Gholmondeley' s case, and Duncomh v. Duncomh, that they take a vested 
 remainder. And this is a fortiori the case, where the prior estate is 
 only for years, because the first freehold is then in the trustees. It has 
 also been argued, that the interposition of trustees to preserve, &c., was 
 not intended to alter the legal rights of a preceding tenant for life, or 
 of the ultimate remainder-man in fee. But the court held, that such 
 interposition was designed to abridge the legal rights of both these 
 parties; the right of the former to destroy the contingent use of the 
 inheritance, while it remains contingent ; and the right of the latter to 
 destroy it, by accepting a surrender.(3) 
 
 4. A trustee to preserve contingent remainders has the power to 
 defeat them, by joining in a conveyance with the preceding tenant. 
 Such trustee has been called honorary, as signifying a discretionary 
 power in this respect. But this act is a plain breach of trust, and a 
 grantee, without consideration or with notice, will take the land charged 
 with the trust. It is said, that should the court hold it to be no breach 
 
 (1) 2 Cruise, 336-7. 
 
 (2) Garth v. Cotton, Dickens, 183. 
 
 (3) Garth v. Cotton, Dickens, 1 83 ; 2 Co. 
 5 a; Dunoomb v. Dunoomb, 3 Lev. 437. 
 
550 
 
 KEMAmDER. TRUSTEES TO 
 
 [CHAP. XLVin. 
 
 of trust, or pass it by with impunity, it would be making proclamation, 
 that the trustees in all the great settlements in England were at liberty 
 to destroy what they had been entrusted only to preserve. In case of 
 a conveyance for consideration or without notice, the trustee will be 
 decreed to purchase other lands of equal value, and hold them upon 
 the same trusts.(a) These principles were first solemnly settled in the 
 great case of Ma-nsell v. Mansell, which was decreed by Sir J. Jekyll, 
 at the EoUs, and afterwards by Lord King, assisted by Lord Eaymond 
 and Lord Ch. Baron Eeynolds. Lord Eaymond said, it was strange in 
 natural reason to say, tliat where a man hath created a trust to preserve 
 his estate, the trustees may break that trust and give away the estate 
 with impunity. (1) 
 
 5. This rule, however, seems to have been established, chiefly for 
 the protection of the immediate parties to a settlement or their issue ; 
 and not to have been extended to the relief of remote collateral heirs. 
 The former are regarded in law as purchasers; the latter as mere vol- 
 untary claimants, not entitled to the aid of a court of equity. 
 
 6. A settlement was made in consideration of a marriage and a 
 fortune, for the purpose of settling the lands in the name and blood of 
 the husband. Limitation to trustees, in trust for the husband for nine- 
 ty-nine years, if he should so long live, remainder to trustees during 
 his life to support, &c., remainder to the sons of the marriage, remain- 
 der to the heirs of the body of the husband, remainder to his right 
 heirs. After the marriage, the husband and wife and trustees to 
 support, joined in a fine and conveyance, with different limitations from 
 those stated, providing a jointure, and giving the ultimate remainder 
 to strangers. Husband and wife having died without issue, the heirs 
 of the former brought a bill to set aside the latter conveyance. Held, 
 they were not entitled to relie£(2) 
 
 7. If the party to whom a remainder is limited join the trustees in 
 their conveyance, this will be no breach of trust. And upon a similar 
 principle, where such remainder is limited to the heirs of the hody of A, 
 and is therefore contingent, if the eldest son or heir apparent of A join 
 the trustees in a conveyance, and afterwards die. Chancery will not 
 set aside the conveyance on application of a second son of A, during 
 his father's life, because it is uncertain whether he will survive his 
 father, and therefore come under the designation of Aeir.(3) 
 
 8. A court of chancery, under some circumstances, will direct 
 trustees for preserving contingent remainders, to join in conveyances 
 made for the purpose of barring such remainders. Thus, where a 
 mortgage was made of the land, before the settlement by which the 
 remainders are limited, and after such settlement the party who made 
 it contracts for a sale of the equity of redemption ; and the proposed 
 purchaser files a bill against the settler and the trustees, praying that 
 
 (1) "Woodhousev. Hoskina, 3 Atk. 22; Pye 
 V. Gorge, 1 P. "Wmg. 128 ; Mansell v. Mansell, 
 2 P. Wms. 678 ; For. 252 ; 2 Abr. Eq. U7. 
 
 (2) Tipping v. Pigot, 1 Ab. Eq. 385. 
 
 (3) Else V. Osborn, 1 P. Wms. 387. 
 
 (a) Lord King said (2 P. Wms. 678) that though these points had not been before judi- 
 cially determined, yet it seemed to the court in common sense, reason and justice, to be 
 capable of no other construction ; Lord Harcourt, (1 P. Wms. 128,) that if, as was said, there 
 was no precedent, he would make one ; and (Tipping v. Pigot, 1 Ab. Eq. 385,) that it would 
 bo dangerous for any trustees to make the experiment, and if it should ever come in ques- 
 tion, he thought the court would set aside such a conveyance. 
 
CHAP. XLTIII.] PRESERVE CONTINGENT REMAINDERS, 551 
 
 they may join iu a conveyance to him, averring that there are no 
 issue for whose benefit the trust was created, and that the mortgagee 
 will foreclose unless the mortgage is redeemed, which the settler is 
 unable to do ; and the defendants by their answers submit to the 
 direction of the court: the conveyance prayed for will be decreed, the 
 trustees being indemnified, and" the wife'of the settler, one of the 
 objects of the settlement, being privately examined to ascertain her 
 consent.(l) 
 
 9. So, also. Chancery will decree that trustees join in a conveyance, 
 where the first remainder has become vested, and it is for the interest 
 of this remainder-man to make the conveyance, although subsequent 
 remainders are limited. If there is a subsequent remainder-man in 
 esse, it seems the trustees will be required to give security for his inter- 
 est ; if not, the fact that the parents, to whose future children subse- 
 quent remainders are limited, are still living, will not be regarded. 
 The most common case in which such decree is made, is where the first 
 remainder-man is about to contract an advantageous marriage, and a 
 new settlement of the estate becomes necessary for this purpose ; more 
 especially if the effect will be to preserve the estate in the family. 
 
 10. A was tenant for ninety-nine years, if he should so long live ; 
 remainder to trustees and their heirs for his life, to support contingent re- 
 mainders ; remainder to his first and other sons in tail male ; remainder 
 to trustees for years, to raise portions for daughters, if .there were no 
 issue male. A having a son, who was of age and about to marry, and 
 also a daughter, and the mother being still alive, the father and son 
 brought a bill in equity, to have the trustees join in making an estate, 
 in order that a recovery might be had, for the purpose of making a 
 marriage settlement. Decreed, that the trustees should join in the re- 
 covery, upon giving security for the daughter's portion. (2) 
 
 11. So, also, it is said, Chancery will order trustees to join in defeat- 
 ing contingent remainders, upon the application of creditors, where such 
 remainders were limited by a voluntary settlement.(3) 
 
 12. There are many eases, however, where the Court of Chancery has 
 refused to order trustees for preserving contingent remainders to join 
 in barring them. And it may refuse so to order, although, if the trus- 
 tees actually joined, they would not be chargeable with a breach of 
 tru.-.t; because, in settling this point, the reasons and motives only of 
 the trustee would be taken into view.(4) 
 
 13,. Lands were limited to husband and wife for life, remainder to a 
 trustee to preserve, &c., remainder to their first and other sons in tail. 
 Twelve years after the marriage, having had no children, the husband 
 and wife brought a bill, praying that they might be enabled to sell the 
 land for payment of the husband's debts. The trustee did not object, 
 upon condition of being indemnified. Held, the court would still 
 regard the possibility that children might be born, and the application 
 was refused .(5) 
 
 14 Limitation to A for ninety-nine years, if he should so long live, 
 remainder to trustees for his life, to preserve, &c., .remainder to his 
 wife, remainder to the first and other sons in tail male. The wife 
 
 (1) Piatt V. Sprigg, 2 Vern. 303. 
 
 (2) Frewin v. Charlton, 1 Abr. Equ. 386 ; 
 i^Wiumngton v. Ealej, 1 P. Wms. 536.,) 
 
 (3) Pearne, 331 ; 2 Cruise, 342-3. 
 
 (4) Woodhouae v. Hoskins, 3 Atk. 22. 
 
 (5) Dayie3 i'. Weld, 1 Abr. Eq. 386, 
 
552 
 
 REMAINDER. TRUSTEES TO PRESERTE, ETC. [CHAP. XLTTEI. 
 
 having died, and there being two sons, B and C, A and B (who was 
 of age) covenanted with D, to whom A had mortgaged the land, that 
 they would suffer a recovery, and procure the trustees to join. The 
 latter refused. Upon a bill by D against A, B and C, praying specific 
 performance, and that the trustees might join ; the bill was dimissed, 
 because did not consent, and the conveyance would operate, not to 
 preserve the estate in the family, as in some other cases, but to pass it 
 to strangers. (1) 
 
 15. A father devised to A, his eldest son, for ninety-nine years, if 
 he should so long live, remainder to trustees during A's life, to pre- 
 serve, &c., remainder to A's first and other sons in tail male, remainder 
 to B, a second son, for ninety-nine years, (as above,) remainders over. 
 The will empowered his sons to revoke these uses, and appoint new uses, 
 provided they limited them to their sons for ninety-nine years, and in 
 strict settlement ; with other powers and directions, tending to preserve 
 the estate in his family. A died without issue, and B came into pos- 
 session of the estate, and had an only son, C, who was of age. B bor- 
 rowed money, for which B and became bound ; and afterwards B 
 and covenanted to convey the estate to the creditors, in trust to sell, 
 pay their debts, and restore the surplus to B. The creditors bring a 
 bill against B and for specific performance, and against the heir of 
 the surviving trustee to preserve, &c., praying that he might join in 
 conveying. Held, the power of revocation in the will showed the tes- 
 tator's intent to make a strict settlemfent, and keep the estate in his 
 family ; that the inconveniences of having an estate for j'ears instead 
 of a freehold vested in B, as tending to a perpetuity, were balanced by 
 the advantage of preventing an alienation by B, in which, if he had 
 the freehold, he might compel the son, who was of course greatly under 
 his control, to join; that the probable object of thus limiting the estate 
 was to avoid the danger of the son's becoming bound for the father's 
 debts; that the proposed conveyance was not designed to effect a mar- 
 riage settlement, or pay the debts of 0, or justified by any peculiar mis- 
 fortune in the family ; and that C, being only a remainder-man, with 
 no vested freehold, was not to be considered owner of the estate, with 
 power over the rights of other remainder-men. (2) 
 
 16. It is said that it would be a dangerous experiment for trustees in 
 any case to destroy remainders, which they were appointed to preserve. 
 In a late case,(3) Lord Eldoa remarked, that the act which they were 
 decreed to do, should be such as they ought to do. The proposition, 
 that trustees are never to join without direction of the court, is the re- 
 sult of great caution, but amounts to this, that the judges of the Court 
 of Chancery are the trustees to preserve all the contingent remainders 
 in the country, and no one could say what was to be done, till a decree 
 had been obtained. But this principle cannot be sustained. 
 
 17. Trustees to preserve a contingent remainder, limited after the 
 death of the particular tenant, during his life, are tenants pour autre 
 vie. Hence, they cannot maintain an action for waste, which lies only 
 for the owner in fee. But, on the other hand, as their office is to fre- 
 
 (1) Townseiid I). Lawton, 2 P. WmB. SW. 
 
 (2) Woodhouse v. Hoskina, 3 Atk. 22 ; 
 (Barnard v. Large, Amb. T74 ; King v. Cotton, 
 2 P. Wms. 674, n.)^ 
 
 (3) Pye «. Gorge, 2 P. Wms, 6S4; 
 v. Walters, 16 Yes. 483. 
 
 Moody 
 
CHAP. XLIX.] REMAINDER— DOCTRINK OF ABEYANCE, ETC. 
 
 553 
 
 serve the contingent estates, they are bound to preserve the inheritance 
 as entire as possible ; which inheritance consists of the land, timber and 
 mines. ^ Hence they may undoubtedly bring a bill in Chancery, for an 
 injunction to stay waste ; and, if they consent to the felling and sale of 
 timber, join with the tenant for years, and the ultimate remainder-man in 
 fee, in an agreement therefor, by which the proceeds are to be equally di- 
 vided between them, and expressly covenant to bring no bill for an in- 
 junction ; they are clearly liable for a breach of trust, as for an alienation 
 of part of the inheritance. The tenant for years and remainder-man in fee 
 are also liable, having notice of the breach of trust and reaping the bene- 
 fits of it. If it is a breach of trust, and the trustees convey the estate, 
 a court of equity is not to sit still, and let others profit by the spoil. (1) 
 And these parties are equally liable, whether the trustee commits any 
 positive act, or is merely guilty of laches in not performing the trust, 
 and bringing a bill for injunction. 
 
 18. Upon these grounds, where waste has been committed by the par- 
 ticular tenant and the remainder-man in fee, and the timber sold, and 
 after the death of the former the estate vests in his son, to preserve 
 whose remainder trustees were appointed ; the son may maintain a bill 
 in equity against the remainder-man in fee for restitution of the amount 
 which he received from the sale, although the waste was committed 
 when the plaintiff had neither yws in re nov jus ad rem, before he was in 
 rerwm natura. If timber were blown down by accident, or cut by a 
 stranger or by the tenant for life alone, it seems, the property of it 
 would vest in the remainder-man in fee. This is a legal right, with 
 which equity will not interfere. But wherever a legal right is ac- 
 quired or exercised by fraud or collusion contrary to conscience, equity 
 will enjoin it or decree compensation. Hence, in this case it will inter- 
 fere, on account of the mutual agreement between the tenant for life 
 and the remainder-man. (2) 
 
 CHAPTER XLIX. 
 
 REMAINDER— DOCTRINE OP ABEYANCE.— CONDITION OF THE FEE, IN CASE 
 OF CONTINGENT REMAINDERS. 
 
 1. Limitation to uses — use results. 
 4. Limitation by devise. 
 
 10. 
 
 Limitation by common law conyey- 
 ance. 
 
 1. Where a remainder of inheritance is limited in contingency by 
 way of use, the inheritance, in the meantime, if not otherwise disposed 
 of, remains in the settler or grantor till the contingency happens. This 
 point has been already considered to some extent, under the head of 
 Uses and Trusis.{3) 
 
 2. A feoffment was made to the use of the feoffor for life; afterwards, 
 of such tenants to whom he should demise any part of the land for 
 
 (1) Per Lord King, Mansell v. Mansell, 1 
 P. Wms, 678; 2 Abr. Eq. 747. 
 
 (2) Garth v. Cotton, Dick. 183. 
 
 (3) 2 Cruise, 385 ; Sir Edward Glere's case, 
 6 Rep. 18 a. 
 
554 REMAINDER— DOCTRIE'E [CHAP. XLIX. 
 
 years or for life ; afterwards to the use of the performance of his will, 
 and of the devisees of any estate in the land ; after such performance, 
 to the use of successive tenants in tail; and lastly, to the use of him 
 and his heirs. Held, nothing vested till the death of the feoffor, be- 
 cause he had power to devise even in fee.(l) 
 
 3. Feoffment in fee, to the use of A in tail, remainder in fee to the 
 right heirs of B, who is living. The fee-simple is neither in abeyance 
 nor in the feoffee ; but the use in it results to the feoffor, and remains 
 in him till the death of B.(2) 
 
 4. So, where a contingent remainder is devised, the fee descends to 
 the heir ; and even though a precedent estate for life is given to him, 
 he takes such estate and the fee distinctly, in relation to the contingent 
 remainder-man, so that when the contingency happens, the heir's estate 
 opens to let in the remainder.(3) 
 
 5. So, where a contingent remainder in fee is devised to the heirs 
 of the testator, preceded by other contingent remainders, one of which 
 is in fee, the heirs take the inheritance by descent. 
 
 6. A testator devised to his wife for life, if she should have a son, 
 and call it by his name ; then he gave the inheritance to such son ; and, 
 if he died under twenty-one, then to his own heirs. The heir of the 
 testator conveyed in fee to the testator's widow. Held, as the fee was 
 not in abeyance, but descended to the heir, the contingent remainder 
 to the son was hereby destroyed.(4) 
 
 7. The uoctrine above stated, however, has been denied in some 
 cases. Thus, Sir J. Jekyll remarked, that though, in case of a devise 
 for life, remainder to the heirs of one still living, the remainder in fee is 
 in abeyance, yet there is & possibility left in the heir. That this was 
 plain even in case of a grant, where a possibility is left in the grantor, 
 entitling him to enter for a forfeiture by the particular tenant, which 
 terminates his estate as much as his death ; and that it was absurd that 
 a tenant for life should have power by an unlawful act, in destroying 
 the contingent remainder, himself to acquire the fee. It was like the 
 possibility that was upon a grant at common law to a man and the 
 heirs of his body ; for there, though the grantor had no reversion, he 
 might enter upon failure of issue.(5) 
 
 8. The decision of Sir J. Jekyll, in the case referred to, was reversed 
 on appeal by Lord Parker. He remarked, that the only possible 
 ground for treating the fee as in abeyance, or " in gremio legis," was the 
 preservation of the contingent remainder; whereas the effect of this 
 principle was, not to preserve, but to destroy it, by enabling the parti- 
 cular tenant to make a wrongful conveyance, which would dtfeat the 
 remainder, if contingent. 
 
 9. In another case, however, Lord Talbot seemed to recognize the 
 principle, that the fee is in abeyance, where a contingent remainder is 
 limited by devise. The question having arisen, whether two persons, 
 to whom an estate was devised, and to the heirs of the survivor, in trust 
 to sell, could make a good title, the remainder in fee being contingent; 
 it was proposed that the devisor's heir at law should join in the deed. 
 But Lord Talbot remarked, that this would be of no avail, except as 
 
 (1) Leonard, &o., 10 Rep. tS. i (4) Purefoy v. Rogers, 2 Saun. 380; Carter 
 
 (2) Davis V. Speed, Carth. 262. v. Barnardiston, 1 P. Wms. 611. 
 
 (3) 2 Cruise, 386; Pearne, 625. ' (5) Carter t;. Barnardiston, 1 P. Wma. 511. 
 
OHA.P. XLIX.] OF ABEYANCE, ETC. 555 
 
 supplying a want of probate of the will, because the fee was in abeyance.{l) 
 But Mr. Fearne attaches little weight to this incidental opinion, and 
 thinks the contrary doctrine is now firmly established by a series of 
 cases.(2) 
 
 10. Where a contingent remainder in fee is limited neither by devise 
 nor by way of use, but by common law conveyance, the opinion has pre- 
 vailed, that although the fee does not vest in any grantee, yet it passes 
 out of the grantor, leaving him no estate whatever. It has been some- 
 times held, however, that although the grantor retains no estate, yet 
 there remains in him a possibility of entry, by which, upon a forfeiture 
 by the particular tenant, he may regain his title. Mr. Fearne is of 
 opinion, that nothing passes out of the grantor, except the particular 
 estate, until the contingency happens. Thus, where a conveyance is 
 made to A, remainder to the right heirs of B, and A dies before B ; 
 the remainder becoming void, the grantor's estate revests in him. (3) 
 But Chancellor Kent says,(-l) that though the good sense of the thing, 
 and the weight of liberal doctrine, are strongly opposed to the ancient 
 notion of an abeyance, the technical rule is, as at common law, that 
 livery of seizin takes the reversion or inheritance from the grantor, and 
 leaves him no tangible or disposable interest. Instead of a reversion, 
 he has only a potential ownership, subsisting in contemplation of law, or 
 a possibility of reverter. Mr. Preston(5) and Mr. Cornish(6) also are of 
 opinion, that the common law rule is still in force, and the latter re- 
 marks, that it was never shaken or attacked, until Mr. Fearne brought 
 against it the weight of his eloquence and talents. 
 
 11. Chancellor Kent expresses the opinion, (7) that as conveyances 
 in this country are almost universally hy way of use, the question as to 
 the abeyance of the fee will rarely occur ; in other words, they are sub- 
 ject to the same rule, already stated as applicable in England to those 
 conveyances, which are nominally or ostensibly made to uses ; and that 
 portion of the estate, limited as a contingent remainder, continues in 
 the grantor till the contingency happens. But in New York, where 
 by the Revised Statutes all conveyances are to be deemed grants, which 
 is a common law mode of transfer, Chancellor Kent is of opinion that 
 the doctrine of abeyance is in force. How far the latter remark is ap- 
 plicable in other States, and whether conveyances by deed, though 
 designated by names which in England denote limitations to uses, such 
 as bargain and sale, &c., are to be treated as such in effect; or whether, 
 as is often expressed, they are to be regarded as a substitute for feoff- 
 ment, and in most respects to have the same operation with the latter ; 
 are questions which may be considered hereafter.(a) 
 
 (1) Tick V. Edwards, 3 P. "Wms. 372. 
 
 (2) Fearne, 525. 
 
 (3) Co. Lit. 342 b; 1 P. "Wms. 515; 
 Fearne, 526; 2 RoUe's Abr. 418 ; Vin. Abr. 
 
 (4) 4 Kent, 259. 
 
 (5) 1 Prest. on Est. 255 ; 2 Prest on 
 Abat. 103-6. 
 
 (6) Corniab, 111. 
 
 Remaiuder.(l) ('') * Kent, 257, and n. 
 
 (a) See Deed, Feoffment. 
 
556 
 
 EEMAINDER. ALIENATION, ETC. 
 
 [CHAP. L. 
 
 CHAPTER L. 
 
 REMAINDER.— ALIENATION, ETC., OE CONTINGENT REMAINDERS. 
 
 1. Vested remainders alienable, kc 
 
 2. Contingent renaaindera said to be descen- 
 
 dible and devisable. 
 
 10. Cannot bo conveyed at law, but may be 
 in equity, and may pass by estoppel 
 
 15. Transfer to creditors. 
 
 16. Grsneral remarks. 
 
 1. It has been already stated, that vested remainders are for the most 
 part subject to the same rules of law as vested estates in possession. 
 Like the latter, they are transmissible, either by act of law or by act of 
 the remainder-man himself Thus, a vested remainder descends to 
 heirs, may be conveyed or devised, and is in general liable to be taken 
 by creditors. 
 
 2. With regard to contingent remainders, the general principle 
 laid down by elementary writers is, that all contingent estates of 
 inheritance, where the person to take is certain, are transmissible by 
 descent, and devisable. To this point, so far as it relates to heirs, Mr. 
 Cruise cites the following cases.(l) 
 
 3. A made a feoffment to the use of himself for life ; after the death 
 of himself and his wife, to the use of B, his son, for life, then to the 
 wife of B, and her issue by him ; remainder over ; remainder to the 
 heirs of B. B, having issue a daughter, leased for a long term, made 
 a fine to the lessee for the same term, and died in the lifetime of A. 
 Held, though A took but a contingent remainder, yet this descended 
 to his heir, so far that the latter, after the contingency happened, was 
 bound by the fine.(2)(a) 
 
 4. So a contingent use descends to heirs. Thus, it is laid down in 
 Shelley's case,- that where A covenants with B, that, upon a certain 
 contingency, he will stand seized of certain land to the use of the lat- 
 ter, who dies, and then the contingenc}^ happens ; although B had 
 neither a right, title, use nor action, but only a possibility of an use, 
 which could neither be released nor discharged, yet his interest 
 descended to his heir.(3) 
 
 5. But where the circumstances seem to make the existence of the 
 contingent remainder-man a part of the contingency itself, upon which 
 the remainder is to vest ; his interest will not pass to his heirs.(4) 
 
 6. "Conveyance by husband and wife of her lands, to the use of her for 
 life, remainder to him for life, if they should have any issue that 
 should so long live, remainder to all such children in fee, as tenants 
 
 (1) 4 Kent, 261 ; Pearne, 459 ; 2 Prest. on 
 Abstr. 119; 2 Cruise, 296-8; Goodtitle v. 
 Billington, Doug. 153; Lawrence v. Bayard, 
 1 Paige, 16; Variolc v. Edwards, 1 Hoffm. 
 383; Jackson v. Waldron, 13 Wend. 178; 
 Portesoue v. Satterthwaite, 1 Ired. 510 ; 
 
 Turner v. Patterson, 5 Dana, 295 ; Shelby v. 
 Shelby, 6 Dana, 60 ; Hirst t). Dawes, 4 Strobh. 
 Equ. 37. 
 
 (2) Weale v. Lower, PoUexfen, 54. 
 
 (3) ViTood's case, 1 Rep. 99 a. 
 
 (4) Pearne, 364. 
 
 (a) This case directly decides, rather that a contingent remainder may be barred as against 
 the heir, even if it does descend, than that such remainder is actually descendible. 
 
CHAP. L.] REMAINDER. ALIENATION, ETC. 557 
 
 in common ; if the wife should die without issue, or all such issue 
 should die under twenty-one, then, as to one moiety, to the husband 
 in fee.^ The husband died before the wife. Held, nothing passed to 
 his heirs.(l) So the children of one who has died, and whose interest 
 in a devise was contingent, to take effect upon the death of a co-devisee, 
 cannot take anything upon the death of such co-devisee, occurring alter 
 the death of their ancestor.(2) 
 
 7. The principle above stated, both in regard to the descent and 
 devise of contingent remainders, is recognized in the case of Roe v. 
 Gr{ffiths,{S) where Lord Mansfield remarks, that in all contingent, 
 springing and executory uses, where the person who is to take is 
 certain, so that the same may be descendible, they are also devisable. So, 
 in the case of Barnitz v. Casey,{4:) in the Supreme Court of the United 
 States, it is said that a contingent remainder or executory devise 
 descends to heirs, but with the qualification, that it shall vest in him 
 who is heir to the first devisee wiien the contingency happens.(a) So, 
 in Driver v. Frank,{b) although the point seems to be treated as if it 
 were or had been doubtful, Ch. J. Gibbs says, " it cannot be disputed, 
 that generally a contingent remainder is transmissible." 
 
 8. A devised in trust for his son B, and, if he should die without 
 issue, under age, then that all his estate should go to C, his heirs and 
 assigns. C afterwards devised all his estates in possession, remainder 
 or reversion, and died, living B, who subsequently died under twenty- 
 one, and without issue. Lord Chancellor Northington said, " I have 
 never had any doubt, since I was twenty-five years old, that these 
 contingent interests are devisable, notwithstanding some old authori- 
 ties to the contrary. "(6)(6) 
 
 9. A covenanted with B, that his son should marry the daughter of 
 B, and, if not, that A and his heirs would stand seized of certain land 
 to the use of B and his heirs, until £100 should be paid. B died, and 
 the marriage never took place. Held, the heir of B should have the 
 land.(7) 
 
 10. In England, though a contingent remainder will not pass by 
 a legal conveyance, yet it may pass by estoppel, (c) fine or recovery, so 
 as to bind the heir, when the contingency happens, after the death 
 of the original remainder-man. And such remainder is assignable in 
 equity .(8)(c^) 
 
 IL Tijus, in Weak v. Lower, {supra, sec. 3,) it being decided, that 
 the remainder, whether vested or contingent, came to the heir of A 
 by descent, not as a purchaser ; it was further held, that as the heir 
 would have been bound by the lease by estoppel, upon the vesting of 
 
 (1) Moorliotifse D. "Wainhouse, 1 Bl. R. 638. 
 
 (2) Dehoe v. Lowen, 2 B. Mou. 616, 
 
 (3) 1 Black. R. 605. 
 
 (4) 7 Cratich, 469. 
 
 (5) 6 Price, 53. 
 
 (6) Moor V. Hawkins, 1 H. Bl. 33-4. 
 
 (1) Rector of Cheddington'a case, 1 Rep. 
 155 b. 
 
 (8) 2 Cruise, 393 ; Doe v. ifartyn, 8 Barn. 
 & Cr. 516. 
 
 (a) See Reversion, Descent. 
 
 \h) A testator devised all the hereditaments to which he might be entitled at his death, 
 and died, having a contingent interest in fee, by shifting use and a limitation in default of 
 his brotli'er's issue. Held, this interest did not pass. Honywood v. Honywood, 2 T. & Coll. 
 Cha. 471. 
 
 (c) A feme covert, not being bound by estoppel, cannot convey such remamder. Den v. 
 Demarest, 1 N. J. 525. 
 
 (d) In Michigan, (Rev. St. 266,) any contingent estate which would pass by descent, is also 
 subject to devise and conveyance. 
 
558 EEMAINDEE. ALIENATION, ETC. [CHAP. L. 
 
 his estate, supposing it to have been contingent -when the lease was 
 made, so his heir was bound in like manner. 
 
 12. Devise to A for life, remainder to his first and other sons in tail. 
 A, and B his eldest son, joined in suffering a recovery, and declaring 
 uses of the estate. Afterwards B died, and C, a second son, undertook 
 to create a charge upon th6 land, by a deed reciting his contingent and 
 reversionary estate therein. A died, having devised to B a life estate 
 in the land. Held, although at the time of attempting to charge the 
 land, C had no interest in it, yet his interest, subsequently acquired 
 under the will, was bound by his deed, by estoppel.(l) 
 
 13. Upon a marriage settlement, a rent was created to the use and 
 intent, that the heirs of the body of the wife and their heirs should 
 receive such rent ; and subject thereto, the land was limited to the 
 husband and his heirs. There were two sons of the marriage, who, 
 living the father and mother, conveyed the rent by deed. The estate 
 was the father's. Held, the sons had not, at the time of selling, an 
 actual possibility ; the rent might never arise, or, if it did, the sons 
 might not be heirs of the mother's body at her death. Nothing, there- 
 fore, passed by the deed. A fine would have operated by estoppel.(2) 
 
 14. In a late case,(3) it is said, by Bayley, J., that a fine by a con- 
 tingent remainder-man passes nothing, but leaves the right as it found 
 it ; that it is, therefore, no bar when the contingency happens, in the 
 mouth of a stranger, against a claim in the name of such remainder-man ; 
 that it operates by estoppel, and by estoppel only, and that parties or 
 privies may avail themselves of that estoppel, but parties or privies 
 only. But the same learned judge, in a still later case,(4) qualifies his 
 former opinion by saying, that such fine, besides operating by estoppel, 
 has an ulterior operation when the contingency happens ; that the 
 estate, which then becomes vested, feeds the estoppel, and the fine 
 operates upon it as though it had been vested when the fine was 
 levied. (a) 
 
 15. In England, a contingent remainder may be validly transferred 
 to creditors. It may still be defeated by the particular tenant ; but, 
 if the original remainder-man afterwards regains an interest in the estate 
 by the act of such tenant, the Court of Chancery will subject it to the 
 claim of the creditors.(5) 
 
 16. The concurrent opinions of elementary writers, and the cases to 
 which they refer, seem to settle the principle, that contingent remain- 
 ders are both descendible and devisable. It will be perceived, how- 
 ever, that the establishment of this doctrine at once destroys a very 
 important, perhaps the most important, distinction between vested and 
 contingent remainders. There is but one other point of view, in which 
 the question would be likely to be raised for judicial decision, whether 
 a remainder was vested or contingent ; and that is, the power of a pre- 
 
 (1) Bensley v. Burdon, 2 Sim. &Stu. 519. I (3) Doe v. Martyn, 8 Barn. & Or. 52T. 
 
 (2) V/hitfield K.Faussett, 1 Ves. 391. (But (4) Doe v. Oliver, 10 lb. 187. 
 see Wrigtit v. Wright, 1 Yes. 411.) (5) Noel v. Bewley, 3 Sim. 103. 
 
 {a) But where one to whom an estate was limited, by way of executory deviSe, having a 
 vested right to a share of the same property, conveyed all her "right, title and claim to the 
 land," with a covenant against all claims arising under her, before the contingency occurred, 
 and the executory devise afterwards became vested ; held, she was not estopped by her 
 covenant from claiming the land conveyed by it. Hall v. Chaflfee, 14 N. H. 215. 
 
CHAP. L.] REMAINDER. ALIENATION, ETC. 559 
 
 ceding tenant to destroy the latter and not the former. Many of the 
 numerous cases upon this subject have turned upon this latter question ; 
 but I think it will be found, on examination, that many others have 
 turned upon the point, whether a remainder had or had not passed, or 
 might or might not pass, to the representatives of the remainder-man 
 after his death ; and that this question has been treated, as involving, 
 or involved in, the further inquiry, whether the remainder was vested 
 or contingent. In other words, it has been talcen for granted, that if a 
 remainder is transmissible, it is, of course, vested ; if not transmissible, 
 it is, of course, contingent. One of the cases already cited, viz. Barnitz 
 V. Casey,{l) although recognizing the doctrine, that a contingent remain- 
 der descends, yet, by stating in what manner it descends, seems to nega- 
 tive or greatly qualify the general proposition ; for such remainder 
 passes, not to the heir of the contingent remainder-man at his death, but 
 to the person who is heir to him at the time the contingency happens.(a) 
 This remark, of course, can have no possible applicability to a vested 
 estate or a vested remainder, which, upon the death of the owner in 
 fee, must pass at once to his then heirs. So, in the leading case already 
 cited, o^ Smith v. Parkhiirst, Chief Justice Willes, in his elaborate opin- 
 ion delivered to the House of Lords, urges as one of the most convin- 
 cing reasons for regarding the remainder, limited to trustees and their 
 heirs, as vested and not contingent ; that, upon the latter construction, 
 it could not descend to heirs, though they were expressly named.(6) 
 So, in the case of Doe v. Provoost,(2) the decision, that the remainder 
 actually vested in the children of A, during her life, was founded in 
 part at least upon the consideration, that otherwise it could not descend 
 to grandchildren, and thus the testator's intentions in their favor would 
 be defeated. The same ground of decision is recognized in the case 
 . of Wager v. Wager. {S) So in Jackson v. Durland, it is said, " B had a 
 vested interest in possession on the death of the widow. B was the 
 object of the testator's bequest ; and he never meant that the remainder 
 should be contingent until he came of age, so that, if he married in the 
 meantime and died, his children could not inherit." And in Doe v. 
 Perryn,{'k) Buller, J., assigns as the strong reason for construing a re- 
 mainder to be vested, if possible, that otherwise, where it is limited to 
 children, it would not pass after their death to grandchildren. The 
 same ground is recognized in Boraston^s case, and in several others, 
 which it is needless to enumerate.(c) I trust that those cited will excuse 
 me from the charge of presumption, when I express my surprise, that 
 the transmissihility of contingent remainders by descent (to say nothing 
 of devises) has been stated by so many distinguished writers, as a well 
 settled and clear point. Nor does it seem to me, that the conflict of 
 
 (1) Supra, a. 1. 1 (3) Supra, oh. 42, s. 63. 
 
 (2) Supra, eh. 42, s. 51. | (4) 3 T. R. 494-5. 
 
 (a) Thus, a life estate is limited to A, with a contingent remainder to B and his heirs; 
 B dies, living A, and leaves two nephews, C and D, his heirs at law. C dies, leaving child- 
 ren, and then A. D, upon A's death, takes the whole estate, and C's children nothing. 
 
 (6) The manner of the Chief Justice's argument upon this point is confident, sarcastic, 
 almost scornful. " Will any one say that anything can descend to the heir, that did not 
 vest in the ancestor ? So that, if nothing vested in the trustees, the limitation to them and 
 their heirs is nonsensical," 
 
 (c) Being a vested remainder, it descended by force of the statute to his father, as hia heir, 
 and he is now entitled to that share. Ballard v. Ballard, 18 Pick. 44. 
 
560 
 
 REMAINDERS IN NEW YORK. 
 
 [CHAP. LL 
 
 authoritiea is fully reconciled, by the qualification ordinarily annexed 
 to the statement of this rule, viz., that such remainders descend ''where 
 the person to take is certain." It would seem a self-evident proposition, 
 that where the person to take is uncertain, a remainder cannot descend. 
 Thus, where a conveyance is made to A for life, remainder to theright 
 heirs of B, this is a contingent remainder by reason of the uncertainty of 
 the person. In other words, there is no person, answering to the descrip- 
 tion of " heirs of B." " JSfemo est hceres viventis." Unless, therefore, a 
 kind of personalty is given to nemo, it is idle to say that such remain- 
 der cannot descend, since the law recognizes no one who can stand in 
 the capacity of ancestor. Still, some of the cases may perhaps be ex- 
 plained by the circumstance, that, although the remainder was contin- 
 gent, yet the person who should take was ascertained ; or, in the lan- 
 guage of Wilde, J., in the case of Clapp v. Stoughton,{l) that there was 
 ^' a vested right subject to a contingeiicy, which was traiismissible to heirs, 
 and became vested in possession in them on the forfeiture of the estate" 
 by the prior tenants. This seems to be substantially a repetition of 
 Chief Justice Willes' doctrine already referred to, of a distinction be- 
 tween contingent remainders which do vest, and contingent remainders 
 which do not vest.(a) 
 
 CHAPTER LI. 
 
 REMAINDERS IN NEW TORK. 
 
 1. Expectancies. Remainders vested and 
 contingent. 
 
 6. Fee upon a fee. 
 
 7. Remainder after estate tail. 
 
 8-18. Remainder after estate for life or for 
 years. 
 
 13. Remainder not barred by destruction ot 
 
 prior estate. 
 
 14. Not void for improbability. 
 
 15. Remainder to heirs. 
 
 16. Contingency may abridge prior estate. 
 11. Limited application of the statute. 
 
 1. In New York, expectancies are divided into future estates, or those 
 which are to commence at a future day, and reversions. A future es- 
 tate may be limited, either without any precedent estate, or after the 
 termination of such estate. In the latter case, it may be called a re- 
 mainder. {2) 
 
 2. A remainder is defined to be " an estate limited to commence 
 in possession at a future day, onthe determination, by lapse of time, or 
 otherwise, of a precedent estate created at the same time."(3) 
 
 3. A vested remainder, is when there is a person in being, who would 
 have an immediate right to the possession of the lands, upon the ceas- 
 ing of the intermediate or precedent estate. Or it is where the person 
 
 (1) 10 Pick. 468. \Supra, eh. 42, sec. 48.) 
 
 (2) 1 N. T. Rev. St. 723. 
 
 (3) 1 N. T. Rev. St. 723. 
 
 (a) In Maine, (Rev. St. 372,) any contingent remainder, which would pass by descent, 
 may also be conveyed or devised. In Massaohusetta, by a recent decision, it has been 
 settled that contingent interests are assignable. Winslow v. Goodwin, 7 Met. 363. 
 
 In New Jersey, they are made subject to conveyance and descent, but not to execution. 
 N. J. Sts. 1851, 282. 
 
CHAP. LI,] REMAINDERS IN NEW TOEK. 561 
 
 is in being and ascertained, who will, if he lives, have an absolute and 
 immediate right to possession, upon the ceasing or failure of all prece- 
 dent estates, provided the estate limited in Remainder continues ; or, 
 where a remainder cannot be defeated by third persons, or contingent 
 events, or failure of the condition precedent, if the remainder-man 
 lives and the estate limited to him continues, till all the precedent es- 
 tates are determined. 
 
 4. A remainder is contingent, whilst the person to whom, or the event 
 upon which, it is limited to take effect, remains uncertain. Or it is, 
 where there are other uncertainties, besides the remainder-man's living 
 and the continuance of his estate, though he be living and ascertained at 
 the time. But a remainder is not contingent, where it is limited to a 
 whole class in being, though accompanied with a power of appointment 
 to a part of such class ; until such appointment is made, it vests in the 
 whole.(l) 
 
 5. A remainder is contingent, where, before it can take effect, trus- 
 tees are to make an appointment with reference to moral character, at 
 the time of vesting in possession. (2) 
 
 6. A contingent remainder in fee may be limited on a prior remain- 
 der in fee, to take effect in case the first remainder-man dies under age, 
 or upon any other contingency by which his estate may terminate be- 
 fore he comes of age. So, a fee may be limited upon a fee, upon a 
 contingency, which must happen, if at all, within the period of two 
 lives in being at the creation of the estate.(3) 
 
 7. Remainders may be validly limited upon every estate which, un- 
 der the English law, would be adjudged an estate tail. These take 
 effei-t as conditional limitations upon a fee, and vest in possession on 
 the death of the prior tenant, leaving no issue.(4) 
 
 8. No remainder, except a fee, can be created upon an estate for the 
 life of any other person or persons, than the grantee or devisee of such 
 estate ; nor can a remainder be created upon such estate in a term for 
 years, unless it be for the whole residue of such term ; nor can a re- 
 mainder be made to depend upon more than two successive lives in 
 being ; and if more lives be added, the remainder takes effect upon the 
 death of the first two persons named.(5) 
 
 9. A contingent remainder cannot be created on a term for years, 
 unless the nature of the contingency is such, that the remainder must 
 vest in interest during not more than two lives in being at the creation 
 of the remainder, or upon the termination thereof (6) 
 
 10. No estate for life can be limited as a remainder on an estate for 
 years, except to a person in being at the creation of such estate.(7) 
 
 11. A freehold estate, as well as a chattel real, (to which these regu- 
 lations equally apply,) may be created to commence infuturo ; and a life 
 estate mav be created in a term of years, and a remainder limited 
 thereon : and a freehold or other remainder, either contingent or vested, 
 may be limited upon an estate for years.(8) 
 
 12. When a remainder on a life estate or a term for years is not 
 limited on a contingency defeating or avoiding the prior estate, it shall 
 
 (1) Ibid. ; Hawleyjf. James, 5 Paige, 318. 
 
 (2) Ibid. 
 
 (3) I R. St. 723-4. 
 
 (4) lb. 722. 
 
 Vol. I. 36 
 
 (5) lb. 724. 
 
 (6) lb. 
 
 (7) lb. 
 
 (8) lb. 
 
562 EEMAINDERS lif NEW YORK. [CHAP. LI. 
 
 be construed as inteuded to take effect only on the death of the first 
 taker, or the natural expiration of the term.(l) 
 
 13. No expectant estate shall be defeated or barred by any alienation 
 or other act of the prior tenant, or by any destruction of the prior estate 
 by disseizin, forfeiture, surrender, merger or otherwise, unless in some 
 mode authorized by the party who created the estate.(2) 
 
 14. No future estate, otherwise valid, shall be void, on the ground of 
 the probability or improbability of the contingency on which it is limit- 
 ed to take efiect.(3) 
 
 15. Where a remainder is limited to the heirs or heirs of the body of 
 a person to whom a life estate is given, the persons who, on the termi- 
 nation of the life estate, are the heirs of the tenant for life, take as pur- 
 chasers.(4) 
 
 16. A remainder may be limited upon a contingency, which operates 
 to abridge or defeat the prior estate ; and such remainder shall be con- 
 strued as a conditional limitation. (5) 
 
 19. The provisions above-named do not affect vested rights, or the 
 construction of deeds or instruments, which took effect prior to January 
 1, 1830.(6) 
 
 18. Upon a devise to A for fifty years, as an absolute term, remain- 
 der to B for life if he should marry C, remainder to the children of 
 such marriage ; the remainder to B is contingent, but cannot vest after 
 his death, and fails by that event if it happen within the term. The 
 ultimate remainder must vest, if ever, within the period of one life in 
 being at the testator's death. The first child would, upon its birth, take 
 a vested interest in the ultimate remainder in fee, subject to open and 
 let in after-born children. (7)(a) 
 
 (1) Rev. St. 725. 
 
 (2) lb. 
 
 (3) lb. 724. 
 
 (4) lb. 724. 
 
 (5) lb. 725. 
 
 (6) 1 N. T. Rev. St. 750. 
 
 (7) Marsellig v. Thalkimer, 2 Paige, 35 ; 
 Hawley v. James, 4 Kent, 251, n. 
 
 (a) New York and Wisoonain are almost alone in detailed legislation upon the subject of 
 remainders. In Mississippi and Michigan, acte provide that no remainder shall be affected 
 by an alienation, or union with the inheritance, of the particular estate. Missi. Rev. C. 458 ; 
 Mich. Rev. Si. 258. In Maine, by any conveyance, disseizin, &o. Me. Rev. Sts. 372. See 
 Mass, Rev. St. 405. 
 
 In Indiana, a remainder^may be validly limited upon a contingency, which may shorten 
 the preceding particular estate. It cannot be limited for more than a life or lives in being; 
 except on the coniitigency of the first remainder-man's dying under age. Ind. Rev. Sts. 201. 
 
 In Wisconsin, successive life estates shall not be limited except to lives in being. Wis. 
 Rev. Sts. ch. 56. 
 
 A remainder, limited on the life of a person not the grantee. &c., must be in fee. 
 
 A remainder, limited upon nn estate for the life of a third person, shall be for the residue 
 of the term. 
 
 A remainder upon more than two lives, not the grantees, lea., shall take effect on the death 
 of two. 
 
 A contingent remainder in a term of years, shall not be limited in more than two lives. 
 
 An estate shall not be limited as a remainder, on a term of years, except to one in being 
 at the time. 
 
 A contingency of death, "without heirs," "issue," &o., shall be understood as referring 
 to heirs, &c., living at the death of the ancestor. 
 
 Chattels real are included in the above provisions. 
 
 A freehold may be created to begin infutv/ro. 
 
 There may be alternative future estates. 
 
 Posthumoiia children shall take in case of a limitation to heirs, to take effect in future. 
 
 No expectant estate sliall be defeated by a conveyance. 
 
 A remainder shall not be defeated by the determination of the precedent estate, before the 
 happening of the contingency in which the remainder is to vest. 
 
 Expectant estates are alienable, and subject to inheritance. 
 
 Expectant estates may commence infuturo, without the support of a particular estate. 
 
CHAP. LII.] 
 
 RETERSION. 
 
 563 
 
 CHAPTER LII. 
 
 RETERSION. 
 
 1. Definition and principle of the estate. 
 
 3. An incorporeal hereditament. 
 
 4. After conditional fee, &c. 
 6. After base fee. 
 
 6. After estate for years. 
 
 1. May belong to a particular tenant, who 
 
 underlets. 
 
 8. Created by act of law. 
 
 9. Subject to same rules with estates in 
 
 possession. 
 10. Actions by reversioner for injuries to 
 
 the land. 
 21. Rights of reversioner in case of adverse 
 
 possession. 
 21. Reversion, how far liable for debts. 
 34. Transfer of reversion — when set aside. 
 45. Miscellaneous proyisions. 
 
 1. A REVERSION is either the residue of an estate left in a grantor, to 
 commence in possession after the termination of some particular estate 
 ■which he has conveyed; or the residue of an estate which descends to 
 heirs, subject to some particular devise, or some temporary interest 
 created by act of law. Thus, if the owner in fee grant an estate for life, 
 the reversion of the fee is, without any special reservation, vested in him 
 by act of law. So, if an owner in fee devises an estate to one for life, 
 or if the owner's widow is endowed from his land, his heirs are owners 
 of the reversion. (a) 
 
 2. This estate is founded upon the principle, that where the owner of 
 land creates a limited or particular estate therein, he retains all the in- 
 terest in the land, which he has not expressly parted with. Thus, if 
 one convey to A, remainder to B, with any number of remainders over, 
 less than a fee ; he retains the fee himself, as a reversion. 
 
 3. A reversion is said to be an incorporeal hereditament, and there- 
 fore, in England, may be conveyed by grant, without livery of seizin. 
 The more usual method of transfer is a lease and release, or bargain and 
 sale.(l) 
 
 4. At common law, where a man conveyed a conditional fee, no re- 
 version or actual estate remained in him, but the grantee took the entire 
 estate, leaving only a possibility of reverter in the grantor, upon failure of 
 the condition. But it is now settled, though once doubted, that an es- 
 tate tail is a particular estate, carved out of the fee-simple, and leaves a 
 reversion in the grantor.(2) 
 
 5. No reversion remains upon a base or qualified fee ; because no 
 valid remainder can be limited upon such estate. 
 
 6. It is said, that where the owner in fee makes a lease for years, he 
 has no reversion till the lessee enters, upon the ground that before 
 entry the lessee does not complete his estate. But when an estate for 
 years is created by any conveyance deriving effect from the statute of 
 uses, as the lessee immediately has the legal possession, a reversion im- 
 
 (1) 4 Kent, 354 and n. 
 
 (2) 'Willioa V. Berkley, Plow. 248; Lit. 
 sees. 18, 19. 
 
 (a) See Hitchman v. Walton, 4 Mees. k W. 409. By the English law, the two incidents to 
 a reversion are fealty and rent. The former is unknown in the United States. The latter, 
 though incident to the reversion, is not inseparably incident, but may be excepted by the re- 
 veraioner from a transfer of his estate. 
 
56i 
 
 RETERSION. 
 
 [CHAP. LII. 
 
 mediately vests in the lessor. This subject has been already considered 
 under the title oi Estate for Years. (Page 177.)(1) 
 
 7. Where one having a limited or particular interest in land, conveys 
 to another a smaller interest than his own, he thereby acquires a rever- 
 sion to himself. Thus, where tenant in tail leases for life, or a tenant 
 for ninety-nine years, for this period, less one day, he becomes a rever- 
 sioner. So, in England, where land is taken by the legal process of 
 elegit, &c., to be held by the creditor till his debt is satisfied, the debtor 
 has a reversion.(2) 
 
 8. A reversion is never created by deed or writing, or by act of party, 
 but always arises from construction of law. And where an estate is 
 expressly limited, though under the name of remainder, in the same 
 way in which it Avould pass by law as a reversion ; it will be construed 
 as the latter, not the former interest. Thus, if one conveys for life or 
 in tail, remainder to his own right heirs ; he still retains the reversion 
 in fee. So, if one conveys in fee, to the use of himself for life, then to 
 the use of A in tail, then to the use of his own right heirs, a reversion 
 in fee remains in him by way of resulting use.(3) > 
 
 9. A reversion, like a vested remainder, though not to take effect in 
 possession in prcesenii, but only in futuro, is still an immediate fixed 
 right of future enjoyment ; and subject to most of the rights and lia- 
 bilities incident to estates in possession. Hence, many of the following 
 remarks may be regarded as alike applicable to reversions and to vested 
 remainders. 
 
 10. A reversioner may mantain an action for any injury done to the 
 inheritance. Thus, wliere an action was brought by a reversioner for 
 obstructing his lights. Lord Mansfield held, that the tenant might sue, 
 and the reversioner also, as the injury would affect the price of the 
 estate, if the latter should be disposed to sell it.(4) 
 
 11. So, one having a reversionary interest in real property, may 
 maintain an action against one who wrongfully removes fixtui-es there- 
 from. 
 
 12. A, being the owner of a factory and the machinery in it, gave 
 bond to B, to convey them to him on payment of certain notes given 
 by B for the price ; B to have possession of the property until he failed 
 to pay the notes at maturity. Possession was delivered accordingly. 
 Before maturity of tbe first note, a creditor of B attached the machinery, 
 and the officer removed it, having notice of A's title, and afterwards 
 sold it upon execution. A brings an action against the officer, declar- 
 ing both in trover and in case. Held, although, if B had himself re- 
 moved and sold the machinery, this might have been regarded as so 
 putting an end to the contract, and revesting the possession in A, as to 
 justify an action of trover against the purchaser; yet the attachment 
 made by the creditors of B, being in iuvitum, might not have the same 
 effect: but that the action of trespass on the case was clearly sus- 
 tainal)le.(5)(a) 
 
 (1) Co. Lit. 46 b; 2 Cruise, 300. 
 
 (2) Co. Lit. 22 b. 
 
 (S) Co. Lit. 22 b; Eoehell v. Tompkins, 1 
 
 Strohh. Equ. 114. 
 
 (4) Jesser v. Gifford, 4 Burr, 2141. 
 
 (5) Ayer v. Burtlett, 9 Pick. 156. 
 
 (a) In tills cas?, tlie amount of damages recovered was three times the sum for which the 
 property was sold by the omcer. Held, Che verdict should not be set aside for excessive 
 damages. 
 
CHAP. LII.] EEYBRSIOK 565 
 
 _ 13. Where, as was the case in New York, a statute gives to a rever- 
 sioner or remainder-man " an action of waste or trespass, notwithstand- 
 ingany intervening estate for life or years;" this does not authorize a 
 plaintiff to bring either of these actions at his election, but merely to 
 bring that form of action which is appropriate to the particular case 
 that occurs — that is, waste against the tenant himself, and trespass 
 against a stranger.(l)(a) 
 
 14. A reversioner may bring an action on the case in nature of waste 
 against a stranger, for ploughing up his ground and carrying away the 
 turf thus obtained. Unlike a bare wrongful entry on land, or mere 
 outrage on the possession of the tenant, for which he might be com- 
 pensated in the action of trespass, these are permanent injuries, and 
 entitle the reversioner to damages. And these damages he is not 
 bound to recover from the tenant; but may have his action against the 
 wrong-doer himself.(2)(6) 
 
 15. For acts which merely affect injuriously the possession of the land, 
 a reversioner can maintain no action. (c) There must be some tangible 
 injury to the reversion. Hence the declaration, in an action brought 
 by a reversioner, must either expressly allege the act to have been 
 done to the injury of his reversion, or must state an injury of such 
 permanent nature as to be necessarily prejudicial to the reversion. (d) 
 
 (1) Livingston v. Haywood, 11 John. 429. | (2) Randall v. Cleaveland, 6 Conn. 328. 
 
 (a) With regard to the form of action to be brought by a reversioner, it would seem that 
 trespass cannot be maintained, except in the single case, where the actual tenant of the land 
 is a tenant at will or at sufferance. See Reynolds v. Williams, 1 Texas, 311 ; Tilghman v. 
 Cruson, i Barring. 341 ; Kiietzer v. Wysoug, 5 G-ratt. 9. It has indeed been suggested in 
 Massachusetts, (11 Mass. 526,) that even in case of a lease for years, for any act which is 
 principfiUy injurious to the lessor, such as cutting down the trees or overturning the build- 
 ings, this form of action might lie ; but the prevailing doctrine is as above stated. Even if 
 the occupant of the land is a tenant at will, some authorities hold, that th 3 reversioner can 
 maintain only an action on the case. The King v. "Watson, 5 B. 485-"!; Campbell v. Arnold, 
 
 1 John. 511; Tobey v. Webster, 3, 468; Biddeford v. Onslow, 3 Lev. 209; 3 Woode, 193. 
 But very ancient cages and opinions favor the action of trespass, and the same rule has been 
 adopted in Massachusetts. 2 Rolle's Abr. 551 ; Tr. Bk. 19 H. 6, 45 ; Starr v. Jaolison, 11 
 Mass. 519; Hingham v. Sprague, 15 Pick. 102. So, in Connecticut, where the owner of a 
 building leases at will the rooms therein, though they constitute the chief parts of the build- 
 ing, he is not thereby put out of possession, so as to preclude him from suing in trespass for 
 the destruction of the building, or such an injury to it as to render it untenantable. Curtiss 
 V. Hoyt, 19 Conn. 154 By the operation of the Rev. Sts of Mass., however, which require 
 three months' notice to terminate an estate at will, it seems case and not trespass is now the 
 proper form of action. French v. Fuller, 28 Pick. 104. See Luntv. Brown, 13 Maine. 236; 
 Rowland v. Rowland, 8 Ohio, 40; Anderson v. Nesmith, 7 N. H. 167. A tenant at will 
 may himself maintain trespass against one who cuts trees on the land. Howard v. Sedgeley, 
 
 2 Shepl. 439, So, a tenant for life may have a proceeding for damages done to her estate 
 by the construction of a railroad, without joining the remainder-man. Railroad v. Bnyer, 1 
 Harris, 497. By the New York Revised Statutes, (2, 339,) a reversioner or remainder-man 
 may maintain the action of waste or trespass for any injury to the inheritance, notwithstand- 
 ing an intervening estate for life or for years. 
 
 (b) The owner of land held by a tenancy at will may bring an action on the case for the 
 obstruction of a way appurtenant to the land, if damage is thereby caused to him, though 
 neither the reversion is affected nor the rent reduced. Gushing v. Adams, 18 Pick. 110. 
 
 But a lessor at will cannot maintain an action against a stranger, for entering upon the 
 land, demanding rent from, and making a lease to, the tenant, if the reversion sustains no 
 actual damage therefrom. French v. Fuller, 23 Pick. 1 04. 
 
 (c) The landlord and tenant do not stand in the relation of principal and agent. Stark v. 
 Miller, 3 Misso. 470. 
 
 (d) Upon the same principle, a declaration against an owner of land for a nuisance to the 
 premises of his neighbor, by means of neglected drains, must allege either that the defend- 
 ant was the occupier of the drains, or that the nuisance is a continuing one. Russell v . 
 Shenton 2 G. & Dav. 573. A reversioner cannot maintain an action for obstruction of n 
 
566 
 
 REYERSION. 
 
 [CHAP. LIT. 
 
 16 The plaintiff declared as reversioner of a yard and part of a wall 
 occupied by his tenant, and that the defendant placed on said part of 
 the wall quantities of bricks and mortar, and thereby raised it to a 
 greater height than before, and placed pieces of timber on the wall, 
 overhanging the yard, by which the plaintiff" during all the time lost 
 the use of said part of the wall, and also by means of the timber, &c., 
 overhanging the wall, quantities of rain and moisture flowed from the 
 wall upon the yard, and thereby the yard and said part of the wall 
 have been injured, without stating that his reversion was injured. The 
 judgment was arrested after verdict.(l) 
 
 17. Where, by virtue of special provisions in a lease, the lessee has 
 the right to do certain acts in relation to the land, which would otherwise 
 be a ground of action against him by the lessor, it seems the lessor can 
 maintain no action against a stranger for doing such acts, or at most 
 can recover only nominal damages.(2) 
 
 18. A demised land to B for years at an annual rent, with liberty 
 to dig half an acre of brick earth annually. B covenanted that he 
 would not dig more ; or, if he did, that he would pay a certain in- 
 creased rent, being after the same rate that the whole brick earth was 
 sold for. A stranger dug and took away brick earth, and the lessee 
 brought trespass, and recovered full damages against him. Held, B 
 was entitled to retain the whole damages. Chief Justice Mansfield re- 
 marked, that the terms of the lease gave the lessee the same right as 
 the lessor, a right to dig and sell the brick earth. The lease amounted 
 to an absolute sale of the whole brick earth, though the tenant was not 
 to pay for the whole, unless he used it. The lessor could take none of 
 it. For all that he took, the lessee might recover full damages. And 
 the lessor could not, it seems, have an action of waste against the les- 
 see, but might sue him upon the covenant, as if the brick earth had 
 been expressly sold, it having been taken with the lessee's knowledge. 
 He proceeds to remark, " it is not necessary to prejudge the question, 
 whether the lessor can sue in this case. Bat I have great difficulty in 
 finding out how the lessor can be injured. If he has any right, it rnust 
 be for mere nominal damages." Heath, J., remarked, that the lessor 
 could not recover damages for the removal of the soil, for that is sold 
 to another; but only for any damage possibly done to the inheritance, 
 if such there be, in the manner of the excavation. Ohambre, J., dis- 
 sented, on the ground that the right of the lessee was executory merely ^ 
 that he acquired no freehold in the soil, till he himself elected to be- 
 come a purchaser of it ; and till such election, he had a mere possessory 
 right, his interest being the difference between the value of the earth 
 
 (1) Jackson v. Pesked, 1 M. & S. 234; 
 Baxter v. Taylor, 4 B. & Ad. 72 ; Tucker v. 
 Newman, 11 Ad. & El, 40. 
 
 (2) Attersoll v. Stevens, 1 Taunt. 182. 
 
 wfiy, unless permanently injurious, or involving a denial of his right. Hopwood v. Soofield, 
 2 Carr. & K 34. The plaintiff demised a cottage, without exception of mines. Held, he 
 might maintain an action on the case against a third person for an injury to the cottage by 
 an excavation of coal, though it did not clearly appear, Vfhether this was caused by 
 excavation under the cottage or under the adjoining house, occupied by the plaintiff 
 himself Raine v. Alderson, 4 Bing. N. 102. Where land, subject to a nuisance, is leased 
 by the owner, and the nuisance kept up subsequently ; the reversioner cannot maintain a 
 bill in equity, without joining the lessee as plaintiff. Ingraham v. Dunnell, 5 Met. 118. In 
 Massachusetts, a reversioner cannot maintain such bill, unless the injury is irreparable, or 
 the remedy at law insufficient. Ibid. 
 
CHAP. LIL] REVERSION. 557 
 
 taken by the defendant, and the price that thetlessee must have paid 
 tor It It hehad taken it himself, and all the remaining interest being in 
 the reversioner, who might bring an action on the case against the 
 wrong-doer. ^ 
 
 19. Where a third person does acts which are in their nature perma- 
 nently injurious to the estate, as, for instance, by cutting down trees, 
 but by the license of the lessee; he is not a stranger, within the mean- 
 ing ot the New lork Statute, which gives to a reversioner. &c., an ac- 
 tion of trespass for an injury to his estate done by strangers. The 
 mere want of privity of contract between the wrong-doer and the 
 lessor, does not constitute the former a stranger ; because this construc- 
 tion would authorize an action against every servant or laborer, in the 
 employment of a tenant, who should do an act injurious to the lessor, 
 ihe general rule is, that in a case of this kind, both the lessor and 
 lessee may bring their respective actions ; but in this instance the latter 
 could not sue, having expressly authorized the act. The lessee would, 
 be answerable in an action of waste. Every act that would be a trespass 
 in a stranger, is not necessarily waste in the tenant. If the servant of 
 the tenant were liable in trespass to the lessor, he might sometimes be 
 made liable for acts which the lessee might do with impunity. He 
 must therefore be allowed to make the same defence, which the lessee 
 could make to an action of waste. The difSculty, which would inevitably 
 result from treating such person as a strang^er, could not be avoided, 
 without confounding the actions of trespass and waste.(l)(a) 
 
 20. But it has been held in New Hampshire, that an action on the 
 case for waste, lies in favor of a reversioner against a third person, who 
 has cut timber upon the land by virtue of a sale to him by the lessee ; 
 the title of the trees, when cut, in all cases remaining in the rever- 
 sioner ; and the tenant being empowered to cut and use them for 
 specific purposes only, but not to sell them.(2) 
 
 21. A remainder-man or reversioner, not having any right to imme- 
 diate possession of the land, cannot lose his title by means of a dis- 
 seizin, or adverse possession, by a stranger. He either cannot, or, if 
 he can, is not bound to, enter during the particular estate, to defeat 
 the wrongful title. 
 
 22. Judge Kent thus states the law upon this point. Neither a descent 
 cast, nor the statute of limitations, will affect a right, if a particular 
 estate existed at the time of the disseizin, or when the adverse posses- 
 sion began ; because a right of entry in the remainder-man cannot 
 exist during the existence of the particular estate; and the laches of a 
 tenant for life will not affect the party entitled. An entry, to avoid 
 the statute, must be an entry j'br the purpose of talcing possession ; and 
 such an entry cannot be made during the existence of the life estate.(3) 
 
 23. So it is said, that where there is a right to curtesy in land 
 
 (1) Livingston v. Mott, 2 Wend. 605. 1 (3) Jackson v. Sehoonmaker, 4 John. 402. 
 
 (2) Elliot V. Smith, 2 N. H. 430. | 
 
 (a) A lessee having raortgaged his interest and become bankrupt, the assignee removed 
 certain fixtures. Held, the mortgagee might'maintain an action against him, although the 
 Jease contained a covenant to deliver up all fixtures to the landlord ; that the morlgagor, 
 while in possession, stood as a tenant, leaving the reversion in the mortgagee; and that he 
 was entitled to recover the full value of the fixtures. Hitchman v. Walton, 4 Meea k W 
 409, 
 
568 
 
 EBYBRSIOK 
 
 [CHAR LIL 
 
 descended, no right of entry descends to, or can vest in, the heir, 
 during the continuance of that estate.(l) 
 
 24. The statute does not run against reversioners, &c., during the 
 continuance of the particular estate, even though the latter did not 
 exist at the time the disseizin took place; provided it was imme- 
 diately preceded by disabilities, such as infancy, &c., which prevented 
 a legal entry. The subject of disabilities will be considered here- 
 after.(2)(a) 
 
 25. A tenant for life was disseized, and the disseizor, and those 
 claiming under him by two successive descents, visibly occupied the 
 land for forty years. Held, upon the death of the tenant for life, the 
 reversioner might still assert his title to the land.(3) 
 
 26. In Massachusetts, although, as in New York, a reversioner, &c., 
 is not hound to enter during the continuance of the particular estate ; 
 the language of the court implies that he may enter. Thus, in a case 
 pf alleged forfeiture by the particular tenant, Judge Wilde remarks,— 
 "as to the objection of forfeiture, it is sufficient to remaik, that the 
 demandants do not claim a right of entry arising from forfeiture. _ If a 
 forfeiture were incurred, they were noi bound to enter ; and if tbe 
 right to enter for that cause is now barred by the statute of limitations, 
 this does not affect the right of entry, arising afterwards, on the death 
 of tenant for life. If there be two rights of entry, one may be lost 
 without impairing the other."(4)(Z)) 
 
 27. In England, a reversion, expectant upon an estate for years, is 
 present assets for payment of debts. Thus, it is now settled, though 
 there are old precedents to the contrary, that an heir holding such 
 reversion cannot plead the estate for years in delay of execution, upon 
 a suit against him on his ancestor's bond, but must confess assets. 
 The grounds of this doctrine are, that an estate for years, at common 
 law, was an interest not recognized by the law ; and that, although an 
 execution may issue upon the judgment against the heir, yet the lessee 
 may defend against an ejectment by the title of his lease.(5) 
 
 28. A reversion, expectant upon an estate for life, is quasi assets. 
 The heir of such reversioner may plead specially the intervening 
 estate, but the plaintiff may take judgment of it quando accident, 
 or a judgment to recover the debt and damages, to be levied when 
 the reversion shall fall in ; and a special writ shall issue accord- 
 ingly .(6)(c) 
 
 (1) Jackeon v. Sellick, 8 John. 269. 
 
 (2) Jackson v. Johnson, 5 Cow. 74. 
 
 (3) Wallingford v. Hearl, 15 Mass. 4'71. 
 
 (4) Stevens D. Winship, 1 Pick. 321; Mil- 
 ler V. Ewing, 6 Cush. 34. 
 
 (5) 2 Cruise, 302 ; Smith v. Angel, 1 Salk. 
 
 354: 2 Ld. Ray. 183 ; 7 Mod. 40; Osbaston 
 ». Stanhope, 2 Mod. 50; Tillers v. Handley, 
 2 Wils. 49 ; Murrell v. Roberts, 11 Ired. 424. 
 (6) Ibid.; Dyer, 373 b; Barton v. Smith, 
 13 Pet. 464. 
 
 (a) See Vol. II — Disabilities ; Disseizin. 
 
 (b) The same principle is adopted by statute in Maine. Me. Rev. St 621. In Wiscon- 
 sin, (Rev. Sts. 584,) a reversioner may defend a suit brought against the particular tenant. 
 If he make default or give up, and judgment be rendered against him ; at the termination 
 of the particular estate, the reversioner may recover. A recovery by agreement against a 
 tenant for life is void against the reversioner, unless he appeared. lb. 
 
 (c) In most of the cases upon this subject, the bonds, of which payment was claimed, 
 were entered into by the person who had i)een once seized in fee in possession, who had 
 afterwards created the limitations of the estate, and had also died last seized of the fee ; so 
 that the heir, in claiming the reversion on the determination of the particulalari mitations, 
 
CHAP. LIL] REVERSION. 
 
 569 
 
 29. The question, how far a reversion in the hands of heirs is re- 
 garded as an actual estate, with respect to its liability for debts as 
 well as m other respects, will be considered hereafter under the title 
 of Descent. A single case only, and a few general observations upon 
 the subject, will be here given. 
 
 _ 30. A devise was made to one for life, afterwards the estate to be 
 distributed as if no devise had been made. A, one of the heirs of 
 the testator, dies during the continuance of the life estate. The 
 question arose, whether A's heir, after the life estate was determined, 
 inherited to his father or to his grandfather, the testator, and whether 
 A's debts were upon his death to be paid from this reversion, now 
 become possession. Held, at common law, A had a share of the 
 re^J-ersion, and might aliene it, or, by an obligation binding his heirs, 
 might render the estate assets in their hands. So, if judgment should 
 be rendered against him before his death, e^iecution might issue 
 against the estate alter his death. But still, none of these things 
 having taken place, on the determination of the life estate, A's son 
 takes as heir of the testator, and not as heir of A. Therefore, by the 
 common law rule, the reversion would not be liable for A's debts ; 
 but by Statute 1783, c. 36, and following acts, reversions are made 
 liable in Massachusetts for debts, under the general denomination of 
 real estate.. Hence the administrator of A might take the estate as 
 assets.(l) 
 
 31. A very important, perhaps the leading American case, upon this 
 subject, is that of Qook v. IIainmond,{2) in the United States Circuit 
 Court. In the course of his learned and able opinion. Judge Story 
 makes the following general remarks.(3) 
 
 32. Where the estate descended is a present estate in fee, no person 
 can inherit who cannot, at the time of the descent cast, make himself 
 heir of the person last in the actual seizin thereof; that is, as the old 
 law states it, seisina facit stipitem. But of estates in expectancy, as re- 
 versions and remainders, there can be no actual seizin during the exis- 
 tence of the particular estate of freehold ; and, consequently, there can- 
 not be any mesne actual seizin, which of itself shall turn the descent, so 
 as tojmake any mesne reversioner or remainder-man a new stock of de- 
 scent, whereby his heir, who is not the heir of the person Jast actually 
 seized of the estate, may inherit. The rule, therefore, as to reversions 
 
 (1) 'Whitney v. "Whitney, 14 Mass. 88.1 (2) 4 Mas. 461. 
 See Rich v. "Waters, 22 Pick. 563. I (3) lb. 484. 
 
 was obliged to derive title from the originr,! debtor. But it has been also held, in some 
 cases, that such reversion is liable to the bond debts of an intermediate tenant for life, who 
 becomes entitled to the reversion. It is said, the obligor had actual seizin of the rever- 
 sion by his seizin as tenant for life. He miglit have sold it, and therefore might charge or 
 incumber it ; though, strictly speaking, his bond vras no charge upon the reversion, but 
 only upon the heir, in respect of such reversion descending. And this reversion was prop- 
 erly, tiie instant it vested in the heir, assets by descent in his hands, though, before, only 
 dormant, potential assets. Smith v. Parker, 2 Black. 1230. 
 
 The doctrine above stated, however, has been questioned; and it has been contended, 
 that, as one who claims a reversion by descent must make himself heir to the donor, and 
 not take as heir to any of the intermediate heirs, because they never had actual seizin ; such 
 reversion in his hands is assets of the donor, but not of the intermediate heirs. Tweedale 
 v. Coventry, 1 Bro. 240 ; 2 Saun. 8, n. ; Doe v. Hutton, 3 B. & P. 651 ; 4 "V"ia. Abr. 451 ; 1 
 Tes. 174. 
 
570 REYERSIOIT. [OHAP. LII. 
 
 and remainders expectant upon estates in freehold is, that unless some- 
 thing is done to intercept the descent, thej pass, when the particular 
 estate falls in, to the person who can then make himself heir of the ori- 
 ginal donor, who was seized in fee and created the particular estate, or, 
 if it be an estate by purchase, the heir of him who was the first pur- 
 chaser of such reversion or remainder. But, while the estate is thus in 
 expectanc}', the mesne heir, in whom the reversion or remainder vests, 
 may do acts which the law deems equivalent to an actual seizin, and 
 which will change the course of the descent, and make a new stock. 
 Thus, he may, by a grant or devise of it, or charge upon it, appropriate 
 it to himself, and change the course of the descent. In like manner, it 
 may be taken in execution for his debt during his life, and this in the 
 same manner intercepts the descents. But, if no such acts be done, the 
 rule above stated prevails, and the heir of the donor shall take the es- 
 tate, though he be not heir of the reversioners, &c. Thus, in case of an 
 estate in dower or by the curtesy, after the death of the last owner in 
 fee, the heir only takes only a reversion. But, it is a misnomer to call 
 it a case of suspended descent; for the reversion descends and vests ab- 
 solutely in the heir ; he may sell it, incumber it, devise it, and it is sub- 
 ject to execution as part of his property during his life. 
 
 33. A reversion expectant on an estate tail is said not to be assets 
 during the continuance of the latter, being deemed of no value, by rea- 
 son of the power of the tenant to bar the entailment by a common re- 
 covery. Bat such reversion is assets, when it falls into possession ; and 
 liable to the judgments recovered against all who were ever entitled to 
 it. Also, to all conveyances, charges and leases made by such persons, 
 and the covenants contained in them. (!)(«) 
 
 34. In regard to contracts and conveyances made by those holding 
 expectant interests, the law, regarding them as from the nature of their 
 estates peculiarly liable to imposition, has established peculiar rules for 
 their protection. An heir has, in strictness, neither a reversion nor re- 
 mainder, (except in case of a contingent remainder, limited expressly to 
 the heirs of one living; and to this the rules in question are not appli- 
 cable, because a contingent remainder cannot be conveyed.)(6) He has 
 a mere expectancy, wholly subject to the disposition of his ancestor. But, 
 
 (1) 2 Cruise, 303 ; GifFord v. Barker, 4 Tin. 451 ; Symonds v. Cudmore, 4 Mod. 1 ; Shel- 
 burne v. Biddulph, 6 Bro. Pari. 356. 
 
 (a) Statute 3 Wm. & Mary, oh. 14, rendered a devise of lands fraudulent and void as 
 against creditors of tlie devisor. Before this act, there was no method, either at law or in 
 equity, to subject lands devised to payment of debts. The reason was, that the ancestor by 
 his specialty bound only the heir, and not even him, unless he was named, and never beyond 
 the extent of the assets which came to him. It has been held under this statute, that where 
 the heir of an estate tail, and of the reversion in fee expectant upon it, devises the estate and 
 then dies without issue, whereby the devisee acquires a fee-simple in possession, tlie estate 
 is liable in the hands of the latter for debts of the ancestor of the devisor, who made the set- 
 tlement in tail. The heir is regarded, not merely as a representative of the debtor, but as 
 himself a debtor within the words of the statute. Kynaston v. Clarke, 2 Aik. 204. 
 
 In Massachusetts, a reversion expectant upon an estate tail is a vested interest, devisable, 
 and which will pass under a general residuary clause. Steel v. Cook, 1 Met. 281. 
 
 If hmited by way of executory devise, upon tho contingency of issue by a future marriage 
 of one of the tenants in tail, the residuary devisee ofthe reversion may grant it to a third per- 
 son, subject to the executory devise. lb. 
 
 (6) As to the distinction between contingent interests, such as executory devises, &c., which 
 are assignable, and mere possibilities, such as the expectancy of an heir, or the prospect of a 
 legacy ; which are not; — see Fortescue v. Satterthwaite, 1 Ired. 566. 
 
CHAP. LII] REVERSION. 571 
 
 inasmuch as all expectant interests, with respect to the principle now to 
 be considered, stand upon substantially the same foundation ; it seems 
 not inappropriate to present a general view of the subject under the 
 present title. 
 
 85. The general principles of law upon this subject are thus stated 
 by Parsons, Ch. J., in the case of Boynton v. Huhbard.{l) When an 
 heir gives a bond, on receiving a sum of money, to pay a larger sum, 
 exceeding legal interest, upon the death of his ancestor, if the heir shall 
 be then living ; if there is only a reasonable indemnity for the hazard, 
 it may be enforced at law. But, if his necessities are taken advantage 
 of, he is relieved as against an unconscionable bargain, on payment of 
 principal and interest. So, when one having a reversion or remainder, 
 contracts to sell it, on becoming possession, for money paid at the time 
 of tlie bargain, a similar rule is adopted. Here there may be a compu- 
 tation of the risk, as involved in the continuance of the preceding es- 
 tate ; and the bargain, like that before mentioned, may be relieved 
 against, if unconscionable. If the reversion or remainder be actually 
 conveyed, equity alone can give relief, unless there were absolute fraud. 
 But a contract, made by an heir, to convey on the death of his ancestor, 
 living the heir, a certain undivided part of what shall come to the heir 
 by descent, distribution or devise, is a fraud upon the ancestor, pro- 
 ductive of public mischief, and moreover in the nature of a wager, with- 
 out furnishing any means of computing the risks, &c., as to the amount 
 of property and the value of the inheritance, and is, therefore, void both 
 in law and equity. 
 
 36. It has been since held, however, in the same State, that such a 
 contract is valid, if made with the ancestor's consent, for a valuable 
 consideration, and without imposition upon the heir.(2) 
 
 37. Judge Story remarks, that relief has been constantly granted in 
 equity, in what are called catching bargains, with heirs,(3) and, in modern 
 times, reversioners and expectants, in the life of their parents or other 
 ancestors, or during the continuance of prior, particular estates. Many, 
 and indeed most of the cases have been compounded of all or every 
 species of fraud ; there being sometimes proof of ad««Z fraud, which is 
 always decisive. There is always fraud presumed or inferred from the 
 circumstances or conditions of the parties contracting ; weakness on 
 one side, usury on the other, or extortion or advantage taken of that 
 weakness. Grenerally, there has been deceit upon third persons ; the 
 father or other ancestor has been kept in the dark, and thereby misled and 
 seduced to leave his estate, not .to his heir or family, but to a set of art- 
 ful persons, who have divided the spoil beforehand. The doctrine is 
 founded, in part, upon the policy of maintaining parental and quasi pa- 
 rental authority, and preventing the waste of family estates ; as well 
 as of guarding distress and improvidence against calculating rapacity. 
 Equity treats parties in this situation almost like infants, incapable of 
 contracting ; and, although formerly undue advantage must be shown 
 to have been taken, it now requires the purchaser to make good the bar- 
 gain, that is, not merely to show the absence of fraud, but payment of 
 a full consideration. The court will relieve, upon the general principle 
 
 (1) 1 Masa. 119-22. See Wheeler i). Smith, 
 9 How. 55; Hallett «. Collins, 10, 174. 
 
 (2) Fitch V. Fitch, 8 Pick. 480. 
 
 (3) 1 Story on Eq. 32'!-33 ; Chesterfield v. 
 Janssen, 2 Ves. 167. See Newton v. Hunt, 
 5 Sim. 611. 
 
572 REVERSION. [CHAP. LIL 
 
 of miscliief to the public, without requiring any particular evidence of 
 imposition, unless the contract is shown to be above all exception. 
 Years do not seem to make much difference in the case of expectant 
 heirs ; since the aim of the rule is principally to prevent imposition 
 upon ancestors. And the same rule applies, it seems, to reversion- 
 ers and remainder-men, if necessitous, distressed and embarrassed. 
 
 38. Thepolicy of this rule has been questioned, and it has been thought 
 to have the effect of throwing necessitous owners of expectancies into 
 the hands of those who are likely to take advantage of their situation ; 
 for no one can securely deal with them. It has also been doubted, 
 whether the rule is strictly applicable, unless a reversioner also combines 
 the character of heir. But the weight of authority seems to negative 
 any such restriction or limitation. (a) 
 
 39. The rule above referred to, being founded in part at least, in the 
 case of heirs, upon the ground of imposition practicedon the ancestor, 
 is inapplicable, as has been seen, (sec. 36,) where the transaction was 
 known and not objected to by him ; and, a fortiori, if he expressly 
 sanctions or adopts it, or the heir is of mature age. It seenis there is 
 the same exception to the rule, where the party is a reversioner, &c., 
 and the bargain is known and not objected to by the prior tenant. (1) 
 
 40. Another reason of the rule creates another exception to it ; 
 namely, where the party is not dealing under the pressure of necessity. 
 But, it seems, the rule is applicable, if either of the reasons on which 
 it is founded, exist ; and it is not necessary that both should concur.(2) 
 
 41. If the heir is dealing substantially for his expectations, although 
 for a present obligation also, which it is hardly possible that he should 
 discharge, or throwing in' a present possession worth but a small pro- 
 portion of the whole, equity will interpose ; as where the heir received 
 an annuity worth about one-sixth of the value of the reversion, though 
 an interest in possession, amounting to £99 a year, was included in the 
 sale.(3) 
 
 42. The rule in question, perhaps, is not applicable, where there is 
 a fair though secret agreement among heirs themselves to share equally, 
 and thus to cut off all attempts to overreach each other, and to prevent 
 all exertions of undue influence. (4) 
 
 i^43. In relation to the contracts of heirs, &c., respecting their future 
 estates, as they are not void, but only voidable ; in general, any confir- 
 mation of them, after the party comes in possession, and the former 
 unfair inducement has ceased, will render them valid. But it will be 
 otherwise, if the former pressure or necessity still continues, or if the 
 
 (1) King V. Hamlet, 2 My. & K. 473-4. i (3) Earl, &o. v. Taylor, 4 Sim. 209-10. See 
 (2j lb, ; Portmore v. Taylor, 4 Sim. 182. Potts v. Curtis, Tounge, 543. 
 
 '- (4) 1 Story. 334. 
 
 (a) In South Carolina, it is remarked by Desaussure, Cliancellor: "There is a distinotion 
 made between the cases of young heirs selling expectancies, and of others, which I am not 
 disposed to support. It is said, that the former are watched with more jealousy, and more 
 easily set aside than others, on principles of public policy. This was certainly true at first ; 
 but the eminent men who have sat in Chancery, have gradually applied the great principles 
 of equity on which relief is granted, to every case where the dexterity of intelligent men 
 had obtained bargains, at an enormous and unconscientious disproportion, from the igno- 
 rance, the wealcness, or the necessities of others, whether young heirs or not." Butler v. 
 Haslcell, 4 Desau. 681-8. In New York, it is held, that the expectancy of an heir is not a 
 subject of legal transfer. Tooley v. Dibble, 2 Hill, 641. 
 
CHAP. LII.] 
 
 REVERSION. 
 
 573 
 
 .6 upon 
 illegal or 
 
 party acts under the belief that the original contract is bindin 
 Jaim. It has been held m some dases, that if the contract is iU,j... 
 usunvus It IS absolutely void, and not susceptible of confirmation.(l) 
 
 «. it the heir or other expectant, after being restored to his legal 
 capacity becomes opposed to the other party, and does any act by 
 which the rights or pi'operty of the latter are injuriously affected ; 
 upon the principle, which forbids a party to repudiate a dealing, and 
 at the same time to avail himself fully of all the rights and powers 
 resulting therefrom ; the heir, &c., will not be allowed to rescind the 
 bargain. _ So, if he dispose of the consideration received for his rever- 
 sionary interest, in such way that it can never be restored to the other 
 party in its original condition ; he will not be allowed to rescind, unless 
 he can show, that this disposition was made under a continuance of the 
 original pressure.(2)(_a) 
 
 45. In Maryland, the Chancellor may, after notice, order a sale of 
 lands in the State belonging to any minor who resides out of the 
 United States, or of any remainder or reversion dependent thereon, for 
 payment of his debts. A subseqaent act provides for the sale of any 
 reversion belonging to a minor, dependent upon a life estate, and that, 
 upon the assent of the tenant for life, the annual interest or a suitable 
 part thereof shall be paid him for his life.(3) 
 
 46. In Maryland, it was formerly the practice to assess taxes upon 
 land held by an estate for life, equally, half and half, upon the particu- 
 lar tenant and the reversioner in fee. But a statute provides that the 
 whole shall be assessed upon the former as if he owned the fec.(4) 
 
 47. In New Jersey, Michigan, Mississippi and New York, it is pro- 
 vided, that a reversioner, &c., may be admitted to defend a suit brought 
 against the tenant for life at any time before judgment ; and that the 
 former shall not be prejudiced by any default, surrender or giving up 
 of the land by the latter.(5) 
 
 48. In New York, a process is provided, by which reversioners and 
 remainder-men may annually call for the production or appearance of 
 tenants for life, upon whose estates their expectancies depend, and 
 whose residence is unknown or concealed. (6) 
 
 49. In Massachusetts, where a tenant for life recovers the land by 
 action, and pays to the defendant the value of improvements made 
 upon it by the latter, such tenant for life or his representatives, at the 
 termination of his estate, may recover the value of the improvements, 
 as they then exist, from the reversioner or remainder-man, and shall 
 have a lien therefor upon the land, as if it were mortgaged for pay- 
 ment of such amount. The reversioner, &c., may also have a bill in 
 equity to redeem, as in case of mortgage, if the amount is not agreed 
 by the parties. He will not be limited to three years, but he shall 
 recover no balance from the defendant, though the rents and profits 
 
 (1) 1 Story, 338-9, and n. 
 
 (2) Ibid, ; King o. Hamlet, 
 456 
 
 My. & K. 
 (3) 2 Md. L. 129; 5 Ibid., oh. 154, aeo. 13. 
 
 (4) Md. L. 1798, ch. 96. 
 
 (5) 1 N. J. Rev. 0. 346; Mich. L. 223 ; 
 Missi. Rev. C. 449 ; 2 N. Y. Rev. Stat. 339. 
 
 (6) 2 N. Y. Rev. St. 343. 
 
 (n) A reversion was purchased from A by B, at a gross discount from its value. C, hav- 
 ing notice, ten years afterwards bought of B lor a full price, A joining and confirming the 
 sale. Held, A was slill entitled to a decree for reconveyance to him, upon re-payment of 
 the original price. Addia v. Campbell, 4 Beav. 401. 
 
574 
 
 JOINT TENANCY. 
 
 [CHAP. LIII. 
 
 have exceeded the sum due for the improvementa. The reversioner, 
 &c., shall be considered as disseized at the termination of the prior 
 estate, and the statute of limitation shall run against him accord- 
 ingly.(l) • 
 
 CHAPTER LIII. 
 
 JOINT TENANCY. 
 
 12. 
 13. 
 14. 
 
 Number and connection of the^ownera 
 
 of real estate. 
 Joint tenancy, how created. 
 
 " " in a remainder. 
 
 " " for lives, and several in- 
 
 heritances. 
 Unities necessary to joint tenancy. 
 Unity of interest. 
 
 " " title. 
 
 16. Unity of time. 
 
 22. " 
 
 23. Survivorship. 
 
 24. Exceptions to the rule of survivor- 
 
 ship. 
 34. "Who may be joint tenants. 
 
 45. Not subject to charges made by one. 
 
 46. Except by lease. 
 
 52. Severance of joint tenancy. 
 
 1. With respect to the number and connection of the owners of real 
 estate, it may be held, according to the English law, in four ways, viz. : 
 in .severalty, joint tenancy, co-parceny, and common. Upon the first of 
 these kinds of tenancy, of course, it is unnecessary to make any re- 
 marks. In Ohio, it is said, that the three last named estates are reduced 
 to one estate. (2) 
 
 2. Chancellor Kent says, that two or more persons may have an 
 interest in connection in the title to the same land, as joint tenants or 
 co-parceners, or in the possession of the same as tenants in common. (3) 
 
 8. Where lands are granted or devised to two or more persons, to 
 hold to them and their heirs, for their lives, or for another's life ; they 
 all take a joint estate, and are called joint tenants.(4) 
 
 4. Joint tenancy can be created only by acts of parties, and never by 
 acts of law.(5) 
 
 5. Joint tenancy may exist in a remainder. Thus, if a conveyance 
 be made to two persons, and the heirs of their two bodies, remainder 
 to them two and their heirs ; they are joint tenants of the remainder 
 in fee. (6) 
 
 6. Conveyance to two persons, and the heirs of one of them. They 
 are joint tenants for life, and one of them has the fee. If this one die, 
 the other shall hold the whole by survivorship for life. So, two per- 
 sons may be joint tenants for life, and one of them have an estate tail. 
 It seems, in each of these cases, the inheritance vests by way of re- 
 mainder.(7) 
 
 7. Lord Coke says, that when land is given to two persons, and the 
 heirs of one of them, he in remainder cannot grant away his fee-simple. 
 Mr. Hargrave's construction of this passage is, that although in some 
 respects the life estate and the remainder are vested in one person, as 
 
 (1) Mass. Rev. St. 
 
 (2) Walk. 291. 
 
 (3) 4 Kent, 357. 
 
 (4) Lit. ill. 
 
 615. 
 
 (5) 2 Cruise, 431. 
 
 (6) Co. Lit. 183 b. 
 (T) Lit. 285. 
 
CHAP. Lin.] JOINT TENANCY. 575 
 
 distinct interests, yet they are so far consolidated that the latter cannot 
 be transferred separately, and as a remainder.{l) 
 
 8. Two men may have joini estates for their lives, and yet several 
 inheritances, in the same land. Thus, if a conveyance is made to A 
 and B, being both males or both females, and the heirs of their bodies, 
 and both of them have issue; during their joint lives they hold as joint 
 tenants; upon A's death, B will take the whole for his life; and, upon 
 B's death, the respective issue of A and B will hold as tenants in com- 
 mon. It is said, however, that in case of a devise in this form, it is 
 not the intention of the testator that the surviving tenant should turn 
 out the issue of the other.(2) 
 
 9. So, a devise to A and B and their issue, and in default of such 
 issue, to C, gives A and B a joint estate for life and several in- 
 heritances.(3) 
 
 10. A limitation to a man and woman and their issue, it seems, will 
 not create several inheritances, because it will be presumed to contem- 
 plate their intermarriage together, and the birth of joint issue. But a 
 limitation to two men and one woman, and the heirs of their three 
 bodies begotten, will create several inheritances; because the chance of 
 the woman's marrying both men, though possible, is a possibility upon 
 a possibility. The same principle applies to a gift made to one man 
 and two women ; and also to parties whose relationship precludes the 
 possibility of their legally marrying each othgr. 
 
 11. Lord Coke says, in all these cases there is no division between 
 the estates for life and the several inheritances. The tenants for life 
 cannot convey away the inheritance after their decease, because it is 
 divided only in supposition and consideration of law ; and to some pur- 
 poses the inheritance is said to be executed.{4i) 
 
 12. Joint tenancy requires the following points oi unity, viz. : of in- 
 terest, title, time and possession. 
 
 13. With respect to unity of interest it is said, that one joint tenant 
 cannot be entitled to one period of duration or quantity of interest, 
 and the other to a different one. This principle, however, seems to be 
 only partially true, and the instances and illustrations, adduced in the 
 books, show a discrepancy for which it is difi&cult to discover any satis- 
 factory reason. Thus, a conveyance to two persons, to the one in fee 
 and the other in tail, or to the one for life and the other for years, 
 does not create a joint tenancy. So a reversion upon a freehold, or a 
 right of action or of entry, cannot stand in jointure with a freehold 
 and inheritance in posses'sion. But, on the other hand, it has been 
 seen, (sec. 6,) that a limitation to A and B, and the heirs of A, makes 
 A and B joint tenants for life. So a right of action and a right of 
 entry may stand in jointure.(5) 
 
 14. Unity of title requires that the estate of joint tenants be created 
 by the same limitation or lawful act of party, or by the same disseizin 
 or unlawful act.(a) 
 
 (1) Cn. Lit. 184 b and D. 2. 
 
 (3) lb. 
 
 
 (2) Lit. 283 ; Cook v. Cook, 2 Tern. 545 ; 
 
 (4) lb. 
 
 Co. lit. 184 a. 
 
 Wilkinson v. Spearman, 2 P. Wms. 530 ; 
 
 (5) Co. 
 
 Lit. 182 b. 
 
 Printed Cas. H. ofL. 1705. 
 
 
 
 (a) Persons joining iti a disseizin are joint tenants. Henoe, if one of them die seized, 
 after peaceable possession for five yeans, no descent is cast, and the disseizee still retains hia 
 right of entry. Putney v. Dresser, 2 Met. 583. 
 
576 
 
 JOINT TENANCY. 
 
 [CHAP. LIII. 
 
 15. Althougb some of the persons to whom an estate is limited take 
 by common law, and others by way of use, they may still be joint 
 tenants. Thus, where a fine was levied to A and B, to the use of A 
 and B, and also to C ; held a joint tenancy, though A and B were in 
 by the fine, and G by the statute of uses.(l) 
 
 16. With respect' to imity of time, the general principle if5, stated 
 to be, that it is necessary to a joint tenancy that the estate become 
 vested in all the tenants at the same instant. Thus, if a conveyance 
 is made to A for life, remainder to the heirs of B and C ; upon the 
 death of B, a moiety of the remainder vests in his heirs, and upon the 
 death of C, the other moiety in C's heirs ; and therefore these respec- 
 tive heirs are not joint tenants.(2) 
 
 17. This principle, however, does not apply to the learning of uses 
 and executory devises. 
 
 18. It has also been held inapplicable to husband and wife. Thus, 
 if a man convey to the use of himself and of any future wife ; upon 
 his marriage, the husband and wife bfcome joint tenants, although 
 their estates vest at different times. This, however, is a case of me, 
 and may be sustained upon that principle alone. 
 
 19. So, where limitations take effect at different times, still, if the 
 root is joint, as in case of limitations to successive children of one 
 parent ; there may be a joint tenancy. And in one case it is stated, 
 generally, that a joint claim by the same conveyance makes joint tenants, 
 and not the time of vesting. And in another, that if the parties claim 
 by one title, though taking at different times, this is a joint tenancy. (3) 
 
 20. Devise to a woman and her children on her body begotten or to 
 be begotten by A, in fee, Held, the woman and her children were 
 joint tenants, though the estate vested in them at different limes.(l:) 
 
 21. Mr. Hargrave was of opinion, that these exceptions to the gene- 
 ral principle are limited to conveyances by way of use and to devises. 
 And some decided cases seem to favor this opinion. But Lord Thur- 
 low appears to have rejected the distinction between limitations to uses 
 and others.(5)(a) 
 
 22. With respect to unity of possession, joint tenants are said to be 
 seized per my etper tout. Each of them has the entire possession of every 
 part, and of the whole. Each has an undivided moiety of the whole, 
 not the whole of an undivided moietj-. Hence the possession and sei- 
 zin of one is that of the other also. 
 
 23. The principal incident to an estate in joint tenancy, isthe right 
 of survivorship ; by which, upon the death of one joint tenant, whether 
 the estate is a fee, or a joint term for years, or a trust, his interest 
 passes, not to his heirs or other representatives, but to the surviving co- 
 
 (1) 2 Cruise, 433; Co, Lit. 188 a. 
 
 (2) Watts «. Lee, Noy, 124. 
 
 (3) Co. Lit. 188 a; 4 Kent, 358; Gilb. 
 Uses, n ; Blamford v. Blamford, 3 Biilstr. 
 101: Aylor y. Cliep, Oro, Jao. 259; Earl, 
 Ac. V. Temple, 1 Ld. Raym. 310; 2 Prest. 
 
 on Abstr. C7 ; Matthews v. Temple, Comb. 
 467. 
 
 (4) Gates v. Jackson, 2 Stra. 1172. 
 
 (5) Co. Lit. 188 a, n. 13 ; Samme's case, 13 
 Co. 54; Stratton v. Best, 2 Bro. 233. 
 
 (a) In a late case of personal property, the old doctrine upon this subject was adhered to. 
 Bequest to A for life, and alter her death, to her children, when they become of age. A 
 bad two children, who lived to be of <nge. Held, they took as tenants in common, because 
 the property vested in them at dififerent times. Woodgate v. Unwin, 4 Sim. 129. 
 
CHAP. LIII.] JOINT TENANCY. 577 
 
 tenant or co tenants. And though one of two lessees for years dies be- 
 fore entry, the survivor shall take his interest.(l) 
 
 24. In some cases, however, joint tenancy may exist without the 
 mutual right of survivorship. 
 
 25. Lease to A and B during the life of A. Upon the death of B, 
 A takes the whole ; but upon the death of A, B takes nothing.(2) 
 
 26. Although, as has been seen, trusts are subject to survivorship, 
 yet the general principle is, that the right of survivorship is looked 
 upon as odious in equity, being often attended with hardship and injus- 
 tice. Hence, upon the death of one joint owner, his estate has been 
 held to pass to his heirs.(3) 
 
 27. Thus, if one of two mortgagees, who have jointly advanced 
 the mortgage-money, dies ; his representatives shall have a share of 
 the money when paid. This principle, however, seems to be limited to 
 cases, where they advance unequal portions of the whole sum. If each 
 advances a moiety, which appears by the deed, this is regarded as a 
 joint purchase of the chance of survivorship. When the proportions 
 are unequal, the mortgagees are regarded in law either asparlners, — in 
 which case, though the survivor take the whole legal estate, he becomes 
 a trustee for the other ; or as actual tenants in common, with no right 
 of survivorship.(4) 
 
 28. Upon the same principle, where one of two joint purchasers of 
 land lays out money in repairs and improvements, and dies ; the ex- 
 pense is a lien upon the land in favor of his representatives.(5) 
 
 29. The doctrine above-stated has been broadly laid down by Sir 
 Joseph Jekyll in this form ; that the payment of money creates a trust 
 for the parties who advance it, and an undertaking upon the hazard of 
 profit or loss is in the nature of merchandizing, when the^us accrescendi 
 is never allowed. 
 
 30. In this extent, the principle is by no means limited to convey- 
 ances in mortgage, or to liens arising from the laying out of money 
 upon the land, or to unequal advances of money by the respective par- 
 ties. Thus, where several persons agreed to drain certain overflowed 
 lands, and a deed was made to them of the lands in consideration of a 
 certain sum of money, and they proceeded to lay out money in prose- 
 cution of the undertaking ; it was held, that the parties were tenants 
 in common. (6) 
 
 31. Though the circumstance, that the consideration for a convey- 
 ance is advanced unequally by the several grantees, seems to have 
 been regarded as important in determining the nature of their tenancy; 
 yet the general rule is, that a deed given to several persons, and not 
 designating their respective proportions, will pass to each an equal 
 share of the land. The amount of consideration paid by each of them 
 cannot be shown by parol evidence ; and if one dissent to the convey- 
 ance, his share does not pass to the other grantees, but revests in the 
 grantor. (7) 
 
 32. The equitable principle, that where a purchase of land is made 
 
 (1) Lit. 280-1 ; Co. Lit. 46 b ; Brompton 
 V. A\k\a. 2 Vern. 556; Cray r. Willis, 2 P. 
 Wms. 530 ; Rex v. Williams, Bunb. 342. 
 
 (2) Co. Lit. 181 b. 
 
 (3) Buiib. 342 I Gould v. Kemp, 2 M7. & 
 K 309. 
 
 Vol. I. 37 
 
 (4) Petty V. Styward, 1 Ab. Eq. 201 ; Rig- 
 den V. Valuer, 2 Ves 258. 
 
 (5) Aveling t). Kiiipe, 19 Ves. 441. 
 
 (6) Lake v. Craddock, 3 P. Wms. 158. 
 
 (7) Treadwell v. Bulkley, 4 Day, 395. 
 
578 JOINT TENANCY. [CHAP. LIII. 
 
 by two persons, with a view to expending large sums of money in the 
 improvement of it, they shall be regarded as tenants in common, has 
 been recognized in Pennsylvania. But the inequality of the sums, paid 
 by the respective parties, seems to have been considered as an unimpor- 
 tant circumstance ; and it is intimated that the principle is inapplicable, 
 unless the case is clearly shown to be of a mercantile nature, and con- 
 nected with a partnership in business.(l)(a) 
 
 (1) Duncan v. Forrer, 6 Bin. 193. 
 
 (a) Under the insolvent law of Massachusetts, if a surviving partner become an in.solvent 
 debtor, real estate purchased in the names, with the funds, and for the business of the 
 partners, belongs to the assignee, who may, by a bill in equity, compel the administrator, 
 widow and heirs of the deceased partner, to convey to the plaintiff such deceased partner's 
 moiety of the land, for the benefit of partnership creditors: Burnside v. Merrick, 4 Met, 
 BSY. See Tappau v. Bailey, lb. 529. In Ohio, in case of a partnership in the business of 
 building, &o., the widow of a deceased owner cannot claim dower as against partnership 
 creditors. Sumner v. Hampson, 8 Ohio, 328. 
 
 So, in Vermont, it is held that real estate, belonging to partnership funds, should follow 
 the same law of distribution in Chancery, which is applied to pensonal property. Rice v. 
 Barnard, 20 Term. 479. The same rule is adopted in Tennessee. Boyera v. Elliott, 7 
 Humph. 204. 
 
 So, in New Tork, real estate, purchased with partnership funds, for the use of the firm, 
 although the legal title is in a member or members of the firm, is in equity the property of the 
 firm, for the payment of its debts, and for the purpose of adjusting the equitable claims of 
 the co-partners as between themselves. Smith v. Tarlton, 2 Barb. Ch. 336 ; Buchan v. 
 Sumner, 2 Barb. Ch. 165 ; Delmonico v. Guillaurae, 2 Sandf Ch. 366. And the same rule ap- 
 plies to leasehold estate. Day v. Perkins, 2 Sand.f. Ch. 359. 
 
 But real property purchased with partnership funds for partnership purposes, and which 
 remains alter paying the debts of the firm, and adjusting the equitable claims of the different 
 members of the firm, as between themselves, is considered and treated as real estate. 
 Buckley v. Buckley, 11 Barb. 43. 
 
 Upon the death of one, Iiis legal title passes to his heirs. Buchan v. Sumner, 2 Barb. 
 Ch. 165. And the surplus recnaining, after settlement of the partnership affairs, is treated as 
 real estate. lb. 
 
 To constitute real estate partnership property, it must be purchased with partnership 
 fundfn, and have been used for partnership purposes. Cox v. McBurney, 2 Sandf 561. 
 
 Where land is purchased in the name of one partner, and not used for partnership pur. 
 poses, the other partner has no interest therein, as survivor of the grantee, and no interest 
 passes to his assignee in bankruptcy. lb. 
 
 Though such land was paid for with the partnership funds, it could be reached only by 
 the creditors of the partner not named in the deed, who were such at the time of the con- 
 veyance, lb. 
 
 "Where real estate was originally purchased by one of two partners, and paid for out of 
 his individual funds, and the only interest of the partnership is on account of improvements 
 made witli its funds; the actual interest of such partner, at least his individual interest, is 
 liable to be sold on execution. But, it seems, tlie partnership creditors have a claim, in 
 equity, to h,ave the whole value of the improvements applied to their debts, in preference to 
 the separate creditors of the individual partner; the equitable interest in such improve- 
 ments, chargeable with the delitsof the partnership, will pass under an assignment made 
 by the co-partners for the benefit of the partnership creditors ; and upon such equitable inter- 
 est, a judgment, obtained by a separate creditor against the partner who purchased, will 
 not, as against the partnership creditors, be a lien. Averill v. Loucks, 6 Barb. 19. 
 
 In Maryland, it lias been lield, that, in the absence of any express agreement between 
 partners, giving to their real estate the character of personalty, the widow of a deceased 
 partner may claim an allowance from the proceeds of partnership lands sold, in lieu of 
 dower, if the partnership was solvent at the time of its dissolution. G-oodburn v. Stevens, 
 5 Gill 1 ; 1 Md. Ch. 420. 
 
 But where real estate had been used by a partnership for many years in the manufacture 
 of iron, and, upon the death of any partner, his heirs came into the partnership, and there 
 was no proof of any articles of partnership ; held, the whole partnership estate, whether 
 consisting of real or personal property, was in equity a consolidated fund, to be appro- 
 priated primarily and exclusively to partnership debts. Goodburn v. Stevens, 5 Gill, 1. 
 
 In Louisiana, where an immovable is purchased by a comraeroial partnership, the partners 
 
CHAP. Lin.] JOINT TENANCY. 
 
 579 
 
 33. ^\ hile the case of joint mortgagees has been held in England an 
 exception to the rule of survivorship ; in this country, where, as will 
 be seen hereafter, joint tenancy is, for the most part, abolished, it is 
 held, for peculiar reasons, still to subsist between parties of this descrip- 
 tion. (See ch. 54, sec. 20.) 
 
 34. Bodies_ politic or corporate cannot be joint tenants with each 
 other, nor with individuals : because they take in their political ca- 
 pacity, and are seized in several rights, by several titles and capacities. 
 But the mere designation of a grantee by his corporate character will 
 not prevent his holding as joint tenant. Thus, if a conveyance is 
 made to A, bishop of B, and 0, to have and to hold to them and their 
 heirs, they are joint tenants. So, the rule does not apply to the con- 
 become joint owners, and none of them can alienate it without the consent of the rest. 
 ■Weld V. Peters, 1 La. Ann. R. 432. 
 
 Where immovable property belonging to a partaership is sold bv one of the partners, for 
 a consideration which enures to the benefit of tlie partnership, and'tlic other partner, though 
 informed of the sale, makes no objection to it; he will be considered as having ratified it. lb. 
 
 "Where real estate is purchased by one of two partners, and paid for out of his individual 
 funds, and improvements are made thereon, with the partnership funds, between the time 
 of the giving of a judgment by one of the partners as a security for future responsibilities, 
 and the incurring of such responsibilities by the judgment creditor; the equitable in- 
 terest of the other partner to be reimbursed his share of the funds, applied to such improve- 
 ments, is prior to the lien of the judgment. Averiil y. Loueks, 6 Barb. 19. 
 
 "Where a lease, taken by a partner, demises the premises to him individually, it does not 
 belong to the partnership ; and parol evidence, that it was executed for their benefit, is in- 
 admissible. Otis V. Sill, 8 Barb. 102, 
 
 So it is held, that an intention to bring real estate into partnership must be manifested by 
 deed or writing placed on record; and that parol evidence is inadmissible, that real estate 
 conveyed to two persons, as tenants in common, was purchased and paid for by them as 
 partners, and was partnership property. Ridgway's, &e., 3 Harris 177. 
 
 "Where an entry was made on the books of a firm by one of the partners, charging them 
 with a tract of land valued at a given price, as debtor to him, witli the understanding 
 that it should become partnership property ; held, the land became partnership property, 
 and subject to the prior lien of partnership, over individual debts. Boyers v. Elliott, 7 
 Humph. 204. 
 
 A and B, partners as nursery-men, owned land in common, which was planted with 
 young tree.", and, there not being land enough for their business, A agreed to the planting of 
 the partnership trees on his own land. This piece A mortgaged ; the mortgage was fore- 
 closed, and the land purchased by C ; at which sale B gave public notice that the trees be- 
 longed to the firm, and that he owned one half of them. B filed a bill to close up the part- 
 nership, and also prayed for a decree against C, declaring that half of the trees belonged to 
 him. Held, the trees were the property of the firm, and liable for the partnership debts, 
 and for any balance due B on a final adjustment of the partnership accounts; that neither 
 the mortgagee nor the purchaser were entitled to protection as iona _/!de purchasers without 
 notice; and that B could enforce his rights against them, to the same extent tliat he could 
 have done against A. King v. "Wilcomb, 7 Barb. 263. See "Warren v, Daveis, lb. 320. 
 
 "Where land was purchased by a partnership, but not used by them in their business, and 
 afterwards sold under execution against one of the partners ; and it did not appear that the 
 purchaser had notice that it was partnership property ; held, the land was not liable for 
 partnership debts. Buck v. "Winn, 11 B. Mon. 320. 
 
 Articles of agreement were entered into between three brothers, which recited, tliat they 
 had previously agreed to be equal sharers and partners in the product of their own labor and 
 that of those under their care, and to bear equally the expense of carrying on a farm, raising 
 stock, purchasing land, negroes, and other property, whether jointly or individually. The 
 articles then provided for the continuance of the partnership, extended it to all business in 
 which eitjier of them might engage, and stipulated that, if either of them died before a final 
 adjustment and division of the property, owned by them jointly or individually, the survivor 
 or survivors should heir or inherit all the property, after paying all debts against all or 
 either. Heidi lands bought on joint account, or in the name of the brothers individually, 
 enured to the benefit of the partnership; that, if one of them purchased lands in his own 
 name, and sold them, taking a note to himself for the purchase-mone)', such note vested in 
 the partnership, at least in equity; and that, upon the death of the payee, the surviving 
 partners might file a bill in their own names for the enforcement of the lien. Houston v. 
 Stanton, 11 Ala. 412. 
 
580 JOINT TENANCY. [CHAP. LIII. 
 
 veynnce of a chattel real, because this cannot pass in succession. 
 Hence, in case of a lease for years to a bishop and a natural person, 
 they are joint tenants.(l) 
 
 '60. An alien and a citizen may be joint tenants ; but the interest 
 of the former is subject to escheat.(2) 
 
 36. Husband and wife, being considered in laVv as one person, can- 
 not take by moieties, as joint tenants, each an undivided moiety of the 
 whole; but, upon a conveyance to them, each has the entirety; they 
 are seized J5er tout, and not^er my, and the husband can neither forfeit 
 nor alien the estate. It will be seen hereafter that this rule is changed 
 in some of the States.(3)(a) 
 
 87. Upon this principle, where a conveyance is made to husband 
 and wife and a third person, the two first take one moiety, and the last 
 the other. 
 
 38. The doctrine above stated was held in a very early case, where 
 a husband, to whom with his wife an estate had been conveyed, was 
 attainted and executed for high treason in the murder of King Edward 
 II. The heir of the wife, after her death, claimed the land by petition 
 to Edward III., against a stranger to whom the king had granted a 
 patent therefor ; and upon scire facias had judgment in his favor.(4) 
 
 39. The consequence of this principle is, that the husband has no 
 power to convey or incumber the land, so as to bind the wife after his 
 death. Neither of them can sever the jointure, but the whole must go 
 to the survivor.(5) 
 
 40. The same principle has been held, where the limitation was 
 made to the husband and wife, and the longer liver of them ; and, after 
 the death of the longer liver, to their right heirs forever.(6) 
 
 41. But it does not apply to a conveyance made to a man and wo- 
 man not married at the time, but who intermarry afterwards. The 
 tenancy originally created is not defeated by their subsequent connec- 
 tion.(7) 
 
 42. It has been held in Connecticut, that where husband and wife 
 bring an action to recover a debt due her before marriage, and land is 
 set off to them on execution in satislaction of the judgment, they be- 
 come joint tenants of such land, as they were joint tenants of the judg- 
 ment,(8) 
 
 43. The widow of a joint tenant is not entitled to dower. The sur- 
 vivor comes in by a paramount title, which he may allege in pleading 
 as derived directly from the grantor, without naming his companion. (9) 
 
 44. It was formerly held, that where lands were given to two women 
 and the heirs of their two bodies, the husband of one of them deceased 
 should be tenant by the curtesy, the inheritance being executed. Lord 
 Coke says, that Littleton has cleared up this doubt, by showing that the 
 inheritance is not executed, and therefore that there is no curtesy .(10) 
 
 (1) Co. Lit. 190 a, 
 
 (2) Co. Lit. 180 b, n. 2. 
 
 (3) Lit. 291 ; Co. Lit. ISt a; oh. 54, sec. 
 15 ; Harding V. Spjinser, 2 Si)epl. 407 ; Gib- 
 sou V. Zimmerman, 12 Mis. 385. 
 
 (4) Co. Lit. 187 a. 
 
 V. King, 2 Black. R. 1211 ; Doe v. Parratt, 5 
 T. R.' 652. 
 
 (6) Green v. King, 2 Black. R. 1211. 
 
 (7) Co. Lit. 187 b. 
 
 (8) Hammick v. BronsoD, 5 Day, 290. 
 
 (9) Lit. 45 ; Co. Lit. 37 b. 
 
 (5) Back V. Andrews, 2 Tern. 120 ; Green (10) Co. Lit. 30 a; 183 a; 2 Cruise, 335. 
 
 (a) But a grant to husband and wife, to hold as tenants in common, makes them such. 
 Co. Lilt. 187 b; 1 Steph. 315, n. 
 
CHAP. LTir.] 
 
 JOINT TENAK-OT. 
 
 581 
 
 45. One joint tenant, as has been already intimated, cannot charge or 
 incumber the estate to bind the other who survives him ; as, for instance. 
 tyy a rent-charge or recognizance. So, if one joint tenant suffers a judg- 
 ment to be entered up against him, and dies before execution of it, no 
 execution can be had ; but an execution sued in his life binds the sur- 
 vivor. And all charges bind the party himself who makes them, dur- 
 ^°g ^"s life ; or, if he survive the other, absolutely. (l)(o) 
 
 \-A f ^"^P^^o'i to this rule, however, is a lease. A joint tenant 
 may bind his fellow by a lease for years, even though limited to com- 
 mence only after his own death. Even in such case, it is said to be an 
 immediate disposition of the land.(2) But, where one of two joint ten- 
 ants for life leased for years his own moiety, to commence from the 
 death of the other, and the other moiety by the same instrument to com- 
 mence from his own death, and died ; held, the whole was void, because 
 he had no power to lease his companion's share, and the lease of his 
 own, over which he had power, was not to commence till the other's 
 death. (3) 
 
 47. Although a joint tenant cannot charge or incumber the estate, 
 so as to affect the right of survivorship, yet he may convey his whole 
 interest ; and in this way, as will be presently seen, sever the tenancy. 
 
 48. It is said, that in consequence of the intimate union of interest 
 and possession between joint tenants, they are obliged to join in many 
 acts, such a,s fealty, in England. But, on the other hand, there are 
 many cases, where the act of one is regarded in law as that of the whole. 
 Thus, the entry of one, and the seizin thereby acquired, enure to the 
 benefit of all. So, in case of a joint lease by them, a surrender to one 
 is a surrender to both. So, if one commit waste, the others forfeit the 
 land, though he alone is liable to treble damages.(4) 
 
 49. The possession of one joint tenant being in law that of the other 
 also, one cannot disseize another but by actual ouster. Thus, in Eng- 
 land, a fine levied by one of the whole land is no disseizin.(5) 
 
 50. Joint tenants, having one entire and connected right, must in 
 general join and be joined, in all actions respecting the estate.(6)(6) 
 
 (1) Co. Lit. 184 a, 185 a; Lit. 286; Ld. 
 Abergaveny's case, 6 Rep. 78. 
 
 (2) Co. Lit. 185 a; Clerk v. Clerk, 2 Tern. 
 323 ; Gould V. Kemp, 2 My. & K. 310. 
 
 (3) 'Whitlock t)/ Huntwell, 2 RoUe's Abr. 
 89 ; (Infra, aeo. 59.) 
 
 (4) Co. Lit. 6T b ; lb. 49 b ; Ford v. Grey, 
 6 Mod. 44; 2 Cruise, 337 ; 2 Inst 302. 
 
 (5) Fisher t). Wigg, 1 Salk. 392; Reading 
 V. Royston, 2, 423. 
 
 (6) 4 Kent, 359. 
 
 (o^ In Connecticut, a joint tenant rnay charge his share with his private debts. Reming- 
 ton V. Cady, 10 Conn. 44. The common law rule that no title to dower attaches on a joint 
 seizin, on account of the mere possibility that the estate may be defeated by survivorship, does 
 not prevail in North Carolina, South Carolina, Indiana and Kentucky, or probahly any other 
 States, where the jtis accrescendi is abolished. Lit. sec. 45 ; Ind. L. 183, p. 290 ; Reed v. 
 Kennedy, 2 Strobh. 67; Weir v. Tate, 4 Ired. 264; 3 Blackf. 13, n.; Davis v. Lognn, 9 
 Dana, 186 ; 4 Kent, 37, n. ; Mayburry v. Brian, 15 Pet. 21. See Menifee v. Menifee, 3 Eng. 
 9; supra, ch. 11. 
 
 Where A and B jointly and equally erected houses in a block, afterwards made a parol 
 partition, and each occupied, sold and received the price of his own portion ; held, there 
 was not sufficient proof of sole seizin to give a title to dower. Hamblin v. Bank, Ac, 1 
 Appl. 66. 
 
 (6) In Mississippi it is expressly provided, that in real and mixed actions, a defendant 
 may plead in abatement, that another person holds the land jointly with himself. Missi. Rev. 
 C. 116. So in Virginia. 1 Tir. Rev. 0. 237. In Rhode Island, a suit for the land maybe 
 brought by all the tenants, or any two of them, or one alone. R. I. L. 208. In Conuecti- 
 
582 JOINT TENANCY. [CHAP. LIII. 
 
 51. Some other incidents of joint tenancy, common to this estate and 
 to tenancy in common, will be considered hereafter. 
 
 52. It is said, that a joint teuancv may be severed, bythe destruction 
 of any of its constitaent unities, except that of time, which, as it relates 
 solely to the commencement of the estate, cannot be affected by any 
 subsequent transaction. (1) 
 
 53. A joint tenancy is destroyed by destruction of the unity of interest, 
 which may take place either by act of parties or act of law.(2) 
 
 5-±. It has been seen, that there may be joint tenants for life, remain- 
 der to the heirs of one of them ; or, in other words, that one joint ten- 
 ant may have a life estate and the other a fee. The whole interest 
 being created at one time, the fee-simple cannot merge the jointure 
 which had no previous existence. But, it is otherwise, where one of 
 several joint tenants for life takes a conveyance of the fee, after the 
 creation of the original joint estate ; the jointure is severed by a merger 
 of the life estate in the fee-simple. It is said, that if such tenant for life 
 might purchase the reversion in fee, and still retain his life estate, he 
 would have power to convey the reversion by itself, which, it has been 
 seen, the law does not allow, where the two estates are joined by the 
 original limitation. {B){a) 
 
 55. So, where there are joint tenants for life, and a new conveyance 
 in tail is made to them ; the joint tenancy is severed. (4) 
 
 56. So a descent of the fee to one of two joint tenants for life severs 
 the joint tenancy. Thus, where one devised to his two youngest sons 
 for life, and afterwards the reversion came to one of them by descent 
 from the eldest son ; held, a severance of the jointure.(5) It would seem 
 from analogy to the distinction stated in sec. 54, that if the devise were 
 made for life to the eldest son and another, as the reversion and life es- 
 tate must come to the forrner by the same event, the death of the testa- 
 tor, the joint tenancy for life would still exist. 
 
 57. Another mode of severance is by destroying the unity of title. 
 Thus, if* one joint tenant conveys his interest to a third person, inas- 
 much as this person claims title by conveyance from the joint tenant, 
 and the remaining joint tenant claims title by the original conveyance, 
 the jointure is severed. (6) 
 
 58. A conveyance by one joint tenant of bis interest in the land de- 
 stroys the unity of possession as well as of title. The remaining joint 
 tenant and the grantee have seyeral freeholds. 
 
 59. A lease for life by one joint tenant operates as a severance. And 
 the severance applies to the reversion, as well as the particular estate. 
 A lease for years operates as a severance pro tanio. So an under-lease 
 by one of two joint tenants for years.(7) 
 
 (1) 2 Cruise, 338. 
 
 (2) lb. 
 
 (3) Co. Lit. 182 b: 'Wisecot's case, 2 Rep. 
 80. 
 
 (4) Co. Lit. 182 b. 
 
 (5) Robert, &c., 2 And. 202. 
 
 (6) Lit. 292. 
 
 (1) Lit. 302 I Co. Lit. 192 a. {Supra, sec. 
 46.) 
 
 cut, it has always been the practice for one joint tenant to sue alone. 1 Swift, 102. In 
 Mississippi, one joint tenant may alone maintain a merely possessory action for the joint pre- 
 mises, the possession of one being in law the possession of all. Rabe v. Fyler, 10 S, k M. 440. 
 
 So, one may maintain forcible entry and detainer, to recover possession, the title not being 
 involved. lb. 
 
 (a) This distinction is analogous to that above mentioned, in regard to the destruction of 
 contingent remainders. 
 
CHAP. LIII.] 
 
 JOINT TENANCY. 
 
 583 
 
 60. It has been held, in equity, that a joint tenancy in a trust terra 
 may be severed by a mortgage made by one of the tenants. This is 
 contrary to the general principle, that no charge upon the estate shall 
 mterfere with the right of survivorship.(l) 
 
 61. A conveyance, which is in law invalid, will not operate to sever 
 a jomt tenancy, even in equity ; as, for instance, a conveyance made to 
 the wife of the tenant, though immediately before his deatli, and for the 
 purpose of providing for her.(2) 
 
 62. Whether mere articles of agreement may in equity operate as a 
 severance of joint tenancy, seems to be a doubtful point, though the 
 prevading opinion is that they may.(3)(a) But when made by an 
 infant, they do not have this effect. Being in their nature avoidable 
 by the party, it is in the discretion of the court of equity either to give 
 or refuse its assistance. It may model such a contract at pleasure. 
 And, in the view of equity, a surviving joint tenant is not considered 
 as a mere volunteer, but as claiming by title paramount, like the issue 
 under an entailment. If the other tenant had died first, the infant 
 might have avoided his act, and claimed by survivorship. Hence, to 
 set up this act as a severance, would be manifestly unequal and unjust. 
 Upon these grounds, articles of agreement, by which a female infant, 
 upon her marriage, covenanted with her proposed husband and trus- 
 tees to settle her lands, held in joint tenancy, upon the husband, were 
 held not be valid in equity against the claim of the surviving joint 
 tenant.(4) 
 
 63. A joint tenancy cannot be severed by devise.(b) A devise takes 
 effect only by the death of the testator, which also vests the title by 
 survivorship in the remaining tenant; and, the two claims being con- 
 current in time, the law gives priority to the latter.(5) 
 
 6i. If a joint tenant makes a will, and then becomes solely seized by 
 survivorship, the will does not operate upon the title so acquired with- 
 out republication. (6) 
 
 65. A severance may be effected by the alienation of one joint tenant 
 to another. It is said that this should be done in the form of a release, 
 because both are actually seized of the estate before.(7) 
 
 66. If there are three joint tenants, and one of them releases to one 
 of his companions, the latter holds one-third of the land in common, 
 and he and the other tenant hold two-thirds as joint tenants. But if 
 one release to all the others, they hold in law under the original con- 
 veyance, and not under the release ; and therefore remain joint tenants 
 as before.(8) 
 
 67. By accepting a release from his companion, a joint tenant recog- 
 
 (1) York V. stone, 1 Abr. Eq. 293 ; 1 Salk. 
 158. 
 
 (2) Moyse v. Giles, Free, in Clia. 124. 
 
 (3; Musgrave v. Dashwood, 2 Vern. 63 ; 
 Hinton v. Hinton, 2 Tea. 634; Rigden v. 
 Vallier, 2 Tea. jr. 257. 
 
 (4) May v. Hook, Co. Lit. 246 a, n. 1 ; Dura- 
 ford V. Lane, 1 Bro. 112. 
 
 (5) Lit. 287; Co. Lit. 185 b; Swift v. 
 Roberts, 1 Bl. Rep. 476. 
 
 (6) 4 Kent, 360; Swift v. Roberta, 3 Burr. 
 1488; Ambl. 617. , 
 
 (7) 2 Cruise, 342. 
 
 (8) Lit. 304; 2 Cruise, 342. 
 
 (a) A and B being interested in a fund as joint tenants. A, by letter to B, engages to se- 
 cure to his fannily, in any way B may desire by liis will, a moiety of the fund. Held, a 
 severance of the joint tenancy. Gould v. Kemp, 2 Mylne & K. 304. 
 
 (b) An ancient statute in South Carolina, not now in force, provided otherwise. 
 
584 
 
 TBNAjSTOT in COMMOIT. 
 
 [CHAP. LIT. 
 
 nizes the validity of any previous charge upon the estate made by the 
 releasor, which he might have avoided under the title by survivorship. 
 Thus, if one joint tenant grant a rent-charge from the land, and after- 
 wards release to the oiher and die ; although, as between the two joint 
 tenants themselves, the releasee holds not by the release but by the 
 original joint conveyance, yet, as to the grantee of the rent, he claims 
 under the release, and therefore his title is subordinate to the rent.(l) 
 
 68. Joint tenants may make a severance by voluntary partition. 
 But such partition must be by deed.(2) 
 
 69. At common law, one joint tenant could not compel another to 
 make partition. But by Statutes 31 Hen. VIII, c. 1, and 32 Hen. 
 VIII, c. 32, joint tenants are enabled to make partition of their estates 
 by means of compulsory legal process, called a writ of partition. And 
 by St. 8 and 9 Wm. Ill, c. 31, this process is much simplified. The 
 methods of obtaining partition in the United States, which are sub- 
 stantially the same in relation to joint tenants and tenants in common, 
 will be particularly considered hereafter. 
 
 CHAPTER LIV. 
 
 TENANCY IN COMMON. 
 
 1. Three forms of joint ownership in Eng- 
 
 land. 
 
 2. Co-parcenary; obsolete in the U. S. 
 
 5. Tenancy in common, what. 
 
 6. Joint tenancy favored in England, but 
 
 discountenanced in the U. S. ; statu- 
 tory provisions changing it into ten- 
 ancy in common. 
 
 15. Exceptions — husband and wife. 
 
 20. Joint mortgagees. 
 
 25. Trustees and executors. 
 
 26. Statutes apply to vested estates. 
 30. Legislative grants. 
 
 34. Estate in common subject to the same 
 rules with a several estate. 
 
 37. But a tenant cannot convey by metes 
 and bounds. 
 
 47. General rights and remedies of tenants 
 in common, 4o. 
 
 1. By the English law, as has been stated, (ch. 53,) there are three 
 modes in which several persons may own real estate together; viz: 
 joint tenancy, co-parcenary and tenancy in common. The first of these 
 has been already considered. 
 
 2. The second mode of joint ownership — co-parcenary — always arises 
 from descent. At common law, it took place when a man died seized 
 of an inheritance, and left no male issue, but two or more daughters, 
 or other female representatives. Co-parceners have distinct estates, 
 with aright to the possession in common, and each may alienate her 
 share. So one may release to another, with the same effect as in case 
 of joint tenancy.(3) 
 
 3. Co-parceners, like joint tenants, have a unity of title, interest and 
 possession. They" are also said to be seized per my etper tout. But 
 still there is no survivorship between them, and either may devise her 
 estate.(4)(a) 
 
 (1) Co. Lit. 185 a; 
 Eep. 78 b. 
 
 (2) 2 Cruise, 343. 
 
 Abergaveny's case, 6 
 
 (3) 4 Kent, 364. 
 
 (4) 4 Kent, 364. 
 
 (a) Parceners continue to hold hy descent, even after the co-parcenary is dissolved by par- 
 tition. Doe v. Dixon, 5 Ad. k Ell. 834. ' 
 
CHAP. LIT.] 
 
 TENANCY IN COMMON. 
 
 585 
 
 • ii^^v?"'?™^" ^^^ learning of partition, in respect to parceners, 
 IS called, by Lord Coke, a cunning learning^ and is replete with subtle 
 distinctions and antiquated erudition. But in the United States, as 
 lands descend to all the children equally, whether male or female, the 
 common law definition of co-parcenary has become inapplicable ; and 
 the Jinglish doctrines in relation to it are also of little importance, be- 
 cause the ownership of joint heirs is in some of the States expressly, 
 declared to be, and mail of them is in effect, a tenancy in common.(a) 
 Ihe technical distinction between co-parcenary and estates in common 
 may be considered as essentially extinguished in the United States.(l) 
 ihe only peculiar incident of the former is, that partition may be 
 niade among parceners by the probate courts, to which the settlement 
 of the estates of deceased persons appertains.(2) 
 
 5. Tenancy in common, by the English law, is where tAvo or more 
 persons hold lands and tenements by several titles, not by a joint title, 
 and occupy them in common. The only unity required between such 
 tenants is that of possession. It has already been seen, (ch. 53,) that a 
 tenancy, which would otherwise be a joint tenancy, for the want of 
 unity in interest, title or time, is held a tenancy in common. 
 
 6. The common law favored title by joint tenancy, by reason of 
 the right of survivorship. Its policy was averse to the division of 
 tenures, because it tended to multiply the feudal services, and weaken 
 the eflScacy of that connection. But it has been said, that the reason 
 of that policy had ceased with the abolition of tenures, and that even 
 the courts of law were no longer inclined to favor joint tenancy ; and 
 it has been seen, (ch. 53,) that survivorship is discountenanced by a 
 court of equity. In the United States, where feudal tenures are 
 unknown, upon the ground that tenancies in common are more 
 beneficial to the commonwealth and consonant to the genius of repub- 
 lics,(3) the old English doctrine upon this subject has been, not par- 
 tially qualified or subjected to occasional exceptions, but actually 
 reversed in nearly all the States. In England, where several persons 
 own land together, they are joint tenants, unless there is some special 
 reason for a different ownership ; but in the United States, in the 
 absence of such reason, they are tenants in common. Chancellor Kent 
 remarks,(4) that in this country the title by joint tenancy is very much 
 reduced in extent, and the incident of survivorship still more exten- 
 sively destroyed. (6) Inasmuch as survivorship is the only important, 
 practical incident, which distinguishes joint tenancy from tenancy in 
 common, it is a question of no great consequence, whether one or the 
 other of these forms is adopted in changing the old law.(c) 
 
 (1) 4 Kent, 364. 
 
 (2j 1 Swift, 104. See Drury v. Drury, 1 
 Eep. in Chy. 26; O'Bennon v. Roberts, 2 
 Daca, 54; N. H. Rev. St. 242. 
 
 (3) Shaw V. Hearsey, 5 Maaa. 522. 
 
 (4) 4 Kent, 361. 
 
 (a) It 13 recognized ly name in some of the States. Prince, 541 ; Ky. Rev. L. 560. In 
 Maryland, the children of parents who die intestate, seized in fee of lands, &o., take as co- . 
 parceners, and are so treated by the act of 1820, c. 191, sec. 5. Hoffar v. Dement, 5 Gill, 
 132. 
 
 (b) In the Plymouth Colony, in 1643, it was enacted by the general court, that survivor- 
 ship should not apply to joint tenants. 4 Kent, 362, n. 
 
 (c) It seems, a limitation may be such as to constitute tenants in common, with benefit of 
 survivorship. Doe v. Abey, 1 M. & S. 428. In South Carolina, survivorship is not abolished, 
 
586 
 
 TBNANCT IN COMMON. 
 
 [CHAP. LIY. 
 
 7. In Indiana,(l) joint tenancies are changed into tenancies in com- 
 mon. In South Carolina,(2) the death of one joint tenant operates as 
 a severance, and his estate passes to his heirs, as in case of a tenancy 
 in common. 
 
 8. In tlie States of Maryland and New Jersey, an estate in joint 
 tenancy can be created only by an express declaration that the land is 
 to be owned in this way. 
 
 9. In New York, Delaware, Michigan, Arkansas, Illinois, Wisconsin 
 and Missouri, an exception is made from the same provision in regard 
 to executors and trustees. In Massachusetts, Vermont and Penn- 
 sylvania, trustees alone. In some of these States, the phraseology is, 
 that a joint tenancy shall not arise, unless it is declared that the par- 
 ties are to hold as joint tenants, " and not as tenants in common ;" but 
 probably no particular significancy is to be attached to this last 
 expression. 
 
 10. In Tennessee, Mississippi, Illinois and Alabama, survivorship 
 between joint tenants is expressly abolished by statute. In Connecti- 
 cut, the doctrine was exploded in an early decision, and the law has 
 never been since contradicted. 
 
 11. In Vermont, Massachusetts, (a) Maine, New Hampshire and 
 Ehode Island, (6) there must be express words, or an intention to that 
 effect, to create a joint tenancy ; and, in Vermont, the statute is de- 
 clared applicable to estates previously created, as well as those which 
 might arise subsequently. The same provision is made in AVisconsin. 
 12. In Massachusetts, Maine, Wisconsin, Indiana and Michigan, 
 another exception from the general provision is made in relation to 
 Tnortgages ; and in Massachusetts, Michigan and Vermont, convey- 
 ances to Azts&ancZ anc? wz^. While in Rhode Island, on the contrary, 
 conveyances to husband and wife are expressly declared not to con- 
 stitute an exception. (3)(c) 
 
 13. In North Oarolina,(4:) there is no survivorship between joint tenants, 
 except in the case of partners in business, and here only for the pur- 
 pose of settling the joint concern. After such settlement^ the survivor 
 pays over the balance due, to the representatives of the deceased part- 
 ner. 
 
 (1) Ind. R. L. 290 ; Eev. Sts. 201. 
 
 (2) 1 Brev. Dig. 435. 
 
 (3) Phelps V. Jepson, 1 Eoot, 48, A. D. 
 1769 ; 1 Swift, 104; 1 N. T. Rev. St. 727 ; 
 Md. L. 1822, &8 I IN. J. L. 556; Del. St. 
 1829, 167; Eev. Sts. 286; Mass. Eev. St. 
 406; lUin. Rev. L. 130, 474; Misso. St. 119; 
 
 Aik. Dig. 129; 1 Smith's St. 186-7; Verm. 
 L. 177; R. I. L. 208-9; Purd. 417; 4 Kent, 
 361 ; Mich. Rev. St. 258 ; Ark. Rev. St. 189 ; 
 Me. Eev. St. 372; Verm. Eev. St. 310; 
 Kinsley V. Abbott, 1 Appl. 430; Wise. Eev. 
 Sts., eh. 56, sec. 44; Ind. Eev. Sts. 201. 
 (4) 1 N. 0. Rev. St. 258. 
 
 but joint tenants may devise their estates. 4 Kent, 361 n. In Delaware, persons occupying 
 vacant land in mixed possession, prior to the act of 1843, become tenants in common under 
 that act. Tubbs v. Lynch, 4 Harring. 521. 
 
 (a) It shall "manifestly appear from the tenor of the instrument." Substantially the 
 same language in Maine and New Hampshire. 
 
 (6) Words "clearly and manifestly showing otherwise." 
 
 (c) A conveyance to husband and wife jointly, their heirs and assigns and the survivor of 
 them, his or her separate heirs, &c., gives them a joint estate while she lives, and upon her 
 death vests the fee in him. Lewis v. Baldwin, 11 Ohio, 352. In case of a mortgage to A 
 and B, if A dies, B is entitled to the mortgage and notes. If A has collected a part of the 
 money, and dies insolvent, B may collect the balance, aud retain enough for his own in- 
 demnity, as an equal owner. 1 Appl. 430. 
 
CHAP. LIV.] TENANCY IN COMMON. 537 
 
 1 •■^l".u° ^i^'gi^^a ^ncl Kentucky,(l) it is provided, that, of whatever 
 the estate may be, it shall not pass to survivors, but shall descend, 
 may be devised, and shall be subject to debts, charges, curtesy and 
 dower, and be considered to every other intent and purpose in the 
 same manner as if it had been a tenancy in common.(a) 
 
 lo. From this recapitulation of the statutory provisions in the seve- 
 ral btates, It appears that, in some of them, joint tenancy has been un- 
 qualifaedly abolished, while in others it is still retained in certain enu- 
 merated cases, for which it is peculiarly adapted; as in case of husband 
 and wife, of executors and trustees, and of mortgagees. Massachusetts 
 Wisconsin and Michigan, are the only States in which conveyances to 
 husband and wife are expressly excepted from the general provision of 
 the statute.(5) Ehode Island is the only one in which they are ex- 
 pressly included. But the prevailing rule of American law is, that the 
 case ot husband and wife is, by implication, not included in the general 
 provisions upon this subject. The reasons for making this exception, 
 equally applicable, it seems, in all the States, are thus stated by the 
 court in Virginia.(2) 
 
 16. Though a jointure might be destroyed by various acts, yet, at ' 
 the common law, there was no mode by which a partition might be 
 compelled. To remedy this inconvenience, the Statutes of 31 and 32 
 Henry VIII were passed. These speak of a?/ joint tenants ; but they 
 have never been supposed to reach the case of husband and wife. All 
 the books agree, not only that husband and wife cannot enforce parti- 
 tion, but that they cannot make it even by mutual consent. It is a 
 sok, and not a. joint tenancy. They have no moieties. ' Each holds the 
 entirety. Notwithstanding any act of the husband, the wife, upon his 
 death, takes the whole ; not by survivorship, which implies an accession 
 of something not owned before, but by virtue of the original limitation : 
 and, as if the land had been given to them during the lives of both,' 
 and, after the death of either, to the survivor alone. The expressions, 
 jointure, joint tenancy, &c., are indeed often applied to the ownership of 
 husband and wife ; but only because these words approach nearer to a 
 description of the estate than any others which could be used without 
 circumlocution. This doctrine is said to have been settled for ages.(3) 
 The law stood thus when the Virginia act was passed, being substan- 
 stially a copy of the English statutes; and this act must be supposed 
 to liave recognized the established principle in relation to husband and 
 wife. Hence, when it provides, that upon the death of joint tenants, 
 their share shall not accrue to the survivors ; the case of husband and 
 
 (1) 1 Tir. Rev. C. 31 ; 2 K7. Rev. L. 81G-1. I rington, 2 Hare, 64. Moora v. Moore, 12 
 
 (2) Thornton v. Thornton, 3 Rand. 183. B. Mon. 651. 
 See Rain's Outl. 170 ; "Warrington v. War- ' (3) 5 T. R. 652. 
 
 (a) But it has been held in Kentucky, that a conveyance to trustees, in pursuance of a 
 previous statute, and for the bouefit of a literary seminary, vesta the title in them, and 
 their successors, though not named. Churchill v. Grundy, 5 Dana, 99. 
 
 (b) In Ohio, a decision has been made to the same effect. 2 Ohio, 306. In case of a con- 
 veyance to husband and wife, he may bring a suit for the land alone. Jackson v Leek, 19i 
 Wend. 339. Conveyance to A B, and C D, and B his wife, and their heirs, as tenants in 
 common, not joint tenants. A B takes one moiety; D and E the other. Johnson v. 
 Hart, 6 Watts & S. 319. Land was conveyed to a husband and wife jointly, which was 
 owned by the wife equitably, and the legal title of which was in her guardian. Held, on 
 the death of the wife, the husband was not entitled to the land. Moore v. Moore, 12 B, 
 Hon. 661. 
 
588 TENANCY IN COMMON. [CHAP. LIT. 
 
 wife is not included in this clause, both because they are not joint 
 tenants, and because between them there is nothing which can accrue 
 from one to the other. Nor does the clause, " whether they be such as 
 might have been compelled to make partition or not," vary this con- 
 struction ; because this clause is satisfied by the case of joint tenancy 
 in personal property, or between a man and woman who afterwards 
 intermarry, of which there could be no partition by law ; and this ap- 
 plication is favored by the mention of executors, &c. So the clause 
 " of whatever kind the estate holden be," means merely to describe 
 the quantity of the estate, as in fee, for life, &o. ; not the quality, which 
 had been already sufSciently expressed by the words yom< tenants. The 
 words, " if partition be not made" .in the parties' lifetime, &c., imply 
 that the case is one, where partition might be made, which is not the 
 case as between husband and wife ; not on account of this particular 
 relation, but because each owns the whole estate. The statute intended 
 to prevent the right of the deceased, which might have been disposed 
 of in his life, from accruing to the survivor, and to devolve it upon the 
 representative of the former ; not to give a new right to his represen- 
 I tatives, which he never had. But a purchaser from the husband would 
 not hold as against the wife. A purchaser from a mere joint tenant 
 would hold against the survivor ; and, therefore, there was no necessity, 
 to provide for his protection. But if the act applies to husband and 
 wife, the heirs, &c., of the former are provided for, while a purchaser 
 from him is not. This construction would vest in husband and wife 
 new rights, and take away a vested right from the other ; and such 
 construction ought not to be given, when another may be, which will 
 only tend to preserve existing rights by repealing a rule of law, which, 
 if unrepealed, might give such rights, in one event, to another. 
 
 17. The same principle has been recognized in Kentucky, Massachu- 
 setts, Maryland and New York, upon substantially the same grounds.(l) 
 
 18. It has been said, that husband and wife holding lands by a con- 
 veyance to them must both join in a conveyance; that they are both 
 necessary to make one grantor ; and the deed of either without the 
 otheris merely void. (2) It is to be observed, however, in qualification 
 of this remark, that the husband, of course, has the same right in the 
 wife's interest, as husband, which he has in any other estate belonging 
 to her ; and may therefore convey or mortgage it for his own life (there 
 being children.) But the land cannot be taken upon an execution 
 against him.(3) 
 
 19. Conveyance to a husband for the joint benefit of himself and his 
 wife, but with no words limiting a trust for her separate use, though 
 expressly, excluding him from power to sell. Held, the land might be 
 taken by creditors of the husband for his life.(4) 
 
 19 a. Where a wife in her own right, and another person, whoso 
 interest was purchased by the husband in his own right, held the 
 equitable title to a tract of land, by warrant, survey and possession, 
 and a patent issued for the whole tract to the husband and wife ; 
 held, though under the patent the husband and wife each took, at law, 
 
 (1) Rosa 1). Garrison, 1 Dana, 35 ; Rogers 
 V. Grider, lb. 243 ; Shaw v. Hearsey, 5 Mass. 
 621; Craft t,. Wilcox, 1 Gill, 504; Jackson 
 V. Stevens, 16 John. 115-6. 
 
 (2) Doe V. Howland, 8 Cow. 283. 
 
 (3) Barber v. Harris, 15 Wend. 615; Jack- 
 son V. MeConnell, 19 Wend. 175. 
 
 (4) Stoeblert;. Knerr, 5 Watts, 181. 
 
CHAP. LIV.] TENANCY IN COMMON. 589 
 
 the entirety of the tract, with the chance of excluding by survivorship 
 the_ heirs of the other, yet the wife's equitable estate in an undivided 
 moiety was not defeated, but descended to her children at her death, 
 subject to her husband's life estate as tenant by the curtesy ; that it 
 was not competent for the husband, by any act of his, to divest the 
 equitable estate of his wife, and vest it in himself, either absolutely or 
 contingently ; that he held the legal title to the undivided moiety of 
 his wife in trust for her heirs; and that, he having sold the land to 
 lonafide purchasers without notice, equity would compensate the heirs 
 of the wife out of the estate of the husband.(l) 
 
 20. It has been seen, that the Revised Statutes in Massachusetts 
 except from the general provision in relation to joint tenancy the case 
 of a mortgage made to two or more persons. The former statute upon 
 this subject made no such exception ; but yet it was held to exist by 
 implication. Parsons, Ch. J., remarks, "as upon the death of either 
 mortgagee, the remedy to recover the debt would survive, we are of 
 opinion that it was the intent of the parties, that the mortgage should 
 comport with that remedy, and for this purpose that the mortgaged 
 estate should survive. Upon any other construction,, but one moiety ■ 
 of the mortgaged tenements would remain a collateral security for the 
 joint debt, which would be clearly repugnant to the intention of the 
 parties. "('2) In another case, Jackson, J., assigns as an additional 
 reason, that either of the mortgagees, by releasing the debt, would 
 release the mortgage, and destroy their joint title and estate in the 
 land. (3) 
 
 21. But after foreclosure, that which was originally a joint tenancy 
 becomes a tenancy in common. The land is then no longer a pledge, 
 but the title is vested absolutely in the mortgagee. The foreclosure 
 operates as a new purchase. The mortgage is no longer an incident to 
 the debt ; nor is it connected with it, any more than if the partners 
 had received payment of the debt and laid out the money in the pur- 
 chase of the land. The entry for condition broken gives them a new 
 and different estate.(4) 
 
 22. It has been doubted whether the same principle could be applied 
 where one of two joint mortgagees dies and the survivor forecloses; 
 for that would be to turn the estate from a trust into a use by the mere 
 act of foreclosure.(5) 
 
 2i. In the Circuit Court of the United States, it has been denied that 
 a mortgage given to several persons constitutes them joint tenants. 
 This decision was made under a statute of Ehode Island, which was 
 similar in its terms to that of Massachusetts. Judge Story remarks,(6) 
 "the doctrine (held by Chief Justice Parsons) that a conveyance in 
 mortgage to two persons, as tenants in common, becomes by the death 
 of either no security, except for a moiety, cannot, iu my judgment, be 
 maintained in point of law. No authority is cited for it, and it seems 
 to me irreconcileable with established principles. It cannot be deduced 
 from the fact, that the debt vests by survivorship in one party, while 
 the estate would pass to another. For, at the common law, upon the 
 death of the mortgagee, the estate in the land vests in the heir, while 
 
 (1) Norman v. Cunningham, 5 Gralt. 63. 
 
 (2) Appleton v. Boyd, 7 Ma.s. 131. 
 
 (3) Goodwin v. Richardson, 11 Mas. 472. 
 
 (4) Goodwin v. Richardson, 11 Mass. 469. 
 
 (5) 3 Mas. 386. 
 
 (6) Randall v. Phillips, 3 Mas. 384. 
 
590 TENANCY IN COMMON, [CHAP. LIT. 
 
 the debt vests in the administrator. Upon the like argument, it ought 
 to follow in such case, that by the death of the mortgagee the whole 
 security in the land should be gone; and yet it is well established, 
 that the heir takes the land by descent, subject to redemption, and that 
 the debt belongs to the administrator. So if a mortgage were made to 
 two persons expressly as tenants in common, as security for a joint 
 debt, by the common law they would hold in common ; and, upon the 
 death of either, his share would descend to his heir as tenant in com- 
 mon, and the survivor would hold the other moiety as tenant in com- 
 mon, at the same time that the debt would vest solely in him by sur- 
 vivorship for the purposes of the remedy. So if a sole mortgagee dies, 
 the land descends to his heirs as parceners, while the debt belongs to 
 the administrator. Hence it follows that the estate is still a security 
 for the debt, into whose ever hands it passes." Judge Story proceeds 
 to remark upon the fact, so strikingly opposed to the doctrine which 
 he controverts, and which we have already noticed (ch. 53,) that even 
 in England the implication in case of a mortgage to several persons is 
 in favor of a tenancy in common instead of a joint tenancy ; thereby 
 constituting an exception to the general rule, directly the reverse of 
 that established by the court in Massachusetts. 
 
 24. In the case of Randall v. PhiUips,{l) already referred to. Judge 
 Story remarks, that, in the eye of a court of equity, it would make no 
 difference, whether the legal estate survived to the surviving mortgagee 
 or not, because he would hold in trust for the representative of the 
 deceased. There seems no reason to doubt that this would be the case 
 at law as well as in equity. There is no pretence that the survivor 
 could retain the whole debt. And the very reason for holding to a sur- 
 vivorship in such case is, that the mortgage /oZ/ows the debt. 
 
 25. With regard to trustees and executors, although for peculiar 
 reasons they are excepted, in many of the States, from the general 
 statutory provisions ; yet, in the absence of any express exception, 
 none will be implied. Thus, it has been held in Kentucky, that sur- 
 vivorship is abolished, as well in regard to trust estates as others.(2) 
 
 26. The American statutes, changing joint tenancy into tenancy in 
 common, are almost universally made applicable by their terms to es- 
 tates previously created, as well as those to be created subsequently. 
 The objection has been raised, that in this particular such statutes are 
 unconstitutional, as affecting rights and interests already vested; but 
 it has always been overruled. It is said, the principle is correct, that 
 the legislature cannot impair the title to estates, without the consent of 
 the proprietors, unless for public objects, when an adequate considera- 
 tion shall be provided. But there can be no objection to the operation 
 of any legislative act retrospectively, which shall enlarge, or otherwise 
 make more valuable, the title to any estate; for the consent of the 
 holder may always be presumed to such acts. The new tenure is more 
 beneficial than the old one to all the tenants ; inasmuch as a certain 
 inheritance in a moiety is more valuable than an uncertain right of 
 succession to the whole. More especially is this principle to be ap- 
 plied, where both tenants have, by their acts, manifested an implied 
 
 (1) 3 Mas. 387. j (2) Saunders v. Morrison, 1 Mon. 54. See 
 
 JBeoedict v. Morse, 10 Met. 223. 
 
CHAP. LIT.] TENANCY IN COMMON. 591 
 
 assent to the operation of the statute ; as where each has brought a 
 separate writ of entry for his undivided moiety against a stranger.(l) 
 
 27. The same principle has been recognised in Pennsylvania. The 
 Court remark as follows: — The doctrine of survivorship was so little 
 known to people in general, and so abhorrent to their feelings when 
 known, that it was thought best to get rid of it at once. The courts 
 had been long struggling against it, but were unable, without a danger- 
 ous prostration of established principles, to go as far as they wished. 
 The aid of the legislature was therefore necessary. The operation of 
 the act is no invasion of vested rights. Who should be the survivor, 
 was in contingency ; and in the mean time either joint tenant might 
 have severed the estate by legal means without the other's consent. 
 The act of assembly did for them at once, and without expense, (that) 
 which ninety-nine in a hundred wished to be done. But it there were 
 any joint tenants who desired the chance of survivorship, they might 
 have it by an agreement for that purpose. By putting a limitation on 
 the plain words of the law, we should do an irreparable injury to many, 
 who, reading the words as they are written, have supposed a partitiyn 
 unnecessary, and therefore have died without effecting it. The act de- 
 prived no man of his propert}' ; but only placed the parties on an equal 
 and sure footing, leaving nothing to chance.(2) 
 
 28. Upon the same principle, where the demandants in a real ac- 
 tion Avere joint tenants when it was commenced, and afterwards, by 
 operation of law, became tenants in common ; held, this change of title 
 was no defence to the action. (3) 
 
 29. In the statutes of some States upon this subject, a proviso is in- 
 serted, that they shall not affect estates already vested by survivoi-ship. 
 This would seem to be a superfluous caution ; for the constitutional ob- 
 jection, already referred to, would undoubtedly prevent any such appli- 
 cation of the statutory provisions.(4:) 
 
 30. Independently of statutory provisions, it has been held in Mas- 
 sachusetts,(5) that a grant of land by the legislature to several persons 
 created a tenancy in common, and not a joint tenancy, though the 
 words used, if a private person were the grantor, would create the latter 
 estate. It is said, a grant by the legislature is a statute conveyance, and 
 the intent of the legislature in passing the resolution must govern. 
 Most of the public lands, which were alienated by the late province, 
 and also by the commonwealth, were passed by virtue of acts or reso- 
 lutions of the legislature. Generally, the lands were granted in large 
 parcels, to a great number of grantees, on condition of settlement, and 
 for the purpose of forming towns. These grants have invariably, from 
 the earliest settlement of the country, been held to create tenancies in 
 common. From long use, the practice has acquired the force of law ; 
 and a decision repugnant to it would produce infinite confusion, and 
 affect very manv titles to land in the state. More especially is this 
 construction to be given, where the legislative grant is made to certain 
 persons upon their petition, as to the heirs of one who had before his 
 death taken possession of the land. As heirs, they would not have 
 
 (1) Miller v. Miller, 16 Mass. 61; Holbrook 
 V. Fimiey, 4, 568; Annable v. Patch, 3 Pick. 
 363, 
 
 (2) Bombaugh v. Bombaugh, 11 Ser. & B. 
 192. 
 
 (3) Hills V. Doe, 6 N. H. 328. 
 
 (4) 11 Ser. & B. 193; 3 Pick. 363. 
 
 (5) Higbee v. Bice, 6 Mass. 350. 
 
592 TENANCY IN COMMON. [CHAP. LIV. 
 
 taken in joint tenancy, and it cannot be presunaed that the legislature 
 intended thej should so take as grantees. 
 
 81. So it has been held in New York, that where several patentees 
 pay equal shares of the purchase-money, and execute deeds among 
 themselves, which recite that they purchase as tenants in common; 
 such tenancy is created, although the patent is made to them jointly. 
 This case, however, was decided rather on the ground of a trust, than 
 upon that of a grant from the State. (1) 
 
 32. The same doctrine has been recognized in Vermont. In the 
 year 1781, the State granted a charter of a township to several persons, 
 reserving one-seventieth part for the use of a seminary or college. 
 The proprietors did not divide or assert their title to the lands, and 
 the whole were occupied and settled by other persons. A college 
 being afterwards instituted, the trustees were empowered to take pos- 
 session of the lands reserved, and they brought an action for them 
 against one who had for thirty-eight years adversely occupied. The 
 question arose, whether proprietors of lands, constituting towns, were 
 to be regarded as tenants in common. In answer to the objections, 
 that such proprietors may do many things by vote — as making a di- 
 vision of their lands into severalty, voting to settlers the lots on which 
 they live, in lieu of their drafts ; and authorizing a division by pilches ; 
 and may gain a title by the statute of limitations, and that their pos- 
 sessions are considered as several ; the court remark, that such pro-_ 
 prietors are strictly tenants in common, and, where they differ from 
 ordinary tenants in common, the difference has been created either by 
 statute or by a course of decisions in our courts of law. In the grants 
 or chaiters, certain civil and political corporate privileges are given to 
 those who inhabit the township, but not to the proprietors, who may 
 be wholly distinct from the former. Grants in this country have 
 always been construed to create tenancies in common, which in Eng- 
 land would make joint tenancies. Unless the proprietors take an 
 estate in common, it is difficult to define the nature of their interest.(2) 
 
 33. But it has been held in Kentucky, that where a grant by the 
 commonwealth was made to two persons, and one of them died before 
 a patent was issued, (previously to the statute abolishing survivorship,) 
 the survivor took the whole estate both in 1 iw and in equity. (3)(a) 
 
 34. The estate of a tenant in common is subject to the same disposi- 
 tions, incidents and charges as an estate owned in severalty. Thus, it 
 has already been seen, (see Dower,) that the widow of a tenant in com- 
 mon has dower, subject, however, to the qualification, that if partition 
 has been made after marriage, her claim shall be restricted to that por- 
 tion of the land which is allotted to the husband. (4) 
 
 (1) Cnylerw. Bradt, 2 Gaines Caa Err. 326. 
 
 (2) University, &c. v. Reyuolds, 3 Verm. 
 543. 
 
 (3) Overton v. Lncy, 6 .Mon. 15. 
 
 (4) Sutton V. RoKe, 3 Lev. 84; Co Lit. 34 
 b, 37 b. 
 
 (a) It lia.s bt-en lield, tliat persons joining in a disseizin are joint tenants. Hence if one 
 of tliera die seized, after peaceable possession for Ave years, no descent is cast, iind tlie dis- 
 seizee still retains his riijlit of entry. Putney v. Dresser, 2 Met. 583. 
 
 And, if one of the disseizors, in possession of land as tenants in common, abandon it, the 
 rightlul owner does not receive the benefit ot such abandonment, but, as against liim, the 
 other disseizor holds tlie vifliole. Allen v. Holton, 20 Pick. 458. 
 
 But in a later ease it is doubted whether, in Massachusetts, joint disseizors, entering with- 
 out title, or color of title, are joint tenants, or tenants in common. Fowler v Thayer, 4 
 Cuah. 111. 
 
CHAP. LIT,] TENANCY IN COMMON. 593 
 
 35. So an estate in comm'.m is subject to curtesy ; and the possession 
 of one tenant in common is regarded as so far thatof the other, that the 
 husband of the latter shall be tenant by the curtesy.(l) 
 
 36. An estate in common passes to heirs; and it has been seen, that 
 this is one principal point of distinction between this estate and a joint 
 tenancy. 
 
 37. It is to be observed, however, that the transmission of an estate 
 in common, to any party claiming under one of the tenants, passes 
 nothing more than the undivided interest of suGh tenant, and has no effect 
 to make a severance of the estate. Thus, the widow can claim for her 
 dower only an undivided third of her husband's interest. Upon the 
 same principle, a tenant in common may convey his estate to a third 
 person, and the latter will hold in connection with the remaining ten- 
 ant, merely taking the place in all respects of the grantor. But a ten- 
 ant in common cannot convey any distinct portion of the land by metes 
 and bounds.(f/) 
 
 38. Thus, where one of two joint tenants, after a parol partition 
 which was held void, conveyed a part of the land by metes and bounds 
 to a stranger; held, the entry of the latter gave him no seizin, but he 
 was a mere several occupant ; that he could not be considered as a dis- 
 seizor of the grantor, as he entered by his consent ; nor of the other 
 joint tenant, because one joint tenant cannot be disseized by a stranger 
 of any particular part, unless all are disseized. (2) 
 
 3y. In a subsequent case, Jackson, J., goes into a more minute exam- 
 ination of the law upon this .subject. It is a general principle, that one 
 joint tenant cannot prejudice his companion in estate, or as to any mat- 
 ter of inheritance or freehold ; although, as to the profits of the freehold, 
 as the leceipt of rent, &c., the acts of one may prejudice the other. 
 But a conveyance by metes and bounds by one tenant, would, in many 
 oases, tend to the prejudice and even to the destruction of the interest 
 of the otheV. The owner of a moiety of a farm thus circumstanced, in- 
 stead of one piece of land conveniently situated for cultivation, would, 
 on a partition, be compelled to take perhaps ten or twenty different par- 
 cels interspersed over the whole tract, and separated by the parts alloted 
 to the several grantees. Suppose that two men hold, jointly or in com- 
 mon, land in a town sufficient only for two house lots, and that one of 
 tht'm could convey to ten persons his share in as many different por- 
 tions of the land; the other original co-tenant would, on a partition, be 
 compelled to take ten different lots or parcels not adjoining to each other, 
 and each too small for any useful purpose, instead of one house lot, to 
 which he was originally entitled as against the grantor. The restraint 
 upon such conveyance by one co-tenant, and not the privilege of making 
 it, is to be considered as a necessary incident to the estate. Each ten- 
 ant was originally entitled to one 'moiety, for quantity and quality, to 
 
 (1^ Sterling v. Penlington, 14 Vin. Abr. 
 511.' 
 (2) Porter v. Hill, 9 Mass. 34 ; aoo. Smith 
 
 V. Benson, 9 Term. 138 ; Blossom v. Bright- 
 man, 21 Pick. 285 ; JeCfers v. Radcliff, ION. 
 H. 242. 
 
 (a) While with reo-ard to parties claiming an interest in the estate after the death of the 
 tenant joint' tenancy and tenancy in common are subject to totally diflereut rules, the prin- 
 ciples wliich regulate the transfer of them during his life, either by his own act or act of law, 
 are substantially the same, and therefore the lollowing remarks may be received aa alike ap-- 
 plicahle to both estates. 
 
 Vol. I. 38 
 
594 
 
 TENANCY IN COMMON. [CHAP. LIT. 
 
 be assigned to him in the modes pointed out by law ; and this right, on 
 the part of one, cannot be impaired by a separate act of the other. If 
 one co-tenant has the right to convey a part of the land, the others of 
 course have the same. Suppose then that three or more persons hold 
 in common a township of wild land, and that each, without regard to 
 the others, should divide the whole into such lots as he thought proper, 
 and sell his share in each lot to different purchasers. As the Imes of 
 the lots would- perhaps never coincide, a partition among the several 
 grantees would be very difficult and inconvenient; and, in case of a 
 large number of owners, perhaps impossible. While the right in ques- 
 tion may be thus injurious, the restraint upon it can rarely if ever be 
 so. Thus, if one of two co-tenants of forty acres wishes to sell ten, he 
 may convey one undivided fourth of the whole, and the grantee may 
 obtain partition by legal process. And this he must have done, if the 
 conveyance had been of a moiety of twenty acres taken out of the forty. 
 There is, therefore, no additional trouble or expense, and the only dif- 
 ference is, that the grantor is prevented from selecting any particular 
 part of the land, from which the grantee shall take his share ; which is 
 a right he could never claim himself, while he continued the owner of 
 the whole moiety. (1) 
 
 40. So, in a case decided in Connecticut,(2)Hosmer, Ch. J., remarks, 
 in regard to the objection, that upon partition the whole of that portion 
 of the land which is conveyed might be assigned to the co-tenant ; that 
 it is no answer to this objection, that the purchaser on partition might 
 have an equivalent share in other .portions of the land assigned to 
 him; for in these he has no interest, and a partition, being a mere dis- 
 tribution and not a conveyance, is founded on an antecedent estate, and 
 cannot communicate any new right. 
 
 41. Upon the same principle, the levy of an execution against one 
 tenant in common, &c., upon any designated portion of the land, is 
 void ; it being the general rule, that an execution can be extended upon 
 such property only as the debtor might legally convey. (3)(a) 
 
 42. The principle above stated, imposing a restraint upon one tenant 
 in common, &c., in regard to his power of alienation, is therefore ap- 
 plied not merely to a conveyance of a certain portion of the whole land 
 by metes and bounds, but also to a conveyance of his whole undivided 
 interest in a certain portion of the lands, designated by metes and 
 bounds. Thus, supposing A and B to be tenants in common of twenty 
 acres ; in the first place, A cannot convey to a stranger one of those 
 acres by metes and bounds, so as to bind the co-tenant ; and, in the 
 
 (1) Bartlettv. Harlow, 12 Mass. 349. Iwin v. Whiting, 13, 67; Webber v. Mallett, 
 
 (2) Mitchell V. Hazen, 4 Conn. 510. 4 Sliepl. 88 ; Slainlbrd v. FuUerton, 6, 229. 
 
 (3) Bartlett v. Harlow, 12 Mass. 348 ; Bald- I 
 
 '~ (a) But in Xew Hampshire, it is provided by statute, (Rev. St. 393,) that an execution may- 
 be levied, after appraisal, upon the undiTided interest of the debtor, he being a tenant, in com- 
 mon, or apart fhtreof. If indivisible, upon Ins undivided interest, or by such division as 
 the appraisers may think best. Similar provision in Maine. Rev. St. 384. See Thompson 
 V. Barber, 12 N. H. 563 ; Blevins v. Baker, 11 Ired. 201. 
 
 One tenant is not bound to assert his title, by objecting to an unlawful conveyance by his 
 co-tenant. U. S. Dig. «852. 
 
 So, notice of a conveyance by one tenant of a part of the lands in severalty, will not 
 prevent a party from purchasing the share of the other in the whole of the estate. Mere 
 notice of an invalid conveyance cannot make it good. lb. 
 
CHAP. LIT.] TENANCY IN COMMON. 595 
 
 second place, he cannot convey all his undivided interest in one acre, 
 designating it by metes and bounds, so as to bind his co-tenant. The 
 rule, as generally stated by the elementary writers, would seem liter- 
 ally applicable to the former alone of these cases. Thus Chancellor 
 Kent says,(l) "one joint tenant, &c., cannot convey a distinct portion of 
 the estate by metes and hounds," &c. But most of the decisions do not 
 fall within these terms ; for, instead of attempting to convey the whole 
 of any specific portion of the lands, the tenant conveys, or his creditors 
 take upon execution, only his undivided interest in a specific portion. 
 And the reasoning of the court seems to make no distinction between 
 the two cases. Thus, in Bartlett v. Harlow,{s. 39,) the execution was 
 levied upon an undivided interest in a specific portion of the land de- 
 signated by metes and bounds ; and the remarks of Judge Jackson, 
 already cited, have a particular application to these circumstances. So, 
 in Baldwiny. Whiting,{2) the execution was levied upon three undivided 
 fourth parts of a specific part of the land, owned by the debtor in common 
 with others. But although there would seem, at first sight, to be a 
 distinction between the two forms of alienation referred to, yet on 
 principle they rest on the same ground. The true meaning of the 
 general proposition, that one tenant in common, &c., cannot con- 
 vey by metes and bounds, is, not that he cannot convey his co-tenant's 
 share in a designated portion of the land, or, by his own single act, 
 without consent of the other part}', make severance or partition, for this 
 seems to be taken for granted; but that a conveyance of the whole 
 estate in a part of the land will not pass even his own share. Thus, in 
 Porter v. Hill, (s. 38,) Judge Sewall says, " one joint tenant cannot con- 
 vey a part of the land by metes and bounds to a stranger. If he could, 
 his grantee would become tenant in common of a particular part with the 
 other joint tenant, who, in making a legal partition, might, notwithstand- 
 ing, have the whole of the part thus conveyed, assigned as his pur- 
 party." Upon this principle, such grantee not only could not maintain a 
 real action for the whole land, but he could not bring a suit for partition, 
 claiming only a moiety ; and it is in the latter form that the point has 
 often been settled. In Mitchell v. Hazen, a case already cited, (s. 40,) 
 the conveyance purported to pass only an undivided interest. In a 
 later case,(3) in the same State, the deed purported to convey so much 
 land, generally, by metes and bounds, making no reference to any un- 
 divided interest; and the remark of the court, in di aiding the deed to 
 be void, that it was an attempt to make a partition of the property, would 
 seem directed against the claim that the whole title in the land conveyed 
 passed by the deed. So, in a case in Tennessee,(4) where the same 
 point was decided, the deed purported to convey the whole of a certam 
 part of the land by metes and bounds. On the whole, it may be laid 
 down as the true construction of the general proposition referred to, 
 that the objection does not stand upon the form of a conveyance, pur- 
 porting to pass the whole land ; but equally precludes the tenant from 
 conveying his own undivided interest in a part of the land, by a deed 
 which purports to convey nothing more. . ^ , . 
 
 43 It is to be observed, that an alienation of the- interest ot one 
 joint'tenant, &c., either by deed or by legal process, is not for all pur- 
 
 /,■, , p aoa I (3) Griswold v. Johnson, 5 Conn. 363. 
 
 S ts Mars.- 5? I (4 Jewett .. Stockton, 3 Yerg. 492. 
 
596 
 
 TEISTANCT IN COMMON. 
 
 [CHAP. LIV. 
 
 poses void; but will operate against him and all claiming under him 
 hy estoppel, whether he had notice or not, and can be avoided only by 
 the co-tenant who is injured, or those claiming under him. The as- 
 signees of the hitter have in this respect all the rights of their assignor. 
 By the assignment, all his interest passes to them, without any entry 
 upon the land. With regard to one claiming under the tenant whose 
 share is alienated, if he also derive a regular title from the co-tenant, 
 perhaps he might be allowed to waive his claim under the former, and 
 avoid the alienation by setting up his title under the latter.(l) 
 
 4-i. It has been held in Ohio, by a majority of the court, that a ten- 
 ant in common might lawfully convey a part of his undivided estate 
 by metes and bounds, but it was admitted that the point was attended 
 with considerable difficulty, for the reasons above referred to. Judge 
 Burnet dissented. (2) 
 
 45. In Massachusetts, by the Eevised Statutes, where the whole in- 
 terest of a tenant in common is more than sufficient to satisfy an execu- 
 tion against him, it shall be levied upon an undivided portion of that 
 interest, sufficient, according to appraisement, to satisfy the execution. (3) 
 
 46. Although a tenant in common cannot alienate absolutely his 
 share in a part of the land, yet it has been held, that, where such ten- 
 ant has been allowed to improve separately a certain portion of the 
 land, he might fea.se this portion to a stranger, and the latter maintain 
 an action for any disturbance by the other tenants.(4)(a) 
 
 47. At common law, one joint tenant in common had no remedy 
 against another for the rents ot the estate, except by charging him, under 
 an express contract, as a bailiff or receiver. Statute 4 and 5 Anne, c. 
 16, gave an action of account in such case. This statute is re-enacted 
 in New York, and Chancellor Kent presumes that it has been intro- 
 duced in substance into the general law of this country. (5) Similar 
 acts have been passed in Virginia, New Jersey, Mississippi, Vermont 
 and Ehode Island. (6) 
 
 48. In Connecticut,(7) the action of account is provided between joint 
 tenants, &c. ; except in oases where two or more are sued by one, when 
 a bill in equity must be brought. 
 
 49. In Massachusetts,(8) the action of account is abolished. But a 
 
 (1) Varnum v. Abhot, 12 Mass. 474 ; Bald- 
 win V. Wliiting, 13, 57. U. S. Dig. 1852, 14 ; 
 Howe V. Blanden, 21 Verm, 315. 
 
 (2) Lessee v. Sayre, 2 Oliio, 110; aec. 
 Prentiss, &c., 7 Oliio, 129. The general rule 
 is adopted in Tennessee; 3 Terg. 492: but 
 seems not to be in Maryland; Reinicker «. 
 Smith, 2 Har. & J. 421. " It has been held 
 that a deed by one tenant of a certain number 
 of acres in common, wliich is less thai; his 
 whole share, is not void lor uncertainty. U. 
 S. Di'j-. 1852. The levy ofan execution upon 
 an undivided portion of a farm, such part be- 
 ing specified by metes and bounds, the whole 
 of which farm was holden by the debtor as 
 tenant in common, will, it seems, be valid, 
 until the other co-len5nt has obtained parti- 
 
 tion, and ousted the creditor from the partao 
 levied upon ; and therefore an action cannot 
 l)e maintained to recover the amount of the 
 judgment satisfied by the levy, until the cred- 
 itor has been ousted of some part of the 
 land. Godwit) v. Gregg, 28 Maine, 1,8. 
 
 (3) Mass. Rev. St. 464. 
 
 (4) Keay v. Goodwin, 16 Mass. 1. 
 
 (5) 4 Kent, 369 ; McKim V. Odom, 3 Bland, 
 411. 
 
 (6) 1 N. J. L. 156; Missi. Rev. C. 117; 
 Yerm. li. 142; R. I. L. 193; 1 Vir. E. C. 
 111. 
 
 (7) Com. St. 36. 
 
 (8) Mass. Rev. St. 500, 695; Brigham !). 
 Eveleth, 9 Mass. 538; 9 Pick. 34. See Mo- 
 Murray V. Rawson, 3 Hill, 59. 
 
 (a) But one tenant cannot legally authorize a third person to cut timber, for the consider- 
 ation of the stumpage. Baker v. Whiting, 3 Sumn. 476. 
 
CHAP. LIV.] TENANCY IN COMMON. 597 
 
 bill in equity lies in all cases. So assumpsit, on a promise by one 
 tenant to another to pay the latter his share of rent received from a 
 tenant. So also an action of indebitalus assumpsit lies by one joint ten- 
 ant, &c., against another, who has actually received more than his share 
 of the protits.(a) But unless he has thus received an undue proportion, 
 he is not liable to an action merely upon the ground of sole occupaiicy, 
 where the co-tenant has made no claim to possession ; for if he were, 
 as each tenant is seized per my et per tout, he would be liable in the 
 same way, by reason of occupying any particular part of the land, 
 which would be unreasonable and absurd.(l)(6) 
 
 50. It is said, that if there be two tenants in common of a dove-house, 
 
 (1) Sargent v. Parsons, 12 Mass. 149; 1 McKinney, 6 W. & Serg. 18. 
 Briiismaid v. Mayo, 9 Term. 31 ; Gillis v. \ 
 
 (o) So in New York, 1 Rev. St. 150. Otherwise in Tennessee, 2 Yerg. 384. In Dela- 
 ware, one tenant may bring an action for use and occupation against another. Rev. St. 286. 
 A tenant in common who agrees with the wife of his co-tenant, that the co-tenant shall have 
 the sole occupation of the land, and pay him a certain sum therefor ; cannot maintain an action 
 for such occupation, if he does not prove that the co-tenant had actual knowledge of such 
 agreement, orthat he authorized his wife to make it. Wilbur v. Wilbur, 13 Met. 494. 
 
 (6) Profits received by one tenant give the other an equitable lien upon the land. The 
 claim \s personal on both sides, to be paid from the personal estate of the former, and to the 
 personal representative of the latter, not to his heir, devisee or grantee. 4 Paige, 336. 
 
 It seems, one tenant is liable to another, for his share of the expense of necessary repairs, 
 made by the latter. Gibbons, 101. See Sohrenen v. Joyner, 1 Hill, Cha. 260; infra, sec. 
 70. But where A, owning a chamber, repairs the roof of the house, he cannot claim con- 
 tribution from B, the owner of the cellar, becau.se, in view of the law, they own distinct 
 dwellings. Loring y. Bacon, 4 Mass. 575. See Cheeshorough v. Green, 10 (.'onn. 318. It 
 has been held, that one tenant in common without express agreement cannot charge another 
 on account of buildings or improvements placed upon the land by him. Ihurston v. Dick- 
 inson, 2 Rich. Eq 317 ; Taylor v. Baldwin, 10 Barn. 682. See infra, sec. 71. But also, 
 that one tenant is not liable for such part of the rent which the premises would produce, 
 as arises from such improvements. Thompson v. Bostick, 1 McMul. 75; Hancock v. Day, 
 lb. 69, 298 ; Holt v. Robertson, lb. 475. 
 
 So where one tenant expends money in improvements, although such expenditures do 
 not strictly constitute a lien, yet a court of equity, in making partition, will first direct an 
 account and suitable compensation, or assign to such tenant or his grantee the portion on 
 which the improvements iiave been made. Green v. Putnam, 1 Barb. 500 ; ace. Peyton v. 
 Smith, 2 Dev. & B. 349. It is not necessary for him to show an assent to his making them, 
 by his eo-tenants, or a promise by them to contribute towards the expenses, Or a request on 
 them to join in making them, and a refusal. lb. 
 
 Where there were two tenants in common, and a third person obtained a deed, covering 
 the share of one, supposing he was acquiring a good title thereto, entered into possession of 
 the entire premises and made improvements, and subsequently the other tenant brought 
 ejectment against him for his share, and recovered; held, he was entitled to recover against 
 the plaintiff in ejectment, the amount which the share of the land thus recovered h ad been 
 improved by the betterments upon the entire tract. Strong v. Hunt, 20 Term. 614. 
 
 In South Carolina, if one tenant in common buy in an outstanding title, he may claim 
 contribution, on the ground, that in equify it enures to the benefit of both, and he cannot 
 claim it for himself alone. Field v. Pelot, 1 McMul. 370. 
 
 A and B were tenants in common of an estate, for which B had paid his share of the 
 purchase-money, and which they divided by partition. A died, and his heirs agreed that 
 his widow should retain possession of A's part, which B afterwards leased from her. The 
 former owner brought ejectment against B, for A's part of the purchase-money, which B 
 paid. Held, he could hold the land as .security for repayment of the purchase-monej', but 
 for no other debt, against the heirs of A. Leitch v. Little, 2 Harris, 250. One tenant in 
 common may redeem land sold for taxes. Watkins v. Eaton, 30 Maine, 529. 
 
 After redemption and a release to him from the purchaser, a tender made by his co-tenant 
 to the purchaser of his own proportion of the tax and expenses, though made within the 
 time allowed by law for redeeming, is of no effect. lb. 
 
 If one tenant redeem land sold for taxes, bis co-tenant cannot maintain a writ of entry 
 against him for his share of the land, without a previous tender of his share of the amount 
 for which the laud was sold. lb. 
 
598 
 
 TENANCY IN COMMON. 
 
 [CHAP. LIT. 
 
 and the one destroy the old doves, whereby the flight is wholly lost, 
 the other may have an action of trespass against him. So, if one of 
 two tenants in common of a park destroy all the deer. So where there 
 are tenants in common of a mill and privilege, one may maintain tres- 
 pass against another for the destruction of the mill. So where A and 
 B own a mill, and B another, below, and B builds a dam whereby the 
 water is made to flow back upon the former mill ; A may bring an 
 action against B.(l) 
 
 51. In Maine, one tenant in common may have trespass against 
 another who prevents him from entering or occupying the land. (2) In 
 the same State, if one tenant commit waste, without forty days' notice 
 to the other, he is liable to treble damages in trespass. In Massachu- 
 setts and Michigan, there shall be thirty days' notice. The same pen- 
 alty, for waste committed pending a process for partition. In North 
 Carolina, one tenant may have an action on the case for waste against 
 another, but not trespass, either against him or one claiming under him. 
 In New Hampshire, one tenant may bring assumpsit for trees or other 
 property injured by the other, or for keeping him out of possession. 
 
 52. It is said, if there be two tenants in common of a dwelling-house, 
 and they severally furnish and occupy different apartments, one co- 
 tenant has no right to disturb the other's occupation by removing his 
 furniture ; and trespass would clearly lie for such removal. (3) 
 
 53. In Illinois a statute provides, that for assuming and exercising 
 exclusive ownership, taking away or destroying the common property, 
 lessening its value, injuring or abusing it ; one tenant in common, &c., 
 may have trespass or trover against another.(4:)(a) 
 
 54. It was held in an ancient case, that if there be two tenants in 
 common of a wood, and the one leases his part to the other for years, 
 if the lessee cuts down trees and does waste, he will be punished for a 
 moiety of the waste, and the lessor may recover a moiety of the place 
 wasted. (5) 
 
 55. But this doctrine seems to have been overruled in a subsequent 
 case,(6) in which it was held, that such lessee cannot be regarded as 
 standing in a less favorable light than he would have done if no lease 
 had been rnade ; that if one tenant in common misuse the common 
 property, he is liable as for a misfeasance, but some injury must be 
 done to the inheritance, as bj' cutting trees which are unfit to be felled. 
 Otherwise he does nothing more than take the fair profits of the estate. 
 In this case, the trees were proper to be cut, and, upon this ground, it 
 was distinguished by counsel from the case in Moore, above referred to. 
 
 56. In many of the States, a remedy has been given by statute for 
 
 (1) Co. Lit. 200 a; Maddox v. Goddard, 3 
 Shepl. 218; Odiorne v. Lyford, 9 N. H. 536. 
 
 (2) Maine L. 1837, 442. 
 
 (3) Keay i;. Good win, 16 Mass. 3 ; 1 Smith's 
 St. 137-8 ; Mass. Key. St. 630 ; Anders v. 
 Mereditii, 4 Dev. & B. 199. See Causee v. 
 
 Anders, lb. 246; Micli. Rey. St. 497; N. H. 
 Bev. St. 358; Hubbard v. Hubbard, 3 Sliepl. 
 198; Moody «. Moody, lb. 205. 
 
 (4) lUin. Rev. L. 474. 
 
 (5) 2 Cruise, 356; Moo. 71, pi. 194. 
 
 (6) Martin v. Knowllys, 8 T. R. 145. 
 
 (a) Tn Vermont, one tenant in common cannot maintain trespass against another, unless 
 actually expelled, or hindered from occupying. Booth v. Adams, 11 Verm. 156 So in 
 Pennsylvania, where a tenant in common of land is actually ousted by a co-tenant, he may 
 maintain trespass quare clausum. McGill v. Ash, 7 Barr, 397. It is no defence, to admit 
 the right of the plaintiff, and offer to account. lb. 
 
CHAP. LIV.] TENANCY IN COMMON. 599 
 
 one tenant in common against another, who commits waste upon the 
 common property. (a) 
 
 57. In New Jersej,(l) when several sold lands held together, and none 
 knows his or their several part, one may have a writ of waste against ano- 
 ther ; and when the suit comes to j udgment, the defendan t shall be required 
 to take a certain part of the land to be assigned by the sheriff' and jury, 
 or give security that he will take nothing more from the land thijn the 
 other tenants take. If the defendant elect to take his part in a certain 
 place, an assignment shall be made to him in the place wasted, making 
 no allowance for the waste done ; but if he does not thus elect, or if 
 the amount of waste exceed the value of his proportion of the land, 
 the plaintiff shall recover damages. 
 
 58. In Ebode Island, (2) a tenant in common, &c., who commits 
 waste, forfeits double the amount of the waste committed. (6) 
 
 69. The general rule is, that the possession of one joint tenant, &c., 
 is that of the others also,(c) that is, the possession of one is not adverse 
 
 (1) 1 N. J. L. 209. I (2) R. I. L. 199. 
 
 (a) As to the reme'ly in Massacliuaetts and Maine, see pp. 585-6. It also exists in New 
 York, — 2 Rev. St. 334 ; and Delaware, — Rev. Sts. 293. In Kentucky, it seems to be limited 
 to parceners. 1 Ky. R. t. 562. So in Ohio, — St. 1831, 258. Waste may be prevented by 
 an injunction in equity. Twort v. Twort, 16 Ves. 128. If the property is destroyed by the 
 neglijrence of one tenant, he is responsible to the others. Chelsey v. Thompson, 3 N. H. 9. 
 See Durham, &o. v. Wawn, 3 Beav. 119,- Maden v. Veevers, 5. 503. Although, in special 
 cases, one tenant in common may, on the application of the other, be enjoined from com- 
 mitting waste; the jurisdiction is sparingly exercised. Obert v. Obert, 1 Halst. Ch. 397. 
 
 A tenant of land may maintain assumpsit against a co-tenant, under the statute of New 
 Hampshire, passed July 5, 1834, (entitled " An act relating to co-partners, co-parceners," 
 Ac.,) for his proportion of damages caused by cutting, although the plaintiff has alienated 
 his interest in the land after the cutting, but before the action was commenced. Blake v. 
 Miliken, 14 N. H. 213. 
 
 Nor is it necessary that all the co-tenants at tlie time of the injury should join in the ac- 
 tion ; but eaoli co-tenant may have his several action. lb. 
 
 But it seems that they may join. lb. 
 
 It seems, that it is not necessary in such an action to prove an actual title in the defendant. 
 His entry, claiming title, is sufficient evidence to make a prima facie case against him. lb. 
 
 Nor, it seems, could the fact that the plaintiff's grantors, before conveying to him, eut 
 more than their proportion of timber, in any way affect his right to maintain the ac- 
 tion, lb. 
 
 On a bill for partition, by a tenant in common, owning a twentieth part of a farm of 200 
 acres, an injunction was granted against the tenant in common, in possession, restraining 
 him from cutting timber. The answer of the defendant showed, that he was the owner of 
 eight-twentieths, that he had made improvements to the amount of $2,000, and that he only 
 intended to cut the wood and timber from two acres near the barn, which he had commenced 
 doing when the injunction was served ; and he denied all intention to commit waste. The 
 injunction was dissolved. Obert v. Obert, 1 Halst. Ch. 397. 
 
 (h) As to injuries by tenants in common, and the liability of one for another. See Simp- 
 son V. Seavey, 8 Greenl. 138. 
 
 (c) The giving up by a disseizor, to one tenant in common, of all his share in the land, 
 reinstates all in their title. Vaughan v. Bacon, 3 Shepl 455. So, an entry by one, upon 
 part of the land to which they have a title, will give a seizin in the whole, to all the tenants, 
 according to their respective interests. Thomas v. Hatch, 3 Sumn. 170. See Gil man v. 
 Stetson, '6 Shepl 428; Creswell v. Alteraus, 7 Watts, 565 ; Watson v. Gregg, 10, 296; 
 Hart V.' Gregg, lb. 189. So, the possession of one oo-paroener being that of all, none in pos- 
 session of the' whole can defend, under the statute of limitations, against the rest, with- 
 out an actual disseizin or ouster. Purcell v. Wilson, 4 Gratt. 16. 
 
 Thouf'h a great lapse of time, with other circumstances, may warrant the presumption oi 
 Buch disseizin, it is matter of evidence for the jury, not of law for the court, upon a special 
 
 Ferdict. lb. ,..,., 
 
 So, one tenant in common cannot, by the purchase of an outstanding title or incumbrance 
 
600 
 
 TBNANCT IN COMMON. 
 
 [CHAP. LIT. 
 
 to the title of the others, but amicable and in support of the rights of 
 all. But still one tenant may by special acts disseize another, and by 
 length of possession gain an adverse title. 
 
 60. Where one tenant in common received all the rents for twenty- 
 six years, it was held, that this was a mere failure to account, and not 
 an ouster or expulsion, which could be effected only by an actual dis- 
 seizin^(2) 
 
 6i. But where one tenant in common had sole and undisturbed pos- 
 session for thirty-six years, without any account, or any claim or de- 
 mand by the other, or any one claiming under him, Lord Mansfield 
 left it to the jury to say, whether there was not sufficient evidence to 
 presume an actual ouster, and they found a verdict for the defendant, 
 which was sustained by the court. Lord Mansfield remarked, that 
 the terms actiml force did not imply real force, or a turning out by the 
 shoulders. A man may come in rightfully, and hold over adversely, 
 and such holding over is equivalent to actual ouster. The possession 
 of one tenant in common, eo nomine, as tenant in common, can never 
 bar his companion, because it is not adverse, but in support of their 
 common title ; and, by paying him his share, he acknowledges him to 
 be co-tenant. Nor is a refusal to pay suflBcient, without denying his 
 title ; but if, upon demand of payment, the tenant in possession deny 
 the other's title and claim the whole, the subsequent possession is ad- 
 verse.(3) A demand of possession, in order to furnish evidence of 
 
 (2) Fairclaim v. Shackletou, 5 Burr. 2604 ; 
 Clymer ti. Dawkins, 3 How. 674; Dexter v. 
 Arnold, 3 Sumn. 152 ; liarpending v. Dutch, 
 &e. 16 Pet. 455 ; Taylor v. Cox, 2 B. Monr. 
 435; Liscomb v. Root, 8 Pick. 376; Buck- 
 master V. Needham, 22 Verm. 617 ; Whitting- 
 lon V. Wright, 9 Geo. 23 ; Anders v. Anders, 
 9 Ired. 214. 
 
 (3) Doe V. Prosger, Cowp. 217 ; Gauss v. 
 Wiley, 4 S. & R. 567 ; Terrill v. Murry, 4 
 Terg. 104 ; Rickard v. Riekard, 13 Pick. 251 ; 
 Allen V. Hall. 1 McC. 131 ; Galbreath v. Gal- 
 
 breath, 5 Watts, 146 ; Mehaffy v. Dobbs, 9 
 Watts, 863 ; Law V. Patterson, 1 W. & S. 191 ; 
 Reading v. Royaton, 2 Salk, 422 ; Snales v. 
 Dale, Hob. 120; Davenport v. Tyrrell, 1 Bl. 
 R. 675 ; Doe v. Hulse, 3 B. & C. 757 ; 
 Leonard];. Leonard, 10 Mass. 231, Boyd i). 
 Graves. 4 Wheat. 513 ; Drane v. Gregory, 3 
 B. Monr. 622 ; Mason «. Finoli, 1 Scam. 497 ; 
 Colbura i). Mason, 25 Maine, 434 ; Edwards 
 V. Bishop, 4 Comst. 61 ; 2 N. Y. Rev. Sts. 
 307. 
 
 acquire title to the whole, against his co-tenant, but such purchase will operate to the bene- 
 fit of both, and the purchaser may claim contribution. Jones v. Stanton, 11 Mis. 433. 
 
 So, an heir cannot, in an action by his co-heir, prove that the ancestor had no title. 
 Corwin v. Corwin, 9 Barb. 219. 
 
 But a purchase by one tenant in common, of a title to the land, does not enure to the benefit of 
 the other, where it was bought in before the tenancy began. Scieed v. Athercon, 6 Dana, 
 278. A purchaser, from one of several co-tenants, of part of a tract of land, without refer- 
 ence to the title of the others, does not necessarily become a tenant in common, so as to 
 prevent him from perfecting his title by adverse possession, under the statute of limitations; 
 it being only necessary, in order to constitute adverse possession, that the land should be 
 held as one's own. Gray v. Bates, 3 Strobh. 498. 
 
 Where two or more persons have a joint interest in property, they are under mutual obli- 
 gation not to injure one another ; but, where one party denies a joint interest, and is in pos- 
 se.ssion under color of title in fee in himself, he can quiet his title by producing an adverse 
 claim of title, without abandoning his own, even from one who claims to be a joint tenant 
 with the purchaser. Burhams v. "Van Zandt, 7 Barb. 91. 
 
 Where two tenants in common owned certain lands, subject to a mortgage, and, after long 
 litigation, the joint interest was sold to a stranger, and one of the tenants purchased the 
 existing mortgage at a great discount; held, he could hold it exclusively, and enforce it to 
 the full amount. Wells v. Chapman, 4 Sandf Oh. 312. 
 
 It is said, tenants in common do not stand in a relation to each other so analogous to 
 that of landlord and tenant, as to come under the principle of estoppel. Washington v. Con- 
 rad, 2 Humph. 562. See Weeks v. Weeks, 5 Ired. Equ. 111. 
 
CHAP. LIV.] TENANCY IN COMMON. 601 
 
 ouster, must be a demaud only of the party's share, not the whole 
 land.(l) ■' ' 
 
 62. It has been held in England, that where one tenant in comrnou 
 levied a fine of the whole estate, aud took the rents and profits after- 
 wards without account for nearly five years, this was no evidence upon 
 which the jury should find an ouster at the time of the fine, against the 
 justice of the case, and iu aid of yross fraud ; that the fine was no 
 ouster, but the court might consider it as rightfully and legally made, 
 and intended to operate only on the party's own share of the estate.(2) 
 
 63. But It has been decided in New York, that where one tenant in 
 common undertakes to convey the whole land, the grantee shall not 
 be understood to enter as a tenant in common, but the statute of limi- 
 tations will run iu his favor against the co-tenants.(a) By the Eevised 
 Statutes, without an actual ouster or total denial of right, ejectment 
 cannot be maintained.(S) 
 
 61. With regard to suits brought by tenants in common against 
 strangers for recovery of the land, the common law rule is, that, hav- 
 ing several titles, they must bring separate actions. But, iu "Vermont, 
 Connecticut and Virginia, 'they may sue jointly. In Kentucky, one 
 joint tenant or tenant in common may sue for his share or the whole.(4) 
 
 (1) Meredith v. Andres, 1 Ired. 5. 
 
 (2) Peaceable v. Reed, 1 E. 568. 
 
 (3) Clap v. Bromagham, 9 Cow. 551 ; Brad- 
 street V. Huntington, 5 Pet, 444; Bigelow v. 
 Jonea, 10 Pick. 161; Butler V. Plielps, 17 
 Wend. 642; Gillet v. Stanley, I Hill, 121 ; 
 Sharp V. Ingraham, 4, 116; 2 N. Y. Eev. St. 
 306-7. 
 
 (4) JlcCreary v. Ross, 7 "Watts, 483 ; Hicks 
 
 V. Rogers, 4 Granoh, 1 65 : Verm. L. 96 ; 1 
 Swift, 103 ; Tir. L. 1823, 27 ; May u. Parker, 
 12 Pick. 38 ; Watson v. Hill, 1 M'Cord, 161 ; 
 McFadden v. Haley, 2 Bay, 457 ; King v. 
 Bullock, 9 Dana, 41; Chesround v. Cunning- 
 ham, 3 BlackE 85. See Starnes v. Quin, 6 
 Geo. 84; Lane v. Dobyns, U Miss. 105; 
 Craig V. Taylor, 6 B. Mon. 457. 
 
 (a) So in Massachusetts, a conveyance by one tenant in common of the whole land in fee, 
 vrith covenants of seizin and warranty, followed by the entry and exclusive possession of 
 the grantee, is a disseizin of the other. Kittredge v. Locks, &c., 17 Pick. 246; Parker v. 
 Propra. &o 3 Met. 91. See Ross v. Durham, 4 Dev. & B. 54; Thomas v. Hatch, 3 Sumn. 170. 
 
 The owner of an undivided part of a parcel of laud gave a deed of the whole lot, the 
 grantee entered, and afterwards a creditor of the grantee levied upon the whole, and entered 
 under the levy, claiming to be sole owner. Held, the co-tenant of tlie' grantor was disseized. 
 Bigelow V, Jones, 10 Pick. 161. Upon the same principle, if a third person enter on the 
 land, claiming against one tenant in common, and exclude him; this is a disseizin of all. 
 Price V. Lyon, 14 Conn. 279. 
 
 By Stat. 3 and 4 Wm. IV, ch. 27, sec. 12, if a tenant in common is in possession of more 
 than his share for his own benefit, or tliat of any one but the other tenant, such possession 
 shall not be taken to be that of the other tenant. 1 Steph. 312, n. See Doe v. Horrock.s, 
 1 Carr. & K. 566. A, one of tenants in common, conveys the whole land to B, with war- 
 ranty. B enters, claiming the wliole. C, the other tenant, requests him to relinquish one- 
 half, but he refuses so to do, saying, he will sooner stand a law-suit. This is an ouster of 
 C, who may maintain a suit for the land against B. Marcy v. Marcy, 6 Met, 360. 
 
 Where one of two joint tenants overflows the lands of the joint estate so as to appropriate 
 them, it amounts to an ouster. Jones v. Weathersbee, 4 Strobh. 50. 
 
 A mortgage of the whole estate by one tenant in common, is not conclusive evidence of 
 an ouster of liis co-tenants. Wilson v. CoUishaw, 1 Harr. 276. 
 
 If the tenant, on being notified by the demandant of his claim to be owner of one-fourth 
 part thereof, merely admits that he is in possession of the demanded premises, and adds, 
 "It is hard to pay twice ;" this is not evidence of an ouster or disseizin. Colburn v. Mason, 
 25 Maine, 434. 
 
 A and B were tenants in common of land. C obtained possession of the land, claiming 
 under B; but A knew nothing of his title, and ejected C by process of forcible entry and 
 detainer. Held, that this was not an ouster of B by his co-tenant A. Meredith v. Andres, 
 7 Ired. 5. 
 
 A sale by one tenant, and a receipt^f the price by him of the whole tract, does not render 
 him trustee of his co-tenant for his share of the purchase-money. The legal title to his land 
 remains iu him, and his remedy is at law. Milton v. Hogue, 4 Ired. Eq. 415. 
 
602 TENANCY IN COMMON. [CHAP. LIT. 
 
 65. In Rhode Island, Maine and Massachusetts, all the tenants or 
 any two may join, or any one sue alone. In Connecticut, if the plain- 
 tiff grounds on the title of all the tenants, he recovers for their benefit, 
 and his possession will be theirs. If two join and one is non-suited, 
 the other may recover the whole. In New York, all need not join, 
 except when ejectment is brought as a substitute for a writ of right.(_l) 
 
 66. In Missouri,(2) it is held that tenants in common cannot join in 
 ejectment. 
 
 67. In Tenaessee,(3) it is the uniform practice for tenants in common 
 to declare in ejectment on a joint demise, and recover a pai't or the 
 whole of the land according to the evidence. If they join in suit and 
 one is barred by the statute of limitations, this is no bar to the rest.(a) 
 
 68. It has been already stated, that joint grantees of public lands 
 hold as tenants in common. The question has been raised, whether, 
 on account of their peculiar title, such grantees can, like other tenants 
 in common, bring ejectment. 
 
 69. Although not distinctly decided, it is said that it may be assumed, 
 that ejectment may be brought by one proprietor of lands granted by 
 the State, when the others have actually taken possession and divided 
 to themselves all the lands included in the limits of the grant ; though 
 this action would lie, only where the proprietors refuse to divide accord- 
 ing to law, and after demand. But there is more difficulty in the ap- 
 plication of these principles and extending this remedy to those who 
 are directed, as agents or trustees, to take charge of the rights of land 
 which are usually denominated public rights. The nature of their inter- 
 est does not permit that it be enjoyed in common with other proprie- 
 tors. In regard to them, it is only the use which is appropriated, and 
 not the freehold. Statutes provide that such trustees may lease the 
 lands. But it would be of little avail to them, to take possession of a 
 fractional part of every lot or tenement in a town ; and it would be 
 impossible to lease them to any profit or advantage. Moreover, if such 
 trustees are to be regarded as tenants in common, inasmuch as one of 
 
 (1) R. I. L. 208 ; 1 Swift, 103 ; Mass. Rev. 
 St. 611; Me. Rev. St. 569-70; Term. Rev. 
 St. 216 ; Kellogg v. Kellogg, 6 Barb. 116. 
 
 (2) Wathen v. English, 1 Misso. 746. 
 
 (3) Barrow v. Nave, 2 Yerg. 228. 
 
 (a) Tenants in common may join in an appeal concerning a road, but parties having differ- 
 ent interests must prosecute separate appeals. County, &o. v. Brown, 13 Illin. 207. 
 
 Where two tenants in common recovered land in ejectment against a third ; held, they 
 ■were also entitled to their joint action for mesne profitH. Camp v. Horaesley, 11 Tred. 211. 
 
 In an action of trespass quare dausum, for brealfing, entering upon, and cutting and carry- 
 ing away trees from land owned by tenants in common, each tenant is entitled to his several 
 action ; and it cannot be defeated by a subsequent payment to his co-tenants for the wood 
 thus taken and carried away. Longfellow v. Quimby, 29 Maine, 196. 
 
 The general rule is, that tenants in common must join, in an action to recover damages 
 for an injury to the common property; but, where there is no joint injury, and the tenants 
 in common are not jointly interested in the damages, the remedy may be by a several action. 
 Lothrop V. Arnold, 25 Maine, 136. 
 
 But if the action is several, when it should have been joint, and there is no plea in abate- 
 ment, the objection cannot be taken by a plea upon the merits. lb. 
 
 One tenant may give a release, which will bind the other, of tlieir claim for a trespass. 
 Bradley v. Boynton, 9 Shepl. 287. Recovery in ejectment against one tenant in common 
 alone, does not justify dispossession ot the others. Breeding v. Taylor, 6 B. Mon. 62. 
 
 Premises owned in common, by defendants in exeeution, may be sold thereon, in a body, 
 unless some one claiming to be part owner require that the same be sold separately. Neil- 
 sou V. Neilson, 5 Barb. 565. 
 
CHAP. LIV.] 
 
 TENANCY IN COMMON, ETC.— PAETITION. 
 
 603 
 
 such tenants, in Vermont, in a suit by himself alone, may recover the 
 Whole Jand ; and as public lands are excepted from the statute of limi- 
 tations ; It would follow, that although the other tenants were barred 
 by the statute, the trustees might still recover the whole land, in part 
 tor the benefit of the others, and not merely their own share. Upon 
 these grounds, no action of ejectment can be maintained by such trus- 
 tees, until a division or allotment is made. But when there is no actual 
 location, ejectment will lie to recover the public ]ands.(l) 
 
 70. One joint tenant, &c., can compel the others to unite in the 
 expense of necessary repairs to a house or mill ; but not of repairs 
 made upon other things— as, for instance, a fence. The writ de repara- 
 tione faciei ida lay at common law in such cases, by one tenant against 
 others. To sustain the action, there must be a request and refusal to 
 join, and the expenditures must have been previously made.(2) 
 
 71. If one tenant make or authorize new erections, though with the 
 knowledge of the other, he cannot claim to hold them exclusively, till 
 reimbursed.(3)(a) 
 
 72. It has been held in Kentucky, that where a suit is brought to 
 recover land from several tenants, and only one of them permanently 
 resists it, and finally prevails ; he has a lien against the rest for costs 
 and expenses.(-±) 
 
 CHAPTER LY, 
 
 TENANCY IN COMMON, ETC.— PARTITION. 
 
 1. Methods of partition; partition in equity. 
 
 2. Statutes of ttie several States concerning. 
 
 3. In the New England States. 
 9. New York. 
 
 10. Pennsylvania. 
 
 11. New Jersey, Alabama and Mississippi. 
 
 12. Maryland. 
 
 13. Delaware. 
 
 14. Tennessee. 
 
 15. Illinois. 
 
 16. Indiana. 
 
 17. Missouri. 
 
 18. Kentucliy. 
 
 19. Ohio. 
 
 20. Virginia. 
 
 21. North Carolina. 
 
 22. South Carolina. 
 
 23. Georgia. 
 
 1. Some remarks have already been made, in regard to the sever- 
 ance of a joint tenancy, &c., by the acts of the parties themselves. 
 Partition may also be obtained by application to the legislature, or 
 by legal process.(6) It is to be presumed that the old English statutes 
 
 (1) University, &o. v. Reynolds, 3 Term. 
 554-5-6, 
 
 (2) 4 Kent, 369-'70 ; 9 Pick. 31. See 
 supra, sec. 49, n. 
 
 (3) Crest v. Jack, 3 "Watts, 238. 
 
 (4) Shepherd v. Mclntire, 5 Dana, 5T6. 
 
 (a) There is a peculiar provision in Virginia, that joint tenants, &c., may give a single 
 joint vote where the whole estate entitles to a vote, but a share does not. Vir. St. 1830, 
 16, n. 
 
 (i) It is said, tenants in common have an absolute right in law to have their estate 
 divided. Ledbetter v. Gash, 8 Ired. 462, Partition will not be granted, upon the applica- 
 tion of parties who own the whole land. Swett v. Bussey, T Mass. 503. (Otherwise in 
 Delaware. See sec. 136.) 
 
604 TENANCY IN COMMON, ETC.— PARTITION. [CHAP. LY. 
 
 already referred to, (ch. 53, sec. 69,) providing a writ of partition, 
 have been generally re-enacted or adopted in this country. In 
 practice, however, these remedies are, to a great extent, superseded, 
 by the more summary and convenient methods of petition to the 
 courts of common law, of Chancery, or of probate. The jurisdiction 
 of Chancery upon the subject is well established by a long series of 
 decisions. But equity does not generally interfere, unless the title be 
 clear, and never where the title is denied or suspicious, until oppor- 
 tunity has been had to try the title at law.(l)(a) 
 
 2. The statutory provisions of the several States, in regard to parti- 
 tion, are very precise and numerous. With a general similaritj^, there 
 are still points of difference among them, which require a distinct sum- 
 mary view of the law, in each State. It will be seen that iu Kentucky, 
 and in the three States of Alabama, Mississippi and New Jersey, there 
 are respective peculiarities deserving of special notice. The methods 
 of partition among co-parceners or heirs, which, however, have very 
 little to distinguish them from that between other joint owners, will 
 be more particularly referred to under the title of Descent. 
 
 3. In Massaohusetts,(2) joint tenants, &c., may have partition by 
 
 (1) 4 Kent, 364 ; 1 N. J. L. 89 ; Homey | 5 Eng. L. & Eq. 81 ; Bowra v. Wright, 3 lb. 
 V. Goings, 13 Illln. 95 ; Hanbury v. Hussey, 190. 
 
 I (2) Mass. Rev. St. 618-20; St. 1842, 222. 
 
 (a) By St. 3 and 4 Wm. IT, ch. 27, the writ of partition is abolished, and the only remedy 
 is a bill in equity. In Wisconsin, (Rev. Sts. 510,) partition may be obtained in all oases by 
 bill in equity. But a remainder-man cannot file such bill. 
 
 Court.s of equity have jurisdiction to award partition of estates, whether corporeal or in- 
 corporeal. Bailey v. Sisson, 1 Rhode Island, 233. 
 
 A decree for partition cannot be made, unless all the persons interested are made parties, 
 Burhans v. Burhans, 2 Barb. Ch. 398. 
 
 A decree for partition, by a court of equity, assigning the portions of the distributees, 
 amounts to no more than an ordinary conveyance. Anderson v. Hughes, 5 Strobh. 74. 
 
 In South Carolina, interests in real or personal property may be severed by the Court of 
 Equity, and the share of each owner ascertained and set off, where the subject matter is not 
 susceptible of division. The justice or practicabihty of any mode of partition, is a matter 
 for the commissioners; and if, in their judgment, no division can be made without manifest 
 injustice, they may recommend a sale, and the court will judge of the propriety of confirm- 
 ing such return. Sleedman v. Weeks, 2 Strobh. Eq. 145. 
 
 Partition of standing timber will be ordered, without regard to the character of the estate 
 of either party, or the difficulty of executing the commission. lb. 
 
 A court of equity is not restricted to a piirtition or sale of the whole lands; but, when it is 
 necessary to prevent prejudice, and can be done without prejudice, may allot their respect- 
 ive shares of land to some, and direct a sale of the residue. Haywood v. Judson, 4 Barb. 
 228. 
 
 So, if one tenant has transferred his interest; in the mode of division, regard will be had 
 to the equities of the purchasers. Story v. Johnson, 2 Y. & Coll. 586. A way over one por- 
 tion of the land may be assigned to the party taking another portion. Lister v. Lister, 3 
 lb. 540. 
 
 On a bill for partition, a court of chancery will not determine conflicting titles ; nor, in 
 an action of ejectment, is a partition by decree conclusive upon the rights of the parties. 
 Whillook V. Hale, 10 Humph. 64. 
 
 In general, where the defendant is in possession, claiming adversely to the plaintiff, par- 
 tition will not be granted in equity ; but, where the question arises upon an equitable title 
 set up by either party, the rule does not apply. Hosford v. Merwin, 5 Barb. 51 ; Burhans 
 V. Burhans, 2 Barb. Ch 398. 
 
 But it has been held, that a bill in Chancery lies for partition, notwithstanding an adverse 
 possession, unless it has been continued long enough to bar a recovery under the statute of 
 limitations. Howey v. Goings, 13 111. 95 ; Overton v. Woolfolk, 6 Dana, 374. 
 
 The defence, to a bill for partition, that the premises are held adversely to the complain- 
 ant, may be made specially by plea or answer; but that is not necessary, where the fact is 
 distinctly stated in the bill. Burhans v. Burhans, 2 Barb. Ch, 398. 
 
CHAP. LV.] TENANCY IN COMMON, ETC.— PARTITION. 605 
 
 writ or by petition.(a) The shares of the petitioners shall be set off, 
 aud the residue of the land remain UDdivided.(6) A remainder-man or 
 reversioner cannot have partition ;(1) nor any tenant for years, of 
 whose term less than twenty years is unexpired, as against a tenant of 
 the freehold. But all tenants for vears may have partition between 
 themselves; which, however, shall not bind the landlords or rever- 
 sioners, when the terms end.(c) The petition sets forth the titles of 
 all persons interested, and who will be bound by the partition, whether 
 having a freehold or term, a present or future, a vested or contingent 
 estate. A reversioner, &c., after a life estate or term, is a partv in- 
 
 (1) See Hodgkinson, 12 Pick. 374 ; "Wain- 
 wright V. Dorr, 13, 333 ; Liscomb v. Root, S, 
 376. A mortsasee may, though the mort- 
 gagor or his co-tenant remain in possession ; 
 their possession beina; his. Rich v. Loud, 18 
 Pick. 322. By St. 1853, 993, past and luture 
 partitions are made valid, notwithstanding 
 the existence of leases of the estate. So, 
 
 although one tenant is trustee, attorney or 
 guardian of anotlicr. A joint tenant, &c., 
 tliough disseized, may maintain a petition for 
 partition, if he has a present right of entry. 
 Marshall v. Creliore, 13 Met. 462. See Bon- 
 ner d. Prop'rs, &e., 7 Mass. 475; Barnard v. 
 Pope, 14, 434 ; Fislier v. Dewerson, 3 Met. 
 544. 
 
 The l.ill, in such a case, should be dismissed as prematurely filed, witliout prejudice to 
 the right to institute a new suit, after a recovery in ejectment or otherwise. lb. 
 
 Upon a bill for partition, the rents and profits accruing while the land was lield adversely 
 are not recoverable, being more properly recoverable as mesne proHts, in au ejectment for 
 the complainant's undivided share. lb. 
 
 One liolding a life estate in one-fifth of certain land, terminable by marriage, may have 
 partition. Hobson v. Sherwood, 4 Beav, 184. 
 
 The ri^'ht of a tenant in common, to partition of a legal estate, is as absolute in a court of 
 equity as in a court of law. The courts have concurrent jurisdiction, as to an actual parti- 
 tion, and must adjudicate on tlie same principles. Dounell v. Mateer, 7 Ired. liq. 94; Hag- 
 gin V. Haggin, 2 B. Mon. 318. 
 
 Iq case of a petition at law, for an actual partition, if the defendant wishes to avail him- 
 self of an equitable defence, as, for instance, a claim under a contract for purchase, he must 
 obtain an injunction to stay proceedings at law, until the cause can be heard in equity. lb. 
 
 If the application be to a court of equity, it is not sufScient for the defendant to rely upon 
 his equitable grounds of defence in his answer. He must file a cross-bill, for which the 
 court will allow him a reasonable time. But his failure to do so will not prevent him from 
 filing a separate bill for relief, as the partition affects the legal title only, and the share 
 assigned in severalty could still be reached. lb. 
 
 A complainant in a bill in equity claimed half of an estate by inheritance from his fither, 
 and the other half by inheritance Irora his brother, and alleged th^t the will of his iirother 
 was void fur fraud, &o., but, in case the will should be adjudged valid, then he still claimed 
 one-half of the estate, and insisted that he was entitled to a partition; and the prayer of the 
 bill was, that the will might be declared void, or that a partition might be had. Held, the 
 bill did not make a case for partition, and therefore was not multifarious. Brady v. MeOos- 
 ker, 1 Comst. 214. 
 
 On a bill for partition, the defendants' supposed title to a part of the land having failed, 
 they cannot be released from a proportionate part of the purchase-money, due to the ad- 
 ministrator of th3 party whose heirs are plaintiffs, upon a mere reference to the matter in 
 their answer, without filing a cross-bill. Glick v. Gregg, 19 Ohio, 57. 
 
 (a) As to the degree of certainty required in the description of the land, see Miller v. Mil- 
 ler, 16 rick. 215. "petition lor partition of three parcels of land. The petitioner was proved 
 to be seized in common of only two of them, and the respondent to be sole seized of the 
 third. Held, the petitioner could not amend by striking out tlie third parcel, but the 
 respon ierjt should have his costs, and partition was ordered of the other two. Loud v. Peu- 
 niman, 19 Pick. 539. But where a petitioner alleged a seizin in fee, and, upon the facts agreed, 
 it appeared that his interest was only for life ; the petition was amended so as to conform 
 to the opinion of the court, and judgment for partition awarded accordingly. Fay v. Pay, 1 
 Cush. 93. 
 
 (6) This may be done in equity, on application of the respondents. Hobson v. Sherwood, 
 4 Beav. 184. 
 
 (c) Where the same person owns in fee one undivided part, and holds a mortgage of the 
 remainder, of a lot of land ; the mortgagor is not entitled to partition. Bradley v. Puller, 
 23 Pick. l'. So mortgagees before foreclosure cannot have partition. Ewer v. Hobbs, 5 
 Met. 1. 
 
g06 TENANCY IN COMMON, ETC.— PARTITION. [CHAP. LT. 
 
 terested, and enlJitled to notice.(a) Unknown parties who are interested 
 shall be notified by public advertisement.(6) Where one not named 
 in the petition appears and defends, the petitioner may deny his title. 
 If the petitioner shows himself entitled to partition, an interlocutory 
 judgment is rendered accordingly, and commissioners are appointed to 
 make partition. If there are several petitioners, their shares may be 
 set off together or separately at their election. If a division cannot be 
 made without damage to the owners, a disproportionate share may be 
 assigned to any one who will accept it, on his paying or securing a 
 sum requisite to equalize the value ; or the exclusive possession may 
 be assigned to the parties alternately for certain specified times, accord- 
 ing to their respective interests.(c) In the latter case, the occupant for 
 the time being shall be liable to the other owners for any injury to 
 the land, like a lessee without express covenants. For any injury by 
 a stranger, the occupant may recover damages like a lessee ; and he 
 and the other tenants may recover jointly for any further damage 
 for which lessors might sue. The final judgment, confirming and 
 establishing the partition, shall be conclusive as to all rights, both of 
 property and possession, of all parties and privies to the judgment,(l) 
 including all who might have appeared and answered, excepting, how- 
 ever, any joint owner absent from the State, who is allowed three years 
 to obtain a new partition. One claiming the land in severalty is not 
 bound by a judgment of partition, not having appeared as a respond- 
 ent. If one, who has not appeared and answered, claim the share 
 assigned to or left for any of the supposed part owners, he shall be 
 bound by the judgment, so far as it respects the partition and assign- 
 ment of the shares, as if he had been a party ; but may still bring a 
 suit for the share which he claims, as a specific 'portion of the land, 
 against the party to whom it was assigned or left. Where two or 
 more persons appear as respondents, claiming the same share of the 
 land, their relative title may be left undecided, except so far as to de- 
 termine which of them may defend, and may be settled in a subse- 
 quent suit between them. A judgment in the partition suit, that 
 either of the opposing respondents is not entitled to a share, shall be 
 binding upon him, so far as it respects the partition and assignment of 
 shares ; but he may still maintain a subsequent suit against the other 
 claimant. If any person, who has not appeared and answered, claims 
 a share of the land, he shall be bound by the judgment, so far as the 
 partition is concerned ; but he may still sue each of the other tenants 
 for his share, each being liable for a proportion thereof.(rf) Where a 
 
 (1) See see. 36. 
 
 (a) So an attaching creditor of one tenant. And a partition naade without notice to him, 
 is, as to iiira, void, and he may levy his execution as upon an estate in common. Mason v. 
 Lulce, 19 Pick. 39, "Where a railroad passes over the land, the corporation need not be 
 made parties. Weston v. Foster, 1 Met. 297. 
 
 (6) One may appear, and object the want of legal notice to others, and partition will not 
 be ordered against him. Asliley T. Brightman, 21 Pick. 258. 
 
 (c) See Codman v. Tiakham, 15 Pick. 364. 
 
 (d) It is said, a petition for partition, though founded on statute, is in the nature of a real 
 action. The question is one of legal title, not mere equitable interests. But a judgment 
 therein is no bar to a writ of right. Blancliard v. Brooks, 12 Pick. 56. See Mallett v. Ban- 
 croft, 1 Story, 4H ; Colton v. Smith, 11 Pick. 311. 
 
 Judgment binds the right o( possession, not property. Pierce v. Oliver, 13 Mass. 211. 
 
CHAP. LV.] TENANCY IN COMMOlJ, ETC.— PARTITION, 607 
 
 party dies before partition, and a share is still assigned or left him, his 
 heir or devisee may claim the original share, (undivided,) though 
 made a party to the petition. Eviction of any tenant, from the share 
 assiLined or left him, by paramount title, shall entitle him to a new 
 partition of the residue. Any person, having a lien upon the share of 
 a tenant, shall be bound by the partition, but retain his lien upon the 
 portion allotted to his debtor.(a) 
 
 4. In New Hampshire,(l) "any person interested with others" in 
 real estate, "where there is no dispute about the title," may obtain 
 partition by application to the judge of probate. If a division would 
 be injurious, the whole may be assigned to one of the petitioners, he 
 paying or giving bond for 'the amount of the shares of other parties. 
 Partition may also be made by the Superior Court. Notice is ordered, 
 and issues of fact are sent to the Court of Common Pleas. Partition 
 is made through a committee. No partition shall be avoided by a con- 
 veyance after entry of the petition, nor unless recorded ; nor by any 
 lien on the property. Such lien attaches to the portion set oft" to the 
 debtor. If set off to one not having a legal title, this portion belongs 
 to the legal owner. A reversioner after a life estate cannot have 
 partition. 
 
 5. In Ehode Island, (2) where persons own together in fee, or where 
 one has a particular estate, in connection with others holding a lee or 
 a freehold, a writ of partition lies. The court ascertain the rights of 
 the parties, and partition is made conformably. The proceeding shall 
 not affect any reversion or remainder. 
 
 (1) N. H. L. 344; Rev. St. 413-6. Brown , (2) R. I. L. 206. 
 V. Brown, 8 N. H. 93. See Freooli v. Eaton, 
 15 N. H. 337. I 
 
 A judgment is a bar to another petition for tlie same object, if the parties and the title 
 put in issue or necessarily decided are the same. But, where a former partition was only 
 of a part of the land held in common, and all the tenants were not parties; the judirment is 
 no bar to a petition for partition of the whole land, to which all the tenants are made par- 
 ties. Colton V. Smith, 11 Pick. 311. 
 
 Where a disseizor of one tenant has obtained partition, the tenant may either recover 
 possession of his undivided share, treating the partition as void ; or may aiBrm it, and re- 
 cover the part assigned to his disseizor. Brown v. Wood, 17 Mass, 68. 
 , (a) By Statute 1854, 12, joint tenants, Ac, of a mill privilege, water right, or other in- 
 corporeal hereditament may be compelled to make partition, either by bill in equity or the 
 statutory process. In the latter case, the commissioners shall state in their return the best 
 mode of partition, and the court may thereupon pass such orders and decrees in equity as 
 may he necessary to effect justice between tlie parties. 
 
 It had been previously held, that, where tenants in common hold a mill, dam and stream 
 as one entire tenement, one cannot have partition of the dam and water alone. Wilier v. 
 Miller, 13 Pick. 237. See Bailey v. Rust, 3 Shepl. 440 ; Whittemore v. Shaw, 8 N. H. 393. 
 
 By Statute 1850, 433, partition may take place, where remainders or interests are 
 limited to persons not in being at the time of application, upon notice to the parents or 
 parent. The court will apppoint a ntxt friend to act in the case in behalf of such persons. 
 
 By Statute 1850, 458, where the pleadings show that the respondent denies the plaintiffs 
 title to any part of the land, and claims it m fee, and he is proved to have held it under a 
 title which he believed to be good; he shall have compensation for improvements made by 
 him or those under whom he claims, if the plaintiff prevails, as in case of real actions, by 
 ch. 101 of the Revised Statutes; and also be liable, as provided in that chapter, for the 
 plaintitFs share of the rent, profits and damages. Ii; after these are deducted, anything re- 
 mains due to him for improvements, it shall be paid before judgment of partition ; and the 
 plaintiff shall not have any rents, &e., accruing after the verdict and before payment. 
 
 Before the passing of this statute, a respondent had no remedy for improvements. Mar- 
 shall V. Crehore, 13 Met. 462. 
 
608 
 
 TEJ7ASCT IN COMMbN, ETC.— PARTITION. [CHAP. LV. 
 
 6. In Connecticut,(l) the writ of partition is expressly provided. 
 Provision is also made, that the guardians of minors, with the aid of 
 persons appointed by the Probate Court, may make partition.(a) 
 
 7. In Vermont,(2) partition is made, upon petition, by commission- 
 ers. If the land cannot be conveniently divided, an assignment of the 
 whole may be ordered to one of the parties, he paying such sum and 
 in such manner as the court shall direct ; and in case of non-payment, 
 execution ma3r issue. If no party will accept the whole, the land shall 
 be sold. The sale shall bind the owners and all claiming under them. 
 The partition shall be valid, though one owner, without the knowledge 
 of the others, had previously conveyed his interest, or though he sell 
 it pending the petition, and though the grantee of one of the tenants, 
 whose conveyance was not recorded, was not made a party. , And a 
 partition in such case shall enure to the benefit of the legal owner. 
 Three years are allowed, to any party without the State and not notified, 
 to avoid the partition for good cause. The death of a party does not 
 abate the process. If the petitioner has no title, or a less one than he 
 claims, he is liable to cost«, but partition may still be made.(6) 
 
 8. In Maine,(3) a writ of partition is authorized, and also an applica- 
 tion for this purpose to the common law courts, who shall order parti- 
 tion by a committee. Any party aggrieved, if absent from the State, 
 and not notified, may, within three years, have a new partition upon 
 complaint. The whole may be assigned to one, if necessary.(c) 
 
 (1) Coim. St 293, 351. 
 
 (2) 1 Vera. L. 197-203; St. 1S51, 13; 
 Harriiiprton v. Barton, 11 Verm. 31; Verm. 
 
 Hev. St. 231-4. See Hawley v. Soper, 18 
 Verm. 320. 
 
 (3) 1 Smith's St. 145-50. See "Ware v. 
 Huiinewell, 1 Sliepl. 291. 
 
 (a) Partition is held to be matter of right, notwithstanding any difficulty and Inconve- 
 nience attending it in a particular case. Scovil v. Kennedy, 14 Conn. 349. It may be ob- 
 tained by a bill in Cliancery. Ih. St. 1839, 30. So, though different parcels of land are 
 held by different titles. St. 1839, 30. See St. 1840, 27-8. 
 
 (b) The proceeding is an adversary one, and can only be sustained between those who 
 could be suitors in respect to each other, in the common law courts. A husband and wife, 
 tenants in common, cannot constitute adverse parties. Howe v. Blanden, 21 Verm. 315. 
 
 A saw-mill, mill-yard, mill pond, and the utensils of the mill, are not subject to parti- 
 tion. Brown v. Turner, I Aik. 350. Actual possession is not necessary, if the petitioner is 
 not disseized. Hawley v. Soper, 18 Verm. 320. 
 
 (c) 'I'ho owner of an equity of redemption in possession, and one interested in the estate 
 and having a right of entry, though out of possession, may have a writ of partition. CmU v. 
 Barker, 3 Pairf. 320; Upham v, Bradley, 5, 422. By the Revised Statutes, any lien upon a 
 share attaches to the portion set off to the debtor. Partition does not bind one claiming the 
 whole propertv, who has not made answer. In case of eviction, it shall be made anew. 
 Rev. Sts. 541-8 ; Argyle v. Dwinel, 29 Maine, 29. But see Poxcroft v. Barnes, 29 Miiine, 
 128. Partition must bo predicated upon the average value, as well as quantity, of the land. 
 Field V. tlanscomb, 3 Sliepl. 365. And the return of the commissioners must shotv this 
 fact. Dyer V. Lowell, 30 Maine, 217. 
 
 The reluin of commissioners, tliat they have sufficiently notified parties interested, within 
 the State, is not conclusive evidence of sudi notice in regard to tlie time and place of parti- 
 tion. Tlie CDurt should ascertain whether such notice has been given, and the commis- 
 sioners should state what they have done; whether any and what persons were known to 
 them to be concerned and resident in the State; and what notice was given to each of them. 
 Hatliaway v. Persons, 4c,, 32 Maine, 136. 
 
 A review of the judgment and proceedings can be granted only upon the application of a 
 party to the former process, or one representing his interest. There is no provision in the 
 statutes, authorizing a person interested in the estate to be first admitted a party, after 
 partition has been ordered, and the proceedings finally closed. Elwell v. Sylvester, 14 
 Maine, 536. 
 
CHAP. LY.] 
 
 TENANCY IN COMMON, ETC.— PARTITION. 
 
 609 
 
 9. In New York,(l) any joint tenant, &c., may petition the court for 
 partition, or if necessary, a sale of the land.(a) Tlie petition shall de- 
 scribe the premises, set forth the rights of all persons, having either 
 present or future, vested or contingent interests therein, and be verified 
 by affidavit. Every person interested may be made a party.(&) If any 
 
 (1) 2 Rev. St. 611 ; ^ Kent, 365. See Cole 
 «. Hall, 2 Hill, 625; Handy v. Leavitt, 3 
 Edw. 229 ; Braker v. Devereaux, 8 Paige, 
 
 513; Van Orman v. Phelps, 9 Barb. 500; 
 Underbill v. Jackson, 1 Barb. Cli. 13; Horton 
 V. Buskirk, 1 Barb. 421. 
 
 Commissioners bave no autbority to assign to one tenant the right of hauling lumber 
 across the land assigned to another, and of driving lumber on the stream through such land, 
 and using the dam there ; nor to prescribe the mode of keeping the dam in repair. Dyer v. 
 Lowell, 30 Maine, 217. 
 
 Certiorari lies in behalf of a co-tenant, although not a party to the record. lb. 
 
 "Where a person owns an undivided portion of lands, which portion is severed, and set 
 out in severalty by legal proceedings, his title adheres to and follows the estate, and becomes 
 limited by it. Argyle v. Dwinel, 29 Maine, 29. 
 
 Tiie undivided interest of a town in land which has been reserved for public uses, may be 
 legally located, after the same has been sold. lb. 
 
 The subsequent incorporation of the town will operate as a sanction, on the part of the 
 State, of such location. lb. 
 
 There may be partition of a mill and mill-privilege. Hanson v. Willard, 3 Pairf 142. See 
 Sts. 1848, 49. 
 
 It is held, tliat the whole object of a petition for partition is, a partition among those who 
 have titles in common. Disseizors, unless their possession has been long enough to give 
 them a title, are not proper parties, and tlieir equitable rights are not affected by the pro- 
 ceedings; and an entry of appearance by them does not affect their claim to betterments, in 
 a writ of entry by one of the parties to the partition, the tenants proving tlieir possession and 
 improvement more than six years before filing the petition, Tilton v. Palmer, 31 Maine, 486. 
 
 Partition will not be granted of a part of the petitioner's land. Duncan i. Sylvester, 4 
 Shepl. 388. Two or more tenants may join in a petition, and have an assignment in com- 
 mon. XJpham V. Bradley, 5, 423. 
 
 (a) Tlie petitioner must have an estate entitling him to immediate possession. Brownell 
 V. Brownell, 19 Wend. 367. So in New Jersey. Stevens v. Enders, 1 Green, 271. And 
 this is the ancient English doctrine. 4 Kent, 364, n. An equitable estate is sufficient. 
 Hitchcock V. Skinner, 1 Hoffm. 21. One disseized cannot have partition. Clapp v. Bromag- 
 ham, 9 Cow. 530. 
 
 Where the owner of a life estate in the share of one of several tenants m common, assign- 
 ed his property for the benefit of creditors, held, the assignees were entitled to pMrtition, but 
 not to have the premises sold, it not being for the benefit ofthe other owners. Van Arsdale 
 V.Drake, 2 Barb. 599. , . , , . . ^, 
 
 A suit in equity for partition cannot be maintained by an infant, either alone or jointly 
 with tenants in common of full age. Postley v. Kain, 4 Sandf. Ch. 508, 
 
 A tenant by the curtesy initiate may file abill for partition. Riker v. Darke, 4 H-dw. Oh. 668. 
 
 A suit in partition cannot be maintained, unless the plaintifi' or petitioner is in possession. 
 O'Dougherty v. Aldrich, 5 Denio, 385. ,. . , j ., j 
 
 Where land is devised, subject to the performance of a condition subsequent, and the de- 
 visee enters, and suffers a breach of the condition, a party entitled to an undivided part of 
 the land, in consequence ofthe breach, astenant in common with the devisee, cannot main- 
 tain partition against the devisee, but must first establish his t|tle by ejectment lb 
 
 A purchased" from the commissioners of forfeitures in New York an undivided half of the 
 rent and reversion of a certain lot of land, which was under-leased to B. B, at the time of 
 the purchase or soon after, was in possession ofthe whole lot, claiming under the lease and 
 also claiming to own the other half of the rent and reversion. A brings a bill for partitiori 
 against B. Held, he could not claim partition during the conlmuance o the lease; that 
 when B, in po.sseasion as lessee, acquired the rent and reversion of half the land, the tenancy 
 as to thkt half was merged and the rent extinguished; and that, if the lease had for any 
 cause become forfeited, A must first recover his half of the land by entry or action, before he 
 could sustain this bill. Lan-sing v. Pine, 4 Paige, 639. 
 
 (6) A decree, in a suit for partition, brought by the committee of a drunkard and to which 
 he is not a party, will not transfer the legal title to his undivided slinre, set off to the defend- 
 ants in severalty ; therefore he should be made party. 
 
 Gorham v. Gorham, 3 Barb. Oh. 24. 
 
 Where a bill in equity was filed by such committee for partition, and also for an account 
 of rents and profits, without joining hira as a party complainant; held the omission was a 
 ground for a special demurrer, but so far as the bill sought an account, it was matter of 
 equity, and therefore, so considered not a ground of general demurrer. 
 
 Vol. I. 39 
 
QIQ TENANCY IN COMMON, ETC.— PARTITION. [CHAP. LY. 
 
 party or his interest is unknown, uncertain or contingent, or if the title 
 to the fee depends upon an executory devise, or the remainder is con- 
 tingent — these facts shall be stated. " Creditors having a lien need not 
 be made parties ; nor shall such lien be affected, except that it shall 
 attach only to such part of the land as is set off to the debtor, and be 
 subject to his share of the costs of partition. After notice of the peti- 
 tion, any party interested may appear as a respondent, and the pro- 
 ceedings shall be according to the usual course of a suit at law. A 
 final judgment or decree binds all parties named in the proceedings, 
 and having at the time any interest in the premises, as owners in fee 
 or for years, or as entitled to the reversion, remainder or inheritance 
 after the termination of any particular estate ; or as having a contingent 
 
 Under the act of 1813, infants interested in estates of wliich partition is sought, should be 
 notified of the suit, whereby the court acquires jurisdiction, of which it is not ousted, by ne- 
 glecting to appoint a guardian ad litem oHhe infants. If an infant appears in such a suit by- 
 attorney, and not by guardian, the proceedings are irregular and voidable, but not void. 
 Fowler v. Griffin, 3 Sandf. 385. 
 
 ■ The heirs of the ancestor, from whom the lands descended, and those who have succeeded 
 to their riglitu, are proper parties to a bill for partition ; and, where some of the heirs have 
 parted with their interest, their grantees, and not themselves, are proper parties. In case of 
 defect of parties to a bill under the code in New York, if the objection is taken in the an- 
 swer, the complainant should amend before trial, if the objection be true ; if he lies by till 
 the hearing, the court can allow him to amend in its discretion on payment of costs. Yan- 
 derwerker v. Yanderwerker, 1 Barb. 221. 
 
 Partition cannot be made of lands without the consent of all the tenants in common, while 
 a third person has an irrevocable power of attorney to sell the land for the benefit of all. 
 Selden v. Yermilya, 2 Sandf. 568. 
 
 Where lands are conveyed to a trustee, witli power to sell for the benefit of all the own- 
 ers, and which he is bound to do on the request of one of the owners, partition cannot be 
 decreed without the consent of all the parties in interest. lb. 
 
 In 1843, A, owing a large sum of money to B and C, secured by his bonds, to become 
 due at different times thereafter, conveyed land to trustees, in trust to manage the same, and 
 sell it as they might deem best, and to apply the income and proceeds to the payment of the 
 bonds as they should become due. In case of default, the trustees, on the request of eitiier 
 creditor, were to sell .so much of the land as would pay the amount due him; the land shares 
 to be sold first, and afterwards the land, and the surplus to be paid over to A. In 1846, A, 
 in consideration of a release by B and C of his personal liability on the bonds, released his 
 residuary interest to the trustees, and procured certain outstanding interests to be conveyed 
 to them. The agreement, then executed by all the parties, provided, that all the property 
 should be offered lor sale by the trustees, unless a division without sale should be agreed 
 upon without unnecessary delaj'. Should any of the parties not consent to a division, then 
 a sale was to be made under the trust deed of 1843, on the requisition of the other parties!, 
 for the payment of their bonds, which were due. A division was not agreed upon. Held, 
 even if^ by the transaction in 1846, the creditors became tenants in common of all the lands 
 conveyed in 1843, and tlie trust estate ceased, the power to sell, nevertheless, continued in 
 the trnstees ; that in such case the power conveyed to them by the instruments of 1846, 
 being by tlie owners of the land, was not a power in trust, but a simple power of atlorney, 
 to convey tlie land for the benefit of the owners and that such power was not revocable by 
 one of such owners without the consent of all, and the right to demand a sale' was hi each, 
 lb. 
 
 Held, also, that after the transactions of 1846, the lands were held under a valid express 
 trust to sell for the benefit of the creditors, and that the power extended to the liquidation of 
 all such bonds, and for their rateable benefit, without preference. lb. 
 
 In such case partition will not be decreed of the lands at the instance of one of the credi- 
 tors, lb. 
 
 In case of trust, where all the trustees are parties, if by the death of the surviving trus- 
 tee the trust has devolved on the court; the master who sells will be appointed a trustee, 
 for the purpose of passing a legal title. Cushraey v. Henry, 4 Paige, 345. Allowance shall 
 be made, in partition, for improvements. Hitchcock v. Skinner, 1 HofTm. 21. 
 
 Where tliere is a vested estate with contingent remainders over, in trust, to persons not 
 in esse, and all from whom such after comers can spring are before the court; partition may 
 be decreed. The limitations over are not affected by partition or sale. They are protected 
 and attach to the individual shares, which by the decree are preserved in trust according to 
 
CHAP. LT.] TENANCY IN COMMON, ETC.— PARTITION. 611 
 
 interest therein, or an interest in any undivided share of the premises, 
 as tenants for years, for life, by the curtesy, or in dovver.(rt) Also all 
 persons interested but unknown, to whom public notice has been given 
 as provided. But the judgment does not affect persons having claims 
 as tenants m dower, by the curtesy, or for life, in the whole of the 
 premises. Incase of partition by equity jurisdiction, if partition will 
 prejudice some of the parties, compensation shall be decreed from the 
 others. Whenever there is a denial of co-tenancy, an issue shall be 
 formed and tried by jury, and the respective rights of the parties ascer- 
 tained. The defendants may plead, that the petitioner or petitioners 
 were not in possession of the land. One defendant may deny the title 
 of another, and an issue shall be made to try it. New parties may be 
 admitted, who have become subsequently interested, or known to be 
 so. The court, having ascertained the respective rights of the parties 
 by default, plea or verdict, shall declare them, and decree partition 
 accordingly, with a reservation, however, of the rights of those tenants 
 whose interests have not been ascertained. Partition is made by com- 
 missioners.(6) The respective shares shall be designated by permanent 
 monuments. If the land cannot be properly divided, it may be sold 
 by order of court, on such credit as they may direct, the price to be 
 secured by bond and mortgage of the land.(c) Provision is made for 
 ascertaining incumbrances upon the land, and when they exist, if the 
 premises are sold, they shall be first satisfied from the proceeds ; and 
 in case of any dispute in relation to them, the court shall proceed to try 
 their validity. The court, in their discretion, may order that any life 
 interest in the land be sold, or otherwise. If sold, they shall direct a 
 sum in gross to be paid to the party, if he formally assent ; if not, an 
 investment shall be made for his benefit in certain designated amounts, 
 depending upon the nature of the interest. No commissioner or guar- 
 dian shall be a purchaser. The court shall decree conveyance by the 
 commissioners; which shall bar all parties named, and all unknown, if 
 the required notice has been given. (cf) 
 
 the will. Cheeseraan V. Thorne, 1 Bdw. 629. See 2 N. Y. Rev. Sts. 322; Manners v. 
 Charlesworth, 1 My. & K. 330; Jackson v. Edwards, 7 Paige, 386. 
 
 (a) It has been held, that the wife of a tenant in common is not a necessary party. If par- 
 tition be made, her riijlit of dower attaches to the share allotted to the husband, without any 
 express order to that effect, and although she is not a party. So a sale was held not to bar 
 her dower, the statute merely providing, that, in case of an existing estate in dower or by the 
 curtesy, certain compensation shall be made in case of sale; and an inchoate right of dower 
 being a mere possibility. Matthews v. Matthews, 1 Bdw. 567. 
 
 But it has been since held, that a sale bars the right of dower; especially if the wife be 
 made a party, though she is an infant. Wilkinson v. Parish, 3 Paige, 653 ; Jackson v. Ed- 
 wards, 7, 386. 
 
 (6) The report of commissioners is regarded in the same hght as the verdict of a jury on 
 a trial at law ; and, where they are selected by the parties in interest, their report will 
 receive greater respect; and in all cases it will not be disturbed, but upon grounds similar to 
 those which at law would allow of a new trial. Livingston v. Clarkson, 4 Edw. Ch. 596. 
 
 (c) Or the use of the property may be assigned to each tenant for alternate periods ; or a 
 receiver appointed, and the proflts fairly divided. Smith v. Smith, 1 Hoffm. 506. 
 
 (d) By Statute 1847, 556, the shares of several co-tenants may be set off in common. 
 "Where there are conflicting claims as to some shares, a temporary division may be made 
 until such claims are adjusted. Where there is a right of dower in a share, the widow may 
 
 be a party. .,,,„, 
 
 By Statute 1852, 411, the Supreme Court may authorize proceedings in behalf of an in- 
 fant tenant in common, &o., for partition, or may sell where a division cannot be well made. 
 The court must be satistied that it is for the interest of the infant. 
 
612 
 
 TENANCY IN COMMON, ETC.— PARTITION. 
 
 [CHAP. LV. 
 
 10. In PenDsylvania,(1) provisions are made with regard to a writ 
 of partition. Wlien the inquest appointed to malce partition are of 
 opinion that it cannot be done without injury, they shall return an 
 appraisement, and the court may adjudge the whole to such tenant or 
 tenants as will take it at the valuation, and the sheriff shall execute a 
 conveyance accordingly. But the land shall be subject to a lien for 
 payment of the price to the other tenants. If neither of the parties 
 will accept the whole land, it shall be sold by the Eheriff,and the pro- 
 ceeds brought into court and distributed. Where judgment is rendered 
 by default upon a writ of partition, any party interested may obtain a 
 reversal for good cause within one year therefrom. Where equal par- 
 tition in value cannot be made of any share or part, the sheriff and in- 
 quest may equalize, by awarding a certain sum from one to another, 
 for which there shall be a lien on the land. Where there are several 
 defendants to a writ of partition, the court shall award a mutual parti- 
 tion among them, as well as to the plaintiff, unless all of them declare 
 a wish to the contrary. One having only a life estate, whether legal 
 or equitable, is entitled to partition. (a) 
 
 11. In Mississippi, Alabama and New Jersey,(6) any co-parcener, 
 joint tenant, or tenant in common, may make application for partition. 
 The court shall ascertain the number of joint owners, and appoint 
 commissioners, with directions to divide the land into a corresponding 
 number of shares. Where the bounds of any tract or tracts to be di- 
 vided are controverted, if the controverted part is valuable, the com- 
 missioners shall separate it from the residue, and so make partition as 
 to attach to each share a portion both of the controverted and the un- 
 controverted part of the land. The parts or shares and the lots hiid off 
 shall be numbered, and partition afterwards made by balloting or 
 drawing of tickets in the manner of a lottery ; at which, on the appli- 
 cation of any party, a judge or justice shall be present. The whole 
 proceedings are recorded, and are effectual to make partition of the 
 land. The rights of any one having a paramount title to the land are 
 not affected. In New Jersej', the act does not apply to lands of general 
 proprietors of the eastern or western divisions of the State. In Alabama, 
 
 (1) Purd. Dig. 682-5; St. 1842, 234, 236; 
 1841, 353. See Sts. 1851, 613; Clepper v. 
 Livergood, 5 Watts, 113; Prohock v. Gus- 
 tine, 8 lb. 121; Koning, lb. 415; Downer «. 
 Downer, 9 Watts, 60 ; Meheffy v. Dobbs, lb. 
 
 363; Kannan v. Rimington, 10 Eng. L. & 
 Bqn. 477; Biddle v. Starr, 9 Barr, 461: 
 Davis !; Norris, 8 Barr, 122; Dana v. Jack- 
 son, 6, 234; Corm v. Hu£fey, lb. 348. 
 
 (a) A deed of partition does not aSeat the title of the parties, but only fixes the boundaries. 
 ■Goundie v. Northampton, &o., 7 Barr, 233. 
 
 A bill of review, to correct a clear mistake in fact, on which a decree in partition was 
 made, will lie more than tliree years after the decree, purchasers not having become inter- 
 ested in the estate. George's Appeal, 2 Jones, 260. 
 
 Wliere there were several tenants in common, and one died, leaving a will which was 
 contested by hisheir.s; an act of assembly, authorizing partition, and directing all persons 
 and corporations claiming under him, whether as heirs or devisees, to be made parties, and 
 their purparts to he SPt out and conveyed to trustees, for such of tliem as may be entitled, 
 or the proceeds, if sold, paid to such trustee giving security, was held to be constitutional; 
 and the adverse clannants under tlie deceased co-tenant were held to have been properly 
 joined. Biddle v. Starr, 9 Barr, 461. 
 
 (6) Chancellor Kent .says, that in this State, according to the bill reported by Mr. Scott, 
 the reviser, in 1835, pnrtition was to be in 'just judgment and assignment, and not liy lot. 
 4 Kent. 364, n. In Alahnmii, the Chancellor will not order a sale lor the purpose of parti- 
 tion, but decree the execution of mutual deeds. Deloney v. Walker, 9 Por. 497. 
 
CHAP. LV.] TENANCY IN COMMON, ETC.— PARTITION. 613 
 
 minor devisees or heirs, holding jointly, may have partition on applica- 
 tion to the Orphan's Court. In Mississippi, a partition may be re- 
 examined in Chancery.(l) Iq New Jersey, joint tenants, &c., may be 
 compelled to make partition, like co-parceners, by writ of partition. 
 Such process shall bind only parties, their heirs, &c., where either or 
 both are owners of a less estate than the fee. If the tenant to the action 
 or defendant does not appear to defend, the court will proceed to make 
 partition, which shall conclude all persons whatsoever, whatever right, 
 &c., they have or claim, " although all persons concerned are not named 
 in any of the proceedings, nor the tenant's title truly set forth ;" with a 
 saying, however, of one year, or one year from the removal of any dis- 
 ability, for the purpose of setting aside the partition. Where an un- 
 divided share of the land is leased, the lessee shall be tenant of the 
 portion allotted to the landlord, and the latter shall warrant and make 
 good the title, according to his original obligation. If the demandant 
 is himself a lessee of the tenant, the relation shall still continue after 
 partition. If a partition would be injurious, the commissioners may 
 make sale of the land, which shall be valid against the owners and all 
 claiming under them, but no other persons. The proceeds shall be 
 paid to the parties, or if one is out of the State, invested. Where one 
 or more of joint tenants, &c., are minors, the Orphan's Court may order 
 partition. (2) , 
 
 ,12. In Maryland, (3)(a) the Chancellor may order partition of the 
 estates of infants, idiots, &c. Joint tenants, &c., holding by devise, may 
 have partition by application to court. Commissioners are appointed, 
 and division made as on a writ of partition. 
 
 13. In Delaware,(4) partition may be obtained by application to the 
 Chancellor, who, after notice to parties interested, shall decree partition, 
 after ascertaining the respective shares of the parties. Commissioners 
 are appointed, who make return of their doings, accompanied with a 
 survey of the land. If all the owners join in petition, no notice is 
 requisite. If a division would be attended with injury and loss to the 
 parties, the commissioners shall make a valuation of the property, and 
 
 (1) Miss. Rev. C. 232 ; Aik. Dig. 332-6 ; 
 
 1 N. J. L. 89. 
 
 (2) 1 N. J. L. 299, 591 ; N. X St. 1835-6, 
 395; 1840-1,82. See Van Riper i). Bendan, 
 
 2 Green, 132 ; also Miss. L. 522. 
 
 (3) 2 Md. L. 1194, ch. 60, sec. 8; 1797, 
 
 eh. 114, sec. 5 ; 5 lb. 1814, ch. 109, sees. 5-6. 
 See Hardy v. Summers, 10 Gill & J. 316; 
 Hewitt, 3 Bland, 185; Chaney v. Tipton, 11 
 Gill & J. 253. 
 
 (4) Del. St. 1829, 168; 1833, 242; 1837, 
 72. See lb. 1843, 627. 
 
 (a) An objection to a return upon a commission, that the commissioners did not distribute 
 the estate by lot, but at their own discretion assigned the several shares to the parties 
 interested, cannot be sustained either by the practice of the court, the act of the assembly, 
 or the rule of the English Court of Chancery. Cecil v. Dorsey, 1 Maryland, Oh. 223. 
 
 The legislature did not mean to confine the commissioners to a particular mode of making 
 the partition ; they may, if they please, award to each of the parties his share of the thing 
 to be divided, or they may, at the proper stage of the pj-oceedlngs, draw lots; and their 
 return, otherwise unexceptionable, will not be set aside, because they adopted either of 
 these modes. lb. 
 
 It is a fatal objection to a return, that the value of the estate, in money, has not been 
 stated by the commissioners. lb. 
 
 The act requiring thirty Aayi' notice of the execution of the commission, is not complied 
 with by stating in the return that reasonable notice was given ; but the commissioners 
 must say, in their return, either that they gave at least thirty days' notice, or due notice, 
 according to law. lb. 
 
 As to the effect of partition upon title, see Coale v. Barney, 1 Gill & J. 324. 
 
614 
 
 TENANCY IN COMMON, ETC.— PARTITION. 
 
 [CHAP. LT- 
 
 the court will order a sale by a trustee appointed for that purpose. 
 Such sale shall pass the estate, subject, however, to paramount claims. 
 The proceeds, with the same exception, are paid over to, or invested 
 for the benefit of, the respective parties. Instead of a sale, one or more 
 of the tenants may take the property at the valuation, either paying 
 the price immediately, or entering into a recognizance with surety for 
 it in Chancery, in such manner as the Chancellor shall direct. Butno 
 such assignment to one or more shall be made, where there are conflict- 
 ing claims to it.(a) 
 
 14. In Tennessee,(l) public notice is given by advertisement before 
 presenting a petition for partition. No other notice is requisite, and 
 the partition shall be forever binding on all and every person or per- 
 sons who shall or may have claim or title to the land as tenants in 
 common, &c. Contrary to the general practice of giving jurisdiction 
 to the Courts of Probate in case of descent, partition may be made of 
 real estate held by the heirs of an intestate, by application to the com- 
 mon law courts. The commissioners appointed to make partition, may 
 charge the more valuable dividend or dividends with such sumor 
 sums as they shall judge necessary to be paid to the dividend or divi- 
 dends of inferior value, in order to make an equitable division. The 
 return of the commissioners is accompanied by a survey when necessary, 
 and recorded, and the return and appropriation shall be binding among 
 and between the claimants, their heirs, &c.(2) 
 
 15. In Illinois,(3) partition may be had by application to court 
 through commissioners. It is provided that their report "shall be 
 conclusive to all parties concerned." But another chapter of the 
 Revised Statutes provides that reversioners, &c., shall not be affected. 
 If necessary, the land shall be sold, and the sale will bind the owners 
 and all claiming under them. 
 
 16. In Indiana,(4) concurrent jurisdiction for partition is given to 
 the courts of law and of equity. It is made through commissioners. 
 If necessary, the land is sold. They to whom partition is made release 
 of record their title to the residue of the land. 
 
 17. In Missouri, (5) partition may be made on petition, and a sale 
 in case of necessity. ISTo commissioner or guardian shall purchase. 
 Many of the provisions are similar to those in New York. Adverse 
 claims may be presented, and in such case the proceeds of sale retained 
 by the sheriff, and a legal process instituted for the purpose of settling 
 the title. A part of the land may be divided, and the rest sold. So it 
 may be divided into lots, with streets, &c. If the commissioners report 
 that a division is impracticable, their authority ceases, and further pro- 
 ceedings will be conducted by the sheriff. 
 
 (1) 1 Scott, 641. 
 
 (2) 1 Scott, 385-6. 
 
 (3) Ulin. Rev. L. 238-9, 413. . 
 
 (4) Ind. Rev. L. 387-90. See St. 1844-5, 
 39; see Amory «. Carpenter, 8 Blackf! 280; 
 Carter v. Kerr, lb. 373. Commissioners to 
 
 make partition have no authority to lay out 
 the land into town lots, streets and alleys, 
 without consent of the owners. Kitchen v. 
 Sheets, 1 Smith, 27. 
 
 (5)Misso. St. 422; 1838, 89-90; 1840-1, 
 108. 
 
 (a) By the Revised Statutes, (p. 286,) the Superior Court has jurisdiction of writs of parti- 
 tion. It may set off to two or more of the tenants in common. The jurisdiction of the 
 Chancellor is also affirmed. 
 
CHAP. LT.] TENANCY IN COMMON, ETC.— PARTITION. 615 
 
 18. In KeDtucky,(l)(a) where all or a part of joint owners have an 
 inheritance, the writ of partition lies. Reversioners, &c., shall not be 
 affected. Provision is made for partition, by application to certain 
 standing commissioners, appointed generally for this purpose.(6) Parti- 
 cnlar provision is made for the case, where some of the parties are non- 
 residents. It would seem, in this case, that no partition will be made, 
 unless there is a contract to that effect. But, in the case of residents, no 
 contract seems necessary. If no division can be had, either party may 
 enter his proportion of the land with the commissioners, and save a for- 
 feiture by paying the tax thereon. 
 
 19. In Ohio, partition may be effected by petition to the courts of law. 
 There may be a sale, if necessary. In Arkansas, a process for partition 
 is provided, to which all persons interested shall be parties, and which 
 is executed b}"- commissioners. If partition is impracticable, upon a re- 
 turn of this fact, a sale is ordered. Where there are distinct parcels, or 
 a division is desirable, they are sold separately. The conveyance is 
 made by the commissioners. Owners of less than a fee have the same 
 remedies as an owner in fee-simple.(2) 
 
 20. In Virginia,(3) where a part of joint owners are unknown, par- 
 tition may be had in Chancery, reserving to the unknown proprietors 
 the amount of their shares. Where defendants are either absent or un- 
 knou'n, they may for cause rescind the partition within three years. 
 Partitions shall not affect persons not named, unless they claim as joint 
 tenants, &c., with those who are named. . Where a partition is incon- 
 venient, the value of a share in money may be assigned or the property 
 sold.(c) 
 
 21. In North Carolina,(4) partition is obtained upon petition. The 
 commissioners may charge the more valuable dividend or dividends 
 with such sum as may be necessary to make an equitable division ; 
 which, however, shall not be paid by any minor tenant till he comes of 
 age. Bat his guardian shall pay it upon receiving assets. A court of 
 equity may order a sale, where partition would be injurious. So, also, 
 on the application of joint tenants, &c., stating that their land is required 
 for public uses. The proceeds belonging to any party under disability 
 shall be invested for his benefit. Where land jointly owned is subject 
 to dower, and the tenants and the party claiming dower apply together 
 for a sale, the court of equity may order such sale, and that a third part 
 
 (1) 2 Ky. Rev. L. 876, 1070. See Bates v. 
 Thornberry, 5 Dana. 9 ; Talbot v. Todd, lb. 
 204 ; Seay v. White, 5, 655 ; Borah v. Archers, 
 7, 176. 
 
 (2) Ohio St. 1831, 254. See Swan, 618; 
 Goudy V. Shank, 8 Ohio, 415 ; Ark. Rev. St. 
 592-8. 
 
 (3) Ta. St. 1830, 99 ; Code, 525. 
 
 (4) 1 N. C. Rev. St. 450-3. See Skinner, 2 
 Dev. & B. 63 ; Scull v. Jernigan, lb. 144 ; 
 Amis V. Amis, 7 Irsd. 219 ; Irwin v. King, 6, 
 219. 
 
 (a) It is held in this State, that if one tenant has made improvements on a portion of the 
 land this part should be assigned to him— the value of the improvements being allowed him 
 Sneed v. Atherton, 6 Dana, 281. See Powell v. Powell, 9 lb. 13. la making partition of 
 land, its value, as affected by locality, is to be taken into consideration, as well as the quan- 
 tity and quality. Hunter v. Brown, 7 B. Mon. 283. , 
 
 (6) In this respect, the law of Kentucky seems to be peculiar to that State. In all the 
 other States, the application is made to some court or a judge thereof 
 
 (c) A tenant by the curtesy purchased the share in the land of one of the reversioners, 
 the others being minors. On a bill in equity, filed for that purpose by the tenant by the 
 curtesy, partition of the land was granted. Otley v. McAlpme's Heirs, 2 Gratt. 340. 
 
616 TENANCY IN COMMON, ETC.— PARTITION. [CHAP. LT. 
 
 of the proceeds be secured for the benefit of the latter, or ascertain the 
 value of the life estate and decree payment of it. to her absolutely. (a) 
 
 22. In South Carolina,(l) joint tenants, &c., may apply for a writ of 
 partition, which shall issue to commissioners. 
 
 23. In Georgia, the statute, after reciting that it would be inconve- 
 nient to pursue the method of dividing lands by writ of partition, as 
 practiced in Great Britain, authorizes parties to apply to the court for a 
 writ of partition, to be devised and framed according to the nature of 
 the case. The writ issues to partitioners, who shall proceed to make a 
 division. One year is allowed, or, in case of disability, one year from 
 its removal, for a party interested to set aside the partition for good 
 cause. (2)(5) 
 
 (1) 2 Brev. 102. See Foster, Eice, 17 ; I (2) Prince, 541-2. 
 Goodhue v. Barowell, lb. 198. | 
 
 (a) A judgment establishes the title, and concludes the parties. Mills v. Witherington, 2 
 Dev. & 13. 434. Where a charge is imposed upon the sljare of one tenant for equality of 
 partition, an equal division being impracticable, the land is primarily liable, and if a note ia 
 given, it is only collateral security. Jones v. Sherrard, 2 Dev. & B. 179. So, with a note 
 of the husband, the land belonging to the wife. lb. 
 
 The money assessed upon any lot, to produce equality of value, is a charge upon the land 
 itself, into whosesoever hands it goes; and there is no statutory limitatiou to the recovery of 
 the money. Sutton v. Edwards, 5 Ired. Kq. 425. 
 
 Upon a suit for partition, a sale was ordered and made, and the money ordered to be dis- 
 tributed among the tenants. One of them afterwards petitioned to be reimbursed, out of a 
 portion of said money which had not been distributed, certain advances which lie had made 
 for taxes. Held, the petition could not be allowed, as it would be contrary to the previous 
 order for distribution. Lewis, 7 Ircd. Eq. 4. 
 
 A decree of partition should describe the estate to be divided, and the share which each 
 tenant should have. Ledbetter v. Gash, 8 Ired. 462. 
 
 {b) In Arkansas, an order of court, appointing commissioners to divide land without peti- 
 tion or notice to the parties interested, is void. Harris v. Preston, 5 Eng. 201. 
 
 Confirmation of the report of commissioners, does not, of itself, without decree of title, or 
 deed from the commissioners, vest a legal title. lb. 
 
 As to partition in Iowa, see Telford v. Barney, 1 Iowa, 575. 
 
 An erroneous computation or inaccuracy of commissioners may be corrected by the final 
 judgment in proceedings for partition. Wright v. Marsh, 2 Greene, 94. 
 
 A judgment cannot be attacked collaterally, on the ground that tlie petition did not show 
 the interest of unknown owners in the land. lb. 
 
 A petition for partition may be verified by affidavit of an attorney. lb. 
 
CHAP, LVI.] WORDS NECESSARY TO CREATE A FEE. 
 
 617 
 
 CHAPTER LVI. 
 
 "WORDS NECESSARY TO CREATE ESTATES. WORDS NECESSARY IN A 
 DEED TO CREATE A FEE-SIMPLE OR A PEE TAIL. 
 
 1. Introductory remarks. 
 
 2. Heirs necesaiiry in a deed. 
 
 5. Origiu of the rule. 
 
 6. Exceptiuna — couveyanee to a corpora- 
 
 tion. 
 
 8. Omission of the word his — the word 
 
 heir. 
 
 9. One clause may affect another. 
 
 10. Words o[ reference. 
 
 11. Releases. 
 
 12. Rule in equity. 
 
 13. Beirs necessary to estate tail. 
 
 1 5. Of the body — not necessary. 
 
 16. Heirs inales. 
 
 18, Issue past and future. 
 19-30. Heirs of one deceased. 
 
 20. Premises and habendum. 
 
 23. Remainder on failure of heirs. 
 
 24. Limitations to husband and wife, &o. 
 31. Rule in the United States. 
 
 1. Having treated of the several estates which may be owned in 
 land, the natural association of subjects leads us now to a consideration 
 of the particular, technical language, by which such estates may be 
 created and transferred. It will be seen hereafter, that the two most 
 important modes of acquiring a title lo real property, are by deed and 
 by devise. These are the only two modes in which the construction 
 and effect of language come into question, as determining the quantity 
 or quality of interest in land which in any particular case is created or 
 transferred. We shall therefore proceed to consider, first, what words 
 in a deed, and second, what wonis in a devise, are requisite to pass the 
 several estates in land recognized by the law. 
 
 2. With regard to the words in a deed necessary to create a fee-simple, 
 it is the general rule, that no other expression than that of heirs is 
 sufficient for this purpose. Thus, if land be conveyed to a m&n forever, 
 or to him and his assigns forever, or his executors, administrators and 
 assigns, or m fee-simple, or to hold so long as the grantor and his heirs shall 
 hold other lands which he owns in fee, or to " his only proper use and 
 behoof;" the grantee will take only a life estate. So, a conveyance to 
 one and his generation, to endure so long as the waters of the Delaware shall 
 run, creates only a life estate.(l) 
 
 3. Grant of land to A, to continue for a yard to build vessels in by 
 A and his Jieirs so long as they shall see fit, but, if they cease to use it 
 for this purpose, the land not to be sold, but remain forever to B and 
 his heirs. Held, the word heirs was only descriptio personce, and that A 
 took a life estate, and B the remainder in fee.(2) 
 
 4. Grift to a son to hold to him and his assigns forever, with general 
 warranty, and charged with the payment of £100 to the brother of the 
 donee. The deed passes a life estate.(3) 
 
 5. This rule is of feudal origin. Feuds were anciently granted, 
 chiefly with reference to the personal qualifications of the grantee, and 
 
 (1) Jones V. Doe, 1 Scam. 276 ; Bract. 11 
 b; 2 Cruise, 231 ; 2 Chit. Black. 83 ; 2 Prest. 
 on Est. 4-5 ; Jackson v. Myers, 3 John. 388 ; 
 Clearwater v. Rose, 1 Blae. 137; Gray o. 
 Packer, 4 Watts & S. 17. As to the expres- 
 sion "so long as a tree grows," &o., see Pat- 
 
 terson V. McCousIand, 3 Bland, 72 ; Hogan 
 V. Welcher, 14 Mis. 177 ; Weidman v. Maish, 
 16 Penn. 524; Holliday v. Overton, 10 Eng. 
 L. & Equ. 175. 
 
 (2) Rutty V. Tvler, 3 Day, 470. 
 
 (3) Wright V. bowley, 2 Bl. 1185. 
 
618 
 
 "WORDS NECESSARY TO CREATE A FEE. 
 
 [CHAP. LTI. 
 
 therefore terminated with his life, unless the intent of the donor mani- 
 festly appeared to the contrary. But the rule is subject to several ex- 
 ceptions. 
 
 6. By a conveyance to a sole corporation, as for instance a minister 
 and his successors, or to a corporation aggregate, without the word suc- 
 cessors, a fee-simple will paRS.(a) But, in a grant to a sole corporation, 
 the word heirs will give only a life estate. Lord Coke says, as the heir 
 doth inherit to the ancestor, so the successor doth succeed to the prede- 
 cessor.(l) But the word successors, connected with a limitation to a 
 natural person, does not enlarge his estate, though accompanied by 
 other incidents not belonging to an estate for life. Thus a conveyance 
 to one and his successors in trust for payment of debts, giving him "at 
 his own discretion full power to sell," does not pass the fee, but only 
 an ;iuthority to convey in fee.(2) 
 
 7. In case of a conveyance in trust, without words of inheritance, a 
 fee passes, if necessary to effect the purposes of the trust.(3) Thus, a 
 deed to trustees and their successors, in trust to sell and convey in fee- 
 simple absolute, vests a fee-simple in the trustees.(4) 
 
 7 a. But where there was a conveyance to trustees, in trust for A, to 
 the use of the first son of the grantor on the body of A lawfully begot- 
 ten, and to the heirs male of said son lawfully begotten, and the grantor 
 bad four children, a son, who died unmarried and intestate, and three 
 daughters ; held, the son did not take a fee, for want of a limitation to 
 the trustees and their heirs.(5) 
 
 8. It is said that a gift to a man and heirs, omitting the word his, 
 will pass a fee-simple. Upon this opinion, however, Lord Coke re- 
 marks, "but it is safe to follow Littleton." A gift to two persons and 
 heirs passes only a life estate, for the uncertainty. It was formerly 
 held, that a grant to a man and his heir created only a life estate. But 
 it has been since suggested, that the word is nomen collectivum., and 
 sufficient to pass a fee.(6) 
 
 9. One clause in a deed may control another so as to pass a fee. 
 Conveyance " to the use of all and every the child or children" of a 
 marriage; if more than one, as tenants in common; and if but one, 
 then to such child, his or her heirs -and assigns forever. Held, a fee 
 passed to all the children ; the last clause operating as a limitation of 
 all the preceding words. But where the first clause of a deed con- 
 veyed land m fee-simple, and on condition, both indicating an intent to 
 pass the fee ; and a subsequent clause conveyed a slave to the same 
 
 (1) Co. Lit. 8 b ; Grammar, &o. v. Burfc, 11 
 Verm. 632. 
 
 (2) Alger v. Pay, 12 Pick. 322. 
 
 (3) Welch V. Allen, 21 Wend. 147. 
 
 (4) Neilson v. Lagow, 12 How. (U. S.) 98. 
 
 (5) Potto w V. Fricker, 5 Bng. L. & Eq. 443. 
 
 (6) Co. Lit. 8 b; Coltbirst v. Bejushin, 
 Plowd. 28 ; 3 Inst. 8 b, n. 4. 
 
 (a) "A life estate to an ideal being, having a perpetual and uninterrupted existence, must 
 be co-extensive with a fee or perpetuity, and words of limitation could not extend it." Per 
 Shaw, Ch. J. Overseers, Ac. v. Sears, 22 Pick. 126. Grant to the justices of a county 
 and their successors. Held, the title vested in them and their Buoeessors, and the justices 
 for the time being could maintain a suit. Justices, &o. y. Thomason, 11 B. Mon. 235. 
 
CHAP. LVL] -WORDS NECESSARY TO CREATE A FEE. 619 
 
 person, Jiis heirs and assigns forever ; held, the grantee took only a life 
 estate in the land. The latter clause did not enlargethe former.(l)(a) 
 
 10. It seems, words of direct and immediate reference to some other 
 estate will pass a fee, without the word heirs. As where a grantee in 
 fee reconveys the lands " as fully as they were granted to him ;" or 
 where one conveys two acres to A and B, to hold the one to A and his 
 heirs, the other to B inform aforesaid. In this case, B takes a fee.(2) 
 
 11. It will be seen hereafter, that, in certain kinds of release, a fee 
 may pass without the word heirs.{3) (See Release.) 
 
 12. Itis said that courts of equity will supply the omission of the 
 word heirs, when the intention so requires. Thus in case of an admin- 
 istrator's deed.(4) 
 
 13. With regard to the words necessary to create an estate tail; in a 
 deed, the word heirs is necessary to create this estate. Thus to " one 
 and his issue," or " seed," or " children," is insufficient.(5) 
 
 14. On the other hand, where the words " heirs of the body" are 
 used, they are not to be controlled by any subsequent expressions. 
 Convevance to one and the heirs of his body, and in a subsequent 
 clause a power to sell to any of his brothers." Held, the latter clause 
 was repugnant and void.(6) 
 
 15. But no technical words are necessary to restrain the right of in- 
 heritance to heirs of the body. Thus, the words " of his body," or the 
 word "begotten," may be omitted, if equivalent expressions are used. 
 As, " his heirs whom he may beget from his first wife," or " the heirs 
 of his flesh."(7) 
 
 16. A conveyance to one " and his heirs males," creates a fee-simple, 
 although a remainder be limited afterward.s. It is said, whoever hath 
 an estate of inheritance, hath either a fee-simple or a fee tail ; bat 
 where lands be given to a man and his heirs males, he hath no estate 
 tail, and therefore he hath a fee-sirnple. But by act of Parliament, an 
 estate may be effectually limited to a man and his heirs male, so as to 
 make a fee-simple descendible to males only. (8) 
 
 17. If there are words of exclusive reference to heirs of the hody, as 
 where, after a limitation of uses for life and in tail, the conveyance is 
 " to the use of A, and of the heirs male of the said A lawfully be- 
 gotten ; and for default of such issue, &c. ;" an estate tail passes. But 
 it has been said, that this case was decided upon the ground of being a 
 
 (1) Doe V. Martin, 4 T. R. 39; Wiggs v. 
 Saunders, 4 Dev. & B. 480. 
 
 (2) Co. Lit. 9 b, n. 6 ; 2 Prest. 1, 2 ; Doe 
 V. Lavvton, 4 BIng. N. 461 ; Lytle v. Lytle, 
 10 Watts, 259, 
 
 (3) Co. Lit. 10 a. 
 
 (4) Walk. 2U; Piatt v. St. Clair, T Ohio, 
 165. 
 
 (5) Co. Lit. 20 a, b ; 1 Roll. Abr. 587. 
 
 (6) Pearse v. Owen.s, 2 Hayw 234. 
 
 (7) Co. Lit. 20 b, 27 b ; Abraham v. Twigg, 
 Cro. Eliz. 478. 
 
 (8) Co. Lit. 27 a, and n. 5. 
 
 (a) A deed is also aometiiues connected, for the purpose of construction, with some accom- 
 panying instrument. Thus, a deed to a married woman, to have and to hold to her and to her 
 heirs, and the assigns of her heirs, subject to an agreement of the same date, between the 
 grantor, the grantee, and her husband, that if the wife should die and leave no issue who 
 should live to the age of twenty-one ysars, the deed should be void, and the estate go to 
 the heirs of the grantor; creates an estate in fee-simple in the wife, dependent on the con- 
 dition of leaving children, who should live to attain full age. "Westenberger v. Reist, 1 
 Harris, 594. 
 
620 
 
 "WORDS NECESSARY TO CREATE A FEB. 
 
 [CHAP. LVI. 
 
 feoffment to uses, and upon its own peculiar phraseology, and is of 
 little aathority where other words are used.(l) 
 
 18. Whether the words " thereafter to be begotten," will embrace 
 issue previously born, seems to be a doubtful point. Lord Coke says, 
 "begotten" will embrace future, and " to be begotten," past issue.(2) 
 
 19. An entailment may be made by a limitation to the heirs of the 
 body of one deceased ; as, for instance, to a son, and the heirs of the 
 body of his father, who is deceased.(3) 
 
 20. A conveyance in the premises of the deed to A and his heirs, 
 habendum to him and the heirs of his body ; or to A and his heirs, 
 habendum to him and his heirs, if he have heirs of his body, and, if 
 he die without heirs, that it shall revert to the donor ; creates an estate 
 tail. Lord Coke says, a conveyance in the premises to A and the heirs 
 of his body, habendum to him and his heirs forever, gives A an estate 
 tail, with a remainder in fee.(4) 
 
 21. It has been held in Connecticut, that the former limitation passes 
 a fee-simple.(5) 
 
 22. Conveyance, in 1793, to a daughter " and to her heirs born of 
 her body," " to have and to hold the same to her and her heirs forever." 
 The grantor covenanted with her " and her heirs as aforesaid," that he 
 would warrant and defend the same to her " and her heirs as aforesaid." 
 Held, she took a present estate tail, which, upon her death, passed to 
 her eldest son. (6) 
 
 23. A conveyance to A and his heirs, and, if he die without heirs 
 of his body, remainder over, creates an estate tail in A. It is the same 
 as if the limitation were to A and his heirs, viz., to the heirs of Ms 
 body. 
 
 24. A conveyance to a man and woman and the heirs of their two 
 bodies, whether they be married at the time or not, and even though 
 each is married to some third party, creates in them an estate tail. (7) 
 
 2o. Conveyance to the use of a wife for life, remainder to the use 
 of the husband for life, remainder to the use of the joint heirs of their 
 bodies. Husband and wife take an estate in special fee tail. (8) 
 
 26. A conveyance to two husbands and their wives, and the heirs of 
 their bodies, creates a joint estate for life and several inheritances — the 
 one husband and wife taking one moiety, and the other husband and 
 wife the olher.(9) 
 
 27. But a conveyance to a man and two women, or a woman and two 
 men, and the heirs of their bodies, gives them a joint life estate, and 
 each of them a separate inheritance ; because they cannot have one 
 issue of their bodies, and the law will not notice a possibility upon a 
 possibility, viz., that the man shall marry both women, or the woman 
 both men, successively. (10) 
 
 28. A conveyance to a man and his wife, and the heirs of the body 
 of the man, gives him an estate in tail general, and her a life estate. 
 
 (1) Beresford's case, 1 Eep. 41 ; Goodright 
 V. Goodridge, Willes, 374. 
 
 (2) Canon's case, 3 Leon. 5; Co, Lit. 20 b, 
 and n. 3. 
 
 (B) Lit. see. 30. 
 
 (4) 1 Inst. 21 a. 
 
 {5) Chaffee v. Dodge, 2 Root. 205. 
 
 (6) Corbin v. Healy, 20 Pick. 514. 
 
 (1) Winbish v. Tailbois, Plow. 53 ; Para- 
 mour V. Yardley, lb. 541 ; Beck's case, Lit. 
 R. 344 ; Leigh v. Brace, 5 Mod. 266. (See 
 Idle V. Cook, 1 P. Wms 70 ; Co. Lit. 25 b. 
 
 (8) Davis V. Hayden, 9 Mass. 514. 
 
 9) Co. Lit. 25 b. 
 
 10) lb. 
 
CHAP. LYI] WORDS NECESSARY TO CREATE A FEE. 621 
 
 If it is to a man and his heirs begotten on the bodv of his wife, he takes 
 an estate m tail special, and she nothing. If to husband and wile and 
 the heirs which he shall beget on her body ; they take a joint estate in 
 tail. If to husband and wife, and the heirs of the body of the wife by 
 the husband to be begotten, she takes an estate tail. To whichever 
 body the word heirs inclines by the limitation, it creates a descendible 
 estate in such person. But if it be not more particularly limited to 
 the body of one than the other, but inclines to each alike, then it creates 
 a descendible estate in each of them.(l) 
 
 29. Conveyance, executed prior to the Eevised Statutes, (in Massa- 
 chusetts,) to husband and" wife, for their lives and the life of the survi- 
 vor, and to the heirs of their bodies. Held, they took an estate tail. (2) 
 
 30. An estate tail, as has been stated, (sec. 19,) may be limited to the 
 heirs of the body of A, A being dead ; and it will vest in such person 
 as answers to this description at the time ; and, upon his death without 
 issue, will go to the same person who would have taken it, if it had 
 been originally conveyed to A. Thus, if A have left a son and daugh- 
 ter, the son takes in the first instance, and upon his dying without issue, 
 the daughter takes as heir of the body of her father, "per formam 
 doni." This limitation h;is been described as " of a compound or inter- 
 mediate description between a descent and purchase." It is not strictly 
 a descent, because A, the party regarded as the ancestor, never, in fact, 
 owned the estate. Nor is it strictly a purchase, because, upon the death 
 of the first owner, it does not pass to his heirs, but to the heirs of 
 another. " In point of acquisition, it has the quality of a purchase, 
 hut, in regard to its course of devolution, it has the quality of a de- 
 scent."(3) 
 
 31. The discussion as to the words in a deed necessary to create a 
 fee-simple, has, in some of the United States, been rendered quite un- 
 important by means of statutory provisions upon the subject. In Ten- 
 nessee, Iowa, ilississippi, Illinois(a) and Kentucky, a deed of land 
 passes the fee-simple, unless express words or the construction or 
 operation of law require a contrary construction. (4) So in Missouri, (5) 
 unless there are express words, or a necessary implication ; in Ala- 
 bama,(f)) express words, to the contrary. The same rule is adopted in 
 Arkansas, New York and Virginia.(7) 
 
 (1) Lit. sec. 26, 29 ; 1 Inst. 26 a, n. 3 ; 219 
 a, n. 3 ; Fearne, 46 ; Reps v. Bonham, Yel. 
 131, and n. 1. 
 
 (2) Steel V. Cook, 1 Met. 281. 
 
 (3) Mandeville'a case, Co. Lit. 26 b, 220 a; 
 Southoot V. Stowel, 2 Mod. 207; Pearne. 
 110-12. 
 
 (4) Missi. Rev. C. 458 ; Laws of lUin. 1S31, 
 14 ; 1 Ky. Rev. L. 443 ; Tenn. Sts. 18ol-2, 
 40 ; Iowa Code, ch. 78, see. 1200. 
 
 (5) Misso. St. 119. 
 
 (6) Clay's Dig. 156. 
 
 (7) 4 Kent, 7; Ark. Rev. St. 188. See 
 Olmstead v. Olmstead, 4 Comat. 58. 
 
 '(a) 'Words of inheritance have in this State been held necessary. 
 Scam. 276. 
 
 Jones V. Bramblet, 1 
 
622 
 
 PEE SIMPLE, ETC. 
 
 [CHAP. LTD. 
 
 CHAPTER LVII. 
 
 "WOEDS IN A DEVISE NECESSARY TO CREATE A PEE SIMPLE OR AN 
 
 ESTATE TAIL. 
 
 1. General principle. 
 
 2. What words sufficient. 
 4. Power to sell. 
 
 14. Devise for children, &c. 
 
 18. Reference to other provisions. 
 
 22. Introductory words. 
 
 29. " Estate," &c., meaning of terras. 
 
 43. Devise charged with debts, &c. 
 
 56. Devise over, on devisee's dying under 
 
 age. 
 61. Devise to trustees. 
 
 66. Devise of wild lands. 
 
 67. Estata tail, by what words created. 
 
 70. Debts charged upon. 
 
 71. Remainder after a devise in fee, &o. 
 96. Enlargement of life estate. 
 
 110. Rule in United States. 
 
 1. The rule above stated, (ch. 56,) which requires the use of the 
 word heirs to create a fee-simple by deed, is not applicable to devises; 
 in which, as they were first introduced to the English law at a period 
 when the feudal rigor had been much relaxed, a more liberal construc- 
 tion has always been allowed than in deeds.{l) Hence in a will, any 
 expressions, which show an intent to give an absolute estate, will pass 
 the fee. The implication need not be a necessary one, strictly and 
 mathematically speaking, but so far necessary as it clearly arises from 
 the reasonable construction of the will.(2) Words which only de- 
 scribe the object devised, give only a life estate ; but words which com- 
 prehend the quayitum of the estate, pass the fee.(3)(a) 
 
 2. Thus, a devise to a raaxi forever or in fee-simple, or to one and Ms 
 successors, or " his blood," or " for his own use, and to give away at 
 his death to whom he pleases," will pass a fee.(4) 
 
 3. The words ''freely to be enjoyed" have been held to pass a fee. 
 But this construction has been doubted, unless there are other expres- 
 sions or provisions which render it necessary. (5)(&) 
 
 4. A devise to give and sell passes a fee ; otherwise, if the devise is 
 expressly for life.(6) 
 
 5. A testator devises a slave to his daughter for life, and, at her 
 death, to give it to any of her children, or emancipate it. The 
 
 (1) 2 Bl.nck. Com. 84 ; Goodnight v. Allin, 
 2 Black. R. 1041 ; Morrison v. Semple, 6 
 Binn. 97. See Tanderwerker v. Vander- 
 werker, 7 Barb. 221; Franklin v. Harter, 7 
 Blackf. 488. 
 
 (2) Per De Grey, Ch. J., 2 BI. Rep. 1041 ; 
 Olmsted v. Harvey, 1 Barb. 102. 
 
 (3) Per Tilghman, Ch. J., 6 Binn. 97 ; Fdx 
 V. Phelps, 17 Wend. 393; Hammond v. Ham- 
 mond,. 8 Gill & J. 437. See Moody i;. Elliott, 
 1 Md, Ch. 290. 
 
 (4) Bio. Abr. Devise, 33 ; Co. Lit. 9 b ; 
 
 Corbet's case, 1 Rep. 85 b; Doe v. Roper, 11 
 E. 518 ; Codman i). CoEBn, 2 Cush. 365. 
 
 (5) Loveacres v. Bliglit, Cowp. 352 ; Gates 
 V. Brydon, 3 Burr. 1895 ; Goodright v. Bar- 
 ron, 11 B. 220. 
 
 (6) Co. Lit. 9 b ; Moore, 57 ; Timewell ». 
 Perkins, 2 Atk. 102 ; Moore v. Webb, 2 B. 
 Monr. 283. See Codman v. Coffin, 2 Cush. 
 365 ; Carroll v. Carroll, 12 B. Mon. 687 ; Baw- 
 lin.son V. Wa,ss, 10 Eng. L. & Equ. 113; Col- 
 lins V. Carlisle, 7 B. Mon. 13 ; Edmondson 
 V. Dyson, 2 Kelly, 307. 
 
 (a) In ease of a direct devise, a, fee may pass witiiout words of perpetuity, though the 
 will also make an allowance for repairs of the property during the devisee's life. Other- 
 wise, where the devise is merely by implication. Fuller v. Yates, 8 Paige, 325. 
 
 (I) A testator, before the New York Revised Statutes, devised a lot of land to his wife 
 during her widowhood, and on her death to be "equally divided" between his tvvo sons; 
 without words of inheritance. Held, the sons took a life estate. Edwards v. Bishop, i 
 Comst. 61. 
 
CHAP. LTIL] 
 
 HOW CREATED BY DEVISE. 
 
 623 
 
 daughter died without exercising her power. Held, she took a life 
 estate.(l) 
 
 6. But where a testator devised the whole of his property to his 
 wife for life ; at her death, one- third to his daughter, and the other 
 two-thirds to be at the sole and entire disposal of his wife, trusting 
 that if she should not marry again, she should make the daughter her 
 heir ; and the wife died unmarried ; held, she took an absolute estate 
 in the two-thirds. (2) 
 
 7. When a devise is made to one for life, with a power of appoint- 
 ment hy willj or to have to whovi he pleases — the word leave importing a 
 devise ; — he acquires merely a power, and can execute it only in the 
 mode pointed out. But if land is devised to one generally, with 
 power to dispose of it by will or deed ; he takes a fee ; although there 
 is a devise over of what may remain after his death. Devise : " My 
 wife shall have all what I have, &c., to do and act as she thinks good 
 and proper ; all shall be let in her power, that is, into the hands of my 
 wife." Held, the wife took a fee-simple.(3) 
 
 8. A testator gives to his wife a life estate in his lands, and sub- 
 ject to this his whole property, to be equally divided between whoever 
 she should make her heir, and his brother. The wife takes a fee in 
 one moiety. (4) 
 
 9. A devise to one for life, with power to sell, if necessary for his 
 comfortable support, creates a life estate, with a contingent power; and 
 a party claiming under a sale by the devisee, must prove that the con- 
 tingency has happened. (5) 
 
 10. The power to sell real estate devised will not create a fee-simple, 
 unless it is given exclusively for the devisee's own benefit. It is not 
 enough that, after the execution of certain trusts, the residue is devised 
 to him.(6) 
 
 11. Devise to the testator's wife, of " the use and benefit of all my 
 estate, real and personal, and should the income prove insufficient for 
 her comfortable support, she to dispose of so much thereof as shall be 
 necessarv for that purpose ; and at her decease, I order the remainder 
 to be equally divided to and among my children." Held, the wife 
 took a life estate, with a naked power to sell, if the income should not 
 support her.(7) 
 
 12. A devise in fee will not be restrained by any expression of the 
 testator's desire, that the estate shall be disposed of by will by the 
 devisee in a certain way. Thus, in case of a devise to A and her heirs 
 forever, "in fullest confidence" that she will devise the property to the 
 testator's family ; A takes the fee.(8) 
 
 13. One seized of a house and lands, having leased them for ninety- 
 
 (1) Pate V. Barrett, 2 Dana, 426. 
 
 (2) Hoy V. Mester, 6 Sim. 568. See Jack- 
 son V. Robbing, 16 John. 537 ; Guihrie v. 
 Guthrie, 1 Call, 7. 
 
 (3) Tomlinaon v. Dighton, 1 P. "Wms. 171; 
 Croft V. Slee, 4 Yes. 64; Bradly v. Weatcott, 
 13,453; Anderson i;. Dawson, 15, 536; Bar- 
 ford V. Street, 16, 139; STannooii: v. Horton, 
 7, 398; Irwin v. Farrer, 19, 87; Goodtitle v. 
 Otway, 2 AVils. 6; Doughty v. Browne, 4 
 Yeates, 179; Willis v. Bucher, 2 Binu. 464; 
 
 Doe V. Howland, 8 Cow. 277; Helmer v. 
 Shoemaker, 22 Wend. 137 , Dice v. Sheffer, 
 3 W. & Serg, 419 ; Garrett v. Garrett, 1 
 Strobh. Equ. 96; Pulliam v. Byrd, 2 Strobh. 
 Equ. 134; Rubey u. Barnett, 12 Miss. 3. 
 
 (4) Shermer v. Same, 1 Wash. Vir. 266. 
 
 (5) Stevens v. Winship, 1 Pick. 318. 
 
 (6) Grout V. Townsend, 2 Hill, 554. 
 
 (7) Larned v. Bridge, 17 Pick 339. 
 
 (8) Wrigl)t V. Atkins, Tur. &, Russ. 143. 
 
624 ^EE SIMPLE, ETC. [CHAP. LVII. 
 
 nine years, devises tbem to A for ninety-nine yenrs; "the said A to 
 have all my inheritance if the law will allow." Held, A took a fee.(l)(a) 
 14. In favor of children and grandchildren, a devise to trustees, for 
 their benefit during minority, may pass a fee-simple by implication. 
 Thus, a testator devised the residue of his estate to trustees, their heirs, 
 
 (1 ) Widlake v. Harding, Hob. 2. 
 
 (a) A testator gave all liis estate to his wife, " in the fullest manner, subject to the follow- 
 ing provisions." He then gave certain legacies, and desired that all his property sliould 
 continue at interest, in tlie same situation as at the time of his death, for the benefit of his 
 wife, and that his wife should make a will, and divide the property between his and lier 
 relations, in such manner as she should think they deserved. He then declared that, if his 
 wife should be rendered unable to make such will, this property should be sold, and the 
 money divided in the manner therein mentioned. He declared that the last clause was "not 
 to do away with, or prevent his wife from exercising the entire right over his property, 
 should she be enabled to carry it into effect in the way he had left it to her, or in any other 
 most agreeable to herself" The widow, by her will, gave some legacies to her relations, 
 but did not dispose of the residue of her estate. Held, the property had vested absolutely 
 in the widow, and went to her next of kin. Huskisson v. Bridge, 3 Eng. Law and Kq. 180. 
 
 Devise to A and her heirs forever, and if she should die without heirs and intestate, then 
 to B and C. Held, the word "intestate" implied a power in A of disposition by will, and 
 therefore the devise over was void. Armstrong v. Kent, 1 N. J. 509. 
 
 Devise of an estate to "a daughter and the heirs of her body; if no children, to her entire 
 disposal." Held, the devise created a fee conditional, which, on the daughter's having no 
 children, was enlarged into a fee-simple. [Dargan, C. J., dissenting.] Smith v. Hilliard, 3 
 Strobh. Eq. 211. 
 
 A testator gave all his personal property to his wife absolutely ; but a codicil, in the form 
 of a letter, addressed to his wife, contained these words: " I hope my will is so worded that 
 everything that is not in strict settlement you will And at your command. It is my wish 
 that you should enjoy everything in my power to give, using your judgment as to where to. 
 dispose of it amongst your children, when you can no longer enjoy it yourself. But I should 
 be unhappy if I thought it possible that any one not of your family should be the better for 
 what I leel confident you will so well direct the disposal of!" Held, the testator's widow 
 took the property absol^utely. Williams v. Wilhams, 5 Eng. Law and Eq. Rep. 47. 
 
 A testator devised Ins real estate to his wife, to be at her entire disposal; but, if any part 
 thereof should remain undisposed of at the time of her decease, the same should go to his 
 children, to be equally divided among them. Held, the wife took an absolute, indefeasible 
 estate in fee in the laud, and the limitation over to the children was not valid, eitlier as a 
 contingent remainder or executory devise. McLean v. McDonald, 2 Barb. 534. 
 
 Adevi.'^e in a will, before the act of 1833, in Pennsylvania, of a plantation "to my wife 
 for life, and at her decease to descend on my three daughters, or the survivor of thsm, share 
 and share ahke, the personalty to descend to my three daughters in the same manner and 
 on the same principle as my real estate," was held to pass the fee to such of the daughters 
 as survived the testator, there being also a devise, without words of limitation, of a part of 
 the land to be sold, the proceeds to be distributed. Johnson v. Morton, 10 Barr, 245. 
 
 Devise to the daughter of the testator, to her sole and separate use; she to have "the 
 entire control during her life" over the property; then over. By a codicil he directed, that 
 the devises to his daughter should vest in certain trustees, " she at her election to be en- 
 titled to the posses.sion, use, management and control of the property during her life, to sell 
 and exchange the same," and to dispose of it by will at her discretion, satisfying the will in 
 other respects. Held, the codicil did not enlarge the estate given by the will ; that the 
 daughter took a life estate, with power to defeat the remainder Dy disposing of the property. 
 Rail V. Dotson, 14 Sm. & M. 176. 
 
 Bequest: '• My will and desire is, that after all my just debts are paid, all my property, 
 real and per-ional, shall remain in the hands of my wife during her natural life, and that she 
 shall have the disposalof one-half of it at her death." Held, 1. The wife took an estate for 
 life in the whole property, with a general power of appointment as to a moiety, unrestricted 
 in its execution as to time or mode; and she having died without exercising this power; 2. 
 That the whole property was distributable as intestate, one moiety to her next of kin, the 
 other to the testator's. Pulliam v. Byrd, 2 Slrohh. Eq. 134. 
 
 "Where, in a marriage settlement, the intended wife's estate was settled on her for her life, 
 with remainder to her children, and power given her, with the consent of the trustee, to sell 
 and dispose of the property, and her interest therein, as she saw fit; held, the power to sell 
 benig restricted and qualified, the estate given was but a life estate. Deadrick v Armour, 
 10 Hump. 588. 
 
CHAP. LVII.] 
 
 HOW CREATED BT DEVISE. 
 
 625 
 
 executors &c., to apply the produce and interest thereof for the support 
 and benefit of such of his grandchildren, by his daughter, as should 
 be living at his death, until they became of age or married; and di- 
 rected that their father should be trustee, if all the trustees should die. 
 Held the grandchildren took a fee-simple; on the grounds, that it 
 could not be supposed that provision was made for them during mino- 
 rity, and to cease at the very time when they would most need it; 
 that, the devise being made to the trustees in fee, the whole was meant 
 to be given away from the heir ; that, if the father should become 
 trustee, and his wife take as heir, he would be trustee for himself; and 
 that the word produce might import the proceeds of a sale of the 
 property. (1) 
 
 15. This case has been doubted, but afterwards approved in a later 
 case.(2) 
 
 16. A testator devised the residue of his estate to trustees, in trust 
 for his son till he became twenty-one, and then the trust to cease. Held, 
 the son took the whole beneficial interest in fee; as if the devise had 
 been to trustees in trust for him till he was twenty-one, then to him 
 and his heirs.(3)(a) 
 
 17. Devise to A, a daughter, of two-thirds of the homestead, while 
 single, and during her mother's life ; at the mother's death, to be sold 
 by the executors, if they should think best, and the avails to go to 
 A ; if not sold, the use to go to her, for her benefit. Held, A took the 
 fee.(4) 
 
 ly. A fee-simple may pass by devise, by words of mere reference to 
 another devise. Thus, if one devise Blackacre to A atid his heirs, and 
 Whiteacre to B, to hold in the same manner as A holds Blackacre — B 
 takes a fee. So, also, by words of reference to a purchase, which is in 
 fee. Thus, where one devises " my late purchase from A, as also four 
 acres of woodland, &c.," and the purchase from A was in fee, a fee 
 passes in the whole land. So, if one devise " to my eldest son and his 
 heirs Blackacre for his part ; Item, I devise to my second son White- 
 acre for his part :" the latter takes a fee-simple. (5) 
 
 19. Devise " to A all that my house and premises at P. I also give 
 to A all that my land in P and E, to him, his heirs and assigns for- 
 ever." A takes a fee in the house and premises.(6) 
 
 20. Devise to the testator's daughter A, of the southerly portion of 
 his farm, and to his daughter B, lier heirs and assigns, of "that part 
 of my farm called C H, bounded, &c., with a privilege of digging ten 
 
 (1) Newland v. Shepard, 2 P. Wraa. 194. 
 See Doe v. Lean, 1 Ad. & Ell. (N. S.) 229 ; 
 Codmnn v Coffin, 2 Cush. 365. 
 
 (2) Fonnereaii V. Fonnereau, 3 Atk. 316. 
 
 (3) Real V. Powell, Arab. 387 ; Doe v. 
 Roper, HE. 518; Doe v. Clayton, 8 Ves. 
 141. 
 
 (4) Ingersol v. Knowlton, 15 Conn. 468. 
 
 (5J Perk. 561; Neide «. Neide, 4 Rawle, 
 75 ; 1 Roll. Rep. 369; Gough v. Howarde, 3 
 Bulst. 127; ymith w. Berry, 8 Ohio, 365. See 
 Brooks V. Whitney, 11 Met. 413; Areson v. 
 Areson, 3 Denio, 458. 
 
 (6) Fenny v. Ewestace, 4 M. & S. 58. 
 
 (a) A fortiori, a devise to trustees in fee, in trust for a person till he becomes of age, with' 
 direction that, upon his reaching the age of 21, they suffer him to enter upon and enjoy the 
 estate— passes a beneficial fee-simple to the cestui. Challenger v. Shepard, 8 T. R, 597. 
 See Smitliwiok v, Jordan, 15 Mass 113. 
 
 But the mere fact, of a devise to sons after a life estate, does not prove an intention tO' 
 give the tee. Olmsted v. Harvey, 1 Barb. 102. See Williams v. Caston, 1 Strobh. 130. 
 
 Vol. L 40 
 
626 
 
 FEB SIMPLE, ETC., 
 
 [CHAP. LTII. 
 
 barrels of clams yearly at the southerly end of my farm." Held, B took 
 a fee in the privilege as well as the land.(l) 
 
 21. A, seized of lands in W, devised them to his son A for his life, 
 and then to remain to C, the son of B, except B purchased another 
 house, with so much land as in W for 0, and then B should sell the 
 lands in W as his own. B did not purchase other lands. Held, the 
 word purchase imported a purchase in fee, and therefore G took a fee 
 in the lands in W.(2) 
 
 22. The introductory words of a will, indicating an intent to dispose 
 of a testator's whole interest, may be so coupled with other clauses, in 
 themselves ambiguous, as to pass an estate in fee-simple. Devise — "All 
 the estate 1 have 1 intend to sdtle in this manner — viz. : my estate at A I 
 give to my dear brother, and after his decease, my desire is, that it 
 should be disposed of to B." Held, the will passed a fee-simple, such 
 being the plain intent of the testator, as expressed by the introductory 
 clause.(8) 
 
 23. Devise : " as touching my worldly estate wherewith it has pleased 
 God to bless me, I give, devise and dispose of the same in the follow- 
 ing manner." The testator then gives to bis mother all his estate at 
 jSl, with all his goods and chattels, as they then stood, for her life ; and 
 to his nephew, T D, after her death, if he would but change his name ; 
 if he did not, then he gave him 201. per year, to be paid him for his 
 life out of N close and the farm held at E, which he gave her upon his 
 nephew's refusing to change his name, to her and her heirs forever. 
 Held, T D took a fee.(4) 
 
 24. But no operative and effective clause in a will is to be controlled 
 by ambiguous words in the introduction, unless demanded by a reason- 
 able interpretation ; nor shall a subsequent clause, relating to a parti- 
 cular subject, be controlled by an introductory clause not relating to 
 that subject. Thus, if the introductory clause is, " as to all my worldly 
 estate," still the will does not pass an estate that is clearly omitted. (5) 
 
 25. " As touching such worldly interest, &c., I give all my lands and 
 tenements, buildings, &o., with the appurtenances, &c., by her freely to 
 be possessed and enjoyed." Held, only a life estate was devised. (6) 
 
 25 a. Before the Eev. Sts. in New York, a devise with no words of 
 inheritance passed only a life estate ; and such devise is not enlarged 
 by the general introductory clause of the will, to which it is not directly 
 connected, nor by a general charge upon the whole estate of the testa- 
 tor by iaiplication, not upon the person of the devisee.(7) 
 
 26. Devise, " as to what worldly goods," &c., then all the land to 
 the wife for life, and after her death to the testator's two sons. Held, 
 the sons took a fee. (8) 
 
 27. The intention to give a fee-simple may also be inferred from other 
 parts of the will containing devises to other persons. A testator devi- 
 
 (1) Lakeman v. Butler, 17 Pick. 436. 
 
 (2) Green v. Armsiead, Hob. 65. 
 
 (3) Tuffiiell V. Pa{;e, 2 Atk. 37. See Bar- 
 
 keydt v. Barkeydt, 20 
 V. Selby, 3 Mann. & Gr. 
 7 Barr, 443 ; Franklin 
 488. 
 (4) Ibbetson v. Beckwitli, Forr. 157, 
 
 Wend. 676; Knight 
 92 ; Miller v. Lynn, 
 V. Harter, 7 Blackf. 
 
 (5) Orford v. Churchill, 3 Tea. & Bea. 67 ; 
 13 Tes. 344; Doe v. Clayton, 8 K 144; 
 Wrights. Russel, Cowp. 661; 4 Dane, 531; 
 1 Dal. 226. 
 
 (6) Wheaton v. Andress, 23 Wend. 452. 
 
 (7) Vanderwerkerv. Vanderwerker, 7 Barb. 
 221. 
 
 (8) Wyatt V. Sadler, Munf. 537. 
 
CHAP. LVII.] 
 
 HOW CREATED BT DEVISE. 
 
 627 
 
 ses lands to his wife, and after her death to A, one of his sons. He then 
 bequeaths to B, another son, a legacy, "as his proportion of the es- 
 tate." A takes a fee-simple.(l) 
 
 28. A testator, having a son and two daughters, each of them having 
 children, and also a minor son unmarried, devises the dwelling-house, 
 &c., valued at $8,500, to the children of his son A, after A's death, and 
 makes similar devises to his daughters and their children. To the mi- 
 nor son he devises " the reversion " of certain lands at the death of his 
 wife, valuing the land at $8,000, but ordering that it be estimated at 
 $6,00U, on account of the probable delay in coming into possession of it. 
 The remainder of his estate, consisting chiefly of stocks, &c., and a wood 
 lot valued at $1,000, to be equally divided among the children, first 
 charging them with the amount received by them or their children in 
 real estate according to valuation in the will, so that when one has re- 
 ceived an excess iu real estate, a deduction shall be made from his share 
 of the personal property. "The wood lot, or any other estate which I 
 have not disposed of, may be sold at the discretion of my executors." 
 The valuation in the will was the value of the fee-simple. The children 
 of A take a fee, subject to his life estate. (2) 
 
 28 a. A testator devised to his wife for life, and, at her decease, to his 
 children, their heirs and assigns, as tenants in common ; and, in case of 
 the death of either of said children, his or her share to descend to the 
 children of said child, or, if said child should die without issue, then to 
 the surviving children of the testator. The wife died in the testator's 
 lifetime. Held, upon the death of the testator, his children took an in- 
 defeasible estate in fee-simple.(3) 
 
 29. In a devise, the word, " estate," signifies the interest which a 
 man has in lands, rather than the subject of that interest ; even though 
 there are other words, pointing to local situation, rather than the amount 
 of interest. Therefore, '' all my estate," or " all my real estate," passes 
 a fee-simple. So, "all my land and estate in A," because the word 
 "land," would give an interest for life, and, therefore, the word "estate" 
 would be superfluous unless it passed a fee. So, " my estate at A," 
 omitting the word "all." So, "testamentary estate," if aided by the 
 introductory clause.('±)(a) 
 
 30. So the devise of " all the estate called A, containing 2,585 
 acres of land," passes afee.(5) 
 
 (1) Butler t). Little, 3 Greenl. 230. 
 
 (2) Baker tJ Bridgre, 12 Pick. 27. 
 
 (3) Caldwell v. Skilton, 1 Harris, 152. 
 
 (4) Johnson v. Kerman, 1 Rolle Ahr. 834; 
 Lane v. Hawkins, 2 Siiow. 388; Barry v. 
 Edpeworth, 2 P. Wms. 523 ; HungerCord v. 
 Anderson, 4 Day, 368 ; Holdfast v. Marten, 1 
 T. R. 411; Chichester v. Oxendon, 4 Taun. 
 176; Cliorlton v. Taylor, 3 Ves. & B. 160; 
 Holms V. Williams, 1 Root, 332 ; Godfrey v. 
 
 Humphrey, 18 Pick. 537 ; Fox v. Phelps, 17 
 Wend 393 ; Hammond v. Hammond, 8 Gill 
 & J. 437; Maine Rev. St. 378; Foster v. 
 Craige, 2 Dev. & B. 211 ; Doe v. Roberts. 11 
 Ad. & EI. 1000 ; Smith v. Berry, 8 Ohio, 365 ; 
 Doe V. Lawton, 4Bing. S. 461 : 6 Scott, 303 ; 
 Leavitt v. Wooster, 14 N. H. 550 ; Quennell 
 V. Turner, 4 Eng. L. & Equ. 84 ; Bell v. Soam- 
 mon, 15 N. H. 381. 
 
 (5) Lambert v. Paino, 3 Cranoh, 97. 
 
 (a) In a deed otherwise ; more especially where the terms of description and the limited 
 authority of the' grantor favor such construction. Thus, under a license to sell all the real 
 estate of an intestate, his administratrix sold and conveyed " the residue of the deceased's 
 dwellin<T-house that was not set off to his widow as dower in said estate ; reference being 
 always had to the returns and bounds of the widow's thirds, for a particular description of 
 the bounds of the premises." Held, the reversion of the estate assigned to the widow as 
 dower did not pass. Kempton v. Swift, 2 Met. 7(> 
 
628 
 
 FEB SIMPLE, ETC., 
 
 [CHAP. LVII. 
 
 31. A testator gave to his wife for life, " all that estate I bought of 
 Mr. M," then fo his son A, part of that estate called S, to him and his 
 heirs; and the other part thereof to his son B and his heirs; and ''to 
 mv son C, all that estate I bought of Mr. M after the death of my wife." 
 Held, C took a fee-simple in the last named estate. Lord Hardwicke 
 founded his opinion on the grounds, that the will was inartificially 
 drawn by one " iuops consilii," but showed a clear intent to distribute 
 the testator's whole estate; that the want of the word "my" before 
 " estate" made no difference ; and though the word " estate" was used 
 in the devise to the wife, yet by making it expressly for life to her, 
 and general to C, the testator showed that he used it in different senses 
 in the two clauses.(l) 
 
 31a. "I give and bequeath to my wife, Clarissa, all my estate, both 
 real and personal, for her own use and benefit, reserving only sufficient 
 to pay my just debts." Held, a fee passed. (2) 
 
 31 b. Devise, " I give Horsecroft, my estate that I now live in, to my 
 son J P, a lunatic." Held, the word "estate" passed a fee.(3) 
 
 31 c. A devise, '' as to all my worldly estate/' of a house to A, " and 
 the remainder of my estate, real and personal, among my children, in- 
 cluding A," would pass a fee, prior to the Pennsylvania statute of 
 iic3.(4) 
 
 31 d So, where a testator gave a tract of land and a slave to his wife 
 for life, and the balance of his estate, real and personal, to his daughter 
 for life, with remainder to her children ; held, it was to be presumed 
 that he intended to dispose of his wbole estate, and, at the death of his 
 wife, the land and slave went to his daughter, with remainder to her 
 children. (5) 
 
 32. On the same principle, the words " my property," " all my real 
 property," "all my right, title and interest," or, "part, share and inter- 
 est," "all the rest and. residue," "the residue," "whatever else I have 
 not disposed of," " the whole reversion," or "remainder of my lands," 
 have been held sufficient to pass the fee-simple.(6)(a) Devise, " as to 
 all my temporal estate, &c., I give and devise the same as follows :" 
 then legacies to A, with direction to sell real and personal estate for 
 payment of debts and legacies; concluding with "as to all the rest of 
 my goods and chattels, real and personal, movable and immovable, as 
 houses, gardens, tenements, &c., to A." Held, A took a fee-simple.(7.) 
 
 33. But it is said that this construction will not be given, unless the 
 manifest intent of the testator, as gathered from the will and the circum- 
 
 (!) Bailisj;. dale, 2 Tea. 48. 
 
 (2) Trncy v. Kilborn, R Cush. 557. 
 
 (3) Pottow V. Fricker, 5 Eng. Law and Eq. 
 443. 
 
 (41 Peppard v. Deal, 9 Bnrr, 140. 
 
 (5) Deadriek v. Armour, 10 Humph. 588. 
 
 (6) Hopewell t). Acklaiid, 1 Salk. 2B9; Nor- 
 ton V. Ladd, Lutw. 761 ; Bailisi). Gale, 2 Ves. 
 48; Niohollsj;. Butcher, 18 Ves. 193; Colei;. 
 Eawlinson, 3 Bro. Pari. Ca. 7; Andrew v. 
 Soutliouse, 5 T. R. 292 ; Murry v. Wyae, 2 
 Yer. 690; Morrison v. Sample, 6 Binn. 94; 
 
 Fraser v, Hamilton, 2 Desaus. Cha. 573 ; 
 Grayson v. Atkin.son, 1 Wils. 333 ; 3 Cranch; 
 130; Holms v. Williams. 1 Root, 332; 4 Day, 
 368; 17 John. 281; Brown v Wood, 17 
 Mass. 68; Fox v. Phelps, 17 Wend. 398 f 
 Roe V. Bacon, 4 M. & a 366 ; Ciilhbert v. 
 Lempriere, 3 M. & S. 158 ; Dewey v. Morgan, 
 IS Pick. 295 ; Doe v Lean, 1 Ad. &, K\. (N. 
 S)229; Donovan v. Donovan, 4 Harrlng. 
 177 ; Harvey v. Olmsted, 1 Comst. 483 ; Lip- 
 pen V Eldred, 2 Barb. 130. 
 
 (7) Shaw V. Bull, 12 Mod. 596. 
 
 (a) As to the words " lands, tenements,' 
 t P. 247 ; Doe v. Allen, 8 T. R. 503. 
 
 &c., see Moore v. Denn, 7 Bro. P. C. 607; 2 B. 
 
CHAP. LTIL] 
 
 HO"W CREATED BT DEVISE. 
 
 629 
 
 Stances of the case, so require. If the words of the will may be satisfied 
 by an application to personal estate, the heir shall not be disinherited 
 by ]mp]ication.(l)(a) 
 
 34. Bat where the wife of the testator was made devisee for life of a 
 particular estate in one clause, and a subsequent one devised to her, 
 
 all the rest, residue and remainder of my goods, &c., together with my 
 real estate not herein before devised, &c. ;" held, the circumstance that 
 the particular and residuary devises were made to the same person 
 raised no presumption against an intent to give her a fee in the same 
 lands which she took for life, inasmuch as the testator might chancre his 
 intent even while making the will. And this construction was con- 
 firmed by the consideration, that where certain other estates were de- 
 vised for life, the remainders in fee were expressly given over.(2) 
 
 35. A testator devised the income of shares in the corn market of 
 London to his nephew for life ; and all the rest of his estates, with all 
 moneys in the stocks, &c., to A and others. Held, the last clause 
 passed the reversion in fee of the corn market shares.(3) 
 
 36. Devise of lands to A and B, " whom I appoint my executors of 
 all that I possess in any way belonging to me, by them freely to be pos- 
 sessed or enjoyed, of whatever nature or manner it may be."" A and B 
 take a fee-simple. (4) 
 
 35. A testator bequeathed to his heir one shilling, and devised to 
 A all his lands, and, in the next clause, all his goods, chattels, personal 
 and testamentary estate. A takes a fee-simple.(5) 
 
 38. A testator, who died leaving a wife and children, devised to his 
 wife " all my real estate, one clock, and the interest of $500 during her 
 lifetime." The rest of his chattels he bequeathed among his children, 
 but made no further disposition of the real estate. Held, the wife took 
 an estate in fee. So, where a testator devises one lot to A his heir at 
 law, and to B, all the residue of his lands, " to be kept in the name and 
 family of the B's as long as can be ;" B takes a fee-simple. 
 
 39. Devise — the interest of all my land, property, whether houses, 
 bank stock or cash, after discharging debts, to my wife ; afterwards to 
 my sister C's family, to go in heirship forever. C's eldest son takes a 
 fee. 
 
 40. A testator devises his "temporal estate," after payment of debts, 
 as follows ; to his eldest son A all his lands at and F ; to his son B 
 all his lands at C : and to his wife and daughter, " all the rest of his 
 estate, real and personal." Held, the fee of and F did not pass by 
 the will, but descended to A.(6) 
 
 41. Devise : all my estate to be thus divided, the wife of the testator to 
 
 (1) Shaw V. Bull, 12 Mod. 596. See Are- 
 son V. Areaon, 3 Denio, 458. 
 
 (2) Ridout V. Payne, 1 Vea. 10; 3 Atk. 
 486. 
 
 (3) Fletcher v. Smiton, 2 T. R. 656. 
 
 (4) Thomas v. Phelps, 4 Rus 348. 
 
 (5) Bradford v. Belfield, 2 Sim. 264. 
 
 (6) Areson v. Areaon, 5 Hill, 410; Doe v. 
 Wood, 1 B. & A. 518 ; Doe v. Smith, 5 M. & 
 S. 126 ; Kenuon v. McRoberta, 1 Wash. Vir. 
 96. 
 
 (a) A testator, who died without children, devised tlie residue of hia estate, both real and 
 personal, to be divided between hia wife and two half-sisters, " as the law directs," Held, 
 the wife took but a life estate in one-half the realty. Burton v. Burton, 4 Harring. 38. 
 
 So a devise of a plantation to A, subject to the life estate of his mother in one-third, with- 
 out anything else to indicate an intention to give a fee, passes but a life estate. Calhoun v. 
 Cook, 9 Barr, 226. 
 
630 
 
 FEE SIMPLE, ETC., 
 
 [CHAP. LTII. 
 
 have a house to live in, and garden, and one-third of all the estate, remain- 
 der over. The wife takes a life estate in the house and garden, and a 
 fee in the rest of the propertj.(l) 
 
 42. Devise, to my daughter A, of all my residue and remainder of 
 real and personal estate, goods, &c., lands, &c. If she die before she 
 comes of age to receive said legacy, the personal and real estates to re- 
 turn to B, to whom T bequeath it on the above proviso. Held, A took 
 a conditional fee, and that the limitation to B was an executory devise. 
 B having died, and then A, the heirs of B took the estate. If a power 
 of disposition had been given to A, he would have taken an absolute 
 fee.(2)(a) 
 
 4a. A devisee, charged with the payment of a sum in gross, will take 
 a fee-simple in the lands devised to him, though there are no words of 
 inheritance. But if the charge is made upon the land, to be paid from 
 its proceeds only ; or if a less estate is expressly limited, this construc- 
 tion does not take place.(6) Even a personal charge is said to be not 
 conclusive. Its effect is, to supply defects of expression.{S) 
 
 44. A testator devises to his son A, all his real and personal estate, 
 subject to bequests ; one of them "to his granddaughter B $1,000, to 
 be paid her by A when she becomes 18, in land in such place as he 
 can buy it." A takes a fee.(4) 
 
 45. The comparative value of the land devised, and of the amount 
 to be paid, does not affect the principle above stated. Because, how- 
 ever much the former may exceed the latter, if the devisee takes only 
 a life interest, it may terminate before he has realized even the small 
 sum to be paid ; and the law always intends a devise to be beneficial 
 to the devisee. Nor does it affect the principle, that the payment is to 
 
 0) Holme v. Harrison, 2 Whart. 283. 
 
 (2) Aokless v. Seekright, 1 Bre. 46 ; (1 Call, 
 
 7.) 
 
 (3) 6 John. 192 ; Jackson j).Bull, 10, 148; 
 Tannery. Livingston, 12 Wend. 83; Moor*. 
 Price, 3 Keb.49; Grumble «. Jones, 11 Mod. 
 208; Burkartu. Bueher, 2 Binn. 455; Co. 
 Lit. 9 b. ; Doe v. Pyldes, Cowp. 841 ; Wel- 
 lock V. Hammond, Cro. Eliz. 204; Boraston's 
 case, 3 Rep. 20 b; Collier's case, 6, 16; Ack- 
 land V. Ackland, 2 Vern. 687 ; Stevens v. 
 Winship, 1 Pick. 318; Lithgow v. Cavenagh, 
 
 9 Mass. 165; Fox v. Phelps, 17 Wend. 393 ; 
 Sliolfield V. Zehmer, 6 Watts, 101; Spraker 
 V. Van Alstyne, 18 Wend. 200 ; Barkeydt v. 
 Barkeydt, 20 Wend. 516 ; Bradford v. Per- 
 kins, 23 Pick. 183 ; Wait v. Beldiug, 24 Pick. 
 129; M'Lellan J). Turner, 3, 436 ; Olmsted v. 
 Harvey, 1 Barb. 102 ; Olmstead v. Olmstead, 
 4 Comst. 56 ; Bell D.Soammon, 15 N. H. 381 ; 
 Harden v. Haya, 9 Barr. 151 ; Franklin v. 
 Harter, 7 Blackf. 488. 
 
 (4) Coonrod u. Coonrod, 6 Ohio, 114. 
 
 (a) Devise to A of " the whole of my property in P," &c. To B, of " all my other lands 
 in H and M, subject to the yearly payment of £150 to C, and should A have lawful issue, 
 ffis said property to be equally divided between her lawful issue." Held, the words, "the 
 said property," did not embrace the land devised to B, and that B took a fee-aimple. Pep- 
 percorn V. Peacock, 3 Scott N. R. 651. 
 
 (b) " It is my will and order, ihat my beloved wife A, shall be master of my estate, both 
 real and personal, so long as she shall remain my widow, subject to the payment of" lega- 
 cies. Held, the wife took a life estate, subject to be defeated by her marriage. Beardslee v. 
 Bearislee, 5 Barb. 324; Leavitt v. Wooster, 14 N. H. 550 ; Quenuell v. Turner, 4 Eng. L. 
 & Equ. 84; Bell v. Scammon, 15 N. H. 381. 
 
 In one oa.se it is said, that if the charge is on the person or land, the estate is a fee; if on 
 the rents and profits, otherwise. Kennon v. M'Roberts, 1 Wash. Vir. 96, {infra, sec. 52.) The 
 payment must be either a personal charge or a condition annexed to the estate. Yan Alstyne 
 V. Spraker, 13 Wend. 578. A mere direction or injunction to the devisee does not amount 
 to a condition ; but the words, " he paying," will create a condition or limitation, (it seems,) 
 according to the intent. Fox v. Phelps, 17 Wend. 393. 
 
 A devise of all the estate, after payment of debts and legacies, the devisee being also exe- 
 cutor, passes a fee, though there is no personal charge. Kellogg v. Blair, 6 Met. 322. 
 
CHAP. LTII.] 
 
 HOW CREATED BY DEVISE. 
 
 631 
 
 be made mfuturo. But if the payment is to depend on a contingency, 
 tbe ruJe is said not to apply. As where the testator leaves both real 
 and personal estate and charges his estate generally, so that the lands 
 are not liable till the personal estate is exhausted. But if the land is 
 nrst devised, the devisee " paying," &c., and the personal estate is be- 
 queathed to the same person in a succeeding clause ; the charge being 
 made on account of the land alone, the devisee takes a fee. So, where 
 a testator devised a house to his wife, and the remainder of his property 
 as follovys ; to his wife one part, and to each of his six children one 
 part, adding, "my mother-in-law, A B, to live in the house with my 
 wife and children, or, if she prefers it, to receive in lieu thereof $200 ;" 
 held, the widow, by acceptance of the devise, became contingently 
 liable for the charge, and that her estate was thereby enlarged to a fee- 
 simple.(l) ^ 
 
 46. So, where a testator devised to his wife "all the rest I have in 
 the world, both houses, lands, goods and chattels, stock in trade, and 
 all other things belonging to me ;" ordering her to sell the personal 
 property, and, if this ivill not pay the debts, the real estate ; held, the 
 wife took a fee, for the whole property was devised in one clause, and 
 the order to sell the personalty first was merely directory, and what 
 the law would imply ; and moreover she was empowered to sell the 
 lands, which she could not do without having the fee.(2)(a) 
 
 •±7. It has been held, that where a devisee is indebted to the testa- 
 tor, and charged with the payment of debts, on that ground such 
 charge does not give him a fee. So a charge upon the land does not 
 create a fee-simple, if there is another fund, in immediate connection 
 with which the charge is imposed.(3) 
 
 48. A devise of land, charged with payment of debts and legacies, 
 passes a fee-simple. A testator gives to A £20, to be paid out of his 
 lands within one year. - He then gives other legacies, and devises all 
 his lands to B. B takes a fee.(4) 
 
 49. A testator devises "all the residue, &c., my legacies and funeral 
 expenses being thereout paid." Held, although the residuary words 
 were insufficient to pass the fee, the other clause gave an estate in fee- 
 simple. (5) 
 
 50. Where a devisee is charged with a perpetual payment, he takes a 
 fee-simple. Thus, where he is to pay £3 annually to B and his heirs ; 
 or £6 yearly to the merchant tailors of London. So where one devised 
 four coats to four boys of the parish of D forever, and all his lands, &c., 
 and personal estate to his wife and her assigns ; held, she took a fee.(6) 
 And even where the payment is to be only for the life of the third per- 
 
 (1) Jackson v. Harris, 8 John. 141 ; Doe 
 V. Holmes, 8 T. R. 1 ; Coan v. Parraentier, 10 
 Barr, 72. See Tanderwerker v. Tanderwer- 
 ker, 7 Barb. 221. 
 
 (2) Goodtitle v. Maddern, 4 E. 496. 
 
 (3) Tanner v. Livingston, 12 Weud. 83; 
 BurliHgham v. Belding, 21 Wend. 463. 
 
 (4) Ackland v. Ackland, 2 Ver. 687 ; Tay- 
 lor V. Kocher, 3 W. & Serfr. 419. 
 
 (5) Doe V. Richards, 3 T. R. 356. 
 
 (6) Shailard v. Baker, Cro. Bliz. 744 ; Webb 
 -V. HearinsT, Cro. Jac. 415; Smith v. Tyndai, 
 2 Salk. 685. 
 
 {a) The above-mentioned rule of construction may sometimes vest a fee-simple even in 
 another devisee than the one charged with the debt. Where a testator devised the upper 
 half of certain land to his son, and the lower to his grandson, without words of inheritance, 
 and charged the son with payment of legacies; held, a fee-simple vested in the grandson, as 
 well as the son. Barkeydt v. Barkeydt, 20 Wend. 576. 
 
632 
 
 FEE SIMPLE, ETC., 
 
 [CHAP. LVII. 
 
 son, or is ■without any certain limitation, the devisee takes a fee-simple. 
 As where one devised lands to A, conditionally that he should allow 
 to his son, meat, drink, &c., during his natural life. So, where one 
 devised two houses to his son, on condition that he should pay his sis- 
 ters £5 a year, with a clause of entry on non payment. So where there 
 was a specific devise of real estate, and a general residuary devise of 
 personal property, to A, he paying debts, legacies, &c., and A was 
 made executor, and among the legacies was an annuity to B for her 
 life, to be paid by the executors — held, the devise of real and personal 
 property being made by one clause, both were charged, and the an- 
 nuity, being of uncertain duration, must have a fee to support it.(l) 
 
 51. The same construction has been given, even where the payment 
 is charged rather upon the land than the person of the devisee. Thus, 
 where the testator gave two tenements to A, " she paying thereout 40s. 
 a year to her sister B," held, A took a fee-simple.(2) So where, after 
 the introduction "as touching all such temporal estate," &c., the testa- 
 tor devised a house to his grandson, paying yearly and every year out 
 of tlie said dwelling-houses lbs. to his granddaughter, the grandson took 
 a fee.(3) 
 
 52. But if an annual sum is to be paid from the rents and profits, the 
 fee does not pass. So, if a devise is upon a condition to be performed 
 during the life of the testator, this is not sufiScient to supply the want 
 of words of inheritance. 
 
 53. Devise to A, on condition that he shall serve the testatrix as a 
 coachman, so long as she shall require, and shall at all times conduct to 
 her satisfaction. A takes only an estate for life. (4) 
 
 54. So it has been held, that where the property is given over to 
 others upon the devisee's death, the latter takes only a lile estate.(a) 
 
 55. A testator devises his whole property to his wife, on condition 
 of her paying to his mother a certain annuity for her life ; and after 
 the wife's death, the property to be divided equally among his survi- 
 ving children. The children all died, living the widow, who married 
 again and died. Held, she took only a life estate.(5) 
 
 56. A devise to one generally, with a limitation over if be die under 
 age and without issue, may pass a contingent fee-simple to the first 
 devisee. 
 
 57. Thus where, after the introduction " as to my worldly estate," 
 the testatrix gave to her son A a certain house, and if he died in 
 minority, to her three daughters — held, the construction must be, that 
 if A lived till 21, he should have the right to dispose of the property 
 himself; if not, the testatrix disposed of it. Therefore, A took a fee- 
 simple.(6) 
 
 58. A testator devised to the two children of his brother, when they 
 
 (1) Lee V. Stephens, 2 Show. 49 ; Reed v. 
 Hatton, 2 Mod. 25; Goodright v. Allin, 2 
 Black. R. 1041. 
 
 (2) Baddeley v. Leppingwell, 2 Burr. 1533. 
 
 (3) Goodright v. Stocker, 5 T. R. 13 ; (An- 
 
 drew V. Soxithouse, 5 T. R. 292.) Harvey v. 
 Olmsted, 1 Comst. 483. 
 
 (4) Farrar v. Ayres, 6 Pick. 404. 
 
 (5) Joalin v. Hamnaond, 3 Mylne & K. IIO. 
 
 (6) Frognaorton v. Holyday, 3 Burr. 1613. 
 
 (a) On the other hand, where a will provided that the executors should pay the debts, 
 and devised one farm to A, and others to B, C and D, making A and B joint executors and 
 residuary legatees; held, A took a life estate. Doe v. Roberts, 7 Mees. & "W. 382. 
 
CHAP. LVII.] 
 
 HOW CREATED BT DEVISE. 
 
 633 
 
 reached 21 years ; but if either died a minor, the survivor to be heir 
 to the other. Held, the devisees took a fee.(l) 
 
 Tf :v r'''?''" devised to her grandchildren as tenants in common. 
 It either died under age, without leaving issue, the survivor to have 
 his share. Held, they took a fee.(2) 
 
 60. A testator devises to his daughter A all his residue and remainder 
 ot pergonal and real estate, goods, &c., lands, &c.; and if she die " be- 
 tore She comes of age to receive said legacy, the personal and real 
 estate to return to B, to whom I bequeath it on the above proviso." 
 neifl, that A took a conditional fee, which expired upon her dying 
 under age (8) t- f j & 
 
 61. Where a devise is made to trustees, if the purposes of the trust 
 cannot be satisfied without having a fee, they will take this estate, 
 though no words of inheritance are used. And it is enough that there 
 ^^flo'^m°^^^ '"'^^^^^ %pM«627% could not be answered oiherwise.(a) 
 
 62. Ihus, a devise of land to an executor, to be sold for payment of 
 debts and legacies, with power to convey in fee, passes to him a fee- 
 simple in trust.(4) 
 
 63. A testator devises all his real and personal estate to trustees, 
 their executors, administrators and assigns, in trust to pay annuities 
 and large legacies, first from the personal estate, and if that were in- 
 sufficient, " by and oat of the rents, issue and profits arising by the real 
 estate."^ Several of the legacies were payable within a year from the 
 testator's death. Held, it was the evident intent that the trustees should 
 have power to sell the real estate for payment of the legacies and an- 
 nuities, and therefore they took the fee.(5) 
 
 6-i. A testator bequeaths several small annuities, some for life, others 
 in fee, to be paid by his trustee A every year. He also gives to his 
 trustee and executor £o to build a tomb for him, he and his heirs al- 
 ways to keep it in order ; and appoints A his sole executor and trustee. 
 Held, the real estate was subject to trusts, some of which were in fee, 
 and therefore the trustee should take an estate co-extensive with the 
 charges.(6) 
 
 65. But where a devise is made to trustees for a limited purpose, re- 
 mainder to the persons to whom the beneficial interest is given, the 
 legal estate of the trustees ceases upon the fulfilment of such purpose, 
 and vests in the remainder-men. (7) 
 
 66. In all the instances above named, where an estate in fee has been 
 created without words of inheritance, this construction has resulted 
 from the terms of the will itself The same construction may arise 
 from the nature of the property devised. Thus, a devise of wild lands 
 
 (1) Doe V. Cundall, 9 E. 400. 
 
 (2) Toovey v. Bassett, 10 E. 460. 
 
 (3) Ackless v. SeekrigLt, 1 Bre. 46 ; Grutlirio 
 V. Guthrie, 1 Call, 7. 
 
 (4) Inman v Jackson, 4 Greenl. 237. See 
 Pavne v. Savie, 2 Dev. & B. 455; Doe v. 
 Davies, 1 Ad". & El. (N. S .) 430 ; Ackland v. 
 
 Lutley, 9 Ad. & El. 879; Doe v. Ewart, 7 
 Ad. & Ell. 636. 
 
 (5) Gibson v. Montfort, 1 Ves. 485. 
 
 (6) Gates v. Cook, 3 Burr. 1684. 
 
 (7) Heardon v. Williamson, Keen, 33 ; Ack- 
 land V. Bring, 2 Mann. & G. 937. 
 
 (a) Devise to A and B and their heira to the use of C for life, after his death to the use of 
 D and E as tenants in common, with introductory words of a general character. Held, D 
 and E took a fee-simple. Knight v. Selby, 3 Mann. & G. 92. 
 
634: 
 
 FEB SIMPLE, ETC., 
 
 [CHAP. LVII. 
 
 passes a fee without words of inheritance ; and the nature of the prop- 
 erty may be proved by extrinsic parol evidence.(l)(a) 
 
 67. An estate tail may pass by devise, without any technical words. (6) 
 
 68. Thus a devise to one " and his seed," or to a man and his wife, " et 
 hcendi de corpore, et uni hoeredi tantum ;" or to a man " and his heirs male," 
 or to a son •' and his oldest male heir, forever ;" will pass an estate tail. 
 
 69. So, a devise to one "and his lawful heirs;" or to one "and his 
 heirs lawfully begotten," although this expression would literally ap- 
 ply as well to collateral as lineal heirs.(2) 
 
 70. An express estate tail will not be enlarged into a fee-simple, by 
 being charged with the raising of money ; more especially where it is 
 to be raised from the annual profit of the land, and where there are re- 
 mainders over, and notwithstanding the clause "from and after the 
 
 (1) Sargent ». Towne, 10 Mass. 303; Rus- 
 sell V. Elden, 3 Shepl. 193. 
 
 (2) Clerk v. Day, Cro. Eliz, 314; 3 Cruise, 
 201; Baker i;. Wall, 1 Ld. Ray, 185; Cuflfee 
 V. Milk, 10 Met. 366 ; Church v. Wyat, Moore, 
 637 ; Nanfan v. Legh, 7 Taun. 85 ; Winder 
 
 u.Diffenderffer, 2 Bland, 178; Doe t). Bannister, 
 7 Mees & W. 292 ; Douglas v. Congreve, 5 
 Bing N. 318; Doe v. Charlton, 1 Mann. &Gr. 
 429; Simpson V. Ashworth, 6 Beav. 412; 
 Rig.gs V. Sally, 3 Shepl. 408 ; Lott v. Wyekoff, 
 1 Barb. 565; Wiley v. Smith, 3 Kelly, 551. 
 
 (a) I liave thus undertaken to present a summary statement of the several cases, in which 
 a devise may pass an estate in fee-simple without words of inheritance, and of the decisions 
 in England and America upon the subject. Erom these decisions certain general principles 
 have been extracted, as above laid down. But perhaps there is no instance in the law, 
 where decisions are so unsatisfactory as the foundation of principles, or where a careful in- 
 quirer so fully realizes the impossibility of anything more than appro.ximation to settled and 
 well-defined rules. The very principle itself of construing devises by implication — an 
 implication founded ofteu upon clauses, or even single words or expressions, wholly dis- 
 connected in form with the one under consideration ; or, in other words, of construing by 
 the intent and not the language; involves the consequence, that each case, as it occurs, 
 turns upon its own circumstances, and is drawn out from the application of an established 
 rule by the very slightest point of difference from previous and analogous decisions. It is 
 very observable, also, that the several distinct principles, supposed to be deducible by an ac- 
 curate analysis from the decisions on this subject, do in fact, when those decisions are care- 
 fully examined, run into each other. For example, in Coonrod v. Coonrod, (p. 630,) al- 
 though the case was decided upon the ground of a charge on the devisee, yet the devise was 
 of ''all my real and personal estate," which of itself has been held ™(ficient to carry the 
 fee-simple. The same remark applies to Goodtitle v. Maddern, (p. 631,) and Goodright v. 
 Stocker, (p. 632.) So, in Progmorton v. Holyday, (p. 632,) cited to the point, that where 
 there is a devise over, in case the first devisee dies a minor, &c., such devisee will take a 
 fee by implication — there was a similar introductory clause. Also in Ackless i). Seekright, 
 (p. 633.) So, in Gibson v. Monfort, (p. 633,) referred to as establishing the principle that by 
 a devise to trustees the fee will pass, where the purposes of the trust so require; the devise 
 is, of "all my real and per.sonal estate;" and, moreover, legacies and annuities are charged 
 upon the lands devised. And in regard to the last-named point, it might, perhaps, be the 
 most philosophical view of the subject, to treat all charges upon the laud as trusts, and thus 
 reduce two principles to one. Newland v. Sliepard, (p 625,) is cited, as showing that the 
 law peculiarly favors children and grandchildren in enlarging their estates by implication. 
 It is observable, that in a large proportion of the cases decided upon this subject, that class 
 of persons are the objects of the testator's bounty, although they do not expressly stand 
 upon this ground. 
 
 (6) See Weld v. Williams, 13 Met. 486 ; Grout v. Townaend, 2 Denio, 336. A devise to 
 A, and, if he should die without an heir, to the two sons of the testator, was held under 
 the law of North Carolina, to create an estate tail in A, which, in that Stale, amounted to 
 an estate in fee-simple, an'd the limitation over was held to be too remote. Weatherly v. Arm- 
 field, 8 Ired. 25. 
 
 Devise : " I lend to A" certain lands " during his natural life, and after his death, I give 
 the above-mentioned land to his heirs, lawfully begotten, to them and their heirs forever; 
 and in case he should die without lawful issue of his body, then I lend the land to B." 
 Held, A took an estate tail, which, by the law of 1784, in North Carolina, became an estate 
 in fee, and therefore, the limitation over to B was void, and he and his heirs took nothing, 
 Polk V. Whitley, 8 Ired. 133. 
 
CHAP. LYII. HOW CREATED BY DEVISE. 635 
 
 raising thereof by A or laer heirs, she and her heirs shall enjoy, &c., 
 forever."(l) 
 
 71. The same rule applies,(a) where the devise is first in fee, and re- 
 stricted by a subsequent clause to an estate tail. 
 
 72. Devise to A and his heirs, on condition of his granting an an- 
 nual rent to B and his heirs from the land :. and if A die without heirs of 
 his body, remainder to B and the heirs of his body. Held, notwithstand- 
 ing the first express devise in fee, and the charge on the land, the clause 
 "if A die without heirs of his body," restrained the devise to an estate 
 tail.(2) 
 
 73. Nor does it make any difference, that the remainder is limited to 
 the right heirs of the tenant in tail. 
 
 7-i. A testator devises distinct parcels of land to his several sons, to 
 them or their heirs forever, on condition that each pay another son 
 £30. Item, if any of said children die without issue, I give their es- 
 tate " unto his or their right heirs forever." The sons take an estate tail.(3) 
 
 75. So where the devise is to A and the heirs of his body, and their 
 heirs forever, and the land charged with an annuity; but if he die with- 
 out leaving issue, to B ; A takes an estate tail.(4)(6) 
 
 76. A devise to A and his heirs, and "if he die without issue," a re- 
 mainder over in fee, gives A an estate tail, on the ground that the in- 
 tent is paramount in a will, without regard to the relative position of 
 the words.(5)(c) 
 
 77. And the same construction is given, where these respective dis- 
 positions are made by two distinct clauses of the will. 
 
 78. A testator devises all his lands to his wife for life, and after her 
 death, all his lands in A to one son, and his heirs forever, and all in B to 
 another and his heirs forever. Item, I will that the survivor of them shall 
 be heir to the other, if either of them die without issue. Held, the sons 
 take an estate tail (6) 
 
 79. Devise to A, his heirs and assigns forever ; ordering, however, 
 that A shall not sell or dispose of the land from his lawful male issue ; 
 and if A should die without such issue, the land to revert and belong 
 to the testator's surviving sons and their male issue. A takes an estate 
 tail male general.(7) 
 
 80. A testator devises to the use of A his eldest son and his heirs 
 forever — and failing issue of A, to his son B and his heirs ; and in the 
 same way to C and his heirs; and failing his issue male, to the use of 
 his issue female and their heirs forever. The sons take successively 
 estates in tail male ; and upon the death of A, leaving only female 
 issue, B takes.(8) 
 
 0) Doe ';. Fyldes, Cowp. 833 ; (Denn v. 
 Slater, 5 T. R 335 ; Grout v. Tovvnsend, 2 
 Hill. 554.) 
 
 (2) Dutton V. Eiigram, Cro. Jac. 42T ; 
 Heffner j;. Knapper, 6 Watts, 18; Moody ti. 
 Walker, B Ark. 198. 
 
 (3) BricB V. Smith, Willes, 1. 
 
 (4) Denn v. Shenton, Cowp. 410. 
 
 (5) Browne v. Jerves, Cro. Jao. 290 ; Eioh- 
 elberger v. Barnitz, 9 Watts, 450. 
 
 (6) Chadoek v Cowley, Cro. Jao. 695. 
 
 (7) Dart v. Dart, 7 Conn. 250. 
 
 (8) Fitzgerald v. Leslie, 3 Bro. Pari. Cas. 
 154 ; (Doe v. Wichelo, 8 T. R. 211.) 
 
 (a) Devise to a son "and the heirs lawfully begotten, &o., and their heirs and assigns." 
 Held, an estate tail. Buxton v. Uxbridge, 10 Met. 87 ; {infra, see. 75.) 
 
 (b) (Supra sec. 71, n.) Devise anaong sons equally, they paying certain legacies, and if 
 any of them ' die without issue, their share to be divided among the surviving brothers. 
 Held, an estate tail in the sons, with a vested remainder to the survivors, and the heirs of 
 those who died before the son, who died without issue. Lapsley v. Lapsley, 9 Barr, 130. 
 
 (c) See Dutton v. Engram, Brice v. Smith, supra. 
 
636 
 
 FEE SIMPLE, ETC., 
 
 [CHAP. LYII. 
 
 81. The same construction has been given, even where the tenant is 
 empowered to dispose of the land. 
 
 82. Devise to the testator's four children and to each of them and 
 their heirs forever, share and share alike. And if they agree to sell 
 the estate, the proceeds to be equally divided ; but if to keep it whole 
 together, the rents, profits, &c., to be equally divided between them 
 and the respective heirs of their bodies. Held, the children take an estate 
 tail.(l) 
 
 83. In case of a devise to one and his heirs, and if he die without 
 heirs, remainder over to another; if the latter is a stranger, the remain- 
 der is void, being limited upon a fee-simple. 
 
 84. But if the second devisee is, or may be, a collateral heir of the 
 first, as a brother or sister, both devises shall stand, and the first devisee 
 takes an estate tail. This is upon the ground, that a devise to one and 
 his heirs, and if he leave no heirs, remainder to his heirs, would involve 
 an evident absurdity. (a) 
 
 85. One whom the law would not suffer to inherit, although a re- 
 lation, stands on the same footing as a stranger. As, in England, a 
 brother of the half-blood.(2) 
 
 86. Devise to A, the testator's son, and if either of the testator's 
 daughters survive A and his heirs, they to have the land for life. A 
 takes an estate tail, his sisters being his collateral heirs. (3) 
 
 87. So a devise to a grandson for life, and after his death to his 
 right and lawful heirs and assigns forever, and for want of such lawful 
 heirs to another grandson, his heirs, &c. — passes an estate tail to the 
 former.(4) 
 
 88. The same construction is adopted, where the remainder is 
 limited to the heirs of the testator, if they must also be the heirs of 
 the first devisee. 
 
 89. Thus if one having two sons, A and B, devise lands to B (the 
 younger) and his heirs, and for default of the heirs of B, to his own 
 heirs ; although the remainder is void, because A, as the testator's 
 heir at law, takes the reversion by descent; yet, upon the ground of 
 manifest intention, and inasmuch as the heir of the testator must also 
 be the heir of B ; B takes an estate tail. (5) 
 
 90. A devise to one and his issue, or lawful issue, or children, if he 
 have no children at the time, gives him an estate tail. If to one " and 
 his male children," an estate tail male. Hence, where these terms are 
 used in connection with limitations over, a similar construction is 
 adopted to that above referred to, where " heirs " are expressly 
 named.(6) 
 
 91. Devise to a son for life, and after his death to the men children 
 of his body ; and if he die without any man child, remainder over. 
 The son takes an estate in tail male. (7) 
 
 (1) Roe V. Avis, 4 T. E. 6OB7 (Doe v. Ri- 
 vers, 1 lb. 276.) 
 '(2) Tilburgh v. Barbut, 1 Vea. 89. 
 
 (3) Webb V. Hearing, Oro. Jao. 415 ; Tyte 
 V. Willis, Forr. 1. 
 
 (4) Morgan v. Griffiths, Cowp. 234. 
 
 (5) Nottingham v. Jennings, 1 P. W. 23. 
 
 (6) Wild's case, 6 Rep. 16; 1'rank v. 
 Stovin, 3 E. 548 ; Kingaland v. Rapelya, 
 3 Edw. 1 ; Peppercorn v. Peacock, 3 Mann. 
 & G. 356 ; Wheatland v. Dodge, 10 Met. 502. 
 
 (1) And. 43. 
 
 (a) See Perry «. Briggs, 12 Met. 17; Deboe v. Lowen, 8 B. Mon. 16, 
 
CHAP. LVII.] 
 
 HOW CREATED BY DEVISE. 
 
 637 
 
 9l. Devise of all the residue of real and personal estate to A and 
 his sons in tail male, and for want thereof to B and his sons in tail 
 male and on failure of such issue, to the testator's own right heirs. 
 NeiAer A nor B had issue at the making of the will or the testator's 
 deatti. A died without issue. B takes an estate tail inale.(l) 
 
 93; Devise : " I give to my daugliter M and her children, one-half 
 of my house and land, &c. Item, I give to my daughter J and her 
 children the other half. But if either of my aforesaid daughters 
 should die and leave no children, my will is, that my surviving 
 daughters and their children should enjoy their deceased sister's part." 
 M was unmarried at the making of the will, but it did not appear 
 whether she ever had any child. Held, J took an estate tail.(2) 
 
 9i. Devise: to my son A, when he shall be 21, the fee-simple 
 and inheritance of S, to him and his child or children forever ; but 
 if he die under 21, to my wife forever. A had no children at the 
 testator's death or the making of the will. Held, A took an estate 
 tail.(3)(a) 
 
 95. A testator devises to his daughter all his effects and estate, real 
 and personal, "as a place of inheritance to her and her children or her 
 issue forever." And if shj die leaving no child, or if her children die 
 without issue, the estate to be sold. The daughter takes an estate 
 tail.(4)(6) 
 
 96. A devise without words of limitation may be enlarged by sub- 
 sequent words or by implication, so as to create an estate tail instead 
 of an estate for life. Thus a house was devised to three brothers 
 among them ; provided always that the house were not sold, but 
 should go to the next males of the name and blood. Held, the 
 devisees took an estate tail.(5) 
 
 97. A testator devises a house to his wife for life, and after her 
 death his son A to have it ; and if A married and had by his wife 
 any male issue, his son to have it ; and if he had no male issue, his 
 son B to have the house ; and if any of his sons or their heirs male, 
 issue of their bodies, went about to aliene or mortgage the house, 
 the next heir to enter. Held, B took an estate tail ; that the words, 
 " have no male issue," were equivalent to " die witlioxd male issue ;" 
 and that the clause, " his sons or their heirs male," and that pro- 
 hibiting alienation, showed an intent to give an estate tail. (6) 
 
 9d. Devise to the testator's three daughters to be equally divided ; 
 
 (1) Wharton v Gresbam, 2 Black. E. 1083. v. Taylor, 1 Burr. 268; Evans v. Astley, 3 
 
 (2) Nijihtingale V. Burrell, 15 Pick. 104. Burr. 1570; Heffner v. Knepper, 6 Watts, 
 
 (3) Davie v. Stevens, Doug. 321. IB ; Chapman's case, Dyer, 333. 
 
 (4) Wood V. Baron, 1 E. 259. (6) Sonday's case, 9 Eep. 127. 
 
 (5) Blaxton v. Stone, 3 Mod. 123 ; Hope 
 
 {a) Devise to a sister for life, remainder to her son A, "and his heir male, living to attain 
 the age of twenty -one;" if no heir male, then to such issuo female, £200, to be equally 
 divided- if no such male or female living, said £200 to the sister's children; "and tlie in- 
 heritance of said estate, for want of such male issue, to redound to ray heir male," &c. Held, 
 A took an e'Jtate tail, the words "living to attain" not being descriptio persoim, or a condi- 
 tion precedent, but a subsequent condition, defeating the estate tad, if no such heir male 
 should live to 'be twenty-one. Doe v. Permemen, 11 Ad. k El. 431. 
 
 (6) By Statute 1 Vict. ch. 26, tlie words "die without issue," "die without leaving 
 issue " or other words importing either want or failure of issue, are construed to mean death 
 without issue then living, not an indefinite failure of issue, unle-ss a contrary intention ap- 
 pear from other words of the will. Ace. George v. Morgan, 16 Penn. 95. 
 
638 
 
 FEE- SIMPLE, ETC., 
 
 [CHAP. LTII 
 
 and if any of tbem died before the other, then the one to be the 
 other's heir, equally to be divided ; and if they died without issue, 
 devise over to strangers. The daughters take estates tail.(l) 
 
 99. A testator devises to his wife for life, then to his son, and if he 
 die without issue, having no son, to a stranger. The son takes an 
 estate tail.(^) • . 
 
 100. An express estate for life without waste may be enlarged by 
 subsequent words or necessary implication into an estate tail. This 
 takes place, where a remainder over is limited, which is not to take 
 effect until failure of the issue of tenant for life, and, at the same time, 
 there are no words by which such issue or the whole of them take as 
 purchasers. 
 
 101. Devise to A for life, without waste, remainder to his several 
 sons as far as the sixth ; and, if A die without issue male, to B in fee. 
 To effectuate the evident intent of admitting any sons beyond the 
 sixth, held A took an estate tail. (3) 
 
 102. Devise to A for life, then to the first son or issue male of his 
 body, and the heirs male of the body of such son-; then to the second son 
 or issue male of A forever. And after A's death loithout issue male of 
 his body, or ajier the death of such issue male, to charitable uses. Held, 
 notwithstanding the express limitation for life, and the charitable de- 
 vise, inasmuch as no son of A beyond the second could ever claim as 
 purchaser, the words " such issue male " must be construed to mean 
 " issue male" generally, and A took an estate in tail male.(4) 
 
 103. Devise to trustees for the sisters of the testator, A and B, equally 
 between them during their natural lives, without waste ; and if either 
 of them die leaving issue or issues of her or their bodies, then in trust 
 for such issue or issues of the mother's share, or else the survivor or 
 survivors of them and their respective issue or issues ; and if both A 
 and B die without issue as aforesaid, and their issue or issues to die 
 without issue or issues, devise over. The question was, whether A 
 and B took estates for life or in tail. The Court of Great Sessions de- 
 termined that they took the latter. This decision was reversed by the 
 Court of K. B., but affirmed by the House of Lords. It was contended, 
 that the issue of A and B were designed to take as purchasers ; and 
 that this intent appeared from the limitation "to the survivor or survi- 
 vors of them, and their respective issue or issues ;" the word survivors 
 not being applicable to the sisters, of whom there were but two, but 
 only to their issue,(5) 
 
 104-. A testator devises to W all his freehold estate at A for life; 
 and after his decease to and among his issue; and in default of issue, 
 devise over in fee. Held, to effectuate the general intent, although the 
 particular intent might be otherwise, W took an estate tail. (6) 
 
 105. Devise to A, a daughter of the testator, and her children, of 
 one-half of the estate, and to B, another daughter, and her children, 
 of the other. If either of them die and leave no children, my survi- 
 ving daughters and their children shall enjoy their deceased sister's 
 part. A was unmarried at the making of the will. B was married, 
 
 (1) King V. Rumball, Cro. Jao. 448. 
 
 (2) Robinson v. Miller, 1 Rolle Abr. SST. 
 
 (3) Langley v. Baldwin, 1 P. Wms. 759. 
 
 (4) Alt. Gen. v. Button, 1 P. Wms. 753-; 
 
 Robinson v. Hicks, 3 Bro. Pari. Ca. 75. 
 
 (5) Sparrow v. Shaw, 3 Bro. Pari. 120; 
 Sliaw V. Weigh, Eitzg. 1. 
 
 (6) Doe V. Applin, 4 T. R. 82. 
 
CHAP. LYIL] HOW CREATED BY DEYISB. 639 
 
 but it did not appear whetber she ever had a child. Held, B took an 
 estate tail. 
 
 106. Devise to A for life; if he die without issue, leaving no chil- 
 dren, the lands to be sold, and the proceeds divided among three other 
 sons ; if any die before A, their shares to be divided among their chil- 
 dren. A takes au estate tail.(l) 
 
 107. Tlie same construction has been adopted, even where the word 
 "onl)-," or the words " and no longer," are added to an express limita- 
 tion lor life.(2) So, in case of a devise to A, who was then unmarried, 
 "for and during the term of his natural life, and no longer," provided, 
 &c. ; and, after his decease, to such son as he shall have, lawfully to* be 
 begotten, taking the name of R, and for default of such issue devise 
 over in fee ; the question arose, whether A, having fulfilled the condi- 
 tion prescribed, took au estate tail, or only a life estate, with remainder 
 to his first son only. After two decisions in Chancery in favor of the 
 latter construction, and judgments of the King's Bench and the Lords 
 Commissioners in favor of the former, the case was carried to the House 
 of Lords. On the one side, it was contended, that besides the positive 
 words " and no longer," the words " for default of such issue," must 
 mean for default of a son as above described, and not of issue generally. 
 Therefore, that A took only a life estate ; and, if so, the son must claim 
 as purchaser, and, for want of any words of inheritance, could have 
 only a life estate. On the other side it was argued " inter alia," that as 
 A was unmarried at the time of making the devise, there was no pro- 
 bability of an intent to designate any particular son ; and that the word 
 " son " was nomen coUectivum, and the phrase "for want of such issue," 
 referred to it in that sense. Held, A took an estate tail. (3) 
 
 108. The same construction is adopted, where the direct limitation is 
 to the heirs of the body, but in a mode different from that in which the 
 law passes an estate by descent; so that the children must take as pur- 
 cha.sers, unless an estate tail is created. 
 
 109. Devise to the testator's daughter A, and the heirs of her body 
 forever, as tenants in common, and not as joint tenants ; and if A die 
 before 21, or without having issue, devise over. Held, although 
 the testator intended that A should take only for life, and her children 
 as purchasers, he also intended that the issue of these children should 
 take, before the remainder ever took effect. Therefore A became tenant 
 in tail. (4) 
 
 110. It was stated in the last chapter, (s. 31,) that the common law 
 rule, which requires the word heirs, to pass a fee-simple by deed, has 
 been altered by statute in several of the States. In these States, the 
 same statutory provisions apply alike to deeds and to devises ; and, in 
 some other States, a similar change has been made in regard to devi- 
 ses alone. In Massachusetts, («) New Hampshire, Vermont and Ohio, 
 
 (1) Xiglitingale v. Burrell, 15 Pick. 104; 
 Machell v. "Weeding, 8 Sim. 4. 
 
 (2) Doe V. Cooper, 1 E. 229. 
 
 (3) Robinson v. Hicks, 1 Burr. 38 ; Robin- 
 
 son t;. Robinson, 2 Tea. 225; 3 Bro. Pari. 
 Ca. 180. 
 
 (4) Doe V. Smith, 7 T. R. 531; Doe v. 
 Cooper, 1 E. 229. 
 
 (a) The intention need not be declared in express terms ; if it can be clearly and satis- 
 factorily inferred (on a comparison of the different parts of the will,) eitlrer from particular 
 provisions, wliicl'i are inconsistent with an intent to give a fee, or from tlie general import, 
 scheme and object of the will. Fay v. Fay, 1 Cash. 93. 
 
640 
 
 THE RULE I2sr SHELLEY'S CASE. 
 
 [CHAP. LVIIL 
 
 a fee-simple passes by devise, unless a contrary intent clearly appear.(l) 
 In New Jersey, if there are no words importing a life estate, and no re- 
 mainder is limited(2). , In Maryland (in case of wills made alter April 
 1, 182ii) and in Pennsylvania, unless the contrary appears, by a devise 
 over, words of limitation, or otherwise.(3) The same rule is adopted 
 in North Carolina and Tennessee.(4)(a) 
 
 CHAPTER LVIII. 
 
 THE RULE IN SHELLEY'S CASE. 
 
 (1) History of the rule,^ — SheUey^s case. 
 3-5. Effect of intervening estates between 
 tlie ancestor and lieirs. 
 
 Life estate by implication. 
 
 Joint or several life estate and inherit- 
 ance — husband and wife, &o. 
 
 Two estates created, by distinct instru- 
 ments. 
 
 Union of legal and equitable estates. 
 
 Vse of the words issue, children, &c. 
 
 Marriage articles. 
 
 Rule applies to devises, notwithstanding 
 other provisions implying a contrary 
 intent. 
 
 4. 
 6. 
 
 13. 
 
 15. 
 18. 
 31. 
 
 48, 
 
 56, 
 
 37. Edr, next heir male, words of subse- 
 quent limitation added to the word 
 heir, &o. 
 Trusts, executed and executory — dis- 
 tinction. 
 Terms for years. 
 
 62. Distinction as to subsequent words of 
 limitation. 
 
 08. Rule, where the heirs are to have only . 
 a life estate. 
 
 10. Jsi-ue, effect of the word. 
 
 81. Union of trust and legal estate. 
 
 90. Case of Perrin v. Blake. 
 
 95. American doctrine. 
 
 1. It was early settled, that where a conveyance is made to a person 
 for life, remainder to his heirs or the heirs of his body ; instead of 
 giving him a life estate and a contingent remainder to the heirs, it vests 
 a fee-simple or an estate tail in the first grantee. This construction 
 was adopted, for the purpose of saving to the lord, the profits or per- 
 quisites incident to inheritances : and also upon the general ground of 
 preventing an abeyance of the fee, which would render it inalienable 
 during the life of the first taker.(5) The principle was finally estab- 
 lished in a case called /Shelley's case,{(\) which, fnmi the importance of 
 the rule and its frequent application in practice, has become more 
 notorious and proverbial, perhaps, than any other case in the English 
 
 (1) Ohio L. vol. 30, 1831-.B, p. 41 ; Ma-ss. 
 Rev. St. 417; ST. H. Rev. St. 311; Swan, 
 099; Term. Rev. St. 254. 
 
 (2) N. J. L 60. 
 
 (3) Md. L. 1825, 93; Park & John. 467. 
 
 (4) 4 Elent, 8. 
 
 (5) Co. Lit. 22 b, 319 b; 2 Rolle's Abr. 
 414. See Sohoonmaker v. Slieely, 3 Denio, 
 485. 
 
 (6) 1 Rep. 93. 
 
 A testator, in lieu and bar of dower, devised the "use and improvement" of one-third of 
 his real estate to his wife, bequeathed her certain personal estate during her life, and the in- 
 come of certain other personal estate during her widowhood; and also made devises in fee 
 of certain real estate, by the use of the proper technical terms. Held, by the words "use 
 and improvement," the wile took an estate lor life in the real estate, and (admitting the de- 
 vise to her to be within the Kev. Sts., c. 62, see. 4, wliich the court aid not decide) that the 
 statute did not enlarge her estate to a fee, as it clearly appeared, by the will, that the devi- 
 sor intended to convey a less estate. Pay v. Fay, 1 Cush. 93. 
 
 (a) By St. 7 Wm. IV, and 1 Vict. ch. 26, a general devise, without words of limitation, 
 passes the testator's whole interest in the property devised. 1 Sleph. Comm. 224. 
 
CHAP. LVIII.] THE RULE IN SHELLBT'S CASE. 641 
 
 Reports. The facts of this case were as follows : E. Shelley, tenant in 
 tail, suffered a recovery, and declared the uses of it to himself for life, 
 without impeachment of waste, remainder to a trustee for twenty-four 
 years, remainder to the heirs male of the body of E. Shelley, and the 
 heirs male of the body of such heirs male, remainder over. Held, by 
 the Chancellor, and all the judges except one, that E. Shelley took an 
 estate tail. The decision rested upon the ground, that if R. Shelley, 
 the first son of E. Shelley, took by purchase and not by inheritance, 
 then no other son of E. Shelley could ever take the estate, which would 
 disappoint the word heirs (of E. Shelley,) in the deed; and that the 
 limitation to the heirs male of the heirs male of E. Shelley did not con- 
 trol the prior limitation, but was merely declaratory, because every 
 heir male of the heir male of E. Shelley was an heir male of E. Shelley 
 himself 
 
 2. It is said, that the rule in Shelley's case was adopted to carry into 
 effect the general inti'nt, by annexing particular ideas of property to 
 particular modes of expression ; not as an essential, permanent and 
 substantial rule, which the intent cannot control. (1) On the other 
 hand, it is said to be, not a rule of construction for ascertaining the 
 intention of the party, but a rigid rule, the chief operation of which 
 is to defeat the intention of the grantor.(2) 
 
 3. It was formerly held, that if intervening estates are limited be- 
 tween the grantee and his heirs, all of which, as well as the grantee's 
 own estate, may terminate in his life ; the inheritance does not vest in 
 the grantee, because lie may have no heir to take the remainder. But 
 Mr. Fearne has denied this exception to the rule.(3)(a) 
 
 4. The rule is applicable though the first grantee take an estate for 
 life bj' implication and not by express words.(6) But if he take only 
 an estate for years, his heirs take as purchasers, and not by inherit- 
 ance.(4) 
 
 6. Where a limitation to heirs is immediate, the tenant for life or 
 ancestor takes one entire estate of inheritance. Where it is mediate, 
 that i.s, where some other estate interposes between the estate for life 
 and the remainder, the tenant takes the inheriiance, not to be executed 
 in possession till the mesne estates terminate ; unless the mesne estates 
 are less than freehold, when the subsequent limitation vests imme- 
 diately. If the mesne remainders are contingent, the life-estate does 
 not merge in the remainder to the heirs ; but the two interests unite 
 sub modo, so as to open and let in the mesne estate when the contin- 
 gency happens.(5) 
 
 6. Where the prior estate is limited to several persons jointly, and 
 the remainder co their heirs, it seems they take a joint inheritance. 
 
 (1) Harg. Tracts, 493; 4 Cruise, 256. See 
 Kingt). Beck, 15 Ohio, 5.50. 
 
 (2) Berry v. ■Williamson, II B Mon. 245. 
 
 (3) 2 Rolle's Abr. 418; Fearne, 33; Cur- 
 tis «. Price, 12 Ves. 89. 
 
 (4) 4 Cruise, 266 ; Tipping'a case, 1 P. 
 Wms. 359. 
 
 (5) Fearne, 37-8, 42 ; Colson v. Colson, 2 
 Atk. 247 ; Hodgson v. Ambrose, Doug. 337; 
 Hayes v. Foorde, 2 Bl. R. 698. 
 
 (a) Devise to A for life, then to B for life, tlien to the heirs of the body of A in tail. A 
 takes an estate tail. Douglas v. Congreve, 4 Bing. N. 1. Devise to A for life, remainder to 
 his oldest son ; for want of such issue, to liis daughter or daughters, share and share alike, 
 forever ; if A has no issue, to him, his heirs and assigns forever. A takes an estate in tail 
 general.' Doe v. Charlton, 1 Scott N. 290. 
 
 (6) But see 14 Pick. 25. 
 
 Vol. I. 41 
 
g42 THE RULE IN SHELLEY'S CASE. [CHAP. LVIII. 
 
 The rule applies to husband and wife. But if the limitation of the life- 
 estate is successive, as to the husband for life, remainder to the wife for 
 life, remainder to the heirs of their bodies; it seems they take a joint 
 remainder in tail.(l)(o) 
 
 7. A limitation to A, remainder to the heirs of A and B, creates a 
 contino-ent remainder, not a vested inheritance. So, also, a limitation 
 to the wife for life, remainder to the heirs of the body of husbatid and 
 wife; because, if the wife should die first, as the husband could have 
 no heir during his life, the limitation to the heirs would be defeated. 
 And in such case, neither husband nor wife takes an estate tail ; the 
 former having no prior limitation to him, and the latter, because, though 
 takino- the life estate, the heirs are not applied to her body. If the 
 limitation is to the husband for life, remainder to the wife for life, 
 remainder to the heirs of her body by him begotten, she takes an 
 estate-tail.(#) 
 
 8. The rule in Shelley's case is inapplicable, where the prior estate 
 and the remainder are created by distinct conveyances, or by a deed 
 and subsequent will. Thus, if an estate for life is couveyed to A, re- 
 mainder to th^ heirs of B, and B afterwards purchases A's interest ; 
 the inheritanceiidoes not thereby vest in B.(3) 
 
 9. Conveyance by A, on the marriage of B his son, to the use of B 
 for life, remainder to his wife for life, remainder to their first and oilier 
 sons in talk A afterwards devised to the issue male of B by any other 
 wife, in tail male, and on failure of such issue male of B, to his grand- 
 children by his daughter C in fee. lleld, the devise to B's miile issue 
 by any other wife could not be tacked to his life estate.(4) 
 
 10. A conveys to B for life, and afterwards devises the reversion to 
 the heirs male of the body of B. Held, the two interests could not 
 unite.(5) 
 
 11. It is said, that where the second limitation is made by virtue of 
 a power created by the first, the rule iti Shelley's case applies, because 
 one taking an estate in this way holds in construction of law by virtue 
 of the original instrument which created the power. 
 
 12. Conveyance to A for life, remainder to the use of B, his wife, for 
 life, &c., remainder to their sons severally in tail, remainder to the use 
 of their daughters successively in tail, remainder to the use of B and 
 the heirs of her bod^' ; and in default of such issue, to the use of such 
 person as B should appoint. B subsequently made an appointment to 
 the use of the heirs of A. Held, if the last limitation had been of a 
 legal estate, it would have given A the fee; but that it did not create 
 a legal, but only an equitable interest.(6) 
 
 13. The last case leads naturally to the remark, that the rule in 
 
 (1) Pearne, 40; Stevens v. Brittredge, T. 
 Ray. 36. 
 
 (2) F.."arne, 44 ; Gosage v. Taylor, 2 T. R. 
 435; Alpassv. Watkiiis, 8 T. R. 516. 
 
 (3) Cranmer's case, 2 Leon. 5, 1. 
 
 (4) Moore v. Parker, 1 Ld. Kay 27. 
 
 (5) Doe V. Fotuiereau, Doup;. 487. 
 
 (6) VenablesD. Morris, 7 T. R. 342; lb. 
 438. 
 
 (a\ Conveyance (betbre tlie Rev. St. cli. 59, sec. 9. took effect) to A, to the use of a Iius- 
 banii and wile for tlieir lives and the life of the survivor, then to the use of B for life, then 
 to tlie use of the heirs of the wife forever. Held, the wife took a fee, in case of surviving 
 the liusband and B. Bullard v. Goffe, 20 Pick. 252. Devise to A. for the life of herself 
 and her husband B ; after their deaths, to tlie lawlul issue of her body. Held, A took an 
 estate tail. Griffith v. Evan, 5 Beav. 241. See Hiuman y. Bonslaugh, 1 Harr. 344. 
 
CHAP. LTIII.] 
 
 THE RULE IN SHELLEY'S CASE. 
 
 643 
 
 Shelleijs case does not apply, unless the two estates are of the same 
 nature, either legal or equitable. Thus, if the limitation for life is a 
 legal interest, and that to the heirs a trust, or the converse ; in either 
 case the two estates cannot become united into one.(l) 
 
 14. Conveyance by A to B, C and D, selectmen of the town of H, 
 to tlietn and their successors in office for the time being, for the use of 
 E, an(l after his death, if any of the premises should remain, to E's 
 heirs forever ; to hc^ld for the use aforesaid at the discretion of the 
 grantees. Held, B, C and D took a legal estate in trust for E and his 
 heirs, and as the trust was in fee, the estate of the trustees was also 
 in fee.(2)(a) 
 
 15. The rule in question does not apply, where the words law/ulissue, 
 issue, sons or children, are used instead of heirs; because it is founded 
 upon the maxim "nemo est hceres viventis" and the policy of prevent- 
 ing an abeyance of the fee, which reasons do not exist in the case 
 supposed. (8)(6) 
 
 (1) Say V. Jones, 3 Bro. Pari. 113; 4 
 Cruise, 260-1- Payne v. Sale, 2 Dev. & B. 
 •455; Settle «. Settle, 10 fiumpli. 474. 
 
 (2) Newhallu. Wheeler, 7 Mass. 189. 
 
 (3) 4 Cruise, 261. See Ellet v. Paxson, 2 
 
 Watts & S. 418 ; Turneru. Patterson, 5 Dana, 
 295 ; Cursliam v. Newland, 4 Mees. & W. 
 101; Curshain v. NewUnd, 2 Beav. 145; 
 Minnig V. BxtdorEf, 5 B,jrr, 503; Ward u. 
 Joties. 5 Ired. Bqu. 400. 
 
 (a) In White v. Woodberry, (9 Pick. 138-9,) it is said, that in the case of Newliall v. 
 Wheeler, the operation of the statute (changing the rule in Shelley's case) does not seem to 
 have been considered by the court. 'The distinction is also taken between the two cases, 
 that in the prior one the land was devised (conveyed) to the use of one for life, and after 
 his death, il any of the premises should remain, to his heirs forever; while in the latter, the 
 devise to the trustee was in strict trust, the income to be paid to another for his life, and 
 then the estate to descend to his heirs, so that the latter took nothing but a right to the 
 income and profits. The case of White v. Woodberry, was as follows: — Devise to A, his 
 executors and administrators, upon trust to pay the income to B for his life, and after his 
 decease, the same to descend to his legal heirs, &o. Held, tlie words the same applied to 
 the estate itself, not to the trust, and that A took a trust estate during B's life, witli a re- 
 mainder to those who should be his heirs at his decease; that this would be the construc- 
 tion, independently of any statute afl'ecting the rule in Siielley's case; but that the Statute 
 of 1791, ch. 61, see. 3, which changes this rule, applied to equitable as well as legal 
 estates. 
 
 Where an estate was intended to be given to one, with contingent remainders to his 
 issue, and was conveyed directly to trustees, in trust for the party wlio was to have the life 
 estate, during his life, and also to preserve the contingent remainders, and upon that estate 
 to limit the luture remainders : the person first lieneficially entitled tnkes an equitable estate 
 for his life, and those in remainder take by purchase, and not by descent. Vanderheyden v. 
 Crandall, 2 Denio, 9. 
 
 (6) Devise to A, and to his male children and their heirs, to be equally divided amongst 
 them and their heirs forever At the making of the will, A had no children. Held, he 
 took a life estate, with a contingent remainder in fee to his children. Sis.son v. Seabury, 1 
 Sumn. 235. But where a devise was made to the testator's son during his life, after his 
 decease to his heirs and their heirs and assigns forever; held, the words were words of 
 limitation, and gave the son a fee-simple. Schoonmaker v. Sheeley, 3 Hill, 165, Deed to 
 a daughter and her husband, of a certain dower in lands, for the benefit of lier and his chil- 
 dren, to her and her children forever. Held, she took a life estate, witii a remainder to her 
 children, including those subsequently born. Webb v. Holmes, 3 B. Monr. 406. Devise to 
 A for his natural lite, alter his death to all and every issue of his body, share and share 
 alike, as tenants in common, and the heirs of such issue. Held, A took only a life estate. 
 Greenwood v. Rothwell, 5 Mann & G-. 628. 
 
 A devise was made to A "during her natural life, and at her death to her children and 
 their heirs, in tee simple, to be for her and her family's use during her natural life, and her 
 children and their heirs to enjoy it at her deatli." Held, that the husband of A took no 
 interest hy the devise. Heclc v. Clippenger, 5 Barr, 385. 
 
 A testator, iu the year 1812, devised his real estate to his illegitimate son, J B, for life, 
 "and from and after the decease of the said J B, for and to the first and every other son of 
 
614: THE RULE IN SHELLET'S CASE. [CHAP. LTIII. 
 
 16. The rule is inapplicable, where the word lidr is used, and other 
 words of limitation are added to it. 
 
 17. Limitation to A for life, remainder to his wife B for life, remain- 
 der to the heir male of her body by him begotten, and to the heirs or 
 executors of such heir male. Held, this created a contingent remainder 
 in fee to him who should be the heir male of B at her death. (1) 
 
 18. The rule in Shelley'' s case is inapplicable to marriage articles; 
 which are regarded as made for the benefit of children, who take as 
 purcha-sers for a consideration ; and are in their nature executory, and 
 therefore to be construed liberally, by the intention. They are even 
 more liberally construed than a will. 
 
 19. Hence a limitation to the heirs of the body of the husband by 
 the wife is construed as if made to the first and other sons in tail. And 
 it seems, lapse of time will be no bar to a decree in equity for a convey- 
 ance conformable to the articles.(2) 
 
 20. It is said, that upon the construction of an estate tail in the hus- 
 band, the consideration of love and affection, which he had to his in- 
 tended wife and the heirs male of their bodies, would have run thus ; 
 that he did, in consideration thereof, settle an estate on himself, which 
 
 (1) Bayley v. Morris, 4 Tes. 188 ; (Waker 
 . Snowe, Palm. 359.) 
 
 (2) Pearne, 123; Bale v. Coleman, 1 P. 
 
 Wms. 145 ; 1 Abr. Eq. 387 ; Trevor v. Tre- 
 vor, 5 Bro. Pari. 122. 
 
 the said J B, lawfully issuing, according to seniority of age and priority of birth, in tail 
 male; and in default of such issue, to the daughter or daughters of the said J B, to hold 
 to them, if more than one, and their heirs, as tenants in common, and not as joint tenants, 
 and in default of issue of the said J B, to and for my own right heirs forever. Held, J B 
 took an estate for life. Baker v. Tucker, 2 Eng. Law and Eq. 1. 
 
 A testator directed that the residue of his property should be divided between his brothers 
 and sisters, and the children of a deceased sister, " to them and their children forever." Held, ' 
 the latter clause gave the children no share in the divi.sion ; that the children of the deceased 
 sister were not equal participants with the other devisees, but that a class was intended, 
 who took the share oftlieir motlier. Lacliland v. Downing, 11 B. Mon. 32. 
 
 A testator made the following devise in 1775 ; "I give to my brother Ws son N, during 
 his natural life, (after the decease of my wife,) and to his eldest male heir, and after his de- 
 cease, and to said male heirs and assigns forever, all and singular, my homestead, &o." At 
 the time of making the devise, N had no issue; but he afterwards had several children, of 
 whom the tliird son alone survived him. Held, N took a life estate only, and at his decease, 
 his surviving son took an estate in tail male. Cariedy v. Haskins, 13 Met. 389. 
 
 A testator devised the use and improvement of his real estate to his wile, for her life, and 
 the remainder after her decease to his daughter A, and the children of his daughter B, and 
 the children of his daughter C, to them and their heirs and assigns forever in fee "in man- 
 ner following, namely : one-third part thereof to my said daughter A; one-third part thereof 
 to tlie children of my said daughter B, and the survivor or survivors of them ; and one-third 
 part thereof to the cliildren and survivor or survivors of them, of my said daughter C." Held, 
 the children of C took vested remainders, as joint tenants, on the death of the testator. 
 Stinpson V. Batterman, 5 Cush. 153. 
 
 A testator dev'sed land to his son, "during his natural life; but if he should marry and 
 have children, then at his death to his children lawfully begotten, and their heirs forever." 
 The son married iind had six children lawfully begotten. Held, each of the children took a 
 vested remainder in one-sixth part of the land. Wight v. Shaw, 5 Cush 56. 
 
 A will had the following clause : " I lend to my daughter Lucy Camden, my negro woman 
 Sidney and her chjld'S^irah, and a negro boy named John, to her during her natural life, and 
 to her heirs, lawfiilly begotten on her body. But should my said daughter or her husband, 
 dispo.se or cnnvey out of the way, conceal or attempt to alienate the negroes aforesaid, I do 
 hereby declare her title to cease, and direct my executors to take them into possession ; and 
 in such case, after her decease, they and their increase to be divided among her children, if 
 any living, otherwise to be divided among ray children, A, B, C and D, and their lieirs." 
 Held, Lucy C. took a life estate, subject to the condition, with remainder in fee to her chil- 
 dren living at her death, and the heirs of such as might be dead. Pryor v. Duncan, 6 
 ■Gratt. 27. 
 
CHAP. LVm.] THE RULE IN SHELLEY'S CASE. 645 
 
 he might give away from his heirs male whenever he thought fit. Upon 
 this principle, the Court of Chancery will decree a conveyance conform- 
 able to the intent and purpose of the articles ; even where the party has 
 already made one precisely conformable to its language.(l) 
 
 21. By articles, in consideration of a proposed marriage between A 
 and B, A covenants to convey to trustees and their heirs, to the use of 
 himself for life without impeachment, &c., remainder to B for life, re- 
 mainder to the use of the heirs male of his body by B, and the heirs 
 male of such heirs male, remainder to the use of his own right heirs; 
 with a covenant, that unless and until such limitations were well raised, 
 he would stand seized to the same uses. . A afterwards levied a fine, 
 and aettled the land upon C, his second son. After A's death, D, his 
 oldest son, brings a bill for a conveyance conformable to the articles. 
 Held, the articles were merely executory, notwithstanding the covenant 
 to stand seized, which was but provisional and temporary. Decreed, 
 that a conveyance be made to D, in tail male, remainder to the other 
 sons in tail male.(2) 
 
 22. The same construction is given to articles, by which the land is 
 to be settled upon the heirs of the body of the wi('e.(3) 
 
 23. It is said, that the exception to the rule in Shelley's case, above 
 stated, takes place only where the limitation is made to the heirs of the 
 body of that parent from whom the estate moves, or to those of both 
 parents; thereby enabling either the father alone during coverture, on 
 the settling parent alone, surviving the other, to bar the issue. But 
 where the limitation, coming from the husband, gives an estate tail to 
 the wife alone, neither parent alone can ever bar the issue — the husband, 
 because he talces no estate tail, and the wife, not during coverture, being 
 then under disability, nor afterwards, by virtue of St. 11 Hen. VII, c. 20. 
 Hence the rule in Shelley's case is held applicable to such a case ; the 
 law regarding the necessary concurrence of husband and wife in bar- 
 ring the entailment, as a reasonable security for the protection of the 
 issue.(4) 
 
 24. It was agreed by marriage articles, to settle lands to the use of 
 the husband for life, remainder to the wife for life, remainder to the 
 heirs of her body by him, remainder to him in fee. Decreed, that the 
 settlement be made to the father for life, remainder to the eldest son in 
 tail. (5) 
 
 25. A and B, upon their marriage, agreed to purchase lands, and set- 
 tle them to the use of A, the husband, for life, remainder to B for life, 
 remainder to the use of the heirs of her body by him, remainder to the 
 heirs of the survivor. The lands having been purchased, A and B join 
 in mortgaging them by a recovery; and the mortgagee brings a bill to 
 foreclose agai'nst C, the son of A and B, who claimed to have a settle- 
 ment made conformable to the articles. Judgment for the plaintiff.(6) 
 
 26. By marriage articles, A covenanted to surrender customary lands 
 to the use of himself for life, remainder to B the wife for life, and, after 
 their deaths, to the use of the heirs of her body, if he survived her, and 
 
 (1) 1 Abr. Eq. 390 ; Streatfield v. Streat- 
 field, 4 Cruise, 264 ; Cusack v. Cuaaek, 5 Bro, 
 Pari. 116. 
 
 (2) Trevor v. Trevor, 1 Abr. Eq. 387 ; 6 
 Bro, Pari. 122. 
 
 , (3) Jones v. Laughton, 1 Abr. Eq. 392. 
 
 (4) Feariie, 131. 
 
 (5) Honor v. Honor, 1 P. "Wma. 123. 
 
 (6) Whately i). Kemp, 2 Ves. 358; Green 
 V. Ekius, 2 Atk. 477. 
 
646 THE RULE IN SHELLEY'S CASE. [CHAP. LTIII. 
 
 of his body, if she survived him, remaiuder to his own heirs. A sur- 
 render was afterwards made by A to these uses, and then by A and B 
 to the use of themselves for their joint lives, and the life of the survivor, 
 then of their eldest son for life, then to his first son who should come of 
 age, in fee-simple. Held, by the terms of limitation, the entailment 
 could not be barred but by the joint action of A and B, the survivor 
 having no power over it, and that the articles were well executed by 
 the first surrender.(l) 
 
 27. Where, by the same articles, one limitation is made in terms 
 which require a strict settlement in favor of the isssue, and another in 
 the language which applies ordinarily to an entailment, the latter will 
 be held to authorize an estate tail in the husband. 
 
 28. Agreement by marriage articles, that money should be laid out 
 by trustees in lands, and settled on A the husband, for life, remainder 
 to B the wife for life, remainder to the first and other sons successively 
 in tail male, chargeable with a payment for younger children, re- 
 mainder to A in fee. By the same articles, C, the father of A, cove- 
 nanted to settle other lands upon A, and the heirs male of his body, re- 
 maiuder to the heirs of C; and he afterwards made the settlement in 
 these terms. Held, a good execution of C's part of the articles, which 
 was plainly designed for the benefit of A himself, the issue being pro- 
 vided for as purchasers by the other lands. (2) 
 
 29. The Court of Chancery construes marriage articles in favor of 
 daughters, as liberally as in favor of sons. Thus, if an agreement is 
 made to settle lands upon the heirs female of the husband after prior 
 limitations to the heirs male, and the only issue is a daughter, who dies 
 after a recovery suffered by the husband, the court will order a con- 
 veyance , to two grand daughters in tail, as tenants in common, with 
 cross-remainders. (3) 
 
 30. An agreement to settle lands on the issue of the marriage is con- 
 strued to embrace females as well as males, so that a settlement will be 
 decreed to the first and every other son, and, for default thereof, to the 
 daughters, &c. ; and the reservation to the husband, of a power to ap- 
 point the sort, manner and form of the provision, will give him a con- 
 trol over the manner only, but not the interest itself(4) 
 
 31. The rule applies in general to a devise as well as a deed, that 
 wherever lands are given to one for life,(a) or for " his natural life," 
 with an immediate remainder to his heirs, or the heirs of his body ; 
 such heirs take by limitation, not by purchase, and an estate in fee- 
 simple or fee tail is created, instead of a life estate with a remainder 
 over. It is said, such a limitation is not a direct gift to the issue, it 
 only amounts to an enlargement of the estate in the first devisee, con- 
 
 (1) Highway v. Banner, 1 Bro. 584. 
 
 (2) Pearne, 135; Chambers u. Chambers, 2 
 Abr. Eq. 35; Howelu. Howel, 2 Tea. 358. 
 
 (3) West V. Errissey, 2 P. Wms. 849; 1 
 
 Bro. Pari. Cas. 225. (See Powell v. Price, 2 
 P. Wms. 536.) 
 
 (4) Harti). Middlehurst, 3 Atk. 371; Dod 
 V. Dod, Ambl. 274. 
 
 (o) The principle of controlling an express estate for life by the implication arising from 
 subsequent words of entailment in the will, has received the somewhat strained apology, 
 that such construction " does not defeat the estate for life ; for without fine or recovery, 
 which is not to he presumed, an estate tail is only an estate for life." Per Ld. Oh. J. Wil- 
 mot, Dodson v. Grew, Wilm. 278. 
 
CHAP. LYIII.] 
 
 THE RULE IN SHELLET'S CASE. 
 
 647 
 
 verting a life estate into a fee-simple or fee tail, and rendering it there- 
 by transmissible to bis issue.{l) 
 
 32. The same construction is adopted, though there are other pro- 
 visions in the will besides the express limitation for life, showing an 
 intent to give a life estate only.(2) 
 
 33. Thus, a devise to trustees, directing that they allow A to take 
 the profits for life, and afterwards stand seized to the use of the heirs of 
 bis body, and authorizing A and the trustees to make a jointure to his 
 wlje, gives A an estate tail. (3) 
 
 34. So a power of leasing, given to the devisee for life, does not 
 prevent his taking an estate tail, because such power is more beneficial 
 than that which belongs to a tenant in taiL(4) 
 
 35. So where lands were devised to A for life, without impeachment 
 of waste, remainder to trustees and their heirs lor the life of A, to ■svp- 
 port contingent remainders, remainder to the heirs of the body of A ; held 
 by Lord King, in reversal of Sir J. Jekyll's decision, that A took an 
 estate tail.(5) 
 
 36. A fortiori, the interposition of an estate to trustees, to preserve 
 contingent remainders, will not reduce the interest of a devisee to an es- 
 tate for life, where the devise is made to him, and the heirs of his 
 hody.{Q) 
 
 37. Tlie rule above stated is equally applicable, where the remainder 
 is limited by the word heir instead of heirs. 
 
 38. Devise to A for life, remainder to the next heir male ; in default 
 of such heir, remainder over. A takes an estate tail. (7.) 
 
 39. Devise to A, the testator's youngest son, forever ; and, after his 
 death, to the heir male of his body forever. In default of such heir 
 male, to B, his eldest son, forever. A takes an estate tail.(8) 
 
 39 a. Devise: " I give and bequeath to my grandson D, ray dwelling- 
 house wherein I now live, he to take possession of the same at the age 
 of twenty-one years; to hold the same to him during his life, and at 
 and upon his decease, I give the same dwelling-house to the eldest male 
 heir of his body lawfully begotten, and upon the decease of such male 
 heir, to the male heir of said deceased and his heirs forever. And in 
 case my said grandson shall not leave any male heirs, I then give said 
 house to his next eldest brother during his life, and upon his decease 
 to 'his eldest male heir, lawfully begotten, and to his heirs forever." 
 Held, D. took an estate tail. (9) 
 
 40. Words of limitation, added to the word heir, may require a dif- 
 ferent construction ; {infra, s. 47,) but a limitation to the next heir male, 
 creates an estate tail .(10) 
 
 41. So the word first, prefixed to heir male, shall be understood first 
 in order of succession from time to time, and an estate tail shall pass. 
 
 42. Devise to A, the first son of the testator, for life, remainder to 
 the heirs male of his body, remainder to B, a second son, for life, and 
 
 (1) Legate v. Sewell, 1 P.Wma. 87 ; Haw- 
 ley V. Northampton, 8 Mass 3 ; Rundale v. 
 Eeley, Cart. 170; 6 Cruise, 240; James. &o. 
 Call. 49 ; Sayer v Maaterm;in, Amb. 344. 
 
 (2) Carr«. Porter, 1 McCord's Cha. 81. 
 
 (3) Broughton i). Langlej', 2 Ld. Ray, 873. 
 
 (4) Bale v. Coleman, 1 P. Wms. 142. 
 
 (5) Papillon «. Voice, 2 P. Wms. 471. 
 
 (6) Sayer u. Mnsterman, Amb. 344. 
 
 (7) Barley's ease, 1 Tent. 230. 
 
 (8) Wilkinsw-Wliiting, 1 Rolle's Abr. 836; 
 Bulstr. 219; Richards v. Bergavenny, 2 
 Vern. 324. 
 
 (9) Malcolm v. Malcolm, 3 Cush. 472. 
 
 (10) Miller v. Seagrave, 6 Cruise, 245. 
 
64:8 
 
 THE RULE IN SHELLEY'S CASE. 
 
 [CHAP. LVIII 
 
 after his death to the first heir male of his body. B takes aa estate tail, 
 this construction being favored by the prior devise.(l) 
 
 43. The same rule applies, although additional words of limitation 
 are annexed to the words heirs or heirs of the body. 
 
 44. Deviseto A for life, and after his death, devise of the same land 
 to the heirs males of his body, and his heirs forever ; but if A should 
 die without such heir male, devise over. Held, the words his and if he 
 died, &c., being of doubtful import, could not control the prior limita- 
 tion to heirs male, and make it descriptio personx ; and that A took an 
 estate tail. (2) 
 
 45. Devise to A for the term of his natural life, and after his death, 
 to the heirs males of his body, and the heirs male of the body of every 
 such heir male, severally and successively, as they should be in priority 
 of birth ; and for want of such issue to B, &c. Held, by three judges, 
 and Lord Cowper in Chancery, against one judge, that A took an estate 
 tail.(i3) 
 
 46. Devise to A during her natural life. Then to the heirs of the 
 body of A, and to his or her heirs forever, after A's decease. For 
 want of such heirs of the body of A, then, after A's decease, to the 
 testator's own next heirs, and their heirs forever. Held, A took an 
 estate tail, with a remainder to the right heirs of the testator.(4) 
 
 47. In some special cases, however, the eifect of the word heirs may 
 be controlled by following words of limitation. (5) 
 
 48. In general, the rule in Shelley^s case is applicable to trusts in 
 Chancery, as well as legal estates in a court of law. This is the case, 
 where by the will the trusts are fully limited and declared. It may be 
 otherwise where the limitations are imperfect, and something is left to 
 be done by the trustees in the first place, and consequently secondarily 
 by the Court of Chancery. {6)(rt) 
 
 49. A testator devised to four persons and their heirs, for payment 
 of debts, and afterwards to the use of them and their heirs. After- 
 wards, by a codicil, he ordered that after payment of debts. A, one of 
 the devisees, should have his share to himself for life, with a power to 
 lease, remainder to the heirs male of his body, &c. Held, by Lord 
 Harcourt, reversing the decision of Lord Cowper, that a will, being 
 voluntary, was not like marriage articles, under which they issue claim 
 as purchasers, and whose object would be defeated by a power in the 
 husband to alienate, but the intent of the testator must be presumed 
 to conform to the rules of law, according to which, in this case, an estate 
 tail was clearly created ; and that the debts being paid, the case was as 
 if there had been no trust. Decreed, that A's share be conveyed to 
 him and the heirs male of his body, &c.(7) 
 
 50. A contrary doctrine seems to have been afterwards laid down by 
 Lord Hardwicke. 
 
 (1) Dubber v. TroUope, Amb. 463. 
 (21 Goodrisht v. PuUyn, 2 Ld. Eay, 1437 ; 
 2 Str. 729. 
 
 (3) Legate v. Sewell, 1 P. Wma. 87. 
 
 (4) Morris v. Ward, 8 T. R. 518. 
 
 (5) 6 Cruise, 247. 
 
 (6) Austen v. Taylor, Amb. 376 ; Wright 
 V. Pearson, Amb. 358; Peame, 187. See 
 Clagett V. ■Wortliington, 3 Gill, 83. 
 
 (7) Bale v. Colman. 1 P. Wms. 142. 
 
 (a) In case of executory trusts, "heirs of the body," though preceded by a life estate to 
 the cestui, are construed as wovis o^ purchase, not of limitation. Tallman v. Wood, 26 
 Wend. 1 ; Berry v. Williamson, 11 B. Mon. 245 ; Porter v. Doby, 2 Rich. Equ. 49. 
 
CHAP. LVIir.] 
 
 THE RULE IN SHELLEY'S CASE. 
 
 51. Devise to trustees in fee, in trust to pay debts, by the rents and 
 protits, sale or mortgage ; then to the trustees for a long term, upon 
 certain trusts ; then to the trustees in fee, in trust, as to one moiety, to 
 the use of A for his natural life, without impeachment of waste ; after- 
 wards to the trustees in fee for the life of A, to preserve contingent re- 
 mamders, but to permit A to receive the rents and profits during his 
 natural life; after his death, to the use and behoof of the heirs of the 
 body of A ; and, for want of such issue, to B in the same manner. 
 Held, by Lord Hardwicke, in regard to tbe estate of B, that a convey- 
 ance, if prayed for, would have been decreed first to trustees to pre- 
 serve, &c., then to the first and other sons of B ; that there were no con- 
 tingent remainders to be preserved, unless the limitation to B's heirs 
 made one ; and that B therefore took a life estate.(l) 
 
 62. But in a subsequent case Lord Hardwicke remarked, that Bag- 
 shaw V. Spencer was decided upon the ground, that the intent there ap- 
 peared to contradict and overrule the legal construction ; and that un- 
 less such intent wi3S shown either expressly or by necessary implication, 
 equity would adopt the rules of law. Lord Keeper Henley also placed 
 this decision upon the ground of a special intention, shown by the cir- 
 cumstances of a trust and the peculiar limitations of the will.(2) 
 
 53. Devise to A, in trust to pay the rents to B for her life, and after 
 her death to pay the same to C for life, and afterwards to pay tbe same 
 to the heirs of his body. Held, by Lord Hardwicke, that a convey- 
 ance in tail should be decreed to 0.(3) 
 
 5i. Devise to trustees in fee, in trust to raise money for grand- 
 children of the testator, subject thereto to the use of A and assigns for 
 life, remainder to trustees to preserve, &c., remainder to the use of 
 the heirs male of A begotten, and their heirs. If A should die, leaving 
 no issue male living, then the land to be charged with sums of money. 
 For default of such issue male of A, devise to the grandchildren, or such 
 as should be living at the failure of such issue, their heirs and assigns. 
 Provided, that if A did not comply with certain conditions, the estate, 
 so limited to him for life, to cease as if he were dead ; and the estate so 
 limited to him for life, and his issue male, to go to such of his grand- 
 children as should be living, and their heirs. Held, according to the 
 manifest intent, the heirs male of A could not take as purchasers, be- 
 cause they would then take a fee-simple, which would avoid the subse- 
 quent limitations ; that the words for default of such issue male could 
 not apply to the issue male of the children of A, thereby giving A a 
 life estate, his children an estate tail, and the remainder to the grand- 
 children ; but that the words and their heirs must be rejected as sur- 
 plusage, making A to be tenant in tail. (4) 
 
 55. Devise to trustees in fee, in trust for A for life, remainder to 
 trustees to preserve, &c., remainder to the heirs of the body of A, re- 
 mainder to the heirs of the testator. The will proceeded to bequeath 
 the personal estate to trustees, to be laid out in lands, which should be 
 subject to the limitations and trusts already mentioned. Upon a bill 
 to have it thus laid out, held, that in this case the trusts were all de- 
 clared by the will, and the trustees had nothing to do, bat buy the 
 
 (1) Bagshaw v. Spencer, 1 Col. Jurid. 318. (3) Garth v. Baldwin, 2 Ves. 646. 
 
 (2) Garth v Baldwin, 2 Te3. 646 ; Wright (4) Wright v. Pearson, Amb. 358 ; Fearae, 
 V. Pearson, Amb. 368. 187. 
 
650 
 
 THE RTJLB IN SHELLEY'S CASE. 
 
 [OHAP. LVin, 
 
 land; that there was no necessity for their making a conveyance; and 
 that equity could not interfere to vary the legal construction, by which 
 A took an estate tail.(l) 
 
 56. The rule in Shelley's case applies to a devise for years as well as 
 for life, unless the will discovers an intention that the heir should take 
 as purchaser. Thus, if a term be devised to one for life, remainder to 
 the heirs of his body, A takes an estate tail.(2)(a) 
 
 57. The rule does not apply, where the words children, sons, &c., are 
 used instead of heirs. Thus,' a devise to A for life, remainder to his 
 sons or children, &c., gives A a life estate.(3) 
 
 58. Devise to the testator's son A for life, and, after his death, to his 
 male children, successively, one after another, as they were in priority 
 of age, and to their heirs ; and in default of such male children, then 
 to A's female children and their heirs, and if A died without issue, 
 then to the testator's grandson in fee. Held, A took neither an imme- 
 diate estate tail by the limitation to his children, nor an estate tail in 
 remainder by implication, under the clause "if A died without 
 issue," &c.(4) 
 
 5y. Devise to A for life, and that then the premises shall descend 
 and come to bis male children, if he have any, for life, and to the male 
 children descending from them. A takes a life estate.(5) 
 
 60. Devise to A, the son of the testator, for life, and after his death 
 to all and every his children equally, and their heirs : and if A died 
 without issue, then to the testator's daughters. A takes a life estate.(6) 
 
 6L. Devise, to the testator's wife, of the use, &c., of one-third of the 
 estate for her life, at her death to his children, their heirs, &c. The 
 children take a vested remainder in fee.(7) 
 
 6i. It has been seen, that the rule in question is sometimes held ap- 
 plicable, though other words are added to the word heirs, which modify 
 its signification. It is said, there is an old opinion of Lord Holt's, to the 
 effect, that the words heirs of the body are so positive to give an estate 
 tail to the first taker, that they cannot be got rid of by subsequent words. 
 But Lord Kenyon remarked, that this was certainly too strait-laced a 
 construction. And the principle seems to be now well settled, that 
 where there are other words showing that by heirs was meant descripUo 
 personce, the first devisee takes only a life estate, with a remainder to 
 his heirs. The distinction is said to be this. Where the superadded 
 words limit an estate to the heirs, of a different nature from that which 
 the ancestor would take, if the word heirs was construed as a word of 
 limitation ; the heirs take as purchasers. Thus, a limitation to the use 
 of A for life, and after his death to the use of his heirs, a7id the heirs 
 femcde of their bodies, gives A a life estate, and his heirs, as purchasers, 
 an estate tail female ; for if the heirs of A took by descent, then A 
 would have the fee-simple, and the last clause of the devise would be 
 
 (1) Austen v. Taylor, Arab. 376. 
 
 (2) Dod V. Dickinson, 8 Tin. Abr. 451, pi. 
 25 ; Home V. Lyeth, 4 Har. & J. 431. 
 
 (3) 6 Cruise, 253 ; King v. Melling, 1 Vent. 
 231. 
 
 (4) Ginger v. White, Willea, 348. 
 
 (5) Goodtitle o. Woodhull, Willes, 592. 
 
 (6) Goodright i;. Dunliam, Doug. 264. 
 
 (7) Nash V. Butler, 16 Pick. 491. 
 
 (a) See Adams v. Cruft, 14 Pick. 16. In South Carolina, the rule was held applicable to 
 a devise of negroes; and the limitation of an estate tail being too remote for personal pro- 
 perty, the devisee for life took an absolute title. Dott v. Cunnington, 1 Bay, 453. 
 
CHAP. LVril.] THE RULE IN SIIELLET'S CASE, 651 
 
 defeated, nor would there be any possible mode of giving it effect. 
 ±5ut, on the other hand, where the superadded words do not oppose or 
 contradict those preceding, but in their general sense include them ; the 
 heirs wdl take by descent As where the first words describe heirs 
 special, and the following words extend to such heirs; in which case 
 It may be supposed that the latter were used in the same qualified 
 sense as the former. It has already been seen, that where the first 
 words give an estate tail general, which the succeeding words serve to 
 hmit, the latter words are not to be attended to, and the rule in Shelley's 
 case applies.(l) 
 
 63. Devise to trustees, in trust for A and her assigns, for life, with- 
 out impeachment of waste, remainder to the trustees to preserve, &c. ; 
 and from and alter her death, in trust for her heirs male, severally, suc- 
 cessively, and in remainder, one after another, as they and any of them 
 should be in seniority of age, &c., the elder of siich sons, and the heirs 
 of his body, &c., being always preferred, and to take before the younger 
 and the heirs male of his and their body and bodies ; and in default of 
 such issue, for all and every the daughter and daughters of A, as 
 tenants in common, &c., and the several and respective heirs of their 
 bodies ; in default of such issue, remainder over. Held, the will showed 
 a clear intention to give A only a life-estate ; that the limitations follow- 
 ing the devise to A were wholly needless, if A took an estate tail ; 
 that the words heiis male of the body of A were descriptive of the per- 
 sons afterwards called such sons, and the construction was to be the 
 same, as if it had been said, " meaning by heirs, &c., the eldest and 
 other sons of A ;" and this construction was confirmed by the subse- 
 quent provision for the daughters. That although, upon this construc- 
 tion, if A's eldest son had died before the testator, leaving a son, this 
 son could not take, but the devise must lapse; such possible inconve- 
 nience could not control the will and enlarge A's estate ; and that A 
 took a life estate.(2) 
 
 6i. But in another case, very similar to the last one, a different doc- 
 trine seems to have been held. 
 
 65. Devise to trustees and their heirs, in trust for the testator's first 
 son for life, and to preserve, &c. After his death, to the several heirs 
 male of such son lawfully issuing, the elder of such sons and the heirs 
 male of his body, taking before the younger and his heirs male. For 
 want of such issue, in trust for his second, &c., and all and every other 
 son and sons, for their respective lives, with remainders as before ; and 
 for want of such issue, for his first daughter, and every other his daugh- 
 ter and daughters for their several lives, and upon trust to preserve, 
 &c. ; and from and after their several deaths, in trust for the several 
 heirs male of their bodies, giving the same preference to the elder as 
 above mentioned ; with a power to the parties holding the land to 
 settle jointures. Held, a son of the testator took an estate tail ; a con- 
 trary intention not sufficiently appearing.(3) 
 
 66. In some cases, where the word heir is used, with superadded 
 words of limitation, it is construed a term of purchase, and the first 
 devisee takes only a life estate. 
 
 67. Devise to A for life, afterwards to his next heir male, and the 
 
 (1) Fearne, 286; 1 Eep. 95 b; Lyles v. I (2) Goodtitle «. Herring, 1 B. 264. 
 Digge, 6 Har. & J. 364. | (3) Poole ». Poole, 3 Bos. & P. 620. 
 
652 
 
 THE RULE IN SHELLEY'S CASE. 
 
 [CHAP. LVIir. 
 
 heirs male of the body of such next heir male. A takes a life es- 
 tate.(l) 
 
 68. The same construction is given, where the heir of the devisee 
 for life is to have only a life estate. And though there is a subsequent 
 limitation over "for want of such heir male," this shall be held to mean 
 not heirs male generally, but the heir previously mentioned, who was 
 to take for life.(2) 
 
 69. Devise to A, "to be hers during her natural life, and then to 
 her only heir during its life." A takes a life estate, with a contingent 
 remainder to the person who shall be her heir at her death.(3) 
 
 70. In a will, the word issue is a word of purchase or of limitation 
 according to the intention ; while in a deed it is always a word of pur- 
 chase.(a) The intention of the testator in using this expression, is 
 often inferred from very slight circumstances peculiar to each case ; 
 and hence the decisions upon the subject seem not easily reconcila- 
 ble.(4) 
 
 71. Devise to A for life, and, if he should have any issue male, to 
 such issue and his heirs forever. For want of issue male, devise oyer. 
 A takes a life estate, and his issue as purchasers in fee.(o) 
 
 72. But it has been held in New York, that a devise to A for life, 
 on her death to her lawful issue and their heirs forever, equally to be 
 divided, gives an estate tail by the English law, and, in New York, a 
 fee-simple.(6) 
 
 73. Devise to A for life, remainder to his lawful issue. A takes an 
 estate tail. (7) 
 
 74. Devise of the residue, &c., to be divided between A and B, and 
 delivered to them at the age of twenty-one years; but "should they 
 die, leaving no lawful issue," devise of all my estate to 0. B takes the 
 fee, and his issue can claim onlj' by descent, not by purchase. 
 
 75. Even where the limitation is made to the heirs of the body of 
 the issue of tenant for life, in such a way, that giving the first taker an 
 estate tail would pass the land in the same line of descent as giving 
 him a life estate ; the issue have been held to take by purchase. 
 
 76. Devise to A for life only,{h) without impeachment of waste, then 
 to the issue male of his body, if any, remainder to the heirs male of 
 the body of that issue. A takes a life estate, with remainder to the 
 issue in tail. (8) 
 
 77. Where the general intent so requires, the word issue will give 
 the first devisee an estate tail, though followed by other words of 
 limitation. 
 
 78. Devise to A, for his natural life, and from and immediately after 
 
 (1) Archer's case, 1 Rep. 66 b ; (3 B. & P. 
 625 ; Dubber v. Trollope, Amb. 459.) 
 
 (2) White V. Collins, Com. R. 289. 
 
 (3) Bennett)). Morris, 5 Rawle, 9. 
 
 (4) 4 T. R. 294 ; 1 Vent. 225 ; Papillon v. 
 Toiee, 2 P. Wois. 472; Carr v. Porter, 1 
 MoCord's Cha. 81 ; Home v. Lyeth, 4 Har. 
 & J. 431 ; (3 J. J. Mar. 238.) 
 
 (5) Luddington v Kime, 1 Ld. Raym. 203; 
 Doe V. Cullins, 4 T. R. 294; (Findlay v. Rid- 
 dle, 3 Binn. 139.) 
 
 (6) Kingsland v. Rapelve, 4 Kent, 231. 
 
 (7) James's Claim, 1 Dall. 47. 
 
 (8) Carr v. Porter, 1 MoCord's Cha. 81. 
 
 (9) Backhouse v. Wells, 10 Mod. 181. 
 
 (a) Ld. Ch. J. Wilmot remarked, that the word issue is used in the statute de donis with- 
 out an idea of purchase annexed to it. Dodson v. Grew, Wilm. 277, 2 Wils. 322. In New 
 Hampshire, tlie word isme is defined to mean all lawful lineal descendants. Rev. St. 45. 
 
 (6) The case is said to have turned upon the use of this word. 4 T. R. 296, u. 
 
OHAP. LTIII.] THE RULE IN SHELLEY'S CASE. 65g 
 
 the termination of tliat estate, to the issue male of his body, and to his 
 and their heirs, share and share alilce, if more than one ; and, for want 
 of such issue, to B in fee. Provided, that if J. should alienate, he should 
 pay a certain sum to the party next entitled. Held, if the issue of A 
 took by purchase, they would be tenants in common ; that if all but 
 one died before A, he would take the whole ; that the words for want 
 of such issue, meant /or default of such issue, and supposed the inheritance 
 vested in A, but liable to be defeated by his death without issue, and 
 could not be confined to issue living at A's death ; that the clause 
 restraining alienation by A implied that he was to have the inherit- 
 ance ; that the added words of limitation "his and their heirs" should 
 be rejected to effect the intention ; and that A took an estate tail.(l) 
 
 79. Devise to A, a nephew of the testator, for his natural life, and, 
 from his death, to the use of his issue male, and the heirs male of the 
 body of such issue ; and for want of such issue male, to B, another 
 nephew, in fee-simple. Htld : 1. The will intended a successive in- 
 heritance to all the issue male of A, ad infinitum, since B was to take 
 only upon the failure of such issue. That the word issue, unqualified, 
 yf as plural, and embraced all ; and the word body, though singular, was 
 not meant to point out one individual, viz,, the first issue, and exclude 
 the rest, but to limit the devise to one at a time in a course of succes- 
 sion, and exclude the issue from taking all together, as they might 
 have done if the word bodies were used ; that if the issue took by pur- 
 chase, they would be joint tenants for life and tenants in common of 
 the inheritance, and the surviving son of A would take the whole for 
 life, the other sons being dead, and, upon his death, the estate must 
 break into ten parts, with no cross- remainders, and upon failure of the 
 issue of one son, that part would go to B, thus contradicting the evi- 
 dent intention for B to have nothing, while there remained any issue 
 of A. 2. That the intention of the testator could not be affected by 
 giving A a life estate, unless the word issue was construed to mean the 
 first and other sons of A in succession. This construction might be 
 given, if the will had expressly so ordered, but not otherwise, without 
 doing violence to the meaning of language. Issue has an established 
 collective sense, and though, after an estate tail is created, it passes suc- 
 cessively to the first and other sons ; yet this is the operation of law, and 
 not the effect of the words in the will. Whereas, to construe the word 
 as a limitation would effect the same object, without distorting the lan- 
 guage. Moreover, the former construction would vest the remainder 
 in each son of A when born, and he might by fine bar all his issue. 
 That, although, supposing the first son of A to take by purchase, the 
 others might take by limitation, upon the principle that where an estate 
 once vests in an heir of the body of one as purchaser, it is quasi an estate 
 tail from the ancestor, and passes to his descendants, as well as those 
 of the purchaser; yet the intention might still in this case be defeated. 
 If B, a second son of A, died, leaving daughters, in the life of A, and 
 A left other sons; then, upon this construction, the daughters would 
 take nothing, because B was never complete heir to A; wlnle, by 
 limitation, such daughters would take, as representing B, m regular suc- 
 cession. 3. That the intention in favor of all the issue of A ought to 
 
 (1) King V. Burcball, 4 T. K. 296, n. ; (1 Eden, 424.) 
 
g5i THE RULE IN SHELLEY'S CASE. [CHAP. LVIII. 
 
 prevail over the express limitation to him for life ; and although the 
 issue and remainder-men were thus put in his power, it was not to be 
 presumed he would exercise it, and that, if A took only a life estate, 
 this would create contingent remainders which he might defeat ; so 
 that the chance of the issue was better in the fbrraer case than in the 
 latter. Held, A took an estate tail.(l) 
 
 bO. Devise to A for life, and if he die leaving lawful issue, remainder 
 to his heirs as tenants in common, and their respective heirs and assigns. 
 A takes a life estate.(2) 
 
 81. It has been stated that the rule in Shelley^s case is in general 
 applicable to trusts, as well as legal estates; tliat in this, as in many 
 other respects, equity follows the law. It was alt^o intimated, and now 
 remains to be more distinctly stated, as a qualification of the general 
 principle; that where a trust is executory,{a) or where, for the comple- 
 tion and fulfilment thereof, the action of the trustees and the interpo- 
 sition of Chancery are requisite, the court will, to effect the intention 
 of the parties, construe the word heirs or issue as a word of purchase, 
 and decree a conveyance and limitation accordingly. The court take 
 much greater liberties in the construction of executory than of executed 
 trusts.(8) And a devise, in this respect, is construed like marriage 
 articles. It will be seen, that where the Court of Chancery directs a 
 limitation not creating an estate tail, it at tlie same time inserts other 
 limitations, not proviiled for by the parties, but rendered desirable by 
 the creation of a life estate with contingent remainders; as, for instance, 
 an intervening estate to trustees to preserve, &c. 
 
 82. This construction has been adopted, even where entailment was 
 expressly mentioned in the will. 
 
 88. Devise to trustees and their heirs, for payment of debts, &c., and 
 afterwards to settle the remainder and what was left unsold, a moiety 
 to A and the heirs of his body by a second wile, and in default of such 
 issue, to B and the heirs of his body — the other moiety to B and the 
 heirs of his body; remainders over: taking special care in such settle- 
 ment that A and B should have no power to dock the entails, duiing 
 their lives. Held, A and B were entitled to have the land conveyed 
 to them only i'or life, without impeachment, &c. ; because, if conveyed 
 in tail, tliey could not be prevented from barring their children. (4) 
 
 8-1. Devise of a sum of money to trustees, to be laid out in lands, 
 which were to be settled as follows : to A for life without impeach- 
 ment, (fee, and with power for a jointure; then to trustees to preserve, 
 &c,, remainder to the heirs of the body of A, remainder over. Held, 
 the court had power over the money to be thus laid out, and that the 
 lands should be limited to A for life, remainder to trustees, remainder 
 to his first and every other son in tail male, remainder over. (5) 
 
 85. Devise of money and stock, the latter to be sold, and the money 
 laid out in purchasing lands, which were to be conveyed to A I'or life, 
 after his death to his i.ssue, and for want of such issue to B. On a bill 
 by A for a conveyance, decreed, that it be made to A for life, remain- 
 
 (1) Roet). Grew, Wilm. 272; 2 Wils. 322. 
 
 (2) Pinlay v. Riddle, 3 Biim. 139. 
 
 (3J Roberts v. Dixwell, 1 Atk. 607 ; Leon- 
 
 ard V. Karl, &o., 2 Tern. 526. 
 
 (4) Leonard v. Earl, &c., 2 Tern. 526. 
 (5J PapiUon v. Voice, 2 P. Wms. 471. 
 
 (a) As to the distinctioa between executory and executed trusts, see p. 301. 
 
CHAP. LVIII] 
 
 THE RULE IN SHELLEY'S CASE. 
 
 655 
 
 der to trustees to preserve, &c., remainder to his first and other sons in 
 tail general, remainder to his daughters in tail as tenants in common, 
 with cross-remainders, rt-mainder in fee to B.(l) 
 
 86. Devise to trustees, in trust to convey to the use of A for life, 
 without impeachment, &c., remainder to her husband B for life, re- 
 mainder to her issue, remainders over. Decreed, that a settlement ^be 
 made to A for life, remainder to B for life, remainder to trustees to 
 preserve, &c., remainder to her first and other sons in tail.(2) 
 
 87. Devise of personal estate to trustees, to be laid out in land, 
 which was to be settled and assured as counsel should advise, upon said 
 trustees, in trust for A and the heirs male of his body, to take in suc- 
 cession and priority of birth ; in default of such issue, then in trust for 
 B in the same manner. The net proceeds of the property, before the 
 purchase, to be paid to A and B respectively, and their respective sons 
 and issue male, wlio should be respectively entitled to the rents of the 
 lands when purchased. Held, the clause, requirin gadvice of counsel, 
 showed an intent that there should be a strict settlement, no such aid 
 being needed for an estate tail; and that the word sons in the subse- 
 quent clause, confirmed this construction. Decreed, that the land be 
 settled on A for lite, remainder to his first and other sons in tail 
 male.(3) 
 
 88. Where the devise gives only a trust or equitable estate to the 
 first taker, and a legal interest to his heirs; he takes only a life estate.(-±) 
 (See supra, sec. 14.) 
 
 89. Devise to trustees, to pay debts, &c., and the residue into the 
 hands of A, a married woman, for her life; then to stand seized to the 
 use of her heirs, severally and successively, as they should be in priority 
 of birth, &c., and to the heirs of their respective bodies in tail general. 
 The devise to A being of a trust, and that to her heirs of an executed 
 use, A takes only a life estate.(5) 
 
 90. It remains to give an account of the most important and interest- 
 ing decision, in which the rule in Shelley's case was ever brought into 
 question. This case derives peculiar interest and value, not only from 
 the elaborate discussion to which it led in regard to the true construc- 
 tion and application of the rule in question, and the general rules for 
 construing devises ; but also from the circumstance, that some of the 
 ablest of English judges disagreed in opinion, and that the solitary 
 judgment of Judge Yates, in the Court of King's Bench, was afterwards 
 almost unanimously sustained, and the judgment below reversed, in 
 the Exchequer Chamber. 
 
 91. Devise substantially as follows: should my wife hereafter be 
 enceinte with child, if it be a female, I beqeath to her £2,000, to be 
 paid when she comes of age, or is married; in addition thereto, she to 
 be educated and supported till the portion is payable. If a mule child, 
 I give and bequeath my estate, both real and personal, equally to be 
 divided between said infant and my son A, when said infant shall 
 reach the age of twenty-one. It is my intent, that none of my children 
 
 (1) A.sliton V. Ashton. 1 Coll. Jurid. 4 02. 
 
 (2) Glt-iiorchy o. Bo^ville, F(jr. 3; 1 Coll. 
 Jurid. 405; (Meure u. Meure, 2 Atk. 265;) 
 Eobert.s v. Dixwell, 1 Atk. 507. 
 
 (3) White V. Carter, Amb. 670. 
 
 (4) Silvester v. Wilson, 2 T. R. 444. 
 
 (5j Say V. Jonea, 3 Bro. PhtI. 113, 8 Tin. 
 262; Slmpland v. Smith, 1 Bro. 75; Roy v. 
 Uarnett, 2 Wash. 9. 
 
656 THE KULE IN SHELLEY'S CASE. [CHAP. LVIIL 
 
 shall sell and dispose of my estate for longer term than his life; and to 
 that intent, I give, &c, all the rest, &c., of my estate to A and the said 
 infant, for their natural lives, remainder to B and his heirs, for the 
 lives of A and said infant; remainder to the heirs of the bodies of A 
 and the said infant, &c. ; remainder to my daughters for their lives, 
 equally to be divided ; remainder to B and his heirs for the lives of 
 my daughters ; remainder to the heirs of the bodies of my daughters, 
 equally to be divided. The testator died, having survived B, and 
 leaving A, his only son and heir, and three daughters. The wife of 
 the testator was not enceinte at his death. The question was, whether 
 A took an estate for life, or in tail. Willes, J., was of opinion that he 
 was but tenant for life; upon the grounds of an intention to that effect, 
 appearing both from the introductory clause of the will, from the ap- 
 pointment of a trustee to preserve, &c., and otherwise ; and that the 
 rule in Shelley's case was pronounced upon a deed, and in argument^ and 
 being founded on obsolete feudal reasons, must not be extended an inch 
 beyond its literal application. Aston, J., was of the same opinion ; 
 upon the grounds that the rule was feudal, and to be construed strictly, 
 and not an invariable one ; that as the word heirs was a term of art, 
 and not indispensable in a devise to create an inheritance, so, also, when 
 used, its common import might be controlled by the intent; that there 
 was no distinction in this respect between trusts and legal estates; that 
 a court of equity, as well as a court of law, would construe a devise to 
 make an estate tail, in the absence of an intention to the contrary ; and that 
 the clause prohibiting the first devisees fi'om alienation, being used at 
 the beginning of the will, must be construed not as a restraint upon a 
 tenant in tail, but as explanatory of an intent to give an estate for life. 
 Lord Mansfield concurred. He remarked, that the legal intention, 
 when clearly explained, must control the legal sense of a term of art, 
 unwarily used by the testator ; that the rule in Shelley'' s case was not a 
 general proposition subject to no control, but was to be governed by 
 the intention, if such intention were lawful, if not, the legal import of 
 the words must govern ; that the testator evidently bad a strict settle- 
 ment in his eye, and the heirs of A's body were to take as purchasers 
 successively; that there was no sound distinction between the devise 
 of a legal estate and a trust, and between a trust executed and execu- 
 tory ; that all trusts were executory, and in every shape that a will 
 appeared, the intention must govern. He agreed, that as there was a 
 devise to A for life, and, m the same will, a devise to the heirs of his 
 body, the case was within the letter of Shelley's case, "and he did not 
 doubt but there were and always had been lawyers of a different bent 
 of genius, and different course of education, who had chosen to adhere 
 to the strict letter of the law ; and they would say that Shelley's case 
 was uncontrovertible authority, and they would make a difference 
 between trusts and legal estates, to the harassing of a suitor."(«) Yates, 
 J., dissented. He remarked, that although in a will free scope must 
 be given to the intention, as appearing from the whole scheme and 
 design of the instrument; yet it must be clear and consistent with 
 
 (a) Thia last remark was aimed at Judge Tates. who dissented from the other judges, 
 and who, in consequeace of the sarcasm, resigned his seat upon the bench. 
 
CHAP. LTIII.] THE RULE IN SHELLEY'S CASE. 657 
 
 every rule of law ;(«) if not thus consistent, even in cases of trust, there 
 were many instances where the intention had been disregarded, and in 
 such case, it was better to adhere to the law and let a thousand wills 
 be overthrown ; that the principle of giving efifect to the intention, in 
 whatever words expressed, was applicable only to executory trusts, 
 but in this case no future conveyance was to be made, but everything 
 was fijj^ed by the will itself; that to require the intention to be consist- 
 ent with the rules of law, was as necessary to the safety and certainty 
 of property, as to prohibit a testator from doing what was illegal ; that 
 the favor shown to a will was this — to supply barbarous words, and, 
 if the devises were imperfect, allow a necessary implication, but if the 
 limitations were perfect, no assistance was needed, and the words must 
 have their legal effect; that technical expressions were the measures 
 of property in legal devises, and the determinate meaning affixed to 
 them by the law must never be perverted by the judges ; that the rule 
 in Shelley's case was a rule of construction of wills as well as deeds, 
 well established, and unalterable but by Parliament, and in itself rea- 
 sonable and just, though the original reason of it had ceased ; that the 
 rule did not speak the word heirs abstractedly, or insinuate that there 
 was any magic in this word; it only speaks of the two limitations, to 
 one for life, to his heirs the inheritance ; the freehold was merged in 
 the inheritance, and the ancestor took the whole estate ; that the ques- 
 tion was not what estate the ancestor took, but what estate the heirs 
 took ; and they could not take as purchasers, unless particularly de- 
 signed ; that although the testator intended A should have a life estate, 
 he also intended that the heirs of his body should all succeed, which 
 they could not do unless he was tenant in tail ; and that the restriction 
 upon A's power to convey was repugnant to ihe estate tail devised to 
 him, and therefore void.(l) 
 
 92. The Court of King's Bench, therefore, decided that A took a 
 life estate. A writ of error was brougfit upon this judgment in the 
 Exchequer Chamber, and it was reversed by the opinion of seven 
 judges against one. Hence, it appears, that eight judges held that A 
 took an estate tail, and four that >ie took an estate for life. 
 
 93. Upon the hearing in the Exchequer Chamber, Sir "Wm. Black- 
 stone was one of the judges in favor of reversing the judgment 
 below ; and his argument, published from his own manuscript by 
 Mr. Haro-rave, presents perhaps the most luminous view of the rule 
 in Shelley's case, its nature, applications and modifications, to be found 
 in the bixiks. The following is a concise abstract of it.(2) 
 
 9-±. Some rules of law are essential, permanent and substantial, and 
 to be re^^arded as indelible landmarks of property. These are beyond 
 the control of any intention on the part of a testator. Such is the 
 rule that the owner of the inheritance has power to alienate. There 
 are 'other rule;^, of a more arbitrary, technical and artificial kiud, 
 founded on no great principle of legislation or national policy. These 
 
 (1) Perrin v. Blalce, 1 Col. Jurid. 283. | (2) 1 Harg. Tra. 48T. 
 
 (a) Thus where one devised an estate to hia children and the heirs of iheir bodies respect- 
 ively liirever and none other; held, the lust words were void, as creating a perpetuity, and 
 the children took an estate tail, though the testator wrongly supposed it would be inalien- 
 able. Adams v. Cruft, 14 Pick. 23-4. 
 
 Vol. I. 42 
 
658 THE RULE IN SHELLEY'S CASE. [CHAP. LVIIL 
 
 are rules of interpretation and evidence ; by which the law attaches a 
 certain meaning to particular expression-s, and supposes that a party 
 who uses them intends to convey such meaning. Such are the rules 
 by which certain words create respectively estates in fee, in tail, and 
 for life. 
 
 Another class of rules, are in themselves mere maxims of positive 
 law, but deduced by legal reasoning from some great fundamental 
 principles ; and of this kind is the rule in S/ieUey's case. Such being 
 the nature of the rule, it is flexible, subject to exceptions, and liable 
 to be controlled by the intention of a testator. But this intention must 
 be consistent with the great and immediate principles of legal policy, 
 and also so plainly expressed, or to be collected from the will by such 
 cogent and demonstrative arguments, as to admit of no reasonable 
 doubt. In the present case, there is no doubt the testator intended to 
 give a life estate to A ; nor can there be a doubt of such intention in 
 any case where a life estate is expressly devised. (a) But the question 
 is, what estate he meant to give to the heirs of A, and in what way ? 
 If he had no intention upon this point, the general rule of law must 
 prevail, and they must take by descent. They cannot take as pur- 
 chasers, unless it is affirmatively shown that he so intended. And this 
 must appear from one of four circumstances : 1. Where the ancestor 
 takes no estate, or an interest less than freehold. 2. Where no estate 
 of inheritance is given to the heir. 3. Where explanatory words are 
 added to the term heirs, indicating a consciousness of having used it 
 improperly, and a desire to qualify its meaning. 4. Where other limi- 
 tations of inheritance are added to this word, with the purpose of con- 
 stituting a new root of descent, independent of the first devisee. The 
 two circumstances in t'ais case, favoring the construction of a life 
 estate, are these. 1. The interposition of an estate to trustees. But it 
 does not appear that they were trustees to preserve, &c., and, even if 
 they were, according to previous cases, it would make no difference. 
 2. The restriction upon A's power of disposition. But this is not to 
 control the limitation of an estate to which it is repugnant, but merely 
 indicates a mistaken opinion on the part of the testator, that under the 
 circumstances A had no power to convey the estate, and an intention 
 to affirm this legal construction. But the restriction does not indicate 
 any intention, that, in order to effect his object, the heirs should take 
 by purchase.(6) 
 
 95. The rule in Shelley's case is undoubtedly in force in this country, 
 as a settled principle of the English law ; except where it has been 
 changed by express statutes.(c) In Connecticut, Michigan, New York, 
 
 (a) "That the testator intended to devise a life estate to J, could not be made more 
 manifest than from the will itself if confirmed by one from the dead, even if that were the 
 testator himself;" But a subsequent intention to provide for all J's male issue was held to 
 be the more important intent, and tljerefbre controlled the construction of the will Roy T 
 Garnett, 2 Wash. 31. 
 
 (6) See further, as to Shelley's ease, 6 Cruise, 283; Fearne, 192-6; Hickman v. Quinn, 
 6 Yerg. 96 ; Polk v. Paris, 9 Yerg. 209 ; Payne v. Sale, 3 Bat. 455 ; Swain v, Roseoe, 3 
 Ired 200 ; McFeely v. Moore, 5 Ham. 465 ; Sohoonmaker v. Sheely, 3 Edw. 1. 
 
 (c) In Knglaud, it has been recently abrogated by act of Parliament. St. 3 & 4 Wm.IT, 
 provides, that a devise to the heir shsU pass the estate to him as devisee, not by descent; 
 and that a limitation by deed to the grantor or his heirs shall create a new estate by pur- 
 chase; and where one takes by purchase or will, under a limitation to the heirs or heirs of 
 the body of the ance.stor, the descent is to be traced, as if such ancestor had been the pur- 
 chaser. 4 Kent, 228, n. 
 
CHAP. LVIII.] THE RULE IN SHELLEY'S CASE. 659 
 
 and Ohio, and probably other States, the rule is abolished by statute. 
 in New Jersey it is provided, that where there is a devise to one for 
 lite, remainder to his heirs, issue, or the heirs of his body, the life estate 
 is good, but, after his death, the estate passi.-s to his children or heirs.(a) 
 In Maine and Missouri, a devise, and in Maine a deed, to one for life, 
 then to his children or heil-s or right heirs in fee, passes a life estate to 
 the former, and a remainder in (ee to the latter. In Ehode Island, the 
 same construction is given to a devise for life, remainder to the children 
 or issue in fee-simple. In New Hampshire, an express particular estate 
 created by devise, is not enlarged by a subsequent devise to heirs or is- 
 sue. In Massachusetts, a conveyance or devise to one for life, and after 
 his death to his heirs in fee, or by words to that effect, gives him a life 
 estate, and a remainder in fee to his heirs.(l)(6) 
 
 (1) Bishop t). Selleok, 1 Day, 299; M'G-ram , St. 725; Conn. St. 348; 1 N. J. L. 774; 
 
 D.Davenport, 6. Por. 319; Brant «. Gelston, 2 
 John. Cas. 384, ; Kingsland v. Rapelye, 4 
 Eent, 231; 5 Conn. 100; 1 Smith, 152; R, 
 I. L. 2 16 ; Mass. Rev. St. 405 ; 1 N. T. Rev. 
 
 Misso. St. 620 ; Swan, 999 ; Mich. Rev. St. 
 25S ; N'. H, Rev. St. 311 ; Me. Rev. St. 372. 
 See Sheely v. Sehoonmaker, 3 Deuio, 485 ; 
 Dunn V. Davis, 12 Ala. 135. 
 
 (o) The rule in Shelley's case is abolished as to devises. Den v. Demarest, 1 N. J. 525. 
 See Demarest v. Haffer, 2 lb. 599. 
 
 (6) Devise of the improvement of a farm, with a persona] charge upon the devisee, and at 
 her death, to be equally divided /imong all her legal heirs. The devisee takes only a life es- 
 tate, and her children, hving at the testator's death, a remainder in fee. Bowers v. Porter, 
 4 Pick 198. 
 
 The statute seems not to apply, where a life estate can arise, if at all, only by implication. 
 Adams v Cruft, 14 Pick. 25. (See Rogers v. Rogers, 3 Wend. 503.) 
 
 Devise to the testator's son, of the rent or improvement of certain real estate, the devisee 
 "to receive the rent annually or quarterly, (if the same should be leased or let,) daring his 
 natural life, and the premises to descend to his heirs." By a codicil, the testator repealed 
 and revoked that part of his will wherein any part of his estate, real or personal, was devised 
 or bequeathed to his son, and in lieu thereof made the following bequest: "I do bequeath 
 to my .son only the income, interest or rent, of any portion of my real or personal estate, as 
 the case may be, so that no more than the income, interest or rent of any portion of my real 
 or personal estate, and not the principal of said personal, or fte of said real estate, may come 
 to the sMd, Ac, my son, which at his decease it is my will, that the said real and personal 
 estate shall then • o to the legal heirs." It was held, that by the terms of the will alone, the 
 estate therein mentioned would have been devised in See to S, and his heirs, either as a fee 
 simple in him, according to the rule in Shelley's case, or as an estate for life in S, with re- 
 mainder in (ee to his heirs, according to the rule as modified in Massachusetts by St. 1791, 
 0. 60, see. 3 : but that by the codicil, the devise in the will to S , whether of a fee-simple, or 
 of an estate for life, witli remainder in fee to his heirs, was wholly revoked, and an estate 
 thereby devised to him for life, with vested remainder in fee to the legal heirs of the testa- 
 tor. Brown v. Lawrence, 3 Gush. 390. 
 
 In Pennsylvania, the following recent cases have occurred : Devise — "I give unto my son M, 
 all that messuage, to hold to him for and during his natural life, and after his decease to the heirs 
 of his bod>', lawfully begotten, and to their heirs forever; and, in default of such issue, then 
 to the heirs of my son S, and their heirs forever." Held, M took an estate tail under the 
 rule in Sljelley's case. George v Morgan, 4 Harris, 95 ; Worrall v. Morgan. lb. 
 
 A testator devised to his wife the use and income of a plantation, for her support and 
 maintenance during her life, and to his youngest son A, the wlioleof the plantation, and also 
 a piece of wood land, after the decease of his wife. If A was a minor at the time of his 
 wife's death, he desired his executors to lease the plantation until he became of age. If A 
 died under the age of twenty-one years, and without lawful heirs, then the plantation was 
 to be sold by the^executors, providing it was after the decease of his wife, and the whole of 
 the proceeds to be divided equally among tlie lawful heirs, his son B, and his daughters C 
 and D- provided, always, tliat if A survived and "begets lawful heirs," then after his de- 
 cease, the proceeds of said plantation were to be equally divided, share and share alike, to 
 the heirs of A. A made a conveyance to bar the entail, and tendered a deed in fee-simple to 
 the purcha-ser.' The court considered the estate which A derived under the will, as an estate 
 tail but held, that, whatever the estate migiit be, A had such an estate as the purchaser was 
 compellable to take. Maurer v. Marshall, 4 Harris, 377. 
 
660 JOINT TENANCY, ETC., HOW CREATED. [CHAP. LIX. 
 
 CHAPTER LIX. 
 
 JOINT TENANCY, ETC., HOW CEEATED. 
 
 2. Joint terancy, Sec, by deed. 
 
 8. Rule in United States. 
 11. Trust, 1-iow created by deed. 
 13. Cross-remainders by deed. 
 
 24 Joint tenancy, &c., by devise. 
 36. Cross-remainders by devise. 
 53. Condition, Ac, by devise. 
 
 1. With respect to the words necessary to create an estate for life, 
 for years, or at will, nothing requires to be said in addition to the ob- 
 servations heretofore made in connection with these several estates. 
 
 2. It has been seen, (ch. 54,) that in England, a conveyance to 
 several persons, generally, creates a joint tenancy ; while in the United 
 States, on the contrary, such conveyance creates a tenancy in common. 
 In England, upon the same principle, where one clause of the deed im- 
 ports a tenancy in common, and another a joint tenancy, the latter clause 
 will prevail. And this construction is adopted even in marriage arti- 
 cles, where the intent is peculiarly regarded. 
 
 S. Conveyance to trustees, upon trust that A and B might equally 
 divide the rents and profits between them ; amd the whole to the sur- 
 vivor. Held, a joint tenancy. (1) 
 
 4. A marriage settlement in trust, after limitations to the husband 
 
 (1) Clerk V. Clerk, 2 Vern. 323 ; Ward v. Everett, 1 Ld. Ray. 422. 
 
 In Kentucky, it is held, that the words, "heirs of the body," in wills are usually to b9 
 construed as words ol purchase, and not of limitation. Prescolt v. Prescott, 10 B. Mon. 56. 
 
 Thus, even in a deed, where the intention clearly appeared to be, to give a present inter- 
 est to the children; tliis rule was adopted. Jarvis v. Quigley, 10 B. Men. 104. 
 
 In North Carolina, A devised to his son a tract of land, " for and during his natural life " 
 and after his death, " to tlie heirs of his body to be equally divided between them, to them 
 and tlieir heirs forever," and, if he died without heirs of his body, living at the time of his 
 deaih, then to his daughter. Held, the son took only a life estate. Moore v. Parker, 12 
 Ired. 123. 
 
 Wliere a devise made in North Carolina, since the act of 1184. (Rev. Sts. o. 122, sec. 10, 
 and 0. 93, sec. 1,) was to A for life, and, should he have lawful issue, then to be equally di- 
 vided lietween his lawlul issue, but should he not have lawful issue, then over; held, A 
 took only a life estate. Ward v. Jones, 5 Ired. Eq. 400. 
 
 The rule in Shelley's case is in force in Georgia, but the courts favor the intention of the 
 testator, and take hold ot any words which tend to explain or qualify the technical terms, 
 that would, by that rale, otherwise create an estate in fee or in tail. Dudley v. Mallery, 
 Mallery v. Dudley, 4 Geo. 52. 
 
 A conveyance was made to A, during the life of her husband B, and, after her death, to 
 the children of A, who should then be living, "and if it should happen, thatthesaid A should 
 depart this life leaving no child or children by her said husband, then in trust for the main- 
 tenance and support of tlie said B and his children." B died before his wile. Held, the fee 
 never vested in B. lb 
 
 Devise of slaves: " 1 lend to B certain property during her natural life, and after her de- 
 cease to return to the heirs of her hody, share and share about " Held, tlie.se words created 
 an estate tail under the laws of South Carolina, and B took absolutely. Watts v. Clardy, 2 
 Florida, 369. 
 
 In New Jersey, A gave to B and her heirs, forever, all the residue of his real and personal 
 estate, hut, if B died. " without leaving lawlul issue," then to C and D, as tenants in com- 
 mon. Held, the limitation over was upon an indeHnile failure of i.ssue, and failed as an exe- 
 cutory devise ; tliat B. tlieiefore, under the statute de donis took an estate tail, and, in New- 
 Jersey, an estate lor life, with remainder to her children. Morehouse v. Cotiieal 2 New 
 Jer. 430. 
 
CHAP. LIX.] JOINT TENANCY, ETC., HOW CREATED. 661 
 
 and Avife, directed the trustees to permit all and every the child and chil- 
 ^^"1 •'^^ body of the husband by the wife, to take the rents to them 
 and their heirs, in such shares and proportions as the husband should 
 appoint; and for want thereof to receive them to them and their heirs 
 forever. Held, the children, who survived their parents, took as joint 
 tenants; that the word every had no contrary import, being always 
 used m creating a joint tenancy ; and although, under the first clause, 
 if the husband had made an appointment, it would have created a ten- 
 ancy in common, yet, in default of such appointment, the parties took 
 as joint tenants under the general words of the subsequent clause.(l) 
 
 5. A conveyance to A and B, to have and to hold to tliem, scilicet the 
 one moiety to A and to his heii-s, and the other to B and his heirs, makes 
 a tenancy in common. A and B take several freeholds, and, as Lord 
 Coke says, an occupation pro indiviso, by virtue of the habendum, which, 
 being express, controls the implied interest given by the premises.(2) 
 
 6. A conveyance to two persons, equally to be divided, their heirs, &c., 
 creates an inheritance in common. It was formerly held, that the 
 words equally divided should be thus construed, but not the words to be 
 divided. But the distinction no longer exists. This construction is 
 more especially adopted, where the estate conveyed is a term for years, 
 limited in trust for children ; where an intention appears to make dis- 
 tinct provisions for them, and a pecuniary payment is charged upon 
 the land, making them purchasers.(3) 
 
 7. It is said, there are no precise words necessary to create a tenancy 
 in common. The words equally to be divided go to the quality and not 
 to the limitation of the estate. They are words of qualification and cor- 
 rection. {■i){a) 
 
 8. It is held in Massachusetts, that a grant to two persons "jointly, 
 equally to be divided," creates a tenancy in common under the statute 
 of that State, if not at common law. So a conveyance to two persons 
 jointly a)td severally. So a conveyance of a moiety in quantity and 
 
 quality makes a tenancy in common between grantor and grantee.(5) 
 So, in Kentucky, a deed of land to two persons, by one common bound- 
 ary, but stating the particular interest conveyed to each, constitutes 
 them tenants in common. (6) 
 
 9. In Pennsylvania, independently of statutory provisions, it seems, 
 a deed to A and B, their heirs and assigns, habendmn to them, their 
 heirs, &c., and to the heirs, &c., of the survivor, creates a joint tenancy. 
 But where the premises convey to them or any of them, their or any 
 
 (1) Stratton v. Best, 2 Bro. 233; (Staples 
 V. Maurice, 4 Bro. Pari. Cas. 580 ) See HoUi- 
 day V Overton, 10 Eng. L. & Equ. 175. 
 
 (2) Lit. 298 I FisberiJ. Wigg, 1 P. "Wms. 
 18. 
 
 (3) 2 Vent. 365 ; Hawell v. Hunt, Prec. in 
 Chan. 164; Rigden v. Vallier, 2 Ves. 252; 
 Goodtitle V. Stokes, 1 Wils. 341 ; Den v. 
 Gaskin, Cowp. 660 ; Evans v. Brittain, 3 S 
 & R. 138; Larsh v. Larsli, Addi. 310; 2 Lit. 
 
 113; 2 J. J. Mar. 382; 3 Mon. 380; Bow- 
 ling V. Dobyn, 5 Dana. 438. 
 
 (4) Rigden v. Tallier, 2 Ves. 252 ; Fislier 
 V. Wigg. 1 P. Wms. 14; Fislier v. Wiggs. 12 
 Mod. 298 ; 1 Abr. Eq. 291 ; Jackson v. Lu- 
 quere, 5 Cow. 228; (3 S. & R. 393.) 
 
 (5) Burgliardt v. Turner, 12 Pick. 534; 
 Miller V. Miller, 16 Mass. 69; Adams v. 
 Prothingham, 3 Mass. 352, 
 
 (6) Craig v. Taylor, 6 B. Mon. 451. 
 
 (a) Although the weight of authority is in favor of the rule above stated, it is proper to 
 notice that in Fisher v. Wigg, 1 P. Wms. 14, Lord Holt dissented from the opunon of the 
 court, 'maintaining that the words equally to be divided signify no more than the law would 
 imply without them. 
 
662 
 
 JOINT TENANCY, ETC., HOW CREATED. 
 
 [CHAP. LIX. 
 
 of their heirs or assigns, habendum to them, their heirs and assigns, &c., 
 this is a tenancy in common.(l) So, by a conveyance to "A, in trust 
 for herself and her children, to have and to hold for herself and her 
 children, their heirs and assigns;" A and her children become tenants 
 in common in fee in equal shares.(2) 
 
 10. In Kentucky, a deed to two persons and the survivor of them, 
 his heirs, &c., passes a life estate to them, and a contingent remainder 
 in fee to the survivor.(3)(a) 
 
 11. No particular form of words is required to create a trust, if the 
 intention appear. Either a trustee or cestui Yi\\\ take a fee-simple, with- 
 out using the word heirs, when the purposes of the trust so require. 
 
 12. A, a revolutionary soldier, delivers his discharge, which entitled 
 him to bounty land, to B, with this certificate under himd and seal: 
 " This is to certify, that B, the bearer, is entitled to all the lands that I 
 am entitled to, &c., for my services certified in my discharge." The 
 usual consideration of $15 was paid by B. B transfers his right, and 
 his assignees afterwards take out a patent for the land in A's name, 
 the law so requiring. Afterwards C, knowing the transfer to B, pur- 
 chases from A for $250. Held, no consideration, or words of inheri- 
 tance, were requisite to pass A's title; and he took the land as B's 
 trustee, especially as an act sanctioned all transfers previously made 
 by soldiers.(4)(i>) 
 
 13. Where a particular estate is conveyed to several persons, in com- 
 mon, and, upon the termination of the interest of either of them, his 
 share is to remain over to the rest, and the remainder-man or rever- 
 sioner is not to take till the termination of all the estates ; the parties 
 take as tenants in common, with cross-remainders between them.(5)(c) 
 
 14. No technical words in a deed are necessary to create cross- 
 remainders. Any words which express the intention of the parties 
 will be sufficient. And it is sufficient to say that there shall be cross- 
 remainders, without the artificial language commonly used for the 
 purpose. 
 
 15. But cross-remainders cannot be implied, even in a deed to uses. 
 Thus an inheritance will not pass in this mode, without the use of the 
 word heirs.(6) 
 
 16. It is said that cross-remainders are created by deed as to accruing 
 shares, by a limitation of the whole estate to the only surviving child and 
 his issue, or a gift over of the entire remainder, after failure of all the 
 
 (1) Shirlook v. Sliirlock, 5 Barr, 367. 
 
 (2) Davidson v. Heydon, 2 Teates, 459; 
 Galbraith v. Galbraith, 3 S. & R. 392. 
 
 (3) Ewing V. Savary, 3 Bibb, 237. 
 
 (4) Eisherv. Fields, 10 Johns. 605. 
 
 (5) 4 Cruise, 249. 
 
 (6) Doe V. "Wainewright, 5 T. R. 427. 
 
 (a) Devise to A, the testator's wife, in common with B, his daughter, of the use of certain 
 room.o, and to B in common with A of the same rooms, while B should remain unmarried. 
 Held, after A's deatli, B, not being married, was entitled to the sole use of the rooms. 
 Jarvis V. Buttriok, 1 Met. 480. 
 
 (h) Mere words of recommendation to a devisee, to give the devised estate to the testator's 
 children, at such time and in such manner as the devisee shall think best, do not create a 
 trust. Gilbert v. Chapin, 19 Conn. 342. 
 
 (c) The distinotion is not very obvious, between a tenancy in common with cross-remain- 
 ders and a joint tenancy; so far as the interest of the tenants themselves is concerned. 
 The former, however, always implies a remainder subsequent to the tenancy in common, to 
 take effect after the termination of the estates of all the tenants in common; while the latter 
 may be in fee-simple. 
 
CHAP. LIX.] JOINT TENANCY, ETC., HOW CREATED. 663 
 
 issue, or an express creatioa of cross-remainders as to the . original 
 shares.(l) 
 
 17. Conveyance to the use of A and B, and the heirs male of their 
 bodies; and, for default of such issue of either of them, to the use of 
 the survivor of them, having issue male, and to the issue male of such 
 issue male ; and, for default of issue male of their bodies, remainder 
 over. Held, A and B took several inheritances, and there was no 
 cross-remainder in tail for want of the word heirs.{2) 
 
 18. Where one covenants to stand seized to the use of A and B, and 
 the heirs of their bodies, of a part of his land, and, if they die with- 
 out issue, then to remain, &c., and of another part to the use of C, D 
 and E, and the heirs of their bodies ; and, if they die without issue, 
 then to remain, &c. ; no cross-remainders arise by implication.(3) 
 
 19. Conveyance, upon the marriage of A, the son of the grantor, 
 (after previous limitations,) to the use of such child or children of A, 
 and ill such shares, &c., as A should appoint; and, in default of ap- 
 pointment, to the use of all and every the children of A, and the heirs 
 of their several and respective bodies, as tenants in common ; but, if 
 only one child, to the use of such child and the heirs of his or her 
 body ; and in default of all such issue, to the right heirs of the grantor 
 forever. A had two children at the time, and afterwards had others, 
 and died without making an appointment. Held, notwithstanding the 
 power, A's children took vested estates tail; that there were no cross- 
 remainders between them, but, on the death of each child without is- 
 sue, his share fell into the reversion. (-i) 
 
 20. Limitation by marriage settlement, to the use of all and every 
 the daughter and daughters of the marriage, share and share alike, 
 equally to be divided between them ; and of the heirs of the body and 
 bodies of all and every such daughter and daughters lawfully issuing ; 
 and, for default of such issue, to the use of the right heirs of the hus- 
 band. Held, although the intent of the deed probably was, that the 
 remainder over should not take effect, while any issue of the marriage re- 
 mained ; yet such construction could not be im.plied, and there could be 
 no cross-remainders between the daughters and their issue. (5) 
 
 21. Conveyance to the use of the future children of A, as tenants in 
 common, and the heirs of their several bodies issuing. And, if any 
 such child or children should die without issue, his, her, or their parts 
 to remain to the use of the surviving child or children of A, and the 
 heirs of his, her, or their respective bodies, and so, toties quoties, as any 
 of the said children should die without issue, till there should be 
 only one child left; and if all the children should die without issue, or, 
 if A should have no issue, then to B in fee. Held, the meaning of the 
 word surviving, in its connection, was, that on the death of one child 
 without issue, his share should go to the surviving line of heirs, either 
 the surviving children, or, if dead, to their issues; and not wholly to 
 one surviving child. And this construction was confirmed by the limi- 
 
 (1) Kdwards v. Alliaton, 4 Rus.s. 78. 
 
 (2) Nevell v. Nevell, 1 Rolle'a Abr. 837, R. 
 pi. 2 ; Cook V. Gerrard, 1 Saua. 185, n. 6.* 
 
 * In this note, it is said, all the oases on the subject are collected with great ability ; per 
 Lord Keayon, Doe v. Worsley, 1 E. 416. 
 
 (3) Doe V. Dorvell, 5 T. R. 518. 
 
 (4) Oolej; Levingston, 1 Vent. 224. 
 
 (5) Doe V. Worsley, 1 B. 416. 
 
664 
 
 JOINT TENANCT, ETC., HOW CREATED. 
 
 [CHAP. LIX. 
 
 tation of a remainder over in fee, on the death of all the children with- 
 out issue : showing that the cross-remainders were to continue so long 
 as the lives of children lasted. Hence, the deed created cross-remainders 
 among A's children : and the share of one deceased vested in a survi- 
 ving child, and the heir of another deceased. (1) 
 
 22. Conveyance by marriage settlement to trustees, remainder to 
 children as tenants in common ; for default of such issue, and if any 
 of said children, there being more than one, should die under twenty- 
 one, without issue, the share of such child to go to the survivors as 
 tenants in common ; if all such children should die without issue, to 
 the use of the settler in fee. Held, no cross-remainders were created 
 between the children, except in the case that one should die without 
 issue, and under twenty-one.(2) 
 
 23. In marriage articles, which are construed less strictly than deeds, 
 cross-remainders may sometimes arise by implication. (b) 
 
 24. In England, a devise to two or more persons, generally, or to 
 them and their heirs, makes them joint tenants for life or in fee ; even 
 though the estates are to have different commencements. So, where 
 the right of survivorship is given, the estate is a joint tenancy, even 
 though there are other words indicating a tenancy in common ; as, for 
 instance, where the devise is to A, B and C in tail, every of them 
 to be the other's heir by equal portions. So a devise to two, equally to 
 be divided between them, and to the survivor of them, or words of 
 equivalent import, make a joint tenancy. Where there are two differ- 
 ent dispositions of the same property in a will, it is said, if the two es- 
 tates have the unity or sameness of interest essential to a joint tenancy, 
 the devisees shall be joint tenants — otherwise, they are tenants in com- 
 mon. (a) 
 
 25. Independently of statutory provisions, substantially the same 
 principles have been adopted in this country. Tbus, it is laid down in 
 Pennsylvania, that in case of a devise to several persons, with no indi- 
 cation of an intent to divide the property, or to give it in severalty^ the 
 estate is a joint tenancy ; while, if such intent appears from express 
 words, or the nature of the case, it is a tenancy in common. (4) 
 
 25 a. So, in Massachusetts, a testatrix having devised all the rest and 
 residue to her executors, or the survivor of them, their heirs or assigns, 
 to be held by them, or the survivor of them, their heirs or assigns, for 
 the following uses : the income to be paid semi-annually, to my daugh- 
 ter, and, in case of her marriage, the trust to remain the same, the inter- 
 
 (1) Doe V. Wainewriglit, 5 T. R. 421. 
 
 (2) Meyrick v. Whishaw, 2 B. & A. 810. 
 
 (3) Twisden v. Lock, Amb. 663 ; 2 Col. 
 Jur. 847. 
 
 (4) 6 Cruise, 287 ; Martin v. Smith, 5 Bina. 
 16; Spry «. BromBeld, 7 Mees. & W. 545. 
 S«e Vanderplank v. Kinff, 3 Hare, 1 ; Howell 
 V. Howell, 1 Spencer, 411. 
 
 (a) Devise, thattlie residue, after the denth of a tenant for life, should be equally divided 
 among the testator's five sisters and their respective families. Held, a gift of one fifth to 
 each of the sisters and her children, living at the testator's death, as joint tenants. Parkin- 
 son, 2 Eug L. & Equ. 104. 
 
 In case of husband and wife, named as devisees, the wife will take alone, where different 
 clauses taken together indicate an intention to that effect, and that the former is named, 
 only as having an interest in the wife's estate. 
 
 A testator, owning one-half of a tract of land, devised the same to his "daughter, M, 
 ■wife of F," &c., — " in short, my will is, that F and M, my son-in-law and daughter, have 
 my share of that land." Held, that M alone took a fee in the land. MoClure v. Douthitt, 6 
 Barr, 414. 
 
CHAP. 
 
 LIX.] JOINT TENANCY, ETC., HOW CREATED. 
 
 665 
 
 est still to be paid to lier, on her own receipt." Held, tlie executors 
 took a fee-simple in the real estate, as joint tenants, and an absolute 
 property in the personal estate, also in joint tenancy, without any bene- 
 ricial interest m either, for themselves, but in trust to pay the income 
 of both to the daughter for her life, with an equitable reversion therein, 
 to the legal heirs of the testatrix at the time of her death, to be con- 
 veyed and paid over to them on the decease of the daughter.(l) 
 
 26. If an intention appear by the will, t'-iat all the devisees shall take 
 several and distinct shares, they will be tenants in common. Thus, a 
 devise to A, B and C, and their heirs, respectively, forever, makes A, 
 B and C tenants in common. So a devise to two sons equally and 
 their heirs. So a devise to several persons, their heirs and assigns, all 
 of them to have part and part alike, and the one to have as much as 
 the other. So a devise to two grandsons, A and B, "jointly, their 
 heirs and assigns forever."(2) So a devise to " three children, to be 
 kept as joint stock until the youngest shall arrive at the age of 21 
 years, and then the whole property and its increase to be divided 
 equally between them, to each one third part."(3) So a devise to 
 "the survivors of my brothers and sisters," naming them, is a 
 gift in common, to all who survive the testator, with an imme- 
 diate right of possession ; not a contingent devise to the two who 
 should survive the third.(4) So, a devise to A and B equally to them, 
 for this word implies a division. So the words equally to be divided, 
 have sometimes been held to create a tenancy in common, even though 
 there were other words indicating a right of survivorship. Thus, a de- 
 vise to three daughters, equally to be divided ; and if any of them die 
 before the other, the survivors to be her heirs, equally to be divided, 
 and if they all die without issue, remainder over ; creates several estates 
 tail, with cross-remainders. So a devise to the testator's two sons and 
 their heirs, and the longer liver of them, equally to be divided be- 
 tween them and their heirs, after the death of his wife, makes the sons 
 tenants in common ; because the will intends that the posterity of the 
 sons, as well as themselves, shall have an equal part, and the word sur- 
 vivor means only that the survivors shall share equally with the heirs 
 of the one who dies first. So a devise to A, B and C, and as they shall 
 severally die, to their several heirs, makes them tenants in common. (5) 
 
 27. In case of an executory trust, where the greatest latitude of con- 
 struction is allowed to effect the intention, even the words joint tenants 
 may make a tennncy in common. 
 
 28. Devise to trustees, as soon as the testator's three daughters 
 should respectively reach the age of twenty-one, to convey to them 
 and the heirs of their bodies, as joint tenants. Held, the meaning was, 
 that there should be a survivorship only in case either of the daugh- 
 ters should die without issue ; and therefore Chancery would decree 
 conveyances to them at twenty-one respectively, in tail male, with 
 cross-ieraainders in tail. (6) 
 
 29. So where an estate is devised " to be equally divided among, 
 &c., and the survivor of them and their heirs forever " if the devisees 
 
 (1} Keating v. Smith, 5 Gush. 232. 
 (2') Davis V. Smitii, 4 Harring. 68. 
 
 (3) Weir v. Humphries, 4 Ired. Eq, 264. 
 
 (4) Brimmer v. Sohier, 1 Gush. 118. 
 
 (5) 6 Cruise, 287-94. See Flemings. Kerr, 
 10 Watts, 444 ; Brown v. Ramsey, 1 Gill, 
 347 ; Moody v. Elliott, 1 Md. Gh. 290. 
 
 (6) Marryat v. Townley, 6 Cruise, 295. 
 
666 
 
 JOINT TENANCY, ETC., HOW CREATED. 
 
 [CHAP. LIX 
 
 are children of the testator, and a tenancj' in common will best effect 
 the testator's undoubted intention as to the disposing of the property 
 among them and their issue, the words equally to he divided shall control 
 the word survivor, and the will shall create a tenancy in common. (1) 
 
 30. Devise to the testator's five children, and the survivors and sur- 
 vivor of them, and the executors and administrators of such survivor, 
 share and .share alike, as tenants in common, and not as joint tenants. 
 Held, the word survivor referred to the death of the testator himself, 
 and that the children took as tenants in common. (2) 
 
 31. Devise : according to quantity and quality, each taking pos- 
 session of his part at the age of twenty-one, but if one or more die 
 before this age, their part to be equally divided among the survivors. 
 This is a tenancy in common. (3) 
 
 32. But where a will contains words importing a joint tenancy, 
 and others importing a tenancy in common, both shall have effect if 
 possible. 
 
 33. Thus a devise to A and B, and the survivor of them and their 
 heirs, equally to be divided, share and share alike, gives A and B a 
 joint tenancy for their lives and the inheritance in common. (4)(a) 
 
 34. Devise to A and B, severally and in distinct parts, each to have 
 his part on these conditions and limitations. If A should die, leaving 
 no heirs of his body, living B or any heirs of his body, the lands de- 
 vised to A to be and remain to B or such his said heirs ; and the 
 same provision in favor of A, &c., in case of B's death. If A and B 
 both die, leaving no heirs of either of their bodies, remainder over. 
 Held, A and B took an estate tail, with cross-remainders in tail. (5) 
 
 35. A devise may be so expressed, as to create a tenancy in com- 
 mon, but with no power of partition. Devise to two daughters, to 
 be equally divided between them, share and share alike, for their 
 natural lives ; then to be to their and each of their children, and to 
 be divided between them share and share alike. Held, the daughters 
 took an estate for life in common, but could not make partition to 
 bind their children. (6) 
 
 36. Cross-remainders may arise in a will by implication. {7) 
 
 37. Devise to the testator's five youngest sons and their heirs ; and 
 if they all died without issue male, or any of them, the land to revert 
 to his right heirs. Held, it was plainly intended that the devisor's 
 right heirs should have nothing, while any issue of the five sons 
 remained ; aad therefore these sons took estates tail, with cross- 
 remainders. (8) 
 
 88. Devise to A and his heirs of a portion of land, and the rest to B 
 
 (1) stones V. Heurtly, 1 Ves. 165. 
 
 (2) Rose V. Hill, 3 Burr. 1881 ; Garland v. 
 Thomas, 1 B. & P. N. R. 82. 
 
 (3) Doe V. Botts, 4 Bibb, 420. 
 
 (i) Barker v. Giles, 2 P. Wms. 280 ; Bar- 
 ker i;. Smith, 9 Mod. 157 ; 3 Bro. Pari. 104. 
 
 (5) Hawley v. Northampton, 8 Mass. 3. 
 
 (6) Jackson v. Luquere, 5 Cow. 221. 
 
 (1) See Livesey v. Harding, 1 Russ. & My. 
 636; Green v. Stephens, 12Tes 419, 17, 64; 
 Turner v. Fowler, 10 Watts, 325; Cursham 
 V. Newland, 4 Mees. & W. 101 ; Vauder- 
 plank V. King, 3 Hare, 1 ; Smith v. Stewart, 
 3 Eng. L. & Equ. 175. 
 
 (8) Clache's case, Dyer, 330. 
 
 (a) Devise to A and B, equally between them, as joint tenants, and their several and 
 respective heirs and assigns forever. Held, they were joint tenants for life, with several in- 
 heritances upon the survivor's death. Doe v. Green, 4 Mees. & W. 229. 
 
CHAP. LIX] JOINT TENANCY, ETC., HOW CREATED. 667 
 
 and his heirs ; the survivor of them to be heir to the other, if either 
 die without issue. A and B take an estate tail in common, withcros 
 remainders.(l) 
 
 39. Devise to A and B and their heirs, equally to be divided be- 
 tween them, and, if they die without issue, then to C. A and B take 
 estates tail with cross-remainders.(2) 
 
 40. But the implication must be a necessary one. In other words, 
 there must be an_ intention that no one else shall inherit any part of 
 the estate or take it by way of remainder, while any of the immediate 
 devisees or their issue are living. Thus a devise to A and B, equally 
 to be divided, and to the heirs of their respective bodies, and for de- 
 fault of such issue to C ; creates no cross-remainders between A and 
 B, the words " for default, &c.," meaning merely for default of heirs of 
 their respective bodies, which last expression would clearly have created 
 no cross-remainders.(3)(a) 
 
 41. Devise to A for life, then toB and 0, equally to be divided, and 
 the several and respective issues of their bodies, and for want of such 
 issue to A in fee. Held, the words several and respective disjoined the 
 title, and no cross-remainders were created. (4) 
 
 42. But in a subsequent case, it was remarked by Lord Kenyon, 
 that creating a tenancy in common equally divides the title, whether 
 the word respective be used or not ; and that it was unworthy of the 
 great learning and ability of Lord Hardwicke to lay such stress as he 
 was stated to have done on this word. (6) 
 
 43. Devise to all and every the younger children of A ; if more than 
 one, equally to be divided, and to the heirs of their respective body and 
 bodies, as tenants in common ; if only one, then to such child and the 
 heirs of his or her body ; and for want of such issue to B. Held, the 
 younger children of A took cross-remainders.(6) 
 
 44. Devise to A, B and C, and the heirs of their bodies respectively, 
 as tenants in common ; in default of such issue, to the testator's right 
 heirs. Held, cross remainders were created between A, B and C.(7) 
 
 45. Devise to four sons and the male heirs of their bodies forever, 
 and if either of them die under twenty-one, his or their lands to be 
 equally divided between the surviving brethren or their male heirs. 
 Held, no cross-remainders were raised. (8) 
 
 46. Devise of a farm to A and B, equally between them, share and 
 share alike ; with the words " I entail" it upon the lawful male heirs 
 of A and B. Held, no cross-remainders arose.(9) 
 
 (1) Chadock v. Cowley, Cro. Jao. 695. 
 
 (2) Holmes v. Meynel, T. Bay. 452 ; 2 
 Show. 135. 
 
 (3) Comber ii. Hill, Stra. 969 ; Hungerford 
 V. Anderson, 4 Day, 368. 
 
 (4) Davenport v. Oldis, 1 Atk. 579. 
 
 (5) See Livesey v. Harding, 1 Russ & My. 
 636. 
 
 (6) "Watson v. Foxon, 2 B. 36. 
 
 (7) Doe V. Webb, 1 Taun. 234; Roe v. 
 Clayton, 6 E. 628; 1 Dow, 384. 
 
 (8) Hungerford v. Anderson, 4 Day, 368. 
 
 (9) Cooper!;. Jones, 3 B. & A. 425. 
 
 (a) Tlie rule has been thus stated by the court in South Carolina. Where property is 
 devised to two persons for life, and at their death to their children ; if hoth die without 
 leaving children, remainder over; cross-remainders are implied. The same construction 
 maybe given though the word ?)oiA is omitted; founded upon an apparent intention to 
 devise over the whole together as one estate, (which could not be effected till both were 
 dead without children,) and not to limit over the respective shares. But it is clear that 
 cross-remainders are not created, where the respective shares are limited over upon the 
 death of eUher without children. Baldrick y. White, 2 Bai. 445. 
 
668 
 
 JOINT TENANCY, ETC., HOW CREATED. 
 
 [CHAP. LIX. 
 
 47. It was formerly beld, that cross-remainders could not arise by 
 implication between more than two persons; the policy of the law 
 being opposed to the division of estates and tenures,(a) and it being 
 uncertain whether the survivors should take as joint tenants or tenants 
 in common. Thus where a testator devised a house to each of his three 
 sons and his h^irs, provided that if all of them should die without issue, 
 the houses should remain over to his wife in fee ; held, there were no 
 cross-remainders, but, on the deaih of either son without issue, his estate 
 passed to the wife.(l) 
 
 48. In more recent cases this principle has been stated in a somewhat 
 qualified form, as follows. Where there are but two parties, the law 
 presumes in favor of cross-remainders, but where there are more than 
 two, against them ;(i) but in either case a clear intention on the part 
 of the testator will control the presumption of law. And the modern 
 doctrine is stated to be, that in all cases where there are no words to 
 sever the title, cross-remainders are implied. More especially is this con- 
 struction adopted, where, although the will provides for the case of 
 more than two devisees, yet in fact there are only two who claim under 
 it.(2) 
 
 49. 'Devise, to the use of all and every the daughter and daughters 
 of A, and the heirs of her and their bodies ; such daughters to take as 
 tenants in common; and for default of such issue to the right heirs of 
 the devisor. Held, the last limitation was of the whole estate, after the 
 death of all the daughters, and not of their respective shares upon the 
 death of either of them ; that the heir was to take nothing, while any 
 of the daughters or issue continued; and therefore that the daughters 
 took cross-remainders.(3) 
 
 50. Devise to three sons in succession for life, remainder to the heirs 
 male of their bodies, then to the heirs female, then to all and every the 
 testator's daughter and daughters as tenants in common, and to the heirs 
 of her and their body and bodies, then to the heirs of his brother A 
 forever. Held, the language of the will showed a clear intent that the 
 issue, even the daughters, of each son, should all take before the next 
 son;(c) that the words daughter and daughters, all and every, &c., implied 
 that the number might probably be diminished before the daughters 
 would take, and the limitation of a remainder to the heirs of A, that A 
 himself would not probably outlive the prior parties, and that a single 
 remainder only would vest in them; that if, on the death of one daughter, 
 her share should go over to the heirs of A, this would involve the two- 
 fold absurdity, of a remainder to the daughters themselves as the heirs 
 of A, which they would be for want of children of A, and also of 
 giving cross-remainders to the daughters of the testator's sons, and 
 
 (1) 1 Saun. 185 a, n. 6 ; Gilbert v. Witty, 
 Cro. Jac. 655. 
 
 (2) Doe V. Cooper, 1 E. 229; Cole v. Lev- 
 Ingston, 1 Tent. 224; Pery v. White, Cowp. 
 
 117 ; Phipard v. Mansfield, Cowp. 191 ; 2 E. 
 36. 
 (3) Wright V. Holford, Cowp. 31. 
 
 (a) Lord Mansfield remarks, that this reason lud not very great weight at the time it was 
 given, and certainly had none then. Phipard v. Mansfield, Cowp. 800. 
 
 (6) The same principle has been stated thus; that in the former case an intention to raise 
 cross-remainders is presumed ; while in the latter it is necessary to resort to other words in 
 the will to discover such intention. Atlierton v. Pye, 4 T. R. 113. 
 
 (c) With cross-remainders between them. 
 
CHAP. LIS.] JOINT TENANCY, ETC., HOW CREATED. 669 
 
 withliolding them from his own daughters; and upon these grounds 
 that the daughters took cross- remainders. 
 
 51. Devise to_A and B, brothers of the testator, and C bis sister, and 
 the heirs of their bodies, as tenants in common, and for want of such 
 issue, to his own right heirs. Held, the words showed an intention 
 that the brothers and the sister should be equal sharers of the testator's 
 bounty, and that no divi.sion should take place, to create an inequality 
 between them, till a fliilure of the heirs of all their bodies. If the tes- 
 tator meant, the estate should go to his heir at law, he would not have 
 made a will. The intention was, that neither A nor B should take as 
 heir, but that the estate should remain subject to entailment, during 
 the lives of A, B and C, and their issue, after which the heir at law 
 was to take. Any other construction would give to one brother, upon 
 the death of the other without issue, a fee-simple, and the sister nothing, 
 in violation of the intended equality. Hence there must be cross-re- 
 mainders.(l) 
 
 52. Devise to all and every the daughter and daughters of the tes- 
 tator's daughter A, and the heirs male of the body of such daughter 
 or daughters, equally ; if more than one, as tenants in common ; for 
 and in default of siLch issue, all said premises to the testator's heirs. 
 Held, the words suck issue must mean issue of all of them ; that the 
 word all,{a) in the last clause implied that the whole remainder should 
 go at once to the heirs ; and therefore the daughters took cross-remain- 
 ders.(2) 
 
 52 a. A testator, by his will, which took effect in 1801, devised his 
 real estate to his four sons and the heirs of their bodies, share and share 
 alike ; if any one of them should die without issue, his share was to go 
 to the survivors, to be equally divided among them; and, if all the 
 sons should die without issue, the estate was to go to the children of 
 the daughters. Held, 1. That, by the primary devise to the sons, they 
 took estati s tail, with contingent cross remainders, which, by the New 
 York Statute of 178li, abolishing entails, were converted into absolute 
 estates; 2. That the limitations over to the survivors among the sons, 
 and to the children of the daughters, were cut off by that statute.(o) 
 
 53. With regard to the words in a deed necessary to create a con- 
 dition, as the condition, if any, constitutes a formal part of the instru- 
 ment, the language required to express it will be more properly con- 
 sidered bereafier. (Sl-c Condilion — also, Estate on Condition) 
 
 54. In a devise, no formal expressions are necessary to create a con- 
 dition. Thus a devise of land to an executor to be sold, or a devise to 
 a per.son wl soluenduni, £20 to A, makes a condition. (4) 
 
 55. Devise to A, the eldest daughter of the testator, and her heirs, 
 that she should pay to B, her sister, £30 per annum. Held, a good 
 condition, for breach of which B might enter, because this was the plain 
 intent, and otherwise B would have no remedy. (5) 
 
 (1) Doe V. BurviUe, 2 E. 4'7. 
 
 (2) Atliertori V. Pye, 4 T. R. "710. 
 (3j LotL 'J. Wykoff, 2 Uoiiist. 355. 
 
 (41 Co. Lit. 236 b. See Stork v. Smilpy, 
 25 Maine, 201 ; Irfarvvilk V. Andrews, 12 
 Sliepl. 525. 
 
 (5) Criokmere v. Paterson, Cro. Eiiz. 146. 
 
 (a) It wii.s remarked by Lord Kenyon, that tliia word could make no difference in the 
 sense. Watson v. Foxon, 2 K. 42. 
 
670 JOINT TENANCY, ETC., HOW CREATED. [CHAP. LIX. 
 
 56. Upon the ground that for condition broken the heir alone can 
 enter, where a devise is made to him in terms which would make a 
 condition as to a stranger, they shall constitute a limitation, to take ad- 
 vantage of which no entry is necessary. Thus a devise to the eldest 
 son of the testator, paying to the other children a certain sum in a cer- 
 tain period, is construed as a devise to him till he fails to make such 
 payment.(l) 
 
 (1) "Wellock i;. Hammond, Oro. Eliz. 204; Boraston's case, 3 Eep. 20 b; (Curteis v. 'Wol- 
 Terston, Cro. Jao. 56.)