CJortiFll ICam Bcl^anl Uibtar^ Cornell University Library KFN5140.G35 1889 A digested treatise and compendium of la 3 1924 021 901 834 DATE DUE -iWI^^ m ...- ■ ,. GAYLORD PRINTED IN U.SA 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/cu31924021901834 A DIGESTED TREATISE AND COMPENDEUM OF LAW APPLICABLE TO TITLES TO REAL ESTATE IN THE STATE OF NEW YORK. By JAMES W. GERARD, COUNSELLOR AT LAW. Third Edition- Revised and Enlarged. Giving all the Code and Statute Changes to Date. With Notes of Decisions. BY EDWAED B. HILL and EDGAE LOGAN, COUNSELLORS AT LAW. NEW YORK: BAKEE, YOOEHIS & CO., LAW PUBLISHERS, 66 NASSAU STREET. 1889. Entered, according to A.ct of Congress, In the year one thousand eight hundred and eighty-nine, by JAMES W. GBRARB, In the Office of the Librarian of Congress, at WaBhington. REVISERS' NOTE. It is now more than fifteen years since the previous edition of this work was published, within which time a very large number of statutory changes and judicial decisions affecting Titles to Eeal Estate have been made. The revisers of this edition have endeavored to insert all the new matter con- nected with the subject, from 1873 to the present time, in its proper place. Very little attempt has been made to do more than to bring the work down to the present time. All the features of the original work have been retained, with only a few modifi- cations of the text, which the changes of Hhe law by statute and legal decision rendered necessary. To have done more would have been beyond the scope and purpose of this under- taking. Much aid and valuable suggestion, in the course of the revision, have been rendered by the author. While the sheets were passing through the press, a large number of decisions bearing upon the different subjects cov- ered by the work were published in the various reports, and, to make the book complete to the end of this year, references to all of such decisions will be found in Addenda at the end of the volume. Edward B. Hill. 58 Wail Street, Edgae LogaN. December, 1888. PREFACE TO SECOND EDITION. This volume is an amplification of one oi a similar but in- formal character, printed in 1869, and which, at the request of the publishers, and upon the suggestion of many members of the profession, reappears in its present form. The present edition includes many subjects of importance connected with realty not previously considered, and is other- wise much extended. The aim, in compiling the book, has been the exposition of the principal features of the real estate law of this State in a practical shape, under clearly distinguishing heads, and within the compass of a single volume. Such a succinct treatment of the real estate system of this State — now grown to formidable proportions under the mass of statute law that has been ap- pended to the revision of 1830 — will explain the somewhat terse style necessarily adopted in the reduction of the subject- matter into a comparatively small compass. Since the production of the valued Commentaries of Black- stone and Kent, and the disquisitions of the English common law writers of the earlier portion of this century, the jurispru- dence of this State has undergone great change and increase, imposing new labors on the profession. Eeal estate law, par- ticularly, under the effect of legislation breaking away further and further from the common law system, and abolishing or modifying ancient principles under modern requirement, has grown into a system requiring not only study as such, but direction and guidance in its minute and special changes and provisions. In connection with the extended statutory law bearing on Teal estate, we have, in this State, a vast number of decisions Vi PREFACE TO SECOND EDITION. expounding or interpreting it — decisions which have given the profession the accumulated mass of reports under which it is now laboring — often, under our modern elective system, the re- sult of crude judicial thought, but which, whatever their vari- ous merits, the profession is required to recognize. In carrying out the purpose of plain condensation of the above statutory and adjudicated law, the literary treatment of the subjects under review has been practical, with an en- deavor to avoid unnecessary verbiage, and without aim at theo- retic disquisition or more comment than is necessary for ex- planation. A feature of the present volume is that it relates merely to the law of real estate in this State, with but an occasional refer- ence to the adjudications of other States of the Union. Each State has now its statutory system, more or less variant from that of others, with local decisions interpreting it. A review of the entire real estate law of the several States, however facile a task it might have been some years since, would be now one of extraordinary labor, and would result in a work so cumbrous in volume and confused in treatment as to be of little practical value. Of course, in a compendium of this nature, wherein very many subjects of importance are reviewed, it has been impossi- ble to treat them exhaustively or profoundly. The general features only of the subjects under consideration have been, in the main, presented ; and, to save space, much has been merely indicated that in a larger work, or in special treatises, would be properly considered at length. Beside the general princi- ples affecting real estate, and an exposition of the various sources of title to land in this State, and of the instruments or legal agency by which lands vest or are transferred, the legal incidents of estates have been considered, together with the dif- ferent liens to which land has been made subject. It has been the pleasure of recent Legislatures to add to the burthens of real estate and the perplexity of the profession, by placing many quite obscure liens upon realty — legal pitfalls, into which even the experienced conveyancer is in danger of falling, as he gropes his way through the tortuous mazes of a modern " Title to Eeal Estate." Such liens have been, it is hoped, fully indicated in this volume; how and when they arise. PREFACE TO SECOND EDITION. vii and how they may be remoTed. Though often petty in their nature, the laws governing them are necessarily a branch of legal knowledge concerning realty. Although this Tolume is more particularly adapted to the wants of the Conveyancer, it is hoped that it ' may be also of service to those in other walks of legal life ; and with reliance upon the indulgence of the members of that laborious profes- sion, whose cares and toil it is hoped this volume may some- what relieve, it is to them deferentially submitted. Jas. W. Gebabd, Je. NbwYokk, October, 1873. MEMOEANDA. The initials " R. L." in the work refer to the Revised Laws of 1813. There had been a prior revision in 1801. The initials "R. S." refer to the Revised Statutes, which, in most of their provisions, and unless the contrary was specified in the law of Dec. 10, 1838, took effect on the 1st of January, 1830. This act also made important pro- visions as to the construction of the Revised Statutes. A ' ' generally repeal- ing act,'' repealing a large number of previous acts, which are specified at length, was also passed on the 10th of December, 1828, the repeal to take effect on the Slst December, 1839. The act was not to be construed as repeal- ing statutes consolidated and published in the Revised Statutes, nor any act passed since 9th September, 1828, unless the act were consolidated in the Re- vised Statutes. The law also provided that the statutes of Great Britain should not be laws of this State, nor deemed to have any effect since the 1st May, 1788 ; and no statutes of the late colony were to be deemed laws of the ' State. This act also contained important provisions as to the effect of the Re- vised Statutes in the revival or repeal of prior acts. It also repeals an act of December 24, 1837, as to the Revised Statutes. Unless there is specification to the contrary, the reference to the Revised Statutes is to the 5th edition. The words "Co. Proc," refer to the Code preceding the present Code of Civil Procedure, which is itself referred to as " Co. Civ. Proc," in many por- tions of the work, as now revised. CONTENTS, OHAPTEE I. OF THE SOURCE OF TITLE TO LAND IN THIS STATE, AND ITS TRANSFER FROM THE COLONIAL AND STATE AU- THORITIES. Title I. Of the Source of Title to Land in this State. II. Of the Title of the People of the State. HI. Transfer of Title from the Colonial and State Governments. IV. The Common Law of England and the Colonial Laws, and their effect here 1 OHAPTEE II. THE RIGHT OF EMINENT DOMAIN AND ITS EXERCISE. Title I. General Principles regulating the Eight of Eminent Domain. II. Constitu- tional Provisions. III. Judicial Interpretation of the Right and its Exercise. IV. Railroads as Public Improvements 27 OHAPTEE III. THOSE CAPABLE BY LAW OF HOLDING AND CONVEYING LANDS. Title I. Citizens of the United States and the Naturalization Laws. II. Indians. III. Married Women. IV. Aliens and the Alien Laws of the State, chronolog- ically stated. V. Corporations, Infants, Lunatics, &c. VI. Those Sentenced to Imprisonment 49 OHAPTEE IV. OF ESTATES IN LAND. Title I. Transfer, by what Law governed. II. Definition of "Estate" and "Land." in. The Feudal System. IV. The Feudal Principle in this State. V. Substi- tution of Allodial Estates for Feudal Tenure. VI. Division of Estates 96 X CONTENTS. OHAPTEE V. FBEEHOLD ESTATES OF INHERITANCE. Title I. Fee Simple Absolute. II. Fees Tail. III. Conditional and Qualified Fees. IV. Grants and Leases in Fee containing Conditions of Forfeiture „ 112 OHAPTEE VI. PEBBHOLD ESTATES NOT OP INHERITANCE. Title I. Estates for Life. II. Incidents of Estates for Life 140 CHAPTER VII. DOWER AND CURTESY. Title I. The Estate of Dower. II. Dower, how Barred or Defeated. HI. Assign- ment and Admeasurement of Dower. IV. Miscellaneous Provisions as to Dower. V. Estates by the Curtesy 147 CHAPTEE VIII. ESTATES LESS THAN FREEHOLD. Title I. Estates for Years. II. Leases. IH. Assignment and Subletting. IV. Eviction. V. Forfeiture. VL Ejectment and Re entry. VII. Estates at Will. VIII. Estates at Sufferance. IX. Merger. X. Surrender. XI. Miscellaneous Provisions as to the above Estates 168 OHAPTEE IX. EXPECTANT ESTATES. Title I. Estates in Remainder. II. Rule in. Shelley's Case. III. Executory Devises. IV. Suspension of the Power of Alienation. V. Directions for Accumulation. VI. General Provisions as to Future Estates. VII. Estates in Reversion... 212 OHAPTEE X. USES AND TRUSTS IN REALTY. Title I. Uses and Trusts before the Revised Statutes. II. Changes by Statute in this State. III. Creation of Trusts. IV. Trusts AUowed by Statute. V. Im- plied and Resulting Trusts. VI. Assignment and Transfer of Trusts. VH The Trustee. VIII. Trusts for Charitable Uses. TX. Miscellaneous Provisions as to Trusts 246 OflAPTEE XI. JOINT INTERESTS IN LAND. Title L Joint Tenants. II. Tenants in Common. III. Partnership Lands 311 CONTENTS. Xi OHAPTEE XII. POWERS. Title I. Of Powers Generally. II. Powers under the Revised Statutes. III. Cre- ation of Powers. IV Special Provisions of Statute. V. By whom Executed. VI. Valid Execution of Powers. VXI. Revocation of Powers. VIII. Extin- guishment of Powers 321 OHAPTEE XIII. POWERS OF ATTORNEY. TiTiE I. Contracts and Conveyances by Attorney. II. Revocation. III. Record of Powers of Attorney. IV. Powers by Married Women 851 CHAPTER XIV. TITLE BY DESCENT. Title I. Who Take by Descent. II. What Descends as Land. III. Successive Changes of the Law in this State. IV. Common Law Rules of Descent. V. The New York Statute of 1786. VI. Provisions of the Revised Statutes. VII. Liability of Land Descended, &c., to pay Debts 85& CHAPTER XV. TITLE BY DEVISE. Title I. Those Capable of Making a Will. II. Devises, to Whom Made. III. Na. ture of the Estate Devised. IV. Extent of the Estate Devised. V. As to Lands Acquired after Will Made. VI. Execution of Wills. VII. Revocation and Cancellation of WiUs. VIII. Lapse of Devises. IX. General Rules of Con- struction of Devises. X. Devises to Corporations 388 CHAPTER XVI. PROOF AND RECORD OP WILLS. Title I. Wills Proved before the Revised Statutes. II. Wills Proved since the Re- vised Statutes. III. Validity of the Will, how Established. IV. Record and Exemplification of Wills 42S. CHAPTER XVII. POWERS AND DUTIES OP EXECUTORS AND ADMINISTRATORS OVER THE REALTV. Title I. The Appointment of the Executors and Administrators. II. Assets savor- ing of the Realty. HI. Powers to Executors to Dispose of the Realty. IV. Miscellaneous Provisions as to Executors, &c, 488 Xii CONTENTS. OHAPTEE XVIII. SAIiB, ETC., OF REAIi ESTATE, BY OEDBR OF SURROGATE. Title I. The Application to the Surrogate. II. The Order for Selling, Leasing, Ac. III. The Sale. IV. Validity of the Proceedings, and Irregularities 468 OHAPTEE XIX. CONTRACTS TO SELL AND PURCHASE LAND. Title I. The Contract, how Made. II. Effect of the Contract. III. Sufficiency of the Deed and Title. IV. Tender and Time of Performance, V. Specific Per- formance. VI. Miscellaneous Provisions as to Contracts 4YS OHAPTEE XX. TITLE BY DEED. Title I. Deeds, how Made. II. The Parties to Deeds. III. The Consideration. IV. Description of the Land Conveyed. V. The Estate Conveyed. VI. The Covenants. VII. The Date, Sealing, Signing, and Attestation. VIII. Delivery and Acceptance. IX. Avoidance and Cancellation. X. Deeds given under Adverse Possession. XI. Different Forms of Conveyance. XII. Feoffment. XIII. Gifts and Grants. XIV. Leases. XV. Exchange and Partition. XVI. Release. XVII. Confirmation, Surrender, Assignment and Defeasance. XVIII. Conveyances by Virtue of the Statute of Uses. XIX. Fines and Re- coveries 601 OHAPTEE XXI. FRAUDULENT CONVBTANOES. Title I. Fraud on Purchasers. IL Fraud on Creditors. III. Fraudulent Convey- ances. — Miscellaneous 668 OHAPTEE XXII. CONVEYANCES, MISCELLANEOUS. 666 OHAPTEE XXIII. MORTGAGES. Title I. Definition and Nature of a Mortgage. II. The Defeasance. III. The Bond or Note. IV. The Power of Sale. V. The Estate of the Parties. VI. The Equity of Redemption. VII. Assignment of Mortgages. VIII. Discharge, Payment and Extinguishment. IX. Usury. X. Mortgages: Miscellaneous Provisions _ ° ggij CONTENTS. Xiii OHAPTEK XXIV. THE HOLDINa AND TRANSFER OP REALTY BY .COR- PORATIONS. ■FiTLE I. General Powers to Take and Transfer Land. II. Transfers, how Made III MisceUaneous Provisions as to Corporations. IV. Religions, Educational and Charitable Corporations. V. Moneyed Corporations. VI. Insurance Corpora- tions. VIL Railroad Corporations. VIII. Cemeteries and Burial Corpora- tions. IX. Other Special Corporations .600 CHAPTER XXV. ESTATES OP INFANTS, LUNATICS, IBIOTS AND DRUNKARDS. Title I. Alienation, .. ^ A charter " Of Liberty and Privileges " was granted by the Duke of York, through Gov. Dongan, on October 30, 1683, to the Province of New York, regulating the administration of the government through a Governor or Council, and a General Assembly, determining the various rigbts and liberties of the inhabitants of the Province. Vol. ii, Kev. Laws, 1813, Appendix. The Charter granted by the Duke of York to the Province, it has been held, was abrogated by the English revolution of 1688— so far, at least, as its general provisions were concerned. Yiie Jackson v. Gilchrist. 15 Johns. 89. This Charter was also annulled by the king, 1685. 3 Col. Doc.832, 370. The first Colonial Assembly, under the above Charter of 1683, met 17th October, 1683. After the revocation of the charter laws were passed by the Governor and Council. Subsequently, under William and Mary, the legisla- tive power was vested in the Governor and an Assembly. See as to this TIT. I.] SOURCE OF TITLE OF THE STATE. 5 Charter of 1683, its abrogation and the laws passed under it, Jackson v. Gilchrist, 15 Johnson, 89; Van Winkle v. Oonstantine, 10 N. Y. 425; also 15 Johns. 93; 34 Wend. 635. All laws passed under it were subsequently declared void by the Assembly held after the Abdication of James, in 1691 ; but the Governor does not seem to have approved of this act. See some of the laws of 1683 in 'explanatory note to R. L. of 1813. By the English common law, the King was the para- mount proprietor and source of title to all land within his dominion, and it was considered to be held mediately or immediately of him. After the independence of the United States, the title to land formerly possessed by the English Crown in this country passed to the People of the different States where the land lay, by virtue of the change of nationality and of the treaties made. The alle- giance formerly due, also, from the people of this country to Great Britain was transferred, by the Eevolution, to the governments of the States. On the above subjects reference may be made to the following cases i Fletcher v. Peck, 6 Cranch, 87; Johnston v. Mcintosh, 8 Wheat. 543; Martin V. Waddell, 16 Peters, 367 ; Clark v. Smith, 13 Pet. 195; Lattimer v. Poteet, 14 ii. 4; Shanks v. Dupont, 3 Pet. 243; Mackinnon v. Barnes, 66 Barb. 91. Declaratory Act of 1779.— By a declaratory act of the Legislature, passed Oct. 22, 1779 (1 Green, 31), all lands, properties, rights, etc, held by the Crown prior to 9th July, 1776, were declared vested in the People of the State. By the treaties between Great Britain and the United States (1782-3, and Nov. 19, 1794), which fol- lowed the Eevolution, the right to the soil, which had been previously in Great Britain, passed definitely to these States. The actual paramount ownership of land, therefore, in this State, was vested in the Crown of England previous to the Eevolution, and in the People of the State after- wards ; and has been, from time to time, made the subject of grant, through letters-patent, to individuals. The right of Indian occupancy in the various States has been, in general, protected by the political power, and respected by the courts, until extinguished by treaty, or otherwise. 6 SOURCE OF TITLE OF THE STATE. [CH. 1. On the above subjects reference may be made to the following leading cases: United States v. Arredondo, 6 Peters, 691 ; Martin v. Waddell, 16 Pe- ters, 367; Clark y. Peters, 13 Peters, 195; Lattimer v. Poteet, li ib. 4; Jackson v. Ingraham, 4 Johns. 163; Jackson v. Waters, 13 id. 865; Le Frambois v. Jackson, 8 Cow. 590 ; Rogers v. Jones, 1 Wend. 337 ; Lansing v. Smith, 4 Wend. 9 ; Johnson v. Mcintosh, 8 Wheat. 548 ; Martin t. Waddell, 16 Peters, 367 ; The People v. Trinity Church, 22 N. Y. 44. As to the Indian occupancy, vide post, Ch. III. Vaxions Colonial Acts as to Titles and Citizenship. — If questions of title under the colonial government should arise^ reference may be desirable to the following acts: "An act for settling and confirming unto the towns, etc., in this province, their several grants, patents, etc.," passed 6th May, 1691 (1 Van Shaick, p. 23). " An act for the better settlement and assurance of lands in this colony," passed 30th Oct., 1710 (1 Smith & L. p. 84; 1 Van Shaick, 83). An act relative to inhabitants of foreign birth (1 S. & L. p. 113), passed July 5, 1715, declaring that all persons of foreign birth in the colony, and dying seized of lands, etc;, shall be deemed to have been naturalized, and providing for naturalizing protestant inhabitants of foreign birth. An act of January 27, 1770, relative to naturalized citizens and aliens (3 Van Shaick, p. 561), enabling subjects by birth or naturalization to inherit and hold real estate, notwithstanding any defect of purchasers made before natu- ralization virithin the colony. Effect of Changes of Sovereignty.— It is a principle of international law, that the dismemberment or change of sovereignty of a nation works no forfeiture of previously vested rights of property ; and that the cession of a terri- tory, by its government, passes the sovereignty only, and does not interfere with the rights of individuals in property. Therefore titles to land of individuals were not changed when the new political sovereignty was established. Orser v. Hoag, 3 Hill, 79, and cases cited; Brovro v. Sprague, 5 Denio, 545; Strother v. Lucas, 12 Peters, 410; The People v. Livingston, 8 Barb. 253 ; Jackson V. White. 20 Johns. 813; Peck v. Young, 26 Wend. 613; M. A. Society v. Watts, 1 Wheat. 379, 390. The jjerson claiming title under the new government, however, had to es- tablish his allegiance by some act, at least of residence, otherwise the rights of citizenship are not acquired. Dawson v. Godfrey, 4 Cranch, 321 ; Mcll- vaine v. Coxe, 4 Cranch, 311 ; 1 Dall. 58 ; Munro v. Merchant, 38 N. Y. 9; reversing, 36 Barb. 383; Inglis v. S. S. Harbor, 3 Pet. 99; Dent v. Emeeer, U. S. Supm. Ct. Dec. 1871. As a general rule, the character in which the American ante nati are to be considered, will be determined by the situation of the party, and the election made at the date of the Declaration of Independence, according to our rule, or the treaty of peace, according to the English rule, viz., 3d Sept., 1783. Persons born out of the United States before July 4, 1776, or born here, and who left the country before July 4, 1776, and who continued to reside out of it, have been held aliens and incapable of taking by descent. Blight V. Rochester, 7 Wheat. 535; Inglis v. 8. Snug Harbor, 8 Pet. 99; Dawson v. Godfrey, 4 Cranch, 331 ; Munro v. Merchant, 38 N. Y. 9; revera- ing, 36 Barb. 883; Blight v. Rochester, 7 Wheat. 536; Hunter v. Fairfax's Devisee, 7 Cranch, 603. TIT. I.] SOURCE OP TITLE OF THE STATE. 7 The right to inherit -would depend upon the existing state of allegiance at the time of descent cast. Orr v. Hodgson, 4 Wheat. 453; Blight v. Rochester, 7 Wheat. 535 ; 2 Hill, 67 ; Orser v. Hoag, 3 Hill, 79 ; Shanks v. Dupont, 3 Pet. 343; Dawson v. Godfrey, 4 Cranch, 321. Infant's Right of Election. — An infant, however, might have the right of diaafiirmance or election, when of age, if made within a reasonable time. Inglis V. S. S. Harbor, 3 Pet. 99; Munro v. Merchant, 38 N. Y. 9 ; Jones v. McMasters, 20 Howard, U. S. 8 ; Ludlam v. Ludlam, 26 N. Y. 356 ; affirming 31 Barb. 486. Vide infra, as to the effect of the Treaties of 1783 and 1794. French Grants and Treaties. — Claims to land founded on French grants Tender the treaty of 1760 or of 1763, or otherwise, are not a legal title that can be recognized by the courts. Jackson v. Waters, 12 Johns. 366 ; Le Frambois v. Jackson, 8 Cow. 590 ; Jackson v. Ingraham, 14 Johns 163, 183. Dutch Grants. — Grants from the Dutch Government, while in possession, are held indisputable sources of title. Denton v. Jackson, 3 Johns. Ch. 330 ; North Hempstead v. Hempstead, 2 Wend. 109 ; vide also 5 Den. 235. They were mostly confirmed by new grants or charters from the English Government, and generally re-confirmed by Gov. Andros' proclamation on the restoration of the English rule in 1675. By the articles of capitulation of 1664, also by Gov. NicoUs, it was stipulated that the inhabitants should continue free denizens, and should enjoy and dispose of their lands as they pleased, and should enjoy their own customs as to inheritance. This compact was recognized by the legislature. Act of 5th July, 1715. The grants from the Dutch have been considered good, whether confirmed by the English or not. Their discovery and actual settlement has been deemed to have given them full ownership and sovereignty, in spite of the English claim of dis- covery. The Dutch Government. — The Colony, when under the Dutch, was gov- erned by a Director-general and council, the former being appointed by the "States-general" in Holland. A municipal government was subsequently granted to the city of New York, in 1652, under a •' Schout, Burgomasters, and Scliepens.^' In 1633 the " Dutch States-general " made a grant to the " Dutch West India Company" of all the lands situated on the Island of Manhattan. The Indian Title Extinguished. — The Dutch West India Company, who had control of the settlement, under the dominion of the home government, in 1626, extinguished the Indian title to the Isle of Manhattan (now the City and County of New York), by purchase from the "■ Manhattoes," a tribe of the aborigines, for the sum of sixty guilders. xr -~ '>^ Form of Dutch Grants and Title, and Conflrmation. — The titles under the Dutch dominion generally emanated from the above company, which was invested- with mo^t of the functions of ». distinct and separate government; having authority to enact laws, to establish courts, to settle the forms of administering justice, to make Indian treaties, and to -arrange the form of municipal government. As before observed, by the articles of capitulation of 1664 with the English Colonel Nigolls, Deputy Governor under the Duke of York, it was stipulated that the inhabitants should enjoy their houses, lands, and goods in the country, and dispose of them as they pleased, and that the Dutch should enjoy their own customs concerning their inheritances. The Dutch grants, or " Ground Briefs " as they were also called, ran in the nanie^ftf the "Director-general and Counsellors on behalf of the States- 8 SOURCE OF TITLE OF THE STATE. [CH. I. general, the Prince of Orange, and the Managers of the Incorporated "West India Company in New Netherlands residing." They were signed by the Director-general and countersigned by the Secretary. They contained conditions of allegiance to the States-general and Managers, and submission to imposts, etc. Confirmation of Dutch Grants.— The " Confirmatory" grant recited in the Ground Brief in question, and ratified and confirmed, is, in terms, to the patentee and his assigns " to have and to hold, to them, their heirs and as- signs forever." The condition of allegiance to the Dutch government was of course subse- quently abrogated ipso facto, as submission to the English government was one of the conditions of capitulation by Nicolls on the surrender in 1G64. Governor Andros, in his proclamation in 1675, on the second surrender to the English, confirmed all prior grants, concessions, and estates. These original Dutch grants were usually made to settlers who claimed pre-emptive rights. Under William and Mary, in 1691, a colonial act was passed, confirming prior charters and grants by former sovereigns. This act was valid. Brook- haven V. Strong, 60 N. Y. 56. Construction of Royal grants; vide Atkinson V. Bowman, 42 Hun, 404. During the war between England and Holland in 1665, Gov. Nicolls ordered, in council, that the lands ot all Dutch subjects who had not taken the oath of allegiance, should be confiscated to the English Crown. By decree of the Court of Assizes, in Sept., 1666, all former patents were to be brought in and confirmed, and those not renewed by 1st April then next, were to be deemed invalid. Court of Assizes II, Cal. MSS. 23, 89. Under the laws established by the Duke, 1665, called " the Duke's Laws,'' deeds of land were inoperative unless there was a delivery of part possession, or unless the deeds were acknowledged and recorded. English Law of Descent. — Notwithstanding the Nicolh charter, the English law as to descent and other incidents of land seems to have come into use after the surrender, and are recognized in the charter of 1633, SMoras. See 17 Wend. 587. y - V The Change of Sovereignty and the Treaties made. Convention of 1776.— The act of the Convention of July 16, 1776, affirmed that all persons abiding within the State, and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of the State. ^ ^^ Constitutional Provisions.— By the Constitutions of 1777 ; of 1822, art. 7, § 14; and of 1846, art. 1, § 18, all patents of lands in the State, granted by the Crown subse- quent to Oct. 14, 1775, are declared null. This impliedly confirmed those prior to that date. The People v. Clarke, 10 Barb. 130; affl'd, 9 N. Y. 349. By the Constitution of 1846, subsequent charters or grants since made by the State, or those under its authority, were not to be affected by the above provision, nor were any rights of property, suits, or obligations to be im- paired by It. TIT. I.] SOUKOE OF TITLE OF THE STATE. 9 Treaty of 1783 with Great Britain.— By the Treaty of 1*783 with Great Britain, it was provided (art. vi) that there should be no further confiscations or prosecutions, by reason of the part taken by any person in the war ; and that no person should, on that account, suffer any future loss or damage, either in his person, liberty, or property. This treaty only embraced future confiscations, and had no retroactive effect. Macgregor v. Comstock, 16 Barb. 427; affirmed, 17 N. T. 162. The case of Brown v. Sprague, 5 Den. 545, holds that the 6th article of the Treaty of 1783, not only barred the escheat of lands held by British sub- jects in this State, but gave them capacity to transmit them by descent ; but the descent must be to a citizen. Also, that if a British subject holding lands here died previous to the Treaty of 1794 (infra), leaving no citizen heirs, his land escheated ; and the provisions of the treaty did not pass his lands to alien heirs. The Law of 1845 {post, Ch. Ill) would not operate to confirm a title previously conveyed by an alien heir of one holding real estate. Treaty of 1794 with England, after the Revolutionary War, as to Rights of Subjects. — By treaty of Nov. 19, 1794, with Great Britain, art. ix, it was mutually agreed that British or American subjects holding lands in each other's countries, shall continue to hold them according to the tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, as if natives ; and that neither they, nor their heirs or assigns, as respects said lands, and the legal remedies incident thereto, should be regarded as aliens. As to the construction of this treaty reference may be made to the follow- ing cases : Harden v. Fisher, 1 Wheat. 300 ; Blight, &c. v. Rochester, 7 ib. 535; Hughes v. Edwards, 9 Wheat. 689; Munro v. Merchant, 28 N. T. 9 ; reversing 26 Barb. 383 ; Watson v. Donnelly, 38 Barb. 653 ; Strother v. Lucas, 12 Peters, 410; The People v. Livingston, 8 Barb. 353. Such subjects could alienate lands as if citizens. The People v. Snyder, 51 Barb. 589; affi'd, 41 N. T. 397. But the title must have been in them at the time of the treaty. The treaty only provided for existing titles. Harden v. Fisher, 1 Wheat. 300 ; Orser v. Hoag, 3 Hill, 79. See also The People v. Snyder, ahne. The rule is, that if parties were resident here at the time of the Declaration of Independence, although born elsewhere, and they freely yielded express or implied sanction and allegiance to the new government, they be- came citizens. This right of election has been held to 10 TITLE OP THE PEOPLE. [CH. I. exist as to all the inhabitants of the State, and a rea- sonable time for its exercise was conceded. Mcllvaine v. Coxe, 3 Cranch, 280 ; 4 ib. 209 ; Eespublica v. Chapman, 1 Dallas, 33 ; Jackson v. White, 20 Johns. 313 ; Inglis v. The Trustees, &c. 3 Peters, 99. It was held, even at first, that if a person was born here and left the coun- try before the Declaration of Independence, and never returned, he had a right of citizenship. Ainslee v. Martin, 9 Mass. 454. The principle of this case has been overruled, however, and the more rea- sonable principle maintained that an ante natus never owed allegiance to the United States if he had removed prior to the Declaration of Independence, and had not become re-domiciled here prior to the treaty of peace. Mcllvaine V. Ooxe, 2 Cranch, 380; 4 ib. 209; Gardner v. Ward, 2 Mass. 236; Kilham v. Ward, 2 ib. 244; Calais v. Marshfield, 30 Maine, 511 ; Orser v. Hoag, 3 Hill, 79 ; overruling Jackson v. Lang, 3 John. Ch. 109. The case of Bligh's Lessee v. Rochester (7 Wheat.) holds that, in general, British subjects, born before the revolution, are equally incapable with those born after, of inheriting or transmitting the inheritance of lands in this country, and that the treaties of 17s3 and 1794 only provided for titles existing at the time those treaties were made; and not to titles subse- quently acquired. Possession was not necessary, but the existence of the title. Also held in Hughes v. Edwards, 9 Wheat. 489. It has been distinctly held, also, that a British alien, holding land within the purview of the Treaty of 1794, possessed a capacity to transmit by descent to alien heirs, which an American citizen could not lay claim to. The case of Orser v. Hoag (3 Hill, 79) holds, however, that the title of the alien heir would not prevail, if the ancestor died before the treaty was signed. The cases of Jackson v. Wright, 4 Johns. 75; Orser v. Hoag, 3 Hill, 79; Fairfax v. Hunter, 7 Cranch, 603, and Munro v. Merchant (supra), hold that the construction of this treaty is, that lands embraced within the purview of the 9th article of the treaty were indefinitely and perpetually heritable and alienable to and among aliens of the two countries ; in derogation of the laws respecting alienage, which were or should be established therein, until the lands should come to be held by citizens ; after which they would lose the peculiar attribute imposed upon them by the treaty. The case of Orr v. Hodgson, 4 Wheat. 453, also holds that the benefits of the treaty would not be extended to persons who were aliens to both govern- ments — i. e., Great Britain and the United States. The English courts consider this treaty to have taken efiect at the date of the exchange of ratifications — viz., Oct. 28, 1795, and hold that its provisions were continuous, and not abrogated by the war of 1812. Sutton v. Sutton, 1 Russ. & M. 663. It has been held that although it is true, as a principle of international law, that, as respects the rights of either government under a treaty, it is con- sidered as binding from the date of its signature, and the change of ratifica- tions has a retroactive efiect confirming the treaty from its date ; that a dif- ferent rule prevails where the treaty operates on individual rights. There it is not considered as concluded until there is an exchange of ratifications. See Haver v. Yerker, 9 Wall, p. 33. Title II. Of the Title of the People of the State. As to the Period when this State Government had its Legal Inception.— When the people of this State, after the TIT. II. J TITLE OF THE PEOPLE. 11 Revolution, took into tbeir hands the powers of sov- ereignty, all estates, prerogatives, powers, and royalties which before belonged either to the Crown or Parliament, became immediately vested in the State. From the time they declared themselves independent, and not from the date of the treaty recognizing their independence, the rights and powers of the States are considered established as sovereign, and their colonial dependence and legal action as colonies ceased. Hence it is held that the laws or grants of the several State governments passed or executed after the Declaration of Independence, were the acts of sovereign States and, as such, obligatory and effectual. McHvaine v. Coxe, 4 Cranch, 209; Bemett v. Boggs, 3d Cir. Ct. N. J. Baldw. 60 ; Crill v. City of Rome, 47 How. Pr. 398. The organization and legal commencement of the government of this State took place on the 20th of April, 1777, when the Constitution was adopted. Vide Jackson v. White, 50 Johns. 318. Constitution of 1777.— By this Constitution (as infra, Title III) grants made by the Crown subsequently to Oct. 14, 1775, are declared void. So also provided in the Con- stitutions of 1822 and 1846. Act of 1779, Vesting Colonial Property in the State.-- By act of the State, of Oct. 22, 1779 (1 Greenleaf, p. 31), it was declared that the absolute property of all lands and hereditaments, and of all rents, royalties, franchises, pre- rogatives, privileges, escheats, forfeitures, debts, dues, duties, and services, and all right and title to the same, which next and immediately before the 9th of July, 1776, did vest in or belong, or was or were due to the Crown of Great Britain, be "and the same and each and every of them are hereby declared to be, and ever since the said 9th of July, 1776, to have been and forever hereafter shall be vested in the People of this State, in whom the sovereignty and seigniority thereof are and were united and vested on and from said 9th day of July, 1776." It is held that a right to impeach a patent for fraud would not pass under this law. People v. Clarke, 9 N. Y. (5 Seld.) 349. 12 TITLE OP THE PEOPLE. [OH. I. See, as to the change of the title to the People, People v. N. Y. &c., Ferry Co., 68 K. Y. 71. Declaration of the Title of the People.— By early en- actment and constitutional declaration in this State, the people of this State, in their right of sovereignty are deemed to possess the original and ultimate property in and to all land within the jurisdiction of the State, and all lands, the title to which may fail from defect of heirs, revert or escheat to the people. 1 R. L. of 1813, p. 380, § 2; 1 Rev. Stat. p. 718, § 1 ; Constitution of 1846, Art. 1, § 11. Lands Allodial.— All lands within the State are de- clared to be allodial, the entire property thereof being vested in the owner, subject to the liability to escheat to the People, and all feudal tenures and their incidents are abolished, such abolition, however, not to discharge rents or services certain imposed. 1 Rev. Laws, p. 70; 1 Rev. Stat. p. 718. Mines.— The State has also, through its right of sov- ereignty, all mines of gold and silver in the State, and other mines onlands of aliens; also, mines on lands of citizens containing, on an average, less than two-thirds of copper, tin, iron and lead. 1 Rev. Stat. p. 281. All patents are to contain a reservation of all gold and silver mines. 11. p. 198. Various provisions are also made by statute as to bounties and the pre- emptive rights of working discovered mines of gold and silver. It. 281. As to the rights of parties having a grant of minerals and mining in lands, vide the law thoroughly reviewed, in Marvin v. Brewster Co. 55 N. Y. , 538. It results from the above review that the title of all lands in this State must have originally emanated from the existing sovereign power in the State, whether through grants from the Dutch or English officials ad- ministering the government by authority of their home government, by letters patent or charter directly from those governments, or by grant from the " People of this State," after their sovei-eignty was established. TIT. III.] TRANSFER OF TITLE. 13 The absolute property of all land, and all right and title to the same, that on the 9th of July, 1776, were vested in or belonged to the Crown of Great Britain, be- came, from that date, vested in the People of this State, in their sovereign capacity. But with respect to lands that, before October 14, 1775, 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 Kevolution, nor the change of the form of govern- ment, nor the declaration of the sovereignty of the People, worked any change or forfeiture in the ownership of such property. Treaties witli 'other Nations as to Citizenship. — A great many of such treaties have been made. Vide Statutes of U. S., Treaties. Alien Laws of the State. — As to these, m^poat, Ch. III. Title III. Transfer op Title from the Colonial and State Governments. Transfer from the State.— It is well settled by author- ity that a State has the right to dispose of the unappro- priated lands within its own limits, and that when a grant has been made the title becomes vested, without any power in the State to rescind the grant for fraud, or other- wise, when the land granted has passed into the hands of a honafde purchaser for value, without notice. Nor without fraud can it be revoked at all if its con- ditions are performed. Fletcher v. Peck, 6 Oranch, 87; Terret v. Taylor, 9 Cranch, 52; Town of Pawlet v. Clark, ib. 393 ; Dartmouth College v. Woodward, 4 Wheat. 518 ; Benson v. Mayor, 10 Barb. 233 ; People v. N. T. &c. Ferry Co. 68 N. Y. 71. Mode of Transfer of Title.— Property of a State is transferred usually by charter or by letters patent. A grant, however, may be made by a law, as well as by letters patent, pursuant to a law — a confirmation, also by a law, is as fully a grant as if it contained a grant in terms. 14 TBANSPEK OF TITLE. [OH. I. Rutherford v. Green, 3 Wheat. 196 ; Strother v. Lucas, 12 Peters, 410; Kyan v. Carter, 3 Otto, 78. It is not a valid objection to a patent that it is not signed by the Gov- ernor, provided the great seal is attached. It is the great seal which au- thenticates the patent, and the fact of the seal being attached is prima facie evidence that the patent was approved by the Governor and issued by his direction. The People v. Livingston, 8 Barb. 353 ; Langdon v. Hanes, 21 Wall. 531. Grants where the State has no Title.— Where the State has no title to the thing granted, the grant is void. State grants are not considered as warranties, and no estate would pass to the grantee except what was at the time in the State. Nor can a State constitutionally con- firm a void patent so as to divest a title legally acquired before the attempted confirmation. The Mayor. &c. v. The United States, 10 Peters, 663 ; Polk's Lessees v. Wendell, 5 Wheat. 393 ; Green v. Watkins, 7 Wheat. 37 ; Rice v. Railroad Co. 1 Black. 358; United States v. Arredondo, 6 Peters, 738; People v. Schermerhorn, 19 Barb. 540 ; People v. Van Rensselaer, 9 N. Y. 291 ; Sherwood v. Fleming, 25 Texas (supp.), 408 ; Wright v. Hawkins, 25 Texas, 453. When Patents from the State take effect.— A patent takes effect from the time it is approved by the land office, and passes the office of the Secretary of State. Its date is not conclusive. Jackson v. Douglas, 5 Cow. 458. Colonial Grants. — During the English colonial rule, the Colony, as a part of the King's dominions, was subject to the control of the British Parliament ; but its more immediate government was vested in a Grovernor, Council, and General Assembly. The Governors were appointed by the King's commission, under the great seal of Great Britain. The Governor's Council was appointed by the Crown, or confirmed on the Governor's nomination. All temporaiy vacancies were to be filled by the Governor. By the royal commissions to Governors, the Governor, with the advice of the Council, was authorized to make grants of the public lands on such terms as might be deemed proper. Which grants, on being sealed with the colonial seal and recorded, were to be effectual. See Town of Brookhaven V. Strong, 60 N. T. 56. The Colonial Act Restricting Grants by Governors. — By a colonial act passed in May, 1699, it was declared that all future grants of government lands by any Governor, for a longer term than his own term of government, should be null and void. This act was repealed by another act passed on Nov. 37, 1702, but this repealing act was disaflirmed and annulled by Queen TIT. lU.] TRANSFER OF TITLE. J 5 Anne, in council, in June, 1708, who thereupon confirmed the Act of 1699. 1 Van Schaick, Laws, 31, 51. It is considered, however, that acts done under the law before being an- nulled by the Crown were valid and effectual. People v. Rector of Trinity Church, 22 N. Y. 44; Bogardus v. Trinity Church, 4 Sand. Ch. 731. Presumption of Authority as to Colonial Grants.— The grants of Colonial Grovernors, before the Revolution, have always been taken as plenary evidence of the grant itself, as well as of authority to dispose of the public lands. The actual exercise of tbe authority without any evidence of disavowal, revocation, or denial by the Crown, and its consequent acquiescence and presumed ratification, are sufficient proof, in the absence of any to the contrary, of tbe royal assent to the exercise of the Crown's pre- rogative by its local Governors. Courts do not require proof that there exists authority in the officers or tribunal who exercise it, by making grants ; and it is considered that it is fully evidenced by occupation, enjoyment, and transfer of property, had and made under the grants without disturbance by any superior power, and re- spected by all coordinate and inferior officers and tri- bunals throughout the State, colony, or province where it lies. See United States v. Arredondo, 6 Peters, 728; Bogardus v. Trinity Church, 4 Paige, 178; affi'd. 15 Wend. Ill ; People v. Livingston^ 8 Barb. 253; People v. Schermerhorn, 19 Barb. 540; Rogers v. Jones, 1 Wend. 37. The death of the king before the patent was issued will not vitiate it. 4 Sand. Ch. 63. Confirmatory Act. — In May. 1691 (1 Van Schaick, 3), an act was passed by the Governor and Assembly, confirming all prior patents, charters, and grants to bodies and individuals in the Colony under prior kings — notwith- standing deficiencies of form or nonfeasance. Saving rights to be asserted in five years, and rights of infants, lunatics and married women. This act was passed at the first Assembly held after the English Revo- lution of 1688. Patents under the English Crown subsequent to 1775. — By the Con- stitution of 1777, § 53, Constitutions of 1822 and 1846, all grants of lands in the State gran*^ed by the king, or those under him, subsequent to October 14, 1775, are declared null and void: no prior grants or charters, however, were to be considered affected. Nor any grants or charters since made by the State, or those under its authority, by this provision. This impliedly confirmed those prior to that date. The People v. Clark, 10 Barb. 120 ; aflirmed, 9 N. Y. 349. By the Constitution of 1846 subsequent charters or grants since made by the State, or those under its authority, were not to be afifected by the above 16 TKANSFBB OP TITLE. [OH. I. provision, nor were any rights of property, suits or obligations to be impaired by it. Presumption of Validity.— The patents are evidence prima facie that they were regularly issued, and that all preliminary requisites have been complied with. The validity of patents cannot, in general, be impeached in collateral actions ; yet, objections showing that they were issued without authority, or were absolutely void from the beginning, or prohibited by law, would be con- sidered. In a collateral action they cannot be assailed for any other cause. Brady v. Begun, 36 Barb. 533 ; The People v. Mauran, 5 Den. 389 ; The People V. Van Rensselaer, 9 N. T. 331 ; The People v. Livingston, 8 Barb. 258. Seals and preliminaries of law will be presumed. Williams v. Sheldon, 10 Wend. 654. Patents to Persons Deceased before 1826.- By Law of 1836, ch. 320, these were made valid. Effect out of the State. — A conveyance by virtue of a statute cannot strictly operate beyond the local jurisdiction, although its effect may be ex- tended by State comity. Oakey v. Bennett, U How. 33 ; Van Horn v. Dor- rance, 3 Dall. 304. So held with respect to a transfer of real estate out of the United States, by virtue of the bankrupt act. Oakey v. Bennett, 11 How. 33; vide post, Ch. XXXII. Grants to Public Corporations. — Although the legisla- tive body is considered to have continual control over the action of public corporations, and has a right to alter or modify their delegated powers and authority, it is a prin- cipal of law, that grants of property, and of franchises coupled with an interest, even to public or political corpo- rations, are beyond legislative control or interference, equally as in the case of property of private corporations. , The decisions in this State, however, seem to have much deviated from this doctrine, and, in many cases, political or civic corporations are held to be mere trustees for the people at large. The People v. Piatt, 17 Johns. 195 ; Dartmouth College v. Woodward, 4 Wheat. 697-700; Hooper v. Scheimer, 33 How. 335 ; Benson v. The Mayor, 10 Barb. 333 ; vide post, " Franchises," and Ch. Ill, " Eminent Domain." Boundaries of towns and cities may be constitutionally changed bv the legislature. 18 Gratt. 583. ^ TIT. III.] TRAUSFEK OF TITLE. 17 Presumption of Title in the State.— The declaratioD of the Constitution, in asserting that the people are deemed to possess the original and ultimate property in all lands, merely affirms a principal oipoUtical sovereignty, and is not a rule of evidence establishing a legal presump- tion of title in favor of the people against the actual occupant of the land until it is shown that the possession has been vacant vpithin forty j^ears. The fact of possession presumes a grant from the sov- ereign power of what was once the State's. Wendell v. Jackson, 8 Wend. 183; The People v. Dennison, 17 id. 312; The People t. Rector of Trinity Church, 33 N. T. 44. Effect of a Patent as to Patentee's right to take. — A patent to per- sons or their descendants, not qualified to take, would confer the right upon them, — e. g., as to heirs of an alien, &c. Yide pout, "Aliens." Jackson v. Etz, 5 Cow. 314. So a patent to a body of men gives them a quad-coipoTstte capacity. People V. Schemerhorn, 19 Barb. 540. " Conclusiveness of Patent. — A patent appropriates the land called for, and is conclusive against rights subsequently acquired ; but when an equi- table right, which existed before the date of the patent is asserted, it may be examined. Brush v. Ware, 15 Peters, 93. The patentee can only maintain such action as the People might. Co. Civ. Proc. § 363. Such a patent is conclusive as against a title founded on mere ad- verse occupancy, or those wiongfuUy in possession. Gibson v. Choteau, 13 Wall. 93; Parmalee v. Oswego, &c. R. R. Co. 3 Seld. (6 N. Y.), 74. Title against the State by Adverse Possession. — By the Code of Procedure (ch. 2, §§ 75-77), Code of Civil Procedure, § 3fi2, the People of the State will not sue any. person with respect to real property unless their right has accrued within forty years, nor unless they or those under whom they claim, shall have received some rents thereof within forty years. This limitation was also enacted, in substance, by Laws of 1788 (2 Green. 93), and of 1801 (1 Web. 619). There is no presumption of title in favor of the People against the actual occupant of land until it is shown that the possession has been vacant, some time within forty years. If the premises are vacant the legal presumption, however, is that the people are the owners. On this subject see The People v. The Rector of Trinity Church, 23 N. T. 44; The People v. Van Rensselaer, 5 Seld. (9 N. T.) 391, reversing 8 Barb. 189 ; The People v. Clarke, ih. 349 ; The People v. Arnold, 4 N. T. 508 ; The People V, Livingston, 8 Barb. 353. 18 TBANSFER OF TITLE. [CH. I. A party cannot claim by adverse possession against the State, if lie took under a conveyance recognizing the public right. Bridges v. WyckoflF, 67 N. T. 130. Grants where Land is under Adverse Possession —It is supposed that States have no more right to convey and pass title to lands held adversely than has an individual, and that such sale would be illegal. Wood- worth V. Janes, 2 Johns. Cases, 417 ; WMtaker v. Cone, ib. p. 58. A contrary opinion is hinted in Candee v. Hayward, 37 N. T. 653. See^o«<, Oh. XXXIV", "Adverse Possession." Conditions in Patents.— No one but the State can take advantage of an omission to comply witli the conditions of a grant from the State. Williams v. Sheldon, 10 Wend. 654; Welsh v. Silliman, 2 Hill, 491. Deed by a Public Officer. -A deed by a public officer in behalf of a State is the deed of the State, although the officer is the nominal party. Sheets v. Seklen, 2 Wall. 177. Forfeiture under Letters-Patent, and Vacation thereof. — By the Code of Civil Procedure (§ 1957) an action may be brought by the Attorney-general to vacate letters-patent from the State where there has been fraud, or con- cealment, or mistake, or ignorance of facts ; or where there has been a forfeiture of the patentee's interest by non- compliance with the terms or conditions thereof, or other- wise. Where letters-patent are vacated, a copy of the judgment-roll is to be filed with the Secretary of State, and an entry shall be made in the records of the Commissioners of the Land Office, who may dispose of .the property (§ 1959). Actions of forfeiture of property to the people, or for their use, must be brought in courts having jurisdiction, by the proper officer (§ 1963). The above proceedings to forfeit and vacate letters patent are held to be applicable only to letters-patent granted by The People of the State, and do not extend to letters-patent granted by the King of Great Britain before the revolution. The People v. Clarke, 10 Barb. 120; affirmed. 9 N. Y. (5 Seld.) 349. Proceedings to enforce a forfeiture must be strictly followed. Further as to Forfeiture, vide post, Ch. XXXIII. And as to actions by The People or their grantees, see Co. Civ. Proc. §364, Commissioners of the Land Office of this State.— As to grants by these officials, vide post, Ch. XLIV. Record of Patents.— By Laws ot April 28, 1845, ch. 110, letters-patent from the State granting lands, may be recorded in the county where the lands are situated, in the same manner and with the like effect as are deeds when duly acknowledged. TIT. III-I TRANSFER OF TITLE. 19 Acts appropriating Public Property, &e: — By the Con- stitution of 1846 (art. vii, § 14), on the final passage in either house of the legislature, of every act which im- poses, continues, or revives a tax, or creates a debt or charge, or makes, continues, or revives any appropriation of public or trust money or property, or releases, dis- charges, or commutes any claim or demand of the State, the question shall be taken by ayes and noes, which shall be duly entered on the journals ; and three-fifths of all the members elected to either house shall in all such cases be necessary to constitute a quorum therein. The presumption is that such a law was correctly passed as above. Amendments to such acts must be passed in the same manner. The fact that the bill was passed as required may be shown by other evidence than that required by the Laws of 1847, infra. The People v. The Supervisors, 4 Seld. 317. By the Law of May 12, 1847, ch. 253, no bill is to be deemed passed as above required unless so certified by the presiding officer of each house. In the publication or laws where the act is so as above certified, the words " three-fifths being present," are to be added to the act, and shall be pre- sumptive evidence that the bill was so certified, and their omission shall be presumptive evidence to the contrary. Bills for Private or Local Purposes. — By the Constitu- tion of 1846, art. 1, § 9, the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. The words ^^ private purpose," within the above act, are held to be a purpose referring to an object for the benefit of an individual, or a limited number of men, and a local purpose is interpreted as one for the benefit of a particular place or limited locality. The purpose need not be necessarily for the universal benefit of the whole community, though it may be considered so if there is no restriction as to the use. To bring the purpose within the act, the direct benefits flowing from the improvement must be exclusively and necessarily local. Neuendorf v. Duryea, 69 N. Y. 557. _ An appropriation for the improvement of the navigation of a river is, within the above principles, held not to be for a heal purpose under the above act. The People v. Allen, 1 Lans. 348. See also People v. City of Rochester, 50 N. Y. 525, also p. 558. So, also, if a statute applies to the State at large, but contains loc;il pro- visions not disclosed in the title, the latter are void. People v. Morgan, 55 N. Y. 587; reversing 1 N. Y. S. 0. 101 and 65 Barb. 473. Franchises.— Under the head of grants from the State, franchises may be briefly alluded to. They are privileges or immunities of a public nature conferred generally by 20 TRANSFER OF TITLE. [CH. I. legislative grant or action, such as the right to build and operate railroads, wharves, toll-bridges, markets, ferries, etc. These rights, it is held, cannot he extended hy implica- tion, and are not the subjects of assignment or transfer. The grant of a franchise, it has been generally under- stood, contained an implied covenant, on the part of the government, not to invade the rights vested; and, on the part of the grantees, to execute the conditions and duties prescribed in the grant. The government, it has been held, cannot resume them at pleasure, or do any act to impair the grant, without a breach of contract. Where, therefore, in an act of the legislature granting a franchise, no right of repeal is re- served, a subsequent act repealing the fiist has been held unconstitutional, as impairing the obligation of a contract. Every interference with a franchise, so as materially to impair its value, was held in violation of the grant, as by granting a competing franchise. Remedy would lie on the case, or by injunction in chancery. McRoberts v. Washburne, 10 Minn. 23; Yard v. Ford, 3 Saund. 173; Keeble and Hickeringall, Holt, 20; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101; 4 lb. 160; Dartmouth College v. Woodward, 4 Wheat. 518; Huzzy V. Field, 3 Cromp. Mees. & Ros. 433; Minturn v. La Rue, 33 How. U. S. 435. In the cases of roads, ferries, and bridges, however, the general rule has undergone modifications, as suggested or required by public convenience or necessity ; and particu- larly within, or in the vicinity of large towns. The legis- lature, by the grant of one franchise, is held, by recent decisions, not restricted by any implication from the crea- tion of another, where public convenience or necessity requires. The more modern doctrine is further extended to hold that nothing passes under them against the State by implication, and that franchises are to be construed according to their terms. Auburn, &c., P. R. Co. v. Douglass, 5 Seld. 444 ; Dyer v. Tuscaloosa Bridge Co. 2 Porter (Ala.), 296; Jones v. Johnsou, 2 Ala. N. S. 746; The People V. The Mayor, 33 Barb. 102; The Fort Plain Bridge Co. v. Smith, TIT. HI.] TKANSPEE OF TITLE. 21 30 N. Y. 44; Charles Eiver Bridge v. Warren Bridge, 11 Peters U. S. 420; Tuckahoe C. Co. v. Tuckahoe R. R. Co. 11 Leigh (Va.), 42; Enfield Toll Bridge Co. v. Hartford & K H. R. R. 17 Conn. 454; Thompson v. N. Y. & H. R. R. 3 Sandf. Ch. 625; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547; East Hartford v. Hartford Bridge Co. 10 How. U. S. 511; Richmond R. Co. V Louisiana, 13 How. U. 8. 71; In re Hamilton Av. 14 Barb. 405; Boston, &c. R. R. v. Salem R. R. 3 Gray, 1 ; Toledo Bk. v. Bond, 1 Ohio, 623; Shorter v. Smith, 9 Geo. 517; Benson v. The Mayor, 10 Barb. 323; Gales V. Anderson, 13 111. 413; Norris v. Farmers' Co. 6 Oala. 590; Bush v. Peru Bridge Co. 3 Ind. 21 ; Ninth Av. R. R. Co. v. N. Y. E. R. R. Co. 3 Abb. N. C. 347. It is held, however, by the courts, that if a company receive ian exclmive privilege, within a locality specified for the exercise of its franchise, it is a contract on the part of the State, and inviolable. It is otherwise, however, if the privilege is not specified as exclusive. The Binghamton Bridge, 3 Wall. 51; The Turnpike Co. v. State, 3 Wall. 310; In re Central Park, 63 Barb. 383. The grant of a franchise for the building and operating of railroads, and other internal improvements in a State, must emanate from the Sovereign — i. e., the State, A competing road, therefore, established by others not so authorized will be enjoined. Raritan R. R. Co. v. Delaware Co. 3 Green (N. J.), 546. By Constitutional Amendment, 1874, the legislature is prohibited from granting to any private corporation, association, or individual, any exclusive privilege, immuni- ty, or franchise whatever. Contracts by a State. — As to contracts made by a State, it is held that if the contract when made was valid, by the Constitution and laws of a State, as then expound- ed by the highest authorities, whose duty it was to ad- minister them, no subsequent action by the legislature or judiciary can impair its obligation. Gelpcke v. City of Dubuque, 1 Wall. 175 ; Havemeyer v. Iowa Co. 3 Wall. 294; Thompson v. Lee Co. ib. 337. Effect of Treaties.— By the Constitution of the United States, article vi, § 2, the Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall he made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound 22 TKANSFER OF TITLE. fOH. I. thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Under this provision of the Constitution, a treaty is held to be the supreme law of the land ; and, when addressed to the courts, supplies the rule governing their proceedings. An act of Congress, passed subsequent to a treaty, cannot affect titles acquired under it, and Congress is held to have no power to settle rights under treaties in cases purely political. The construction of them is the peculiar province of the judiciary, in a case arising between indi- viduals. Matter of Metzyer, 1 Edm. (N. Y. Sel. Cases), 399; Wilson v. Wall, 6 Wall. 83. As regards the binding efifect of treaties as laws upon the parties to them, and affected by them, in the case of Ropes v. Clinch (8 Blatch. 304), a differ- ent opinion has been promulgated from that^ hitherto entertained by jurists in this country. In that case it is held, that Congress may pass any law, otherwise constitutional, notwithstanding it conflicts with an existing treaty with a foreign nation, and that the courts are bound to follow such legislation of Congress in preference to the provisions of the treaty. The only rights or remedy left to parties injured by a violation of a treaty, there ore, under this novel view of the obligation of parties to such solemn compacts, are the reclamations that may be.made by the injured government or its subjects, through political channels or by active belligerency. There will appear, if the above decision is upheld, a remarkable incon- sistency in the action of our legal tribunals in not extending protection to compacts made between such high contracting parties as nations, when, as between individuals, the judicial mgis is ever earnestly interposed to preserve the inviolability of contracts, and save them from legislative interference. Rights of the United States, and of the Public as Con- trolling State Action.— The right of the public is consid- ered superior to that of the State, where a nuisance or encroachment is authorized, as, where there is an abridg- ment of the common right of navigation. In a proper case of excess of action by the State in authorizing encroachments, for example, on the common water highway, there would be a remedy in the United States courts in behalf of the public against official bodies or others, and for the abatement of an undue encroachment as a nuisance. Under the Constitution of the United States, the pro- prietary right of the State, and its grantees, is subject to TIT. III.] TRANSFEE OP TITLE. 23 the authority of Congress over navigation and navigable vraters. This is a restriction on the State power. Congress may interpose, vrhenever it shall be deemed necessary, by general or special laws ; and whenever State laws militate against its constitutional provisions or au- thority for the regulation of commerce they will be deemed inoperative by the United States courts, at the instance of individuals, corporations, or States, where damage is shown. In the absence of legislation by Congress, a State statute whicli authorizes the erection of a dam in a navigable river which is wholly within the State limits, is not unconstitutional. Pound v. Turck, 5 Otto, 459 ; People v. N. Y. &c. Co. 68 N. T. 71. OflFending bridges, or other obstructions over navigable waters, may be enjoined or removed by judicial action. Gibbons v. Ogden, 9 Wheat. I; The People v. The Rensselaer, &c. R. R. Co. 15 Wendell, 114; The People v. Tibbetts, 19 N. Y. 533; Hart v. The Mayor, 9 Wend. 607; Port Plain Bridge Co. v. Smith, 30 N. Y. 44; Baird v. Shore Line R. R. 6 Blatch. 376; U. S. v. Duluth, 1 Dill, 469; Siliman v. The Hudson R. B. Co. 4 Blatch. 395; People v. N. Y. &c. R. R. Co. 68 N. Y. 71. See the Passenger cases, 7 How. U. S. 383; State of Pennsylvania v. Wheeling Bridge Company, 9 How. U. S. 647, and 17 Wheaton, 518, and also 18 How. TJ. S. 431 ; Renwick v. Morris, 3 Hill, 631 ; affirmed, 7 Hill, 575 ; People V. Central R. R. of New Jersey, 43 N. Y. 383. ' An act of Congress declaring a bridge a lawful structure legalizes it, and it cannot be removed as obstructing navigation. Gray v. Chicago R. R. 3 Woolw. 63. As to when a bridge would be considered as obstructing navigation, vide Oilman v. Philadelphia, 3 Wall. 713, and also p. 783 of said Reports. The legislature of a State, however, it is held, may, in the absence of any restraint by congressional legislation, authorize the erection of a bridge over its navigable waters, subject to any prohibition by Congress, or direction, as to what facilities may be afforded for the navigation of the river. The mere grant of power by the Constitution to Congress, to regulate commerce among the several States, is not considered per se, and without any exercise of the power by Congress, an absolute inhibition of all State legisla- tion, which may interfere with the inter-State commerce of the United States. Munn V. Illinois, 94 U. S. 113. The State also has the power to legislate in regard to turnpike roads, rail- roads, ferries, and the public health, and generally in regard to the internal commerce and police of the State. Woodman v. The Kilbonrne Manfg. Co. 1 Abb. U. S. 188; Siliman v. The Hud. R. B. Co. 4 Blatch. 895; Crill v. City of Rome, 47 How. Pr. 398. It is held, also, that although the Unite^ States Courts have exclusive jurisdiction over maritime torts; and placing obstructions in navigable waters is such a tort, still, the State legislature may confer upon municipal- ities where navigable waters and harbors exist, police authority over the same, and the violation of a regulation adopted by the municipal authority •within the power conferred is within the jurisdiction of the State courts. City of Ogdensburgh v. Lyon, 7 Lans. 315. Vide this subject further, Chapter XLHI, Title IH. 24 THE COMMON LAW, [CH. I. City of New York; The Dongan and Montgomerie Charters.— The Dongan charter of 1686 confirms all grants made to iDhabitants of the city of New York by former officials of the Province, or from the Mayor, etc., by deed or otherwise. It also confirms all previous grants, franchises, etc., to the city. The Montgomerie charter of 15th January, 1730, ratifies and confirms the above, and all grants, etc. , to inhabitants and freeholders, their heirs and The above charters were confirmed by the confirmatory act of 14th Octo- ber, 1733, and also by the first Constitution of 1777, and again by the Consti- tutions of 1823 and 1846. Counties. — As to the division of the State into Counties, see "Red Book " of the legislature and vol. ii, Broadhead's History. The Public Lands.— Congress is invested hj the Con- stitution with the power of disposing of the public lands belonging to the United States, and making needful rules and regulations respecting them; and a State has no power over the public lands within its limits. Title passes from the United States by letters-patent issued under authority of an act of Congress, or by its confirma- tion, accompanied by a sufficient description or survey. Title IV. The Common Law op England and the Colonial Laws, and theik effect in this State. By a declaratory statute of 6 May, 1691 (1 Brad. 2)? the legislative power of the Colony was declared to be in a Governor-in-Chief and council, appointed by the Crown, and in the people, by their representatives in general assembly. The colonial laws passed by the provincial legislature under the English sovereignty, were passed througli the houses of Council and Assembly, subject to the Gov- ernor's veto, and approval by the King. The commissions to the different governors gave them power to make laws and ordinances for the peace and good government of the province, by and with the consent of the Council and Assembly; said laws were not to be repugnant to the statutes of Great Britain. Within three months after the making, they were to be transmitted to the King for approval. If the laws were disapproved by the King, XIT. IV.J THE COMMON LAW. 25 and the disapproval was signified to the Governor, then and from thenceforth the law was to he void. The colonial statutes, therefore, had the force of laws without the expressed approval of the house government, and until they were annulled or disapproved. The power of assenting to or withholding assent to colonial statutes were conferred on the governors. If approved by them, they were to be transmitted to the home government for examination, with the proviso, however, that they were to be valid and binding until disapproved and rejected by the Crown, Vide 3 Colonial Doc. 331 ; vol. v, pp. 94, 393 ; Smith's History of New Tort, V. i, pp. 108, 353 (ed. of 1830), as to the repeal of the Act of 1691. See opinion of Sidney Webster. Esq., in the Lauderdale Peerage Case ; and the case reported, Abbott New Cases, vol. xvii, 439, as to the Colonial laws passed by the Colonial Assembly, before September 4, 1686. All grants made and actions done and titles vested under any act ad interim, and before it was annuled by the Crown, would not be void or become divested in consequence of the subsequent disapproval by the Crown. Tide The People v. Trinity Church, 22 N. Y. 44. Declarations as to the Colonial and Common Law in the State Constitutions.— By the Constitution of 1777, § 35, such parts of the common law of England, and also of the statutes of Great Britain and the colonial legislature, as formed the law of the colony on 19 April, 1775, also all colonial resolutions, shall be the law of the State, subject to alterations and provisions by the legislature. All temporary and sectarian acts, however, and those concerning any allegiance to the Ciown, are made null. By the Constitution of 1822, such parts of the com- mon law and of colonial laws as formed the law of the colony on April 19, 1775, and also the resolutions of the congress of said colony, and of the convention in force on 20 April, 1777, the laws of the State legislature not expired, repealed, or altered, or repugnant to the Constitu- tion, are declared laws of the State, subject to alteration by the legislatiire. This was repeated in the Constitution of 1846, art. 1, § 17. But all such parts of the common law or said acts as are repugnant to the Constitution were abrogated. 26 THE COMMON LAW. [CH. I. Any repealing act, however, would not disturb rights vested under those laws. By La-w of 27 Feb. 1788 (3 Green, 116), and by Law of March 30th, 1801, ch. 90, § 38, it was provided that none of the statutes of Great Britain or England should be considered as laws of this State ; and by Law of Dec. 10, 1828, that they should not be deemed to have had any force or effect in the State since May 1, 1788. So also Law of April 5, 1813, ch. 56, they were not to be laws of the State. Nor were the laws of the late colony. Law of 1828, supra. It is held that only such parts of the common law as, with the acts of the colony in force on April 19, 1775, formed part of the law of the Colony on. that day, were adopted by the State ; and only such parts of the common and statute law of England were brought by the colonists with them as suited their condition, or were applicable to their situation. Such general laws thereupon became the laws of the Colony until altered by common consent, or by legislative enactment. The principles and rules of the common law as applicable to this country are held subject to modification and change, according to the circumstances and condition of the people and government here. Morgan v. King, 35 N. T. 454 ; Meyers v. Gemmel, 10 Barb. 587 : Bogar- dus V. Trinity Church, 4 Paige, 178; Depeyster v. Michael, 3 Seld. 468; Dubois v. Kelly, 10 Barb. 496. Courts take judicial notice of the English common law at the time of separation; and the presumption is that it still exists. Stokes v. Macken, 63 Barb. 145. As to when certain statute laws ceased to be binding in the Province, vid. 1 vol. Smith's History N. Y. 243. Dane's Abridgt. VI, 606; 33 N. T. R. 119. See also as to Provincial laws, 1 Tuck. Black. Com'. 393. During the colonial period, it seema, that the statutes of the English Par- liament suitable to the Province, the prerogative ordinances of the Crown, and the acts of the Assembly, comprised the statute laws of the Province. See as to the Dutch laws remaining in force, 17 Wend. 587, and 3 Broad. Histy. 65, and supra, this chapter; as to the organization of law courts in the Province and State, vid. Jucige Daly's Introduction to 1 E. D. Smith's Com. Pleas E. CHAPTEE II. THE RIGHT OF EMINENT DOMAIN, AND ITS EXERCISE. Title I. — General Principles regulating the right of Eminent Domain. Title II. — Constitutional Provisions. Title III. — Judicial Interpretation op the Eight and its Exercise. Title IV. — Eailroads as Public Improvements. Title I. Gteneeal Peinciples Regulating the Right OP Eminent Domain and its Exercise. The theory of the right of eminent domain is based upon the fact of sovereignty in the people, ftnd their supreme power to act for the public interest, safety, or advantage, and is a right necessarily incident to all gov- ernment. It recognizes the existence of sovereign power in the people of the State, as authorizing them to resume possession of private property for public use in cases not only where the public safety and interests, but even where the public convenience is concerned. To justify the exercise of the right, there must be a necessity, or at least an evident purpose of utility on the part of the public. It is also a principle controlling this right, that land, under its exej-cise, cannot be taken and donated for private benefit. It must be taken and applied for a public use and for no other purpose. The right is exercised either directly through the legislature, when a public improvement is made by the State, or through the medium of a corporation (and it may be even a foreign corporation), or others, to whom may be delegated the power of making the selection and appro- pi'iation of the land required. It is in the exercise of this right, by delegation, that 28 THE RiaHT OI" EMINENT DOMAIN. [OH. II. municipal and other bodies appropriate private lands for highways, streets, canals, railroads, wharves, ferries, bridges, etc. By the general law of European nations, and the common law of England, it was a qualification of the right of eminent domain that compensation should be made for private property thus taken or sacrificed for public use; and the Constitutional provisions of the United States, and of the several States, which declare that pri- vate property shall not be taken for public use without Just compensation, were intended to establish this principle beyond legislative control. This power of the legislature in respect to taking private property, therefore, is limited to ordaining that it may be taken upon compensation. The legislature is to judge of the necessity of the taking, but the amount of the compensation or value of the land is to be determined by consent of the parties, or through modes prescribed by the legislature within the Constitution. The compensation to be made must be represented by money or its equiva- lent. For a verification of the above general principles, reference may be made to the following cases : Livingston v. Mayor, 8 Wend. 85 ; Bloodgood v. Mohawk, &c. R. R. 18 Wend. 9 ; Beekman v. Saratoga, &e. R. R. Co. 3 Paige, 45 : Matter of Central Park, 16 Ab. 56 ; Buffalo and N. T. R. Co. v. Brainard, 9 K. Y. 100; The People v. Smith, 31 N. Y. 595; Taylor v. Porter, 4 Hill, 140 ; In re Townsend, 39 N. Y. 171 ; Commissioners Central Park, 51 Barb. 277; Thatcher v. Dartmouth B. Co. 18 Pick. 501; Embury v. Conner, 3 Conn. 511 ; Secombe v. R. R. Co. 23 Wall. 108 ; Hartwell v. Armstrong, 19 Barb. 166; Matter of Fowler, 53 N. Y. 60; McCaflfrey v. Smith, 41 Hun, 117; Matter of E. R. B. & C. I. S. T. Co. 26 Hun, 490; Matter of Comm'rs of Wash. Park, 53 N. Y. 181. Land taken for the United States.— It is held that the use of the United States is such a public use as will enable a State to take private prop- erty for it. Redall v. Bryan, 14 Md. 444 ; Gilmer v. Lime Point, 18 Cal. 329 ; Morris Canal Co. v. Townsend, 24 Barb. 658 ; Matter of Petition of U. S. 26 N. Y. 327. The United States possesses this right, also. Kohl. v. U. S. 1 Otto, 867. The Use to be of a General Nature.— The use must be for the people at large ; it must be compulsory, also, with the public, and not optional with the delegated person or corporation. A mere convenience, therefore, such as the taking of property to enable a- company to build railroads to haul, load and unload their freight has been held not such a necessitv as would author- ize the exercise of the powers. Memphis Freight Co. v." Memphis, 4 Cold. (Tenn.) 419; Matter of E. B. U. & M. Co. 95 N. Y. 42; Matter of Deansville Cem. Asso. 66 N. Y. 569. TIT. 1.] THE EIGHT OP EMINENT DOMAIN. 29 But the use may be for the public benefit though confined to a particular community. B. & R. Q-. L. Co. v. Richardson, 63 Barb. 437 ; Hartwell v. Armstrong, 19 Barb. 166. A provision giving commissioners power to sell the land taken would be invalid. Matter of Comm'rs of Wash. Park, 53 N. Y. 181. But lands taken in good faithmay afterward be sold by legislative authori- ty. Brooklyn v. Copeland, 106 N. Y. 496. Streets and Roads. — No new road or street can be laid out without the authority of the legislature ; and whenever it has been necessary to open any new street or avenue not laid down on a city map authorized by the legisla- ture, or otherwise permitted by statute, an act of the legislature is necessary, and the limits of the street or road are to be fixed by the act. Commissioners of Central Park, 51 Barb. 377. Mill Purposes. — Authorizing the flowing of land for mill purposes, under certain circumstances, has been held a public use. Olmstead v. Camp, 33 Conn. 532. To be Strictly Exercised. — A corporation can exercise the power to take private property only so far as the statute strictly confers it. East St. Louis v. St. John, 47 111. 463; Hatch v. Cincinnati R. R. 18 Ohio, 92 ; Mat- ter of Widening Carlton St. 16 Hun, 497 ; Matter of Water Comm'rs, 96 N. Y. 357 ; People v. Pres. &c. of Whitney's Point, 32 Hun, 508 ; affi'd, 102 N. Y. 81 ; Matter of Marsh, 71 N. Y. 315 ; Matter of Comm'rs of Wash. Park, 52 N. Y. 131. Franchises. — Franchises may be taken under this right, but they cannot be vacated, under claim of a public use, without just compensation. Ala- bama, &c. R. R. V. Kenney, 39 Ala. 307 ; Harding v. Goodlet, 3 Yerger, 41. Easements. — Easements may be taken under this right. Sixth Av. R. R. Co. v. Kerr, 72 N. Y. 330 ; Story v. N. Y. E. R. R. Co. 90 N. Y. 133. Disabilities of Owner. — The right to exercise the power of eminent domain is not restricted by any disabilities of the owner whose land is taken. East Tennessee v. Law, 3 Head (Tenn.), 63. Change of a City's Limits. — ^To extend the boundaries of a city, by which taxation is imposed on the new part for city debts and taxes, is not a taking of private property for public purposes. Wade v. Richmond, 18 Gratt. (Va.) 583. Statutes Regulating the use of Property.— Statutes of the order of police or sanitary regulations, prescribing or regulating the use of landed property, e. (/., wharves for the general good, are held not to be acts depriv- ing owners of the use of property, nor limiting or changing its use. Roose- velt V. Godard, 53 Barb. 533. Use of Roads, etc., by the United States— Under the authority in the Constitution given to Congress, to establish post roads, and to regulate com- merce, etc., it is held, that Congress has power to make, repair, keep open, and improve post roads in the difierent States. But in the exercise of the right of eminent domain on this subject, the United States have no right to adopt and use roads, bridges, and ferries owned by States or individuals with- out their consent or without compensation. Otherwise the roads, etc., are used as if by individuals, subject to tolls and other regulations. Dickey v. Turnpike Co. 7 Dana, 113. Other important principles and distinctions that govern or restrict the exercise of this right will now be briefly- adverted to, with the adjudicated cases which recognize them. The constitutional provisions that affect the right will be first given. 30 CONSTITUTIONAL PROVISIONS. [CH. II. Title II. Constitutional Provisions. Constitution of the United States.— The amendments to the Constitution of the United States of 1789, art. v, provided that no person should be deprived of life, liber- ty, or property, without due process of law ; nor should private property be taken for public use without just compensation. The 14th amendment also provides that no State shall deprive any person of life, liberty, or prop- erty, without due process of law ; nor deny to any person withiu its jurisdiction, the equal protection of the laws. Ratified, 20 July, 1868. The earlier provisions are held to be restrictive and applicable only upon the general government and its officers. Livingston v. The Mayor, 8 Wend. 85 ; Winters v. Buck, 20 How. U. S. 84. The State Constitution of 1822.— The Constitution of 1822 contained a clause, art. vii, that no member of the State should be deprived of any of the rights or priv- ileges secured to any citizen thereof, unless by law of the land or the judgment of his peers. The trial by jury in all cases as theretofore used, should be inviolate forever. It also provided that property should not be taken with- out due process of law, nor private property be taken for public use without just compensation. State Constitution of 1846. — By the provisions of the Constitution of 1846, art. i, § 6, no person shall be de- prived of life, liberty, or property without due process of law ; nor shall private property be taken for public use without just compensation. The right of trial by jury was also reserved, as above. By § 7, when private property shall be taken for any public use, the com- pensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury or by not less than three commis- sioners, appointed by a court of record, as shall be prescribed by law. Pri- vate roads may be opened in any manner to be prescribed by law; but in every case the necessity of the road, and the amount of all damages to be sustained by the opening thereof, shall be first determined by a jury of free- holders. Such amount, together with the expenses of the proceedings, shall be paid by the person to be benefited. Amendments to Constitution of 1846, as to Roads, Swamps, etc.— By an amendment to Art. Ill (adding § 18 to that article), adopted in 1875, the TIT. III.] JUDICIAL INTEEPEETATION OF THE EIGHT. 31 legislature is forbidden to pass local or private acts, " laying out, opening, altering, working, or discontinuing roads, highways or alleys, or for draining swamps." This is held not to apply to city streets. Matter of Lex. Ave. 39 Hun, 303; affi'd, 93 N. Y. 629; Matter of Woolsey, 95 N. Y. 135. Title III. Judicial Inteepeetatiojt of the Eight. Determination as to the Necessity or Utility of the Ex- ercise of the Right. — It belongs to the legislature to determine whether the benefit to the public from a pro- posed improvement is of sufficient importance to justify its right to the exercise of the power of eminent domain, in interfering with the private rights of individuals. The legislature also is sole judge as to what extent the public use requires the extinguishment of the owner's title, e. g., as to whether a fee or an easement should be taken. The courts have no power to review either (determination ; they may inquire if the intended use is public or private, but where it is ascertained that the purpose is public, there the judicial inquiry stops. The expediency or policy of the taking, is held not a judicial question but one of political sovereignty, to be determined by the legisla- ture, either directly, or by delegating the power to public agents, proceeding in such manner and form as may be prescribed within the Constitution. Therefore, where the power has been delegated to a municipal corporation, the policy of an improvement contemplated is a matter resting in the discretion of the corporation — neither the commissioners nor the courts have anything to do with it. Although the legislature, or its delegates, are the exclusive judges of the degree and quality of interest which are necessary to be taken, the courts may judge as to the necessity of the appropriation of the lands taken, and to what extent. Varick v. Smith, 5 Paige, 187 ; Beekman t. Sar. R. R. 3 Paige, 45 ; Blood- good V. Mohawk, &c. R. R. 18 Wend. 9 ; Harris v. Thompson, 9 Barb. 350; The People v. Crowell, 36 Barb. 177; //* re Peter Townsend, 39 N. Y. 171 ; De Varigne v. Fox. 3 Blatch. 95 ; The People v. Smith, 31 N. Y. 595 ; The Rensselaer & Sar. R. R. Co. v. Davis, 43 N. Y. 137. 32 JUDICIAL INTERPRETATION OF THE EIGHT. [OH. II. The last case holds that an appeal from an order appropriating land lies to the Court of Appeals. The Brooklyn Park Commissioners v. Armstrong, 45 N. T. 234; In re N. Y. & Har. R. R. v. Kip, 46 N. T. 547; Clarke v. Blackmar, 47 N. Y. 150; Matter of Suburb. Rap. Trans. Co, 16 Abb. N. C. 153; affl'd, 38 Hun, 553; Matter of Lent. P'k, 63 Barb. 283; Matter of N. Y. C. &c. R. R. Co., 67 Barb. 426; Havemans v. Troy, 50 How. Pr. 510 ; Matter of Deanville Cam. Asso. 66 N. Y. 569; Wash. Cem. v. P. P. & C. I. R. R. Co. 68 N. Y. 591 ; Matter of Marsh, 71 N. Y. 315 ; Matter of N. Y. C. & H. R. R.R. Co. 77 N. Y. 248 ; Matter of Water Comm'rs of Amsterdam. 96 N. Y. 357 ; Matter of Appl'n Mayor, &e. 99 N. Y. 569; Matter of Union Ferry Co. 98 N. Y. 139; Matter of Fowler, 58 N. Y. 60; Matter of N. Y. C. & H. R. R. R. Co. 66 N. Y. 407. Market. — Land may be taken for a market. Matter of Mayor, 28 Hun, 515. Taxation and Assessment. — It has been questioned whether assessment for benefit, on the opening, or paving, or grading of streets, was constitutional, inasmuch as it apparently operated, under lien and sale of property, to compel payment of the assessment by a taking of property, for a public use, without just compensation. The cases,* however, which upheld this position, viz., The People v. The Mayor, &c. (5 Barb. 209), The People V. The Same (9 Barb. 535), and others, were overruled by the decision in the second of said cases, decided in the Court of Appeals, in 4 Comstock, 419. It is considered that where the value of the land taken for a public use is set off against the benefit assessed on the remaining land of the same owner specially benefited by the improvement, the compensation is made. This assessment and taking of property for a public improvement is an important province of the rigM of eminent domain. Under the right of taxation, no return compensation is specifically made; otherwise, under the right of eminent domain special compensation is intended. The general tax-payer, however, receives, or is supposed to receive, just compen- sation in the benefits conferred by government, and in the proper application to the tax or assessment. The general power to tax and to exercise the sovereign right of domain implies the power to apportion the tax or assessment as the legislature shall see fit, in the exercise of a sound discretion. It may be general, so as to embrace all taxable persons, or it may be apportioned, according TIT. III.] JUDIOIATi EfTEEPRBTATION OF THE RIGHT. 33 to the benefit which each tax or assessment-payer is sup- posed to receive from the object on which the tax is expended. Under the above principles, also, a statute authorizing a municipal corporation to appropriate private property for opening a street, square, etc., in which provis- ion is made for compensating the owners, is constitutional, if it be required by public convenience, although the moving cause be to promote the benefit of a portion only of the community. The expense, also, of such improve- ments which, though for public use, may be specially beneficial to neighboring property, may be lawfully assessed upon the property thus benefited. For other cases on this subject, vide Livingston v. The Mayor, 8 Wend. 85 ; Town of Guildford v. Board of Supervisors, 13 N. T. 143 ; Le Roy v. The Mayor, 20 Johns. 430 ; Betts v. City of Williamsburgh, 15 Barb. 355 ; Brews- ter T. City of Syracuse, 19 N. Y. 116 ; Litchfield v. McComber, 43 Barb. 388; People T. Lawrence, 36 Barb. 177; afB'd, 41 N. Y. 137; Litchfield v. Vernon, 41 N. Y. 134; Booth v. Woodbury, 33 Conn. 118. It is a principle of law, also, that the legislature cannot, by any enactment, alter or change laws so as to affect vested interests, and thus give the laws a retroactive effect. Therefore, any enactment giving validity to titles or sales made under void or illegal assessments, or taxes imposed, and so conflicting with interests otherwise created or vested, would be unconstitutional. A mere legislative act is not considered due process of law, within consti- tutional provisions, and cannot operate to divest rights of property which had been previously unaffected by any proceedings legally impairing them. But proceedings imposing a valid tax or assessment, and providing for a future sale of the property assessed for non-payment of them, would be con- sidered as due legal process within the Constitution. Striker v. Kelly, 7 Hill, 9 ; People v. The Mayor of Brooklyn, 4 Corns. 419. The Land to be Taken.— In the exercise of this right only the land actually required for the public purpose can be taken ; even if the law authorizing the exercise of the right require compensation to be made for all land tak^n. Any law making provision for the taking land not so actually required would be held void. Jrer« Albany street, ll Wend. 150; Embury v. Connor, 3 Goms. 511; Bennett v. Boyle, 40 Barb. 551 ; In re Commissioners of Ceutral Park, 51 Barb. 377 ; Matter of N. Y., L. & W. R. R. Co. 33 Hun, 148 ; affl'd, 98 N. Y. 664; Matter of Deansville Cem. Asso. 66 N. Y. 569; Matter of E. B. W. & M. Co. 96 N. Y. 43. Land of private corporations may be taken. N. Y. C. &c. R. R. v. M. G. L. Co. 63 N. Y. 336. If proceedings, however, have been taken under the statute with the con- sent of the owner of the land (as under a street opening), and have been duly 34 JUDICIAL INTEEPRBTATIOK OF THE BIGHT. [CH. II confirmed, and the damages awarded have been paid and receiTed under the statute, such proceedings would be held to operate as a conveyance, and would vest the title to the whole lot as well that taken for the street as the rest in the corporation. Sherman v. McKeon, 38 N. Y. 266, So also land of tbe public, or of one citizen, cannot be taken and transferred, or donated to another individual, even for a full compensation. It must be applied to the use of the public, and their intej-est or advantage must be promoted by the transfer; otherwise any such action would be void. Wilkinson v. Leland, 3 Peters, 653 ; Varick v. Smith, 5 Paige, 137; Em- bury V. Connor, 3 Corns. 511 ; Powers v. Bergen, 6 N. Y. 358 ; Taylor v. Porter, 4 Hill, 140 ; White v. White, 5 Barb. 474; Rice v. Parkman, 16 Mass. 330 ; Coster v. Tide W. Co. 3 Green (N. J.), 54. The owner of the land, however, might waive his right, and consent to the transfer. His assent might be shown by parol, or by acts evidencing it. Baker v. Braman, 6 Hill, 47 ; Embury v. Connor, 3 Corns. 511. But where an act only authorizes taking by consent, lands of an infant cannot be taken, for the infant cannot consent, nor can any one do so for him, and there can be no condemnation. Battell v. Burrill, 50 N. Y. 13. Estate Taken.— Either a fee or an easement may be acquired under exercise of this right; and while acts will be strictly construed, so as not to permit the taking of any greater interest than is expressly authorized, yet no particular words are needed to the acquisition of a fee, and the intent of the legislature must govern ; so when a fee is specifically granted by the act it is no valid objec- tion that an easement would have been sufficient. Eochester Water Comm'rs, 66 N. Y. 413 ; Wash. Cem. v. P. P. & 0. 1. R. R. Co. 68 N. Y. 591; Sweet v. B., N. Y. & P. R. R. Co. 79 N. Y. 293. The State took the canal lands in fee. Eldridge v. Binghampton, 42 Hun, 202. Lands Condemned.— Lands once taken by condemna- tion for a public use cannot, without special authority, be appropriated to another, public use, by right of eminent domain. Matter of B. & A. R. R. 53 N. Y. 574 ; P. P. & C. I. R. R. Co. v. William- son, 91 N. Y. 553; Matter of N. Y., L. & W. R. R. 99 N. Y. 13; Matter of N. Y. C. & H. R. R. R. Co. 77 N. Y. 248 ; Matter of City of Buffalo, 68 N. Y. 167. Where the former use has been abandoned, it forms no bar to taking by this right, under a general power. Matter of N. Y., L. & W. R. R. Co. 13 Week. Dig. 357. A public body or officials may discontinue the proceedings, at any time before the title has become divested. In re Wash. Park, 2 N. Y. S. C. R. 637; 56N. Y. 144. TIT. III.] JUDICIAL INTERPRETATION OP THE EIGHT. 35 Reversionary Interest.— Where lands liave been talcen under this right for a public purpose, there is no rever- sionary interest left in the original owner, even if the public use should cease or fail. Hayward v. The Mayor, 3 Sel. (7 N. T.) 314 ; affirming 8 Barb. 486 ; Rex- ford V. Knight, 1 Ker, 308 ; De Varigne v. Fox, 3 Blatch. 95 ; Birdsall v. Carey, 66 How. Pr. 358. But see Heard v. Brooklyn, 60 N. T. 343. Disposition of Land on closing a Street, Road, &c.— Nor after the land has once been taken for the public purpose, can it be taken from the public and re-vested in the former owner without compensation to tlie public, e. g., as by reducing the width of a highway ; or, doubtless, in closing a street and donating the land. The People v. The Commissioners, etc. 53 Barb. 1\\In,re John and Cherry Streets, 11 Wend. 149. On closing any street or road, therefore, for which the public has paid, or which has been taken by law, under the exercise of the right of eminent domain, it cannot be taken from the public and donated to a former owner, without compensation, by any act merely closing the road; nor is it supposed would the legislature have the right, even for a public purpose, to close a street in the city, and so destroy the public easement, without compensation to the municipality at least, if not to land-owners who have been assessed on the opening. This principle would especially be just in its applica- tion where lot-owners had been assessed for benefit on the opening of an adjacent square, and where the City or State closed it, to the detriment of such owners. Matter of Munson, 39 Hun, 335 ; Caster v. Mayor, &c. 43 N. Y. 399 ; Fearing v. Irwin, 55 N. Y. 486. For a full discussion of the rights of abutting owners in streets, see post, under " Railroads." City of New Tork.^-By Law of 1867. ch. 697, § 3, cibutting owners on streets, roads and avenues as may be closed, under the provisions of the act, above 59th street, in the city of New York, are to become seized, in fee sim- ple, of the road-bed closed. The above law was held unconstitutional, as against owners of the road-bed. De Peyster v. Mali, 93 N. Y. 363 ; reversing 37 Hun, 439 ; Fearing v. Erwin, 4 Daly, 385. An act closing a street is not unconstitutional because it does not provide 36 JUDICIAL IKTEBPRETATION OF THE EIGHT. [CH. II. compensation to the owners of adjoining lands who are deprived of a right of way therein, when another street is left giving access to such land. Fear- ing V. Irwin, 55 N. Y. 486. Dower Rights.— Where land is taken under this right it is taken in fee, free from contingent interests as of in- choate dower. Moore v. The Aldermen, &c. 4 Sand. 456 ; afiBrmed, 4 Sel. 110. Judgments.— So the land is taken freed from the lien of judgments ; and j udgment creditors are not "owners" to be notified. Watson V. N. T. C. R. R. 47 N. T. 157. What is comprehended as Land. — Where a statute authorizes land to be taken for a public use, everything included in the general term " land " may be taken, in- cluding the buildings of a permanent character thereon, but not that pai't of them beyond the land actually taken for the public use. Mark v. State, 97 N. T. 572 ; Baker v. Clogher, 2 Hill, 342 ; Bennet v. Boyle, 40 Barb. 551 ; Stamford W. Co. t. Stanley, 39 Hun, 424. When the improvements, however, are allowed, and intended as part of the compensation to the party whose lands are taken, .they belong to him, and he may sever them from the land. Schuchardt v. The Mayor, 53 N. T. 202. See, as to the taking streets, piers, &c., In re N. T. C. R. R. 77 N. T. 239. Land under Water.— The right of the legislature to convey or use land under water in front of riparian owners, without compensating them for the loss of their riparian advantages, will be considered hereafter, ch. " Land under Water." Where no Compensation is provided for.— Any acts of the legislature that authorize the taking of private prop- erty for public use, without making a just compensation, are considered by the courts of this State not only uncon- stitutional, but in violation of principles of natural right and justice, and such acts are held null and void. Bradshaw v. Rogers, 20 Johns. 103; rev'd, ib. p. 785, on other grounds; In re John and Cherry Streets, 19 Wend. 659; Taylor v. Porter 4 Hill 140; Sage V. Brooklyn, 89 N. Y. 189; Langdon v. Mayor, 93 N. Y.'l29: Dusen- bury V. Mut. Tel. Co. 11 Abb. N. C. 440. TIT. III.] JDDICIAIi INTERPRETATION OF THE EIGHT. 37 But this has been held not to apply to public lands. People v. L, I. R. R. Co. 9 Abb. N. C. 181. Land cannot be entered upon and trees cut until compensation has been awarded. Bladgett v. Utica, &c. R. R. Co. 64 Barb. 580. Public Corporations are equally within the protection of the law. Any change in their property, franchises, or interests, so as to interfere with their vested estate, woiild be void, notwithstanding the general reservation in their act of incorporation authorizing the legislature to make changes therein. But the legislature might subject them to new restrictions or increased bur- dens without such compensation. Miller v. N. T. & B. R. R. 31 Barb. 513 ; modified by Albany R. R. Co. v. Brownell, 34 N. Y. 345 ; In re Kerr, 43 ,Barb. 119 ; Benson v. The Mayor, 10 Barb. 333; The Brooklyn Park Commis- sioners v. Nichols, 45 N. Y. 739 ; vide ante, Oh. I ; Franchise, and Street Rail- roads, infra. Streams. — A statute declaring a private stream on which riparian owners have vested interests a public highway, without compensation to the owners, would be null and void. The same rule, doubtless, would prevail as to pri- vate streets. Morgan v. King, 35 N. Y. 454, reversing 46 Barb. 340; The People V. The Commissioners, &c. 53 Barb. 71. Property Destroyed, to prevent the extension of a conflagration, is not taken under the right of eminent domain, and a party cannot recover there- for. Russell V. The Mayor, 3 Den. 461. Compensation, however, is provided for by laws applicable to several of the cities of the State. Turnpikes, Highways and Streets. — Turnpike roads cannot be taken or closed for public use without compensation. Bradshaw v. Rogers, SO Johns. 103, rev'd, on other grounds, iJ. p. 735. Nor a part of a highway or street that has been dedicated for such use only. The Trustees, &c. v. The Auburn, &c. R. R. 3 Hill, 567 ; Kelsey v. King, 33 How. Pr. 39 ; Williams v. N. Y. C. R. R. 16 N. Y. 97 ; People v. Board of Supervisors, 4 Barb. 64 ; Knox v. The Mayor, 55 Barb. 404. But the public rights in a highway or street may be taken without compensation to an individual, as one of the public, for resulting damages. The People v. Kerr, 37 Barb. 357 ; affi'd, 37 N. Y. 188. Matter of Munson, 39 Hun, 335. And see post, as to street railroads, etc., oyer highway. But authorizing a highway road-bed to be used as a turnpike, has been held not a taking of land requiring compensation to the owners of the road-bed. As to what is an additional burden (e. g., gas-pipes) requiring compensa- tion, see Crooke v. Flatbush W. W. Co. 39 Hun, 345 ; B. & R. G. L. Co.' v. Calkins, 63 N. Y. 886. Streams. — Vide supra. Mode of Ascertaining Compensation. — If a law author- ize the compensation to -^be ascertained otherwise than through a jury, or commissioners to be appointed by a court of record, under the Constitution, the law and any assessment under it will be void ; unless the compensation is made by the State. House V. City of Rochester, 15 Barb. 517 ; Clark v. City of Utica, 18 ib- 451 ; Clark v. Miller, 43 ib. 255. The commissioners must be directly ap- pointed by the court. Menges v. Albany, 56 N. Y. 374. Even any provision authorizing the Supreme Court to increase or reduce the amount of damages reported by the commissioners would be unconstitu- tional. The Rochester Water Works v. Wood, 60 Barb. 137. 38 JUDICIAL INTEKPEETATIOSr OJF THE EIGHT. [OH. U. Although, in case of error or fraud, the court could set aside the appraisal and appoint new commissioners. lb. As b'efore seen, the constitutional provisions which may control in respect to the mode of ascertaining the compensation to be made to the citizen upon taking his property, do not apply to the question whether it is needed for public use. The People v. Smith, 21 N. Y. 595 ; and cases cited supra. It would be otherwise, however, where the damage has been sustained, and the law is retroactive in its effect. In such a case the patty cannot be deprived of his right to trial by jury. In re Peter Townsend, 39 N. T. 171. The party instituting proceedings cannot abandon them after the report of commissioners of appraisal has been confirmed. Matter of R. & C. R. R. Co. G7 N. Y. 243. But see as to parks, streets, &c., Matter of "Wash. Pk. 56 N. Y. 144. Provision for an assessment upon adjacent owners is not a provision for compensation within the Constitution. Hartwell v. Armstrong, 19 Barb. 166. Limit as to Time. — The State may limit the time for which compensa- tion may be claimed. Rexford v. Knight, 1 Kern. 308. Waiver. — As to the waiver of compensation, see Arnold v. Hudson R. R. 55 N. Y. 661 ; rev'g 49 Barb. 109. Notice.^ — ^Property cannot be taken as above, without due notice to every owner as regards fixing the compensation ; and it is competent for the legis- lature to direct the mode of giving the notice. Where the matter to be inquired into, however, is not as to the amount of the compensation, but as to the propriety of taking the land in question, no notice need be given. The notice when requisite may be waived by acts of the parties. Owners, &c. v. The Mayor, 15 Wend. 374 ; Dyckman v. The Mayor, 1 Sel. 484 ; The Peo- ple v. Smith, 31 N. Y. 695. No notice need be given of the application to appoint commissioners. L. I. R. R. Cp. V. Bennett, 10 Hun, 91. But all notices and hearings that may tp.nd to give the party afiected any semblance of benefit must be carefully observed. People v. Kniskern, 54 N. Y. 53. A law imposing an assessment without notice or hearing is unconstitutional. Stuart v. Palmer, 74 N. Y. 183 ; Norton v. W. V. R. R. 61 Barb. 476. Only land can be taken that is described in the notice. In re Central Park Commissioners, 51 Barb. 377. A reasonable notice sufficient to apprise is sufficient. Happy v. Mosher, 48 N. Y. 313. Objections not then made are waived. Allen v. U. E. & I. R. R. Co. 15 Hun, 80. For what may Compensation be Required. — The prohi- bition in the Constitution has reference to property actu- ally taken for the public use. Therefore injuries or dam- ages, or disturbances of rights or easements that may ac- crue to property not actually taken, but in the vicinity of land taken (e. g., the propinquity of a railroad), or contin- gent future damages or incidental or consequential injuries not capable of estimate, do not come within the rule. A person or corporation, however, would of course be liable for any injury to others by not using proper precau- tions in the exercise of their right of ownership of prop- erty, or for a nuisance created. TXT. lll.j JUDICIAL INTERPRETATION OP THE EIGHT. 39 Snyder V. Penn. R. Co. 55 Penn. 340 ; Drake y. Hud. R. R. R. 7 Barb. 508 ; Brown v. Cayuga R. R. 2 Ker. 486 ; Bellinger v. N. Y. C. R. R. 23 N. Y. 42 ; Matter of Union Village R. E. 35 How. Pr. 420 ; Benedict v. Goit, 3 Barb. 459; Swett v. City of Troy, 12 Abb. N. S. 100; Graves v. Otis, 2 Hill, 466 ; Radcliflf v. Mayor, 4 Corns. 195 ; Laurence v. The Great N. R. R. 16 Ad. & Ell. 643 ; Hudson, &c. Canal Co. v. N. Y. & E. R. R. 9 Paige, 323; Matter of Thompson, 43 Hun, 416. And see further, infra, as to consequential damages. A modification of the above principle, however, is to be considered vpith reference to the question of compensa- tion, viz., that in the exercise of this right reserved to the sovereign povper, its administration will be regulated and interpreted by the courts upon the basis of a broad and liberal equity, as to the right or estate of which the citizen is deprived. The taking of property, therefore, for public advantage, as construed by that principle, will not be held to be confined merely to its conversion and trans- fer from the subject to or for the public, but also such an utter destruction of^ or interference with, private prop- erty, for the public weal, as will materially impair its practical value to the citizen, inflict permanent or irrepar- able injury upon it, or prevent his full enjoyment of it. The courts, therefore, in sustaining the above doctrines, as applicable to legislative interference with private prop- erty, hold that any serious interruption to the common and necessary use of property may be equivalent to the taking of it; and that^ therefore, under the above constitu- tional provisions, it is not necessary that the land should be absolutely talcen. Gardner v. Newburgh. V. 2 Johns. Ch. 162 ; Charles R. Bridge v. Warren Bridge, 11 Pet. 638 ; Angell on Water-courses, § 465a/ Hooker t. New Haven, &c. R. R. Co'. 14 Conn. R. 146; Rowe v. Granite Bridge Co. 21 Pickering. 344; Canal Appraisers v. The People, 17 Wend. 604 ; Lackland v. N. Missouri R. E. 31 Missouri, 180; Stevens v. Proprieters of Middlesex Canal, 12 Massa- chusetts, 466 ; Pumpelly v. Greenbay & Miss. Land Co. U. 8. Supreme Court, Dec. Term, 1871 ; 13 Wall. 166 ; McKean v. Del. Co. 49 Penn. 424 ; People v. Haines, 49 N. Y. 587 ; Norton v. W. V. R. R. Co._ 63 Barb. 77. But a mere temporary annoyance in the course of constructing a public improvement gives no right to compensation. Trans. Co. v. Chicago, 9 Otto, 635. In accordance with the above views, and, as a modifi- cation of the general principle that for a mere consequen- tial injury to the property of an individual arising from 40 JUDICIAL IKTBEPRETATION OF THE BIGHT. [OH. II. the prosecution of iraprovemeats of roads, streets, rivers, and other highways for the public good, there may be no redress, it is now the doctrine that where there is an actual invasion of land by superinduced additions of water, earth, sand, or other material, or through having any arti- ficial structure placed on it, or passage cut over or through it, so as to effectually destroy or impair its usefulness, it is a tahing within the equitable meaning of the Constitu- tion, and compensation must be made. The diversion of a water-course, whereby the value of property is impaired, would come within the same rule. Navigable Streams. — The government of a State, under its reserved, or the government of the United States, under its constitutional powers to regulate commerce, may make alterations in the course, width, etc., of a navigable stream ; and for this purpose may take the river-bed which, under the principles of law hereafter stated, may be vested in the riparian proprietor ; or may divert the stream in which, by law, he has a peculiar or special right by reason of his aquarian location. Such property or right can only be taken, however, on making provision for com- pensation to such proprietor for the land taken, or for the diversion of the stream. And although courts cannot directly restrain the Pres- ident or Congress of the United States, or a State Legis- lature, they can restrain and prevent the action of their agents, if the property is taken as above without consent or compensation duly provided. Vide post, Cb XLIII, Land under Water, and cases cited. See Avery v. Foxi W. Dist. Mich. 1868; reported 1 Abb. U. S. 246. The Rule of Compensation. — The rule of compensation in this State is the actual value of the property taken, in money, without any deduction for estimated profit or general advantages accruing to the owner from the pub- lic use of the property, unless it is of peculiar advantage to the land taken. And this seems to be the principle generally maintained throughout the United States, al- TIT. III.] JUDICIAL INTEEPRETATION OF THE EIGHT. 41 though the decisions are not altogether harmonious on the subject. Jacob V. City of Louisville, 9 Dana, 1 14 ; Rogers v. R. R. Co. 35 Maine, 319; St. Louis R. R. v. Richardson. 45 Mo. 496; State v. MoUer, 3 Zabr. 383; People V. Mayor, 6 Barb. 209; Hatch v. R. R. 25 Vermont, 49; Moale v. Baltimore, 5 Md. 314; People v. Mayor, 4 Corns. 419; Eexford v. Knight, 15 'Barb. 637; affl'd, 11 N. T. 308; R. R. v. Doughty, 2 Zabr. 495; McMicken v. Cincinnati, 4 Ohio, N. S. 384. See, also, 25 Miss. 258; 5 Ohio, 350; N. S. il. 140; Boom v. Patterson, 8 Otto, 403. Neither, except as above observed, can contingent fu- ture damages or incidental or consequential injuries be taken into account — as the proximity of a railroad, or a change of grade in a street from the level of surrounding land. But allovpance will be made for special injury in the case of a railroad, etc., according to the manner in which the land is cut, the difficulty of access, noise, smoke, etc. The general measure of damages is tlie difference be- tween the marTcet value of the land, with and without the improvement; and the injury to the land not taken by the use made of the land taken may be considered. Troy & B. R. R. v. Lee, 13 Barb. 169 ; Sidener v. Essex, 22 Ind. 301 ; Wil- mington R. R. V. Stauffer, 60 Pa. 374; Goodin v. Cinn. Canal Co. 18 Ohio, 169; Jacot t. City of Louisville, 9 Dana, 114; Drake v. Hud. E. R. R. 7 Barb. 508 ; Radcliffe's Ex'rs v. Mayor of Brooklyn, 4 Coms. 195 ; Concord R. R. V. Greely, 23 N. H. 337 ; Carpenter v. Landaff, 43 N. H. 218 ; East Penn. R. R. V. Hottenstine, 47 Penn. 28; Hatch v. Vermont C. R. R. 25Vt. 49; Matter of Utica R. R. 56 Barb. 456 ; Taylor v. M. E. R. W. Co. 50 Super. 311 ; 53 ih. 299; Henderson v. N. Y. C. R. R. Co. 78 N. Y. 423; dist^ng'd, 86 N. Y. 127 ; Conklin v. N. Y., O. & W. R. R. Co. 102 N. Y. 107 ; Ireland v. Same, 52 Super. 374 ; B. & R. G. L. Co. v. Calkins, 1 T. & C. 549 ; affi'd, 62 N. Y. 3b6. It is sufficient if the act makes provision for future compensation. The assessment and payment of damages need not precede the condemnation. Smith V. Helmer, 7 Barb. 416; Rexford v. Knight, 11 N. Y. 308 ; Blood- good V. M. & H. R. R. 18 Wend. 9 ; Baker v. Johnson, 3 Hill, 342 ; People V. Hayden, 6 Hill, 359 ; Fletcher v. The Auburn R. R. 35 Wend. 462 ; Case V. Thompson, 6 Wend. 6.S4 ; Nichols v. R. R. Co. 43 Maine, 356 ; Walther v. Warner, 25 Miss. 277; Francisco v. Scott, 4 Cal. 114; Rexford v. Knight, 1 Ker. 308 ; Patten y. N. Y. E. R. R. Co. 3 Abb. N. C. 308. Contra, Avery v. , Fox, 1 Abb. U. S. 246 ; Dusenbuxy v. Mut. Tel. Co. 11 Abb. N. C. 440. If the lavf taking the land is repealed, the right to compensation ceases. Hampton v. Commonwealth, 19 Penn. 329. No possible or prospective or contingent advantages are to be estimated against the owner of the land taken. Alabama R. R. v. Burkett, 43 Ala. 83. The State may vacate the award and make a new assessment in case of fraud or irregularity. Garrison v. City of New York, 31 Wall. 196. 42 EAILKOADS AS PUBLIC IMPROVEMENTS. [CH. II. As to the Use of Dedicated Streets — Vide post, Ch. XXXV. Land under Water, generally.— As to the taking of land under water," vid&post, Ch. XLIII. Action of the Commissioners of Appraisement. — All the commission- ers must meet and act in making the appraisement and estimate of damages. Board of Water Comm'rs v. Lansing, 45 N. T. 19. But if all be notified, action by two is enough. Astor v. Mayor, 63 N. Y. . 580. Appeal. — ISTo aflBdavits can be used on a motion to confirm the report of the commissioners, nor on the appeal from the order of confirmation. The court in such case must act solely on the report of the commissioners. In re Eondout, &c. R. R. 36 How. Pr. 187. The judgment cannot be attacked collaterally, if all the facts necessary to jurisdiction are shown to exist. Secombe v. R. R. Co. 33 Wall. 108. The " Practice " in these matters cannot be further considered, in a review of this character. It may be stated, however, that where there has been irregularity or fraud, the proceedings may be vacated, and a new assessment made. Gar- rison V. City of N. Y. 31 Wall. 96. Franchises. — The taking away or destruction of fran- chises for a public use is held to fall under the principle requiring compensation to be given, equally with any other private property ; and they cannot be vacated under claim of public advantage or use without just com- pensation. West River Bridge Co. v. Dix, 6 How. U. 8. 507 ; Alabama R. R. v. Ken- ney, 39 Ala. 307 ; In re Platbush Avenue, 1 Barb. 386 ; White River T. Co. V. Vt. R. R. 31 Vermont, 590; County of Richmond v. County of Laurence, 13 ni. 1 ; Albany N. R v. Brownell, 34 N. Y. 345 ; Lafayette PI. R. v. New Albany R. 13 Ind. 90; Harding v. Goodlet, 3 Yerger, 41. See, however, the subject '' Franchise," and the cases cited as to the ex- clusive rights impliedly conferred by the State grant creating them. Ante, Ch. I; also this chapter, sec. 1. It has been held, also, that if the damage be consequential or indirect, as by the creation of a new and rival franchise, in a case required by public necessity, compensation is due. Bonaparte v. C. & A. R. R. 1 Bald. C. C. U. S. 305; Glover v. Powell, 3 Stock. N. J. 311. Title IV. Eaileoads as Public Improvements. Railroads as Public Improvements. — Railroads for the transportation of merchandise and passengers from one part of the State to another are considered to be public improvements, and for the public benefit, for the construc- ' tion of which private property may be taken under the authority of the legislature, upon payment of a just com- pensation to the owner. Acts, therefore, authorizing railroad companies to take private property for the purposes of the road have been TIT. IV.] EAILKOADS AS PUBLIC IMPEOVEMEKTS. 43 held constitutional ; and the legislature may lawfully delegate to such corporations or companies the right, or power of eminent domain for the above object. Provisions, also, authorizing the taking of such prop- erty and assessing damages through commissioners to be appointed by the legislature or governor, are also held constitutional, and not repugnant to the clause of the Constitution declaring the right of trial by jury to be inviolate. Such provision is held to apply to the trial of civil and criminal cases in courts of justice, and has no relation to assessments for damages to owners of property taken for public uses. Such acts would not be valid, however, unless provision is made in them for compensa- tion. The money need not be actually paid before the property is taken, but provision must be made upon some adequate fund. This is a condition precedent to taking the property. Acts have from time'to time been passed in this State establishing the mode by which land may be taken for railroad purposes. Livingston v. Mayor, 8 Wend. 85 ; Beekman v. Saratoga, &c., K. R. Co. 3 Paige, 45 ; Blood- good V. The Mohawk, &c., R. R. Co. 16 Wend. 9; Smith v. Helmer, 7 Barb. 416; In re Kerr, 43 Barb. 119; The People v. Law, 34 Barb. 494; The People V. Smith, 31 N. T. 535; Olark v. City of Rochester, 34 Barb. 446; Secombe v. R. R. Co. 33 Wall. 108. The legislature may grant the above powers to railroad companies by a general act. Buffalo and N. T. C. R. R. v. Brainard, 9 N. T. (5 Beld.) 163. It has been held, however, that the acquisition of lands for speculation or sale, or to prevent competition by other lines, or in aid of collateral enter- prises, however beneficial to the road, are not such purposes as authorize the condemnation of private property therefor. Rensselaer & Sar. R. R. v. Bavis, 43 N. Y. 137. But land may be acquired for protective purposes and for necessary struc- tures, stations, cattle yar'ls, etc. Matter of N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 547 ; Matter of N. Y. C. R. R. 5 Hun, 301 ; affi'd, 63 N. Y. 336. For prospective use and for increased facilities. Matter of N. Y. 0. & H. R. R. R. 77 N. Y. 348 ; Matter of S. I. R. T. Co. 103 N. Y. 251. But not for merely incidental uses, such as gravel, material, etc. N. Y. & C. R. R. Y. Gunnison, 3 Supr. Ct. 633. As to streets, etc., see Matter of K Y. C. & H. R. R. R. Co. 77 N. Y. 348 ; Matter of B. B. Co. 30 Hun, 201. The legislature may also allow the use of a railroad track by other roads. Sixth Ave. R. R. v. Kerr, 73 N. Y. 330; vide Constitutional Provisions and Acts, infra. Laud may be taken by a leased road. Matter of N. Y., L. & W. R. R. Co. 35 Hun, 330. As to the determination of the route, and the modus of taking the land, vide Norton v. W. V. R. R. 61 Barb. 476; L. 1850. c. l40; L. 1851, c. 19; L. 1853, c. 53 ; L. 1854, c. 383 ; L. 1864, c. 583 ; L. 1867, c. 515 ; L. 1869, c. 237 ; 44 RAILEOADS AS PUBLIC IMPEOVEMBNTS. [CH. II. L. 1871, c. 560; L. 1876, c. 198; L. 1877, c. 103; L. 1886, c. 593. As to the taking of pub. streets, piers, etc. In re N. T. C. R. R. 77 K. Y. 358. By L. 1880, c. 582, special provision was made for tunnels and bridges by railroads, with restrictions as to the consent of property owners, and compen- sation to them. A% to railroads over the streets of a city, vide infra. The general rule in this country is that railway companies, by virtue of the compulsory powers conferred on them in taking lands, acquire no absolute fee simple, but only the right to use the lands for their purposes; and where compensation is to be made for the value of the use appropriated, in estimating the value, what, if anything, would be left to the landowner of value, subject to the easement, should be considered. But under L. 1833, c. 294, a fee was taken. Beale v. N. T. 0. &c. R. R. Co. 41 Hun, 172; Alabama R. R. v. Burkett, 43 Ala. 83. As to the fee still remaining in the land-owner, vide also Hatch v. Cinn. R. R. 18 Ohio, 93; Morris v. Schallsville, 6 Bush (Ky.), 671. The use of Streets for Railroads.— A variety of stat^ utes from 1831 have been passed, conferring upon railroad companies the right to lay tracks over the public streets or highways of cities and towns. In some of them the grantees were to obtain a prior consent of the city corporation ; in others not. By Law of April 4, 1854, ch. 140, the corporations- of cities were not to allow railroad tracks which commenced and ended in the city to be constructed without the consent of a majority in interest of owners of property on the streets over which the road was to run, as per assessed valuation. On such consent being obtained, grants might be made, after due notice by the common council, on proper security being given, and under proper conditions. The act was not to affect roads already begun. Many special acts were passed by the legislature, however, subsequently, granting railroad franchises without any such consent. New York City. — Aet of January 4, 1860, eh. 10. — By this act no rail- road was to be built in or along any of the streets or avenues of the city of New York, except under the authority and subject to the restrictions «f the legislature. The act was not to affect roads already begun, or for which grants had been made. Inconsistent acts were repealed. Constitutional Provisions of 1875.— By § 18, of art. iii of the Constitution, which was adopted in 1875, the pas- sage of any private or local bill "granting to any cor- poration, association, or individual the right to lay down railroad tracks " was forbidden ; and the legislature was TIT. IV.] RAILROADS AS PUBLIC IMPROTEMENTS. 45 directed to pass general laws providing for the various cases enumerated in the section, which contained many other prohibitions of private legislation. The section fur- ther provided, that no law should authorize the construc- tion or operation of any street railroad, unless the owners of one-half in value, of the property bounded on the streets through which the railroad was to run, and also the local authorities having control of such streets, should consent ; except that the consent of the property-owners might be supplied by the determination of three commis- sioners appointed by the General Term of the Supreme Court, given after hearing, and confirmed by the court. By c. 606, L. 1875, commonly called the "Rapid Transit Act," provision was made for the construction of steam railways, in accordance with the pro- visions of this section of ibe Constitution. The provisions for acquiring lands by companies formed under the act are contained in §§ 17 to 25 inclu- sive ; which regulate the procedure with great minuteness, and expressly for- bid any allowance, in estimating compensation, for benefits resulting to prop- ertv from the operation of the road. Acts amendatory of this act are — L. 1880, c. 417; L. 1881, c. 485; L. 1882, c. 393; L. 1886, c. 551, and c. 593. The amendment of 1883 further elaborated the provisions for the assessment, payment, and securing of compensation. See for construction of this act. Matter of N. T. E. R. R. Co. 70 N. Y. 337 ; Matter of G. E. R. R. Co. 70 N. Y. 361 ; N. Y. Cab. R. W. Co. v. 42d St. &c. Co. 13 Daly, 118 ; N. Y. Cab. Co. v. Mayor, 104 N. Y. 1 ; Matter of Kings Co. &c. Co. 105 N. Y. 97. The " Bapid Transit Act,'' applied only to steam railroads ; and, to com- ply with the provisions of the Constitution as to ordinary street railroads, the legislature passed the act, L. 1884, c. 353, providing for surface street railroads to be operated by any means except locomotive steam-power. This act provided (§ 16), that the act of 1875 should not cover any surface street railroad, and makes no provision for taking land by right of eminent domain. It contains provisions as to the consent of owners of abutting property simi- lar to those of the Rapid Transit Act. This act was amended by L. 1686, cc. 65 and 643, and by L. 1887, c. 622. By L. 1880, c. 415, street railroads, except in the counties of New York and Kings, are authorized to extend their lines over bridges crossing the Hudson River, subject to obtaining the consent of property-owners and bridge companies, or, in lieu thereof, that of three commissioners, appointed by the General Term of the Supreme Court, whose report is to be confirmed by the court. By L. 1880, c. 582, general provision was made for the construction of underground roads, authorizing them to acquire lands under the provisions of the general railroad act of 1850 and requiring, where the road is built under a street, the consent of the local authorities and of the owners of one- half in value of the abutting property. In default of either consent, three commissioners might be appointed by the General Term (as under the Rapid Transit Act) whose consent, when confirmed by the court, would be sufiBcient, though neither property-owners nor local authorities consented. This pro- vision has been held unconstitutional, as no substitute for the consent of the 46 BAILROADS AS PUBLIC IMPBOVBMBIfTS. [CH. IT. local authorities is lawful under § 18, art. iii, of the Constitution. Matter of N. Y. Dist. R. R. Co. 42 Hun, 631. Judicial Determination as to Railroads over Streets.— The decisions as to the rights acquired in and the authority of the State and city to bestow easements over the public streets and highways for railway purposes, have been nu- merous and somewhat variant. The general views of the courts have been that a surface railroad in the street of a city, when constructed under proper legal authority, is not, per se, a nuisance, nor an injury to contiguous land-owners, nor an infringement of private rights, provided that such use does not interfere with the free use of the streets by the public as a highway. The courts, also, at first, held that municipal corporations in the State, subject to all positive legal restrictions, had a right, without previous grant from the legislature, and as an incident to their authority to title, to allow the privilege or license of such use over the streets to individuals or com- panies, if the license were revocable at the will of the municipal corporation; otherwise, if not revocable, but a surrender of the whole power and duty of the corporation over the streets, the license would be invalid. Plant v. L. I. R. R. Co. 10 Barb. 39; Adams v. Saratoga, Ac. R. R. Co. 11 Barb. 414; Drake V. Hudson R. R. Co. 7 il). 508; Milhau v. Sharp, 15 Barb. 193; Milhau v. Sharp, 17 Barb. 435; afiBrmed, in some particulars, 27 N. T. 611; State v. City of N. Y. 3 Duer, 119. It was also at first held that the legislature could not confer on railway companies any right over the public streets without compensition to the municipality for the land appropriated. The principles laid down as above, and asserted in the cases quoted, have been generally sustained, except so far as the right to compensation and the powers of municipal corporations are concerned. The tendency of the courts has beeu to recognize more fully the authority of the legislature over municipal property, and to diminish the authority and estate of munici- pal corporations. Later cases held, as to streets in which municipal corporations have the fee, under acts appropriating it, that, having been taken by them as delegates of the legislature, in the exercise of the right of eminent domain, the legis- lature might apply them to a public use without compensation to the city or adjacent land-owners, and that the legislature had entire control of any pub- lic rights in the highways or streets. . They held, also, that the owners of property bounded on streets had no private or exclusive right to, or property in, the use or enjoyment of such streets. The courts also held, and still hold, that notwithstanding the various city charters, the legislature has the paramount right to make grants of railroad privileges and franchises over the streets and avenues of a city; and that when this power is exercised it is superior to and exclusive of any power which previously resided in the local authorities ; and that the local govern- ment has no right to grant railway privileges, or establish or extend railroads in cities, independent of legislative action and approval; that in general a municipal corporation, as such, has no franchise in connection with the use of the streets for the transportation of passengers; and that, if it ever had such a franchise, it is not one that is irrevocable, being a mere grant of gov- ernmental powers. The People v. N. Y. & H. R. R. Co. 45 Barb. 74; People v. Third Av. R. R. Co. 45 Barb. 03; Wetmore v. Story, 33 Barb. 414; Davis v. TIT. IV.] BAILEOADS AS PUBLIC IMPEOVBMENTS. 47 The Mayor (4 Ker. 506), 14 N. Y. 506; The People v. Kerr, 37 Isr. Y. 188; affirming 37 Barb. 375; Wetmore v. Law, 34 Barb. 515. In The People's Passenger R. R. Co. &c. v. John Park, Mayor, &c. of Mem- phis, 10 Wall. 38, it is held that a municipal corporation has no right by vir- tue of its genera! powers, to give an association of persons the right to con- struct and maintain for a term of years, a railway in one of the streets of the municipality, and that any ordinance or resolution granting such a right is void. As to Compeasation to the City or Contiguous Owners. — Under the above principles it was held that the legislature might confer upon a com- pany the privilege of building and using a horse railroad in the streets of the city, without the consent of adjacent street owners or of the city authorities, and vrithout compensation to them. Lexington & Ohio R. R. v. Applegate, 8 Dana, 289 ; Phil. v. T. R. R. 6 Whart. 25 ; Drake v. Hudson R. R. R. 7 Barb. 508 ; Brooklyn City, &c. R. R. Co. v. Coney Island, &c. R. R. Co. 35 Barb. 364; Wetmore v. Storey, 32 Barb. 414 ; N. Y. & H. R. R. v. The 42d St. R. R. 50 Barb. 309; English v. K H. R. R., 32 Conn. 340. The whole subject of the rights of adjacent street owners has been finally very thoroughly investigated in the numerous cases arising out of the building of elevated railroads in the cities of New York and Brooklyn. By the decisions in these cases it has been settled that the owners of property abutting on a street have an easement of light, air, and access in such street, independent of the' general easement of the public therein ; and this equally whether the fee of the street be in such owners or not. When their enjoyment of such easement is invaded they are entitled to compensation, and the erection or operation of an elevated railroad in such street before provision has been made for such compensation, will be enjoined at their suit Story v. K Y. E. R. R. Co. 90 N. Y. 123 ; Peyser v. Met. E. R. R. Co. 13 Daly, 70 and 13 Daly, 123 ; Glover v. Man. E. R. R. Co. 51 Super. 1 ; People v. Loew, 39 Hun, 490 ; Patten v. N. Y. E. R. R. Co. 3 Abb. N. C. 306 ; Watson v. Man. E. R. Co. 17 Abb. N. 0. 289 ; Lahr v. Met. E. R. Co. 104 N. Y. 368. Action by those Specially Injured.— The case of Milhau V. Sharp, reported in 28 Barb. 228 ; affi'd in 27 N. ¥.611, holds that individuals owning lots fronting on a public street may maintain an action to enjoin the construction in such street of a railway, or a use of such street by a rail- road company, which would be specially injurious to their property, or may bring an action against the company for damages. 48 EAILEOADS AS PUBLIC IMPKOVBMBNTS. [OH. II. Mahady v. B. B. R. Co. 91 N. Y. 148; Davis v. Mayor 4 Kern 506; Anderson v. Rochester, &c. R. R. 9 How. Pr. 555 ; Clark v. Blactoiar, 47 N. Y 150 ■ Fanaine v. Osborne, 102 N. Y. 441 ; Henderson v. N. Y. 0. R. R. Co. 78 k. Y. 433 ; Hussnerv. B. C.R. R. Co. 30 Hun, 409 ; affi'd, 96 N. Y. 18; and see elevated railroad cases, above. . • x j • But the danger of special damage must be great and imminent to adja- cent owners before the court would interfere, and mere inconvenience is not enough. Drake v. Hudson R. R. R. 7 Barb. 508 ; Kellinger v. 43d St. &c. R. R. Co. 50 N. Y. 208. An owner upon a part of the street where the railroad does not run cannot maintain an action. Matter of N. Y. & H R. R. Co. 39 Hun, 388. Railways over Dedicated Streets. — As to this branch of the subject, vide Chap. XXXV. Railways over Highways.— In view of the ownership of the road-bed of highways, under the principles adverted to hereafter, it has been held by the courts that tlie legis- lature has no power to authorize the construction of a steam railway over a highway, or take it for any other pub- lic use, without providing for compensation to the owner of the land over which it passes. Mason v. N. Y. C. R. R. 34 N. Y. 658. The Trustees, &c. v. The Auburn, &c. R. R. 3 Hill, 567; Carpenter v. The Oswego, &c. R.R. 24 N. Y. 655 ; Wil- liams V. N. Y. C. R. R. 16 N. Y. 97 ; Kelsey v. King, (Ct. of Appeals) 33 llow. Pr. 39; Wager v. The Troy Union R. B. Co. 35 N. Y. 536 ; The People V. Board of Supervisors of Westchester Co. 4 Barb. 64. By the Laws of 1864, ch. 582, railroads may be constructed over any pub- lic highway. As to abutting owners, who own no fee in the road, see Uline v. N. Y. 0. & H. R. R. R. Co. 101 N. Y. 98; Falker v. N. Y., West Shore & Buffalo R. R. Co. 17 Abb. N. C. 379. An owner of property not abutting on the street in which the railroad runs cannot complain. Hier v. N. Y., West Shore, &c. Co. 40 Hun, 310. The above cases seem only to apply to railroads authorized to run with steam-power over the highway. The People v. Kerr, 27 N. Y. 188, draws a distinction between such cases and where an ordinary street railroad with horse-cars was authorized. In the latter case, the railroad over the highway, as in the case of a dedicated street, would probably be held merely a new mode of using the easement. The consent of highway commissioners, is not requisite, neither is a steam railway crossing a nuisance. Baxter v. The S. R. R. 1 1 Abb. N. S. 72 : 61 Barb. 428. Land taken in a street for a railway operated by steam, must be compen- sated for. Wash. Cem. v. P. P. «fc C. I. R. R. Co. 68 N. Y. 591 ; Jersey C. R. R. V. Jersey City, &c. 20 N. J. Equity, 61; aliter as regards a horse rail- way, lb. CHAPTER ni. THOSE CAPABLE BY LAW OP HOLDING AND OONYEYING LANDS. Title I. — Citizens of the United States, and the Naturalization Laws. Title II. — Indians. Title III. — Married Women. Title IV. — Aliens, and the Alien Laws of the State. Title V. — Corporations, Infants, Lunatics, &o. Title VI. — Those Sentenced to Imprisonment. Title I. Citizens of the United States. By law of this State it is provided, that every citizen of the Uuited States is capable of holding land within this State, and of taking the same by descent, devise, and purchase. Every person capable of holding lands, except idiots, persons of unsound mind, and infants, seized of or entitled to any estate or interest in land, may alien such estate or interest, at his pleasure, with the effect, and sub- ject to restrictions and regulations provided by law. 1 Greenleaf, 3S8 ; Law of 1787 ; 1 Rev. L. p. 70, § 1 ; and p. 74, § 5 ; 1 Eev. Stat. p. 719. Change of Sovereignty and Ante nati. — Vide ante, Chap. L Expatriation.— Under the English common law it was held that natural born subjects owe an allegiance, which is intrinsic and perpetual, and which could not be divested by any act of their own, without the assent of the State. In this country expatriation, under the more recent decisions and legislation, is considered a fundamental right, and a citizen may transfer his allegiance elsewhere, and become an alien. 4 50 CITIZENS OF THE UKITBD STATES. [CH. HI. Act of July 17, 1863, infra; Act of July 37, 1868, ch. 349; 15 Stat, at Large, 323. As to the former rule in this country, following the English, common law, vide The Trinidad, 7 Wheaton, 383; Juando v. Taylor, 3 Paine C. C. 653 ; In re Isaac Williams, 3 Cranch, 64 ; tfi. 82 ; Talbot v. Jansen, 3 Ball. 383; United States v. Gillies, 1 Peters 0. 0. 159; Inglis v. Trustees of Sailors' Snug Harbor, 3 Peters, 99 ; and see infra, p. 51. In many cases this right is made the subject of treaty, and a return to and residence for a certain term in the native country is made evidence of expa- triation from the adopted one. (1868) Opinion of Attys. Gen. 380. Citizens. — ^As a general rule, according to the com- mon law principle, all persons born within the jurisdiction and allegiance of the United States are native citizens. The special regulation of the status of citizenship, as changing the common law rules, is one appertaining to the Nation as such, and not to these States severally; and the right of citizenship, as distinguished from alienage,, is a national right, or condition. The principle ot the English law, that birth within the jurisdiction of and under allegiance to a country creates citizenship thereof, was the law of the Colonies; and continued the law of each State, respectively, on the Declaration of Inde- pendence, until the Federal Constitution was established, when exclusive jurisdiction of the subject passed to the general government. Where, however, the constitutional or statute law is silent as to the political status of an individual, the principles of the common law are still the recognized law of the land as it existed, irrespec- tive of English statutes, at the adoption of the Federal Constitution. Lynch v. Clarke, 1 Sandf. Ch. 583 ; Ludlam v. Ludlam, 31 Barb. 486 ; affirmed, 36 N. Y. 356. ' Exceptions ; Children of Ambassadors.— An exception to the above com- mon law rule is found in the case of the children of ambassadors or other emissaries born out of a country, who are born in theory within the allegiance of the foreign power represented by the ambassador or his diplomatic family Calvin's Case, 7 Co. 1 ; Lynch v. Clarke, 1 Sandf. Ch. 584. Those Born within Hostile Occupation.— Also an exception exists where a person is born in a foreign country, during war with it, within a portion held by conquest by the forces of his own country; or if he be born within the armies of his State while abroad, unless the parents adhere to the enemy as subjects de facto. Calvin's Case, 7 Co. 18; Craw v. Ramsey, Vaueh R 381 ■ Dyer's Rep. 234. "^ ' & ■ • > As a general principle, also, of the common law, a sub- ject traveling or sojourning abroad, either on the pub- TIT. I.] CITIZENS OF THE UNITED STATES. 51 lie business, or on lawful occasion of his own, with the express or implied license or sanction of the sovereign, and with the intention of returning, continues under the protection of the sovereign power, and retains the privileges and continues under the obligation of his alle- giance. His children, therefore, although born in a foreign country, are not deemed to be born under foreign alle- giance, and are an exception to the rule which makes the place of birth a test of citizenship. On the same principle a child born on an American ship, in a foreign port, is a citizen^ Lynch v. Clarke, 1 Sandf. Ch. 583 ; U. S. v. Gordon, 5 Blatch. 18 ; Ludlam v. Ludlam, 31 Barb. 486; affirmed, 36 N. Y. 356. Treaties Regulating Expatriation and Alienage. — Be- fore the acts of July 17, 1862, and July 27, 1868, infra, the decisions throughout the State and Federal courts {ante, p. 50) had been to the effect that every citizen owed allegiance to the government; and that, where there was no legislative act or treaty, the English common law doc- trine prevailed, and the citizen had no right, intrinsically, to renounce his citizenship and allegiance to the gov- ernment, without the consent of the government, nor until he arrived at full age. In the case of Ludlam v. Ludlam, supra, a doubt was expressed as to whether a citizen w^ere capable of renouncing his allegiance without the consent of the government, or whether he might not do so when his government has not prohibited such an act. It was held by the court, however, that he could not divest him- self of his citizenship until he became the citizen of another country, and that he could not do that until he was of full age. That case further intimated, that a child born abroad of a citizen sojourn- ing in a foreign country, for an indefinite time, might be subject to a double allegiance; and upon arriving at majority, might elect to retain the one and repudiate the other; but that, until such election, he retained the rights of citizenship in both countries, although dischar^ng its duties in but one. It may be remarked, that a person's commercial domicil might also give him rights appurtenant to the country where he was domiciled in a commer- cial point of view : and thus be might acquire a double political Btalmi. The law on this head, however, is not applicable to this treatise. 52 CITIZENS OF THE UNITED STATES. [OH, HI. Various conventions and treaties have been made vrith foreign States v?ith reference to the alien status and right of expatriation of the citizens of the United States, and of the foreign States, respectively. These treaties are important, as bearing upon the right to, and transmission of real and personal property by the alien in the alien country, and as being, in many cases, inconsistent with the State laws regulating the title to land and its transfer. The terms of these treaties are various. In some, the citizens and inhabitants of either of the two countries, who become heirs of lands or other property in the other, are to succeed to their estates without obtaining letters of naturalization, and without succession duty. In others, the rule applies only to the heirs of an alien dying within the jurisdiction of the foreign country. In other treaties, where land descends, alien parties are to have a reason- able or specified time to sell and remove the proceeds, without molestation. Treaty with Switzerland of 1850, 11 Stats, at Large, 590. Treaties with the Two Sicilies, 1865; with Hanover, 1846; with Portugal, 1840; Russia, 1833; and treaties of the same character exist with many of the smaller Ger- man and South American States. Some of the treaties («. g., that with France, of February 23, 1853) are made subject to the provisions of the State alien laws. The effect which the political privileges created by these treaties may have upon the title to property within the States respectively, is a subject of judicial construc- tion. The question arising is, whether the treaty-making power can, by its political action, vary or regulate what is supposed to be peculiarly a matter of State jurisdiction ; and so, virtually abrogate the State sovereignty in matters connected with the disposition of and title to property within each State. The case of Hauenstein v. Lynham, 10 Otto, 483, seems to adjudicate this matter in favor of the general efficacy of the treaty-making power. Also KuU V. Kull, 37 Hun, 476. See Bollerman v. Blake, 94 N. Y. 624, where a release by the State to the alien heirs was held efEective without regard to treaty. The case of The People v. Gerke (5 Cal. p. 381), which sustained the view that the government of the United States has the constitutional power to enter into treaty stipulations with foreign governments, for the purpose of restrict- ing or abolishing the property disabilities of aliens or their heirs in the TIT. I.J CITIZENS OF THE UNITED STATES. 53 several States, was virtually overruled by the subsequent case of Siamessan V. Bofer (6 Cal. R. 350), in which the court held that the treaty-making power can never be extended, by implication, to the reserved powers on mat- ters which belong to State sovereignty, or to the right each State has to regu- late its domestic concerns. Judge Story, in the case of Prevost v. Grenveaux, with reference to a treaty with France, which placed citizens of France on a par with citizens of Louisiana, and all States of the Union whose laws permit it, held that, inasmuch as the treaty did not conflict with the laws of the State, or claim for the United States the right of controlling the succession of real or personal property in a State, its provisions would be carried out; but otherwise the courts might not do so. 19 Wheat. 1. In a case decided in this State, as to the effect of the United States inter- nal revenue law, which required a stamp to be affixed to conveyances, in order to give them validity in the State, the broad principle was asserted that the Federal government had no power to prescribe any rule for a State, affecting the transfer of property within it, so as to render void any mode of transfer otherwise valid in the State. Moore v. Moore, 47 N. Y. 467. The same principle, if extended conversely to the operation of the treaties in question, would render their provisions ineffective to confer upon aliens the privileges of citizens with relation to property, if such provisions were not harmonious with the State legislation. In U. S. V. Fox, 4 Otto, 320, on appeal from N. Y. Court of Appeals, it is held that the control of the descent of real estate can only be regulated by State law; and it is not within the jurisdiction of the United States or Congress. In this case there was no question as to a treaty. The United States Supreme Court also passed upon another phase of the question in the above case of Hauenstein v. Lynham, in holding that where the State law fixed no time within which aliens might sell and remove the proceeds of realty descending to them, their rights would be regulated by the treaty, and would not be defeated by the absence of a State law as to time for sale and removal. Colonial Acts Relative to Citizenship. — The Colonial Act of July 5, 1715. — An act of the Colonial government of this province vras passed on this date, declaring that all persons of foreign birth, theretofore inhabiting within the colony, and dying seized of any lands, etc., should be deemed to have been naturalized. The act also provided that Protestants inhabiting the colony should, on taking the oath of allegiance, be deemed subjects ; and makes provision for naturalizing others by act of Assem- bly. Other provisions are made as to foreign denizens prior to 1683, and since. 1 Van Schaick, 9 ; 1 Smith & L. p. 113. See also p. 6, ante, as to other col- onial laws, and particularly Act of Jan. 37, 1770, correcting defects in pur- chases made theretofore, before naturalization. Original Powers of the States.— Before the adoption of the present Constitution of the United States, the power of naturalization resided in the several States; and natural- 54 CITIZENS OF THE UNITED STATES. [OH. HI. ization was provided for by the respective State constitu- tions or laws. In default of which the common law rules prevailed. Vide ante, Oh. I, as to citizenship in this State after the revolution, and ante, p. 50. See also Const, of New York of 1777, last clause. United States Laws as to Admissions of Aliens as Citi- zens.— Various acts have been passed by the general gov- ernment enabling aliens to become citizens of the United States, a digest whereof is here given. Where the provisions of such acts have been incorporated into the Revised Statutes of the United States the section in which the provision is found is given in each case. Since the adoption of the Constitution of the United States, it is considered that no State can by any subse- quent law make foreigners or any other description of person citizens of the United States, nor entitle them to the rights and privileges secured to them by that instru- ment. It would be lawful, however, for a State, by its laws, passed since the adoption of the Constitution, to put a foreigner, or any other description of persons, upon a footing with its own citizens, as to all the rights and privileges enjoyed by them within its dominion, and by its laws. But that would not make him a citizen of the Unit- ed States, nor entitle him to any of the privileges and immunities of citizens within the other States. The right of naturalization, therefore, since the estab- lishment of the Federal government, is exclusively in Congress. The exercise of this right, however, as to its modus, may be delegated. Chirac v. Chirac, 3 Wheat. 259; Scott v. Sandford, 19 How. 393; Lynch V. Clarke, 1 Sandf. Ch. 588. The question of what are the "privileges and immunities" referred to in the Constitution, bas opened a wide field of inquiry, as has the determina- tion of who are the citizens entitled to them. Decisions on the subject have been made, to_ a large extent, in the United Slates Courts. Each State determines for itself the meaning of the word " citizen " in respect to its own denizens, and so long as such determination does not conflict with the Fed- eral Constitution, it is final. Act of April 4, i802, 2 Stat. 153, R. S. U. S., § 2,165.— By this act, an alien, being free and white, may be ad- mitted to become a citizen on certain prescribed conditions, TIT. I.] CITIZENS OP THE UNITED STATES. 55 for the details of which reference must be made to the statute. He is to declare on oath or affirmation, before certain State, Federal, or Territorial courts, his intention to become a citizen, and to renounce all for- eign allegiance. This declaration has to be made three years (now two years) before his admission. On his application he is to swear to support the United States Constitution and renounce foreign allegiance. Before admission, the court is to be satisfied, by oath other than the ap- plicant's, that he has resided at least five years in the United States, and one year within the State or territory where application is made ; that he is a per- son of good moral character, and attached to the constitution. He is also to renounce titles of nobility. No alien of a country at war with the United States is to be admitted. Aliens Residing in the United States before 29 January, 1795. — Such aliens, by said act, may be admitted citizens, on proof of two years' residence in the United States, and one year in the State. Also, aliens hav- ing a two years' residence between a9th January, 1795, and 18th June, 1798, may be admitted within two years after the passage of the act. R. S. U. S., 12,165. The Courts. — ^Every State court of record having common law jurisdic- tion, and a seal, clerk, or prothonotary, is to be a district court within the act. 11). Vide amendment of 1824, infra^ allowing the declaration to be made be- fore clerks of courts. Children of Naturalized Citizens, and of Citizens. — Law of 1802, K. S. U. S., § 2,172.— By the 4th section of this Act of 1802, children of naturalized citizens, or of those who, previous to the Federal laws on the subject, had been admitted citizens of any State, being under twenty- one at the time of the parent's naturalization, or admis- sion, shall, if dwelling in the United States, be considered citizens thereof. People V. Newell, 1 How. Pr. N. S. 8, citing many cases (affi'd, 38 Hun, 78). Children Born Abroad.— Act of 1802, K. S. U. S., § 2,172. — By the same Act of 1802, children of persons who now are or ha/ve been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered citizens, provided the right of citizenship shall not descend to persons whose fathers have never resided within the United States. Exclusion is also made of British soldiers or proscribed persons during the late war without consent of the respective 56 CITIZENS OF THE UNITED STATES. [OH, HI. legislatures. This provision has been considered not prospective. In Ludlam v. Ludlam, 31 Barb. 486 ; affirmed, 26 N. T. 356, the doctrine was maintained that the status of all children bom abroad of American pa- rents temporarily absent after 1802, and who were not within the terms of the Act of 1855, infra (i. e., all children of citizens born abroad between 1802 and 1855), is to be determined according to the principles of the com- mon law, which make the children of a subject traveling abroad, although such children are bom abroad, citizens. These cases hold also that the child of an American citizen temporarily absent, though the child be born abroad of an alien mother, is by the common law an American citizen. See, also, Lynch v. Clarke, 1 Sandf. Oh. 659, holding that the children of American citizens, born abroad, though not within the provisions of the Act of 1802, are citizens under the rules of the common law. West v. West, 8 Paige, 483. If the father alone is naturalized, it is supposed sufficient for the law. See Peek v. Young, 36 Wend. 613, as to an infant child born abroad of a citizen and remaining an infant till after 1783 (peace with Great Britain), and not coming to this country until 1830, held a citizen, affirming 21 Wend. 389. Under this act, infant children of aliens, though born abroad, if dwelling within the United States at the time of the naturalization of their parents, become citizens by such naturalization. West v. West, 8 Paige, 433. See, above, People v. Newell. See^os*, Act of 1855. Earlier Acts before 1802, now Repealed. — Prior to the above Act of 1802, viz., March 36, 1790, January 29, 1795, and June 18, 1798— laws simi- lar to that of 1802 had been passed, making the probationary term of resi- dence two, five and fourteen years respectively. All prior acts, however, were repealed by the Act of 1802, § 4. Indians. — The statutes of naturalization have been construed not to apply to Indians. 7 Op. Atty.-Gen. 746; vide infra, Constitutional Amendments, 14 and 15. Jurisdiction of State Courts.— The process of natural- ization is a judicial act which Congress cannot author- itatively confer on a State court ; but it may be exercised by the State courts, if not prohibited by the exclusive jurisdiction of the courts of the United States ; and Con- gress may give to the State courts jurisdiction in the matter, as delegated agents, to exercise the power. state V. Penney, 5 Eng. 621; Morgan v. Dudley, 18 B. Monroe, 693;. Ramsden's Case, 13 How. Pr. 429 ; Rump v. Commonwealth, 6 Casey, 475. Action of State Courts. — It has been held in this State that the powers conferred upon the courts in admitting aliens to the right of citizenship are judicial, and not ministerial or clerical: and, consequently, cannot be dele- gated to the clerk, but must be exercised by the court itself. An examina- tion must be made in each case sufficient to satisfy the court of the requisite facts. In re Clark, 18 Barb. 444. State Interference.— It has been held that a State law restricting its. TIT. I.] CITIZENS OF THE UNITED STATES. 57 courts and their clerks from entertaining jurisdiction for the naturalization of aliens, under the acts of Congress, is not contrary to the Constitution of the United States. Stephen's Case, 4 Gray, 559. Residents between 1798 and 1802— Act of March 26, 1804, 2 Stat. 292. — By this act, any free white person residing in the United States be- tween June 18, 1798 and April 14, 1802, and who has continued his resi- dence, may be admitted without making the first declaration as above. Vide post, Act of 1816. Widows and Children of Aliens. — Widows and chil- dren of an alien who has made the declaration and application, as per Act of 1802, and who shall die before naturalization, are to be deemed citizens on taking the prescribed oaths. Same act. R. S. U. S., § 3,168. Five Years' Residence Required.— Act of March 3, 1813, 2 Stat. 811, K. S. U. S., § 2,170.— No one who arrives in the United States after the act takes effect, shall be naturalized who shall not have resided within the United States five years continuously [without being at any time thereof out of the territory of the United States]. The clause within brackets was repealed by law of June 26, 1848, 9 Stat. 240. Even now there has to be a contin- uous legal residence. In re Hawley, 1 Daly, 531. The repealed clause while in force was strictly construed ; and a few minutes stoppage in Canada was held to disqualify. In re Paul, 7 Hill, 56. Feual Provisions. — This act also makes penal provisions against persons forging or counterfeiting evidence or certificates of citizenship. Held re- pealed by Act of 1870, infra; U. S. v. Tynen, 11 Wall. 88. Aliens before 1812. — An Act of July 30, 1813, relates to aliens who were enemies during the war of 1813, providing that persons resident in the United States on June 18, 1812, who before that had made the declaration, or who on that day were entitled to become citizens, without making such declara- tion, maybe admitted citizens notwithstanding they were alien enemies; provided that any alien enemy may be apprehended and removed previous to such naturalization. R. S. U. S. § 3,171, Residents between 1798 and 1802— Act of March 22, 1816, 3 Stat. 259. — Free white persons residing within the United States between June 18, 1798, and April 14, 1802, and who have continued such residence, with- out having made the declaration, may be made citizens under the Act of March 26, 1804, on proof of the above residence. A previous residence of five years is to be proved by the oath, etc., of citizens. This act and that of May 34th, 1838, are combined in § 3,165 R. S. U. S. Minors.— Act of May 26, 1824, 4 Stat. 69, K. S. U. S., § 2,167. — Minors (free whites) who shall have resided in 58 CITIZENS OF THE UNITED STATES. [CH. lU. the United States three years next before they are twenty- one years of age, and shall reside there until their appli- cation, after a residence of five years, including the three years of minority, may, without having made the previous declaration, be admitted by taking the oath of allegiance, etc., as in other cases. They shall prove, also, that three years preceding the application it was their honafide intention to become citizens. Amendment of Law of 1802. — This Act of 1824 also provided that the declaration might be made before the clerks of courts; and that the declaration, per Act of 1803, might be made two years, instead of three, be- fore admission. Residents between i8o2 and i8i2.— Laws of May 24, 1828, 4 Stat. 310. — By this law, free white aliens residing within the United States, between April 14, 1802, and June 18, 1812, and who have continued such residence, may be admitted without previous declaration. A resi- dence of at least five years before the application must be proved. This act and that of March 32d, 1816, are combined in § 2,165 R. S. U. S. Children of Citizens Born Abroad.— Act of Feb. 10, 1 855, vol. X, p. 604, R. S. U. S. § 1,993— By this act, persons heretofore born, or hereafter to be born, oat of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed citizens ; but the rights of citizen- ship shall not be deemed to descend to persons whose fathers never resided in the United States. Wife of Citizen.— A woman who might be naturalized under existing laws, who is married or shall be married to a citizen, shall be deemed a citizen. Same act. R. S. U. S. § 1,994. So, also, 1 R. S. 719, § 8. Under this Act, it has been held that an alien widow of a naturalized citizen, although she never resided within the United States during the life- time of her husband, is entitled to dower in his real estate. Burton v. Bur- ton, 1 Keyes, 359 ; reversing 36 How. Pr. 474. TIT. I.] CITIZENS OF THE UNITED STATES. 59 This act bas been held to confer the privilege of citizenship to free -white women only, married to citizens of the United States. The terms " mar- ried," or "to be married," in the act, do not refer to the time when the ceremony of marriage is celebrated, but to a state of marriage ; and the citi- zenship of the husband when it occurs, confers citizenship upon her, without the necessity of any application on her part. Kelly v. Owen, 7 Wall. 496 ; See also Luhrs v. Eimer, 80 N. Y. 171. Discharged Alien Soldier.— Act of July 17, 1862, 12 Stat.59Y,E.S.U.S.,§2166.— By this act, any alien of the age of twenty-one, who has enlisted or shall enlist in the regular or volunteer forces of the United States, and has been or shall be honorably discharged, may be admitted a citizen upon his petition, and shall not be required to prove more than one year's residence in the United States previous to his application. Expatriation.— This act also declares the right of ex- patriation to be a natural and inherent right of all peo- ple, and abrogates all past judicial or legislative action inconsistent therewith. The Act of July 27, 1868, 15 Stat. 223, re-asserts the right, and provides for the protection of naturalized citizens in foreign States. R. S. U. S. § 1999. Declaration of Citizenship as to Negroes.— Act of Ap. 9, 1866, 14 Stat. 27. — By this act, all persons born in the United States, and not subject to any foreign power, ex- cluding Indians not taxed, are declared to be citizens of the United States. This law also provides that such citizens of every race and color^ without regard to any previous condition of slavery, or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, leave, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens ; and shall be subject to like punish- ment, pains, and penalties, and to none other, any law, statute, ordinance, reg- ulation or custom to the contrary notwithstanding. E. S. U. S. § 1992. The other sections of the act impose penalties for depriving any citizen of his civil rights, by reason of his color or race; and give jurisdiction of to U. S. District Courts over the same. Provision is also made for carrying out the purposes of the act, through the courts and Federal officers ; and the President may employ the land and naval regular or militia forces to carry 60 OITIZEKS OV THE UNITED STATES. [OH. ill. out the act. Final appeal in questions arising under the act is given to the Supreme Court of the United States. This act has been held constitutional, and as naturalizing all persons of color within the United States. U. S. v. Rhodes, 16 Am. L. R. 333 ; ex parte Turner, 6 Int. R. Rec. 147; People v. Washington, 3 Am, L. Rev. 574. So far as the act prescribes rules of evidence for the State courts, how- ever, it has been held unconstitutional. State v. Rash, 15 Pitts. L. J. 61 ; Carpenter v. Snelling, 97 Mass. 458; Craig v. Dimock, 9 Int. R. Rec. 139; Quinn v. Lloyd, 3 Bait. L. T. 700. Declaration of Citizenship— Fourteenth Constitutional Amendment. — § 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any per- son of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. other sections of the amendment provide the apportionment of Represen- tatives; and impose certain civic disabilities upon persons who have been engaged in the rebellion, giving Congress the power, however, by a two- third vote of each House, to remove disability. Power is given to Congress to legislate to carry out the purposes of the act. Declared ratified, July 38, 1868, 15 U. S. 711. To carry out the provisions of the above amendment, an act was passed May 31, 1870, 10 U. S. S. p. 140. This act also re-enacts the CivU Rights Bill of Ap. 9, 1866. Right of Expatriation.— Act of July 21, 1868, R S. U. S., § 1999. — By act of this date the right of expatriation is declared a natural and inherent right of all people. The act further declares tliat all prior orders, opinions, and decisions of government officers contrary to such view is inconsistent with the fundamental principles of the government. Protection is to be extended to naturalized citizens in foreign States. Vide also ante, pp. 50, 51, 59. Penalties for Peijnry and Fraud.— By Act of July 14, 1870, ch. 354, various penalties are prescribed for perjuries and fraud in connection with naturalization. R. S. U. S. § 5395. This act held to repeal the provisions of the Act of 1813 on the subiect U. S. V. Tynen, 11 Wall. 88. TIT. I-] CITIZENS OF THE UNITED STATES. 61 Negroes and Africans.— By Law of July 14, 1870, ch. 254, E. S. U. S., § 2169., the naturalization laws are ex- tended to aliens of African nativity, and to persons of African descent. Free negroes bom within the allegiance of the United States have always been regarded as citizens (U. S. v. Rhodes, 1 Abb. U. 8. 28), and so are emancipated slaves (ib., Matter of Turner, 1 Abb. 84). In the Dred Scott case (19 How. U. S. 393) it was held that a negro whose ancestors were brought here as slaves is not ac itizen. Seamen.— By Act of June 7th, 1872, R. S. U. S., § 2174, every seaman being a foreigner, who has declared his intention and has served for three years afterwards on a merchant vessel of the United States, may on pro- duction of his certificate of discharge and good conduct, together with the certificate of his declaration, be ad- mitted a citizen of the United States; and every such seaman after such declaration and service shall be deemed a citizen for the purpose of serving on any merchant vessel of the United States. But he shall be a citizen for pur- poses of protection after the filing of his declaration. Retroactive effect of Naturalization.— Naturalization before " office found," it has been held, has a retroactive effect so as to confirm a former title. No title in cases of alienism vests in the people until after office found. Osterman v. Baldwin, 6 Wall. 116; Jackson v. Beach, 1 Johns. Ca. 399. Not so, however, as to other titles, so as to vest title to lands, which by reason of alienage a person could not inherit. Ji.ckson V. Green, 7 Wend. 333 ; Heeney v. The Trustees, &c. 33 Barb. 360; affirmed, 39 N. Y. 333. The naturalization of a married woman would not have a retroactive eflFect so as to entitle her to dower in lands of which her husband was seized during coverture, and which he had aliened previous to her naturalization. Priest V. Oummings, 30 Wend. 338. Kecord of Naturalization, Effect of. — The record of a competent court, reciting the necessary facts, is deemed conclusive, without any evidence thereof being set up, and it cannot be impeached by proof contradicting those recitals. In collateral proceedings it is conclusive. McCarthy v. Marsh, 1 Seld. 363 ; Ritchie v. Putnam, 13 Wend. 524. Declaration of Intention. — As to power of aliens to hold and transfer land upon filing a certificate of intention to become a citizen. See post, this chapter. Tit. IV. 62 INDIANS. [OH. III. Traitors and Deserters, and Political Disabilities.— Mere traitors, so called, do not, ipso facto, lose their citi- zenship. 11 Op. Atty. Gen. 317. Forfeiture of Citizenship by Deserters, &c.— The Act of March 3d, 1865, provided for the forfeiture of citizenship by all persons who should thereafter desert from the military or naval service of ihe United States; or who, having therefore deserted, should not return within sixty days after proclamation by the President; or who, being enrolled, leave the district in which they are enrolled, or who leave the United States to avoid a draft. E. S. U. S., §§ 1996, 1998. As to evidence of conviction, vid. Gotchens v. Matheson, 40 How. Pr. 97. Compare further decision, 61 N. Y. 430. Removal of Disabilities as to Deserters in 1865. — The Act of July 19th, 1867, removed all disabilities incurred under the .4ct of March 3d, 1865, by persons who, having faithfully served under their enlistment, until April 19th, 1865, deserted or refused to serve after that date. R. S. U. S., § 1997. Political Disabilities. — ^By Act of May 38, 1873, all political disabilities imposed by the 3d section, 14th article of amendments to the Constitution, are removed from all persons except Senators and Representatives of the 36th and 37th Congress, officers of the judicial, military and naval service of the United States, heads of departments and foreign ministers of the United States. Title II. Indians. The aborigines of this country, commonly called " In- dians," are considered to have a right to enjoy the land which they occupy, until that right becomes extinguished by a voluntary cession to the Grovernment ; but they are excluded from the right of treating with any other power. The United States Government, as against foreign coun- tries, claims the exclusive right to extinguish the Indian title, by purchase or conquest from the aborigines, assert- ing a right of pre-emption with respect to them, and the sovereignty with respect to all other nations. Cherokee Nation v. State of Georgia, 5 Pet. 1; Worcester v. State of Georgia, 6 Pet. 515; Kent, vol. iii, p. 384; 8 Opinions Att, Gen. 255; Goo- dell V. Jackson, 30 Johns. 698; Mitchell v. United States, 9 Pet. 711. The Indians have not been considered as citizens, how- ever, but as dependent tribes or political societies under domestic subjection, entitled to be governed by their own usages and rulers, but placed under the tutelary protection of the United States, and subject to government coercion so far as the public safety requires. They are also recog- TIT. ll.j INDIA5JS. 63 nized to have a quasi national status ; and their existence, rights, and competence as distinct political bodies are rec- ognized through various treaties made with them, both by the Colonial, Federal, and State governments. Goodell V. Jackson, 20 Johns. 693; overruling 15 ib. 264; Cherokee Nation v. State of Georgia, 5 Pet. 1 ; Worcester v. State of Georgia, 6 Pet. 515. The general statutes of naturalization have been held not to apply to them. Nor do they become citizens of the United States, through being declared electors by any one State. Under the United States statute of Apr. 9, 1866, ante, p. 59, and the above constitutional amendment (amend. XIV, ante), Indians would now seem to be classed as citizens of the United States, and of the State where thej' reside, provided they are taxed as are other citizens. For an instance of a law authorizing a treaty with the Indians in this State, tide Laws of 1813, 36th sess. oh. 130. In this State the Indians are considered to hold their lands as quasi owners or occupants, except that they can- not sell without the assent of the State. Charters or pat- ents therefore issued, bearing on the title to lands occu- pied by Indians, before their right is extinguished, only give the pre-emptive or ultimate fee. Such pre-emptive proprietors, previous to their acquiring the Indian title to the land, have merely an exclusive right to purchase from the Indians their lands, but not a right to interfere with or control the use and enjoyment of them while the title re- mains with the Indians. Ogden V. Lee, 6 Hill, 546; affirmed, 5 Denio, 638; Wadsworth v. Buffalo Hydraulic Ass'n, 15 Barb. 83; The People v. Snyder, 51 Barb. 589; affirmed, 41 JSr. T. 897; Blacksmith r. Fellows, 7 N. Y. 401 ; 19 How. U. S. 866. Subject to this right of possession or usufruct, the ultimate fee of land in the State became, on discovery and conquest, as stated in the first chapter of this treatise, vested in the Crown or its successors; and the Crown or the subsequent State government could confer it, sub- ject to the Indian possession. A purchaser from Indians, therefore, could acquire only the Indian title. They could 64 INDIANS. [OH. ni. not convey a complete title nor one paramount to the Crown or State. Mitchell V. United States, 9 Pet. 711 ; Johnson v. McTntosh, 8 Wheat. 543 ; Howard v. Moot, 64 N. Y. 263. The State, it is held, can appropriate to public use the lands of Indians only upon making compensation therefor. "Wadsworth v. Buffalo, &c. 15 Barb. 83. Purchases and Sales by Indians in this State.— As early as 1763, the Crown, by proclamation, prohibited purchases of Indian lands, unless at a public assembly of the In- dians, and in the name of the Crown, and under the superintendence of the Colonial authorities. By the Constitutions, and by various early enactments in this State, no purchase of, or contract with Indians, for the sale of land therein, made since October 14, 1775, or which might be made thereafter, was held valid, unless by consent of the legislature ; and a conveyance without such consent is treated as void. Parties were to be pun- ished for infringement of the provisions enacted; and intruders are to be removed. Constitutions of 1777 and 1832; Act of March 17, 17S8, 2 Green, 194. 195; Law of 1793, 8 Green, 73 ; 1 Rev. Law of 1801, p. 464 ; 1 R. L. of 1802; 3 R. L. of 1813, p. 153; — which last contains a summary of all laws then in force with reference to Indians in the State, and the rights and titles of the various tribes;— Law of 1831, ch. 304, p. 183; 1 R. Stat, of 1830, p. 719. Exception was made as to sales in favor of Indian patentees of land granted for military service. They might take by descent, and. after March 7, 1809, convey to citizens, with the approval of the State surveyor. 3 R. L. 175; 1 R. S. p. 730. See, also. Laws 1835, ch. 357. By the above Law of 1813, Indians residing in the Stite were prohibited from making contracts with respect to lands in the State, and forbidden in any way to give, sell, devise, or otherwise dispose of any such lands, or any interest therein, without the authority and consent of the li-grislature, except as provided in the act. Re-enacted, 1 Rev. Stat, of 1830, p. 719. Vide Goodell V. Jackson, 30 Johns. 693 ; St. Regis Ind. v. Drum, 19 Johns. 137 ; Seneca Nation v. Hammond, 3 Supm. 347. Law of 1843. — By Law of 1843, ch. 87, any native Indinn was authorized to purchase, take, hold, and convey lands in this State, in the same manner as if a citizen ; and whenever he became a freeholder to the value of one hun- dred dollars, he is to be liable on contracts, and subject to taxation and to the civil jurisdiction of courts of law and equity in the State, as if a citizen. This seems in conflict with the constitutional provisions, sup'-a. and also the Constitution of 1846; unless a distinction is drawn between an individual Indian and a tribe, and a general law may be considered as the consent of the legislature. Goodell v. Jackson, supra. Constitution of 1846, Art. 1, § 16. — This provides also that no purchase or contract for the sale of lands in this State, made since the 14th day of TIT, II.] INDIANS. 65 October, 1775, or which may thereafter be made, of or with the Indians, shall be valid unless made under the authority and with the consent of the legislature. Partition of Indian Lands. Laws of 1849, ch. 420.— By law of this date nations or bands of Indians owning and occupying Indian reservations in the State, and holding lands as common property, may, by acts of their respective governments, partition the same, so that they may hold the same in severalty in fee simple, according to the laws of the State. But no lands occupied and improved by any Indian, according to the laws and usages of the nation, shall be set off to any person other than the occupant, or his or her family. Provision is then made as to the mode of executing the deeds. The lands thus distributed and partitioned shall be inalienable by the gran- tees thereof, or their heirs, for twenty years after the day of the recording of the deed thereof, but they may be partitioned among the heirs of the gran- ^tee thereof who may die. They shall not be subject to any lien or incum- brance by way of mortgage, judgment, or otherwise. Laws of 1849, ch. 420. This Act of 1849 made also other provisions as to marriages of Indians. Construction of above Laws. — The above restrictions against sales by "Indians '' have been held to apply to one Indian. Goodell v. Jackson, 20 Johns. 693. Leases by Indians. — Vide Baker v. Johns, 38 Him, 625; Shehan v. Maher, 41 Hun, 609; construing the Act of Congress of 1875. Also Seneca Nation v. Polts, 15 Week. Dig. 390. Sales and conveyances against the above provisions are held void, no mat- ter how the Indian acquired title. Jackson v. Wood, 7 Johns. 290; Lee V. Glover, 8 Cow. 189. Removal from the State after void Sale.— It is supposed that if Indiana lease or sell lands without authority, and then remove from the State, Iheir removal will be held an abandonment, and their title will vest in the United States, or the State, as the case may be; or their gran- tees by operation of law. 3 Opin. Att. Gen. 230. Proceedings to Remove Intruders from Indian Lands. — Vide The People V. Tracy, 1 Den. 617 ; The People v. Soper, 3 Seld. 428 ; The People v. Dibble, 16 N. Y. 303— affirmed, 21 How. U. S. 366. Persons occupying In- dian lands without legal authority may be removed as intruders under the law of 1821, supra. Vide, also. Strong v. Waterman, 11 Paige, 607. Patent to an Indian and his Heirs. — Under a patent to an Indian and his heirs, they would take whether aliens or not. Goodell v. Jackson, 20 Johns. 693. Highways in Indian Reservations. — See O'Mara v. Commrs. &c. 3 Supm. Ct. 235 ; rev'd, 59 N. Y. 316. Sales of Timber by Indians. — See Seneca Nation v. Hammond, 6 Supm. Ct. 595. Entry without Legal Title. — Any entry by a person not an Indian, upon land included within the bounds of an Indian reservation, which is in the general occupation of a band of Indians, is an intrusion subjecting the offender to summary removal under ch. 204 of 1821, notwithstanding the intruder entered peaceably, with the assent of the Indian to whose posses- sion he succeeded. Such an intruder, before the Indian title has been ex- tinguished, and they have removed or been removed by act of the govern- ment, can acquire no such right as would extend to him the constitutional right of trial by jury. See The People v. Dibble, 16 N. Y. 203; affirmed, 21 How. U. S. 366. 66 MAKRIED WOMEN. [CH: III. An Act of March 9, 1831. relative to certain powers of district attorneys in the premises, was repealed by the general repealing Act of 1838. Tonawanda Band of Senecas.— FJ(?e acts collected, 2 R. 8. pp. 360, 371 ; also Act of Apr. 7, 1863, ch. 90, repealing Act of Apr. 17, 1861. Also, Laws of 1867, ch. 839; 1860, ch. 491. Allegany and Cattaraugus Reservations.— Act 1847, ch. 865, and of Apr. 15, 1859, giving the peace makers jurisdiction to grant divorces, and to determine differences between Indians involving the title to real estate on said reservations. As to marriages among them, vide 3 R. 8. 141 ; id. 147. As to taxes and sales of lands for. Laws of 1864, ch. 81. The Seneca Indians.— 8ee Act of May 8, 1845, ch. 150, as to the protec- tion and improvement of the Seneca Indians residing on the Cattaraugus and Allegany reservations. As to the title of the 8eneca Indians to the Cat- taraugus reservation, vide Ogden v. Lee, 6 Hill, 546 ; affirmed, 5 0en. 628. As to their constitution. Laws of 1865, ch. 134; 1848, ch. 208; 1849, ch. 378. Taxes— Laws of 1857, ch. 45. Oneida Indians. — As to these Indians, in Madison and Monroe counties, vide Laws of 1843, ch. 185; 1847, ch. 486; and statutes collected in 1 Rev. 8. p. 719, based on 2 Rev. Laws of 1813, p. 1 53. See, also, Laws of 1839, ch. 58. Onondaga Indians. — Contracts with, as to timber, bark, etc. on their lands, highways, etc. Law of 1855, ch. 36; 1857, ch. 659; Law of 1845, ch. 309; 1857, ch. 659. Tonawanda Beservation. — Law of Ap. 16, 1860, ch. 489; Ap. 7, 1863, ch. 90, Provisions were also passed with reference to lands, taxes, disputes, etc., among the Indians generally, by the Law of Ap. 10, 1813, ch. 39, above referred to, particularly with reference to the Brothertown, Stockbridge, Oneidas, Onondagas and Cayugas. Section 11 being repealed by Law of 1831, ch. 304; §§37, 39, amended by Laws 1841, ch. 334; and 1847, ch. 486; § 44 repealed by Laws of 1841, ch. 334, ?,nd § 47 by Laws of 1839, ch. 40. Vide, also, Shinecocks, Law of 1816, ch. 138: Stockbridges, Law of 1817, ch. 153; 1833, ch. 40; 1834, ch. 177; Onondagas, Law of 1822, ch. 205; St. Regis, Laws of 1841, ch. 148; 1859, ch. 364; Oneidas, St. Regis and Caughn- awagas. Laws of 1841, ch. 234; Brothertowns, ih.; Cayugas, 1851, ch. 198; Tuscaroras, Laws of 1854, ch. 175. Railroads over Indian Lands. — Laws of 1886, ch. 316. Jurisdiction over Indians in this State. — By Law of 1833, p. 303, incor- porated in the Revised Statutes of 1880, the courts of this State are to possess the sole and exclusive jurisdiction of punishing Indians, as well as others, for offenses committed within the State boundaries, except what are exclu- sively cognizable by United States tribunals. Title III. Married Women. By the common law, a married woman could not make a valid contract relative to real property, nor could she convey her lands by deed, either with or without the con- currence of her husband. By the common law, the only mode in which a mar- ried women could alienate her lands was by fine and re- covery. TIT. III.] MARRIED WOMEN. 67 Shepherd's Touchstone, article Fine ; 4 Cruise's Digest, tit. 32, Deed, eh. 11, §29; 1 Black. Com. 444; 2 Kent's Com. 150; Jackson v. Gilchrist, 15 Johns. 69 ; Fire Ins. Co. v. Bay, 4 Coms. (4 N. Y.) 9; Oonstantine v. Van Winkle, 6 Hill, 177. It will be seen, infra, that this rule was modified in the Colony of New York. A married woman and her husband also constituted but one person in law; and where land was conveyed or devised to them together they did not take by moieties. Both were seized of the entirety, and not as joint tenants, or tenants in common; and the survivor took the whole; and the deed of one without the other (if living) was in- operative. Jackson v. Stevens, 16 Johns. 610 ; Jackson v. Suffern, 19 Wend. 175 ; Barber v. Harris, 15 Wend. 615; Torrey v. Torrey, 4 Kern. (14 N. T.) 430; Doe V. Howland, 8 Cow. 277. This is the law as to joint ownership of husba'nd and wife, even since the acts of 1848, 1849 and 1860, post. Goelet V. Gori, 81 Barb. 314 ; Torrey v. Torrey, 14 N. T. 430 ; Farmers, &c. Bk. V. Gregory, 49 Barb. 155 ; Freeman r. Barber, 3 T. & C. 574 ; Beach v. Hollister, 5 N. Y. Supm. Ct. 568. A dictwn in Meeker v. Wright, 76 N. Y. 262, unsettled the law for some time, as it was supposed to indicate an opinion of the Court of Appeals that, in such cases, husband and wife took as tenants in common ; but the question was finally set at rest by the decision in Bertles V. Nunan, 92 N. Y. 152, which held the law to be as stated in the text, over- ruling Feely v. Buckley, 28 Hun, 451. See^osi, Chap. XI. Alien Husband. — An alien husband would take by survivorship lands conveyed jointly to him and wife, subject to being dispossessed by the people. Wright v. Saddler, 20 N. Y. 320. Conversion into Money. — When an estate so held as above by husband and wife is converted into money, the same belongs to the husband exclu- sively, in virtue of his marital rights. The Farmers', &c. v. Gregory, 49 Barb. 155. Habendum Clause. — So even if the habendum clause was express that they should hold as joint tenants, the above common law rule would still prevail. Dias v. Glover, 1 Hoffm. Ch. 71, and cases cited. Husband's Eight in the Joint Tenancy.— Where husband and wife hold the entirety, with right of survivorship, neither he nor she could alien the entire estate; but the husband could execute a mortgage of his interest, or he might make a lease in his own name, for the purpose of bringing ejectment Jackson v. McConnell, 19 Wend. 175. Under the common law also he might even alien or incumber the estate, subject to the right of entry of his wife and her heirs after his death, dis- charged from his debts and engagements, he having the control of the estate during his life ; and if it were a term for years, the husband might alien the entire term or estate. 3 Kent's Com. 132; Grote v. Locroft, Cro. Eliz. 187; Jackson v. McConnell, 19 Wend. 175; Barber v. Harris, 15 id. 615; Dias v. Glover, 1 HofE. Ch. R. 71 ; Goelet v. Gori, 31 Barb. 314. The husband's life 68 MARBIBD WOMEN. [CH. lU. interest and right of survivorship may be sold on execution. Beach v. Hol- lister, supra. If a grant were made to a husband and wife and a third person, the hus- band and wife would have only one moiety, and the third person the other. Barber v. Harris, 15 Wend. 615. Husband's Life Estate in Wife's Land.— By the prin- ciples of the common law, also, if the wife, at the time of or during marriage, were seized of an estate of inheritance in land, the husband, upon the marriage, became seized of the freehold jv/re uxoris, and he took the rents and profits during their joint lives. After her decease, if en- titled to it, he had his estate by the curtesy therein. K she survived him, she took the estate in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeed to the estate. 3 Kent, 130, 133; 2 Blacks. 136; Vartie v. Underwood, 18 Barb. 561. This right of the husband applied also to an estate held by the wife for her life, or for that of another person. Also to her chattels real, such as leases for years, unless the wife held them by way of settlement. If be made no disposition of the same in his lifetime he could not devise the chattels real by will; and the wife, after his death, took the same in her own right, without being executrix or administratrix to her husband. If he survived the wife, the law gave him her chattels real by survivor- ship. Marriage Settlements.— In order to give control to married women over their lands, it was usual to give them powers of appointment to make dispositions in the nature of a will, and to provide for them by marriage settlements, through trusts. These settlements, if made honafde, and in consideration of the marriage, would be sustained even as against creditors and purchasers; and even a post-nuptial voluntary settlement, upon the wife or children, if made without fraudulent intent, would generally be valid as against subsequent, but not existing, creditors. c..^^^^ v.. Livingston, 3 Johns. Ch. 481 ; Sexton v. Wheaton, 8 Wheat. 339. bhe might affirm any settlement of her lands made bv her durins wfancy. Temple v. Hawley, 1 Sandf. Ch. 153; Smith v. Hodges, 3 Otto, And if the wife parts, hona fide, with a full consider- ation, or if the settler is in prosperous circumstances, and the settlement is a reasonable provision, according to his TIX. UI.] MAKEIBD WOMEN. 69 state in life, post-nuptial settlements have been held good as to existing creditors ; and even a deed between hus- band and wife has been sustained in equity under such circumstances. Simmons v. McElwain, 26 Barb. 430 ; Babcock v. Eckler, 24 N. Y. 623 Dygert v. Remerschnider, 33 N. Y. 629 ; Seward y. Jackson, 8 Cow. 422 Parish v. Murphy, 13 How. U. S. 92; but see Case v. Phelps, 39 N. Y. 164 Savage v. Murphy, 34 N. Y. 508; Dunlap v. Hawkins, 2 N. Y. S. C. 292 afE'd, 59 N. Y. 342. As to transfer to protect against future creditors. Carr V. Breeze, 18 Hun, 136 ; rev'd, 81 N. Y. 584. Vide subjects "Dower," "Wills," "Trusts," "Fraudu- lent Conveyances,"etc., in subsequent chapters. Secret settlements made before marriage in derogation of tlie husband's marital rights, e. g., curtesy, would be under certain circumstances held void as to him. Settlements between the husband and a third person, as trustee, though originating out of and relating to a separation of husband and wife, are upheld, although such agreements are invalid between husband and wife directly. It may be questioned how far the laws of 1880 and 1887, infra, would affect such agreements. Champlain v. Ohamplain, 1 Hoff. Oh. 55 ; Shelthar v. Gregory, 2 Wend. 422 ; Wilson v. Wilson, 31 Eng. L. & Eq. 29 ; Rogers v. Rogers, 4 Paige, 516 ; Mercein v. The People, 25 Wend. 77 ; Hamilton v. Hector, 18 Eq. Ca. E. L. R. p. 511. Deeds between Husband and Wife. — A deed between husband and wife was void by the common law and passed no title, and transfers between them had to be made through a third person. A deed or contract be- tween them under certain circumstances, however, might be sustained in equity. Townshend v. Townshend, 1 Ab. N. C. 81 ; Jackson v. Stevens, 16 Johns. 110; Livingstone v. Same, 3 Johns. Oh. 537; Graham v. Van Wyck, 14 Barb. 531 ; Voorhees v. Presbyterian Church, 17 Barb. 103 ; Simmons v. Mc- Elwain, 26 Barb. 419 ; Lynch v. Livingstone, 6 N. Y. 422 ; Bamum v. Farth- ing, 40 How. Pr. 25; White v. Wager, 32 Barb. 250; 25 N. Y. 259; Hunt v. Johnson, 44 N. Y. 27. This still continued to be the law (see Johnson v. Eogers, 35 Hun, 267) notwithstanding the subsequent statutes of 1848-9, 1860, below referred to; and the rule which forbade a husband to take lands directly by con- 70 MAREIED "ft OMEN. [OH. III. veyance from his wife was considered still extant until 1887. White V. Wager, 33 Barb. 350; affirmed, 25 N. T. 338; The Fanners', &c. V. Gregory, 49 Barb. 155 ; Winans v. Peebles. 33 N. Y. 433, overruling 31 Barb. 371. Recent Acts.— By L. 1880, ch. 472, it is provided that jpa/rtition of lands held by husband and wife as tenants in common, joint tenants, or tenants by the entirety, may be made by deed from either to the other; and by L. 1887, ch. 537, deeds from husband directly to wife, or wife directly to husband, are not to be invalid because made directly from one to the other without the intervention of a third person. Release of Dower. — The old rule was held to apply even to a woman's dower right in her husband's real estate, which could not be released directly to him^even under the acts of 1848-9, 1860. Graham v. Van Wyck, 14 Barb. 530. See post, ' ' Dower. " Purchases and Gifts between them upheld in Equity.— See Wickes v. Clarke, 3 Edw. Ch. 59 ; and Crosby v. Berger, 11 Paige, 377, as to a purchase by the wife of the husband being upheld in equity, so as to support a post- nuptial settlement, or other agreement. Also Simmons v. McElwain, 36 Barb. 419; Jacques v. Trustees of Methodist Church, 17 Johns. 548, for instances of conveyances of such a nature being sustained and enforced in equity. Townshend v. Townshend, 1 Abb. N. C. 81. The cases held that the relation of husband and wife, and his duty to provide for her an assured and comfortable support, are a meritorious con- sideration, which will uphold a gift by conveyance of real estate from him to- iler for such purposes, except as against creditors. ' Vide above cases, and Hunt v. Johnson, 44 N. Y. 37, reviewing the leading cases in England and this country on the subject. Where a husband conveyed, through a third parly, to his wife, lands which she was intended to hold for his benefit, it was held that as against her heirs at law, there was a resulting trust in favor of the husband. Bitter V. Jones, 35 Hun, 493. So a conveyance by husband to wife of lands con- veyed to him without her knowledge, being a gift to her, was sustained. Lowry v. Smith, 9 Hun, 514. Conveyances by Married Woman. — The sole deed of a feme covert was not only inoperative, at common law, but it was of no force in this State, cmd could not pass title even if executed jointly with her husbcmd^ until it was duly " acknowledged " hy her, except as to property held in trust for her benefit. See ^os^, p. 79. There seems to have been a modification of the " common law " in this Colony and State, resulting from the laws and usages of the colony of New York I so that it was not necessary for the husband to join in a conveyance by a married woman residing within this State, of lands therein. Her " ac- TIT. III.] MAEEIED WOMEN. 71 Jmoicledgment," separate and apart from her husband, was alone necessary to pass title. Albany Firemen's Ins. Co. v. Bay, 4 Barb. 407 ; affi'd, 4 Corns. 9 ; Kelly V. McCarthy, 3 Brad. 7; Curtiss v. FoUett, 15 Wend. 337. If the deed was not acknowledged by the married woman, as required by the statute, it was void at law, and no title passed. Jackson v. Stevens, 16 Johns. 110; Martin v. Dwelly. 6 Wend. 9;-Gillet v. Stanley, 1 Hill, 131 ; Ryers v. Wheeler, 35 Wend. 434.' And parol evidence of her acknowledgment could not be given. Without a proper certificate of acknowledgment, the deed could not take efEect for any purpose. Elwood v. Klock, 13 Barb. 50. Prior to the Act of 1771, however, below cited, the acknowledgment by the married woman was not necessary to pass the title. Except that in 1683 a colonial act was passed, which was re-enacted on May 6, 1691 (1 Brad. 2), which provided that no estate of a, feme covert could be sold or conveyed but by deed acknowledged by her in some court of record, the woman being secretly examined as to her doing it freely, without threats or compulsion. This Act of 1691 was repealed by the king in 1697. Van Winkle v. Con- stantine, 6 HiU, 177; 6 Seld. 432. Subsequent Acknowledgment. — A subsequent acknowledgment by the wife would not revert back so as to make valid a deed not acknowledged by her, as against intervening titles. Jackson' v. Stevens, 16 Johns. 110; Doe v. Howland, 8 Cow. 377. Her acknowledgment of the deed, however, would revert back so as to make it valid from the time of such acknowledgment. li. Act of 1771. — ^The following are the acts of 1771 and others, by which the acknowledgment of married women was rendered necessary to pass title. By Law of February 16, 1771 (2 Van S. 611), it is recited that it was the ancient practice of the colony to record deeds upon the acknowledgment by the grantors, or proof by subscribing witness before a member of the coun- cil, a judge of the supreme or county court, or a master in chancery, and sometimes before a justice of the peace ; and also that certain deeds had been executed by married women not so acknowledged, etc. The act makes valid all deeds theretofore made hy married women where they had not been privately examined before such officers; hit provides that, to make title thereafter, there must be a private acknowledgment by her, apart from her husband, before one of the council, a judge of the Supreme Court, a master in chancery, or a judge of the inferior court of common pleas (other than mayor's courts) for that county where the lands lie. A certificate thereof, purporting that she had been privately examined, and confessed that she executed the convey- ance freely, without any fear or compulsion of her husband, was required to be indorsed on the deed, and signed by the officer. Act of 1773.— By Law of March 8, 1773 (2 Van S. 765), all deeds exe- cuted by married women, out of the colony, since February 16, 1771 ; or thereafter to be so executed in conjunction with her husband, will be valid if acknowledged before any officer mentioned by said Act of 1771 , or the Act of 1773, and the acknowledgment be written on the conveyance and signed by the officer. It shall specify that she was examined by him separate from her husband, and that she confessed that she executed such conveyance as her act and deed, freely, without any fear or compulsion of her husband. The act provided that the execution of the deed by the husband be proved, or acknowledged and certified, as required by said Act of 1771 or 1773. By Power of Attorney.— By said Law of 1773, conveyances by married women out of the State since 1771, or thereafter, by a power of attorney. 72 MARRIED WOMEN. [OH. III. shall be valid if the power is acknowledged by her and her husband, as be- fore directed, and be certified as above. Such deeds and powers may be read in evidence. See further as to acknowledgments by married women, Ch. XXVI, post; also, Ch. VII, "Dower." Constitutionality of the above Act of i77i.-With re- spect to the constitutionality of the above Act of 1771, and similar acts, it has been determined that a legislature has a constitutional power to declare deeds valid which are defective — e. g., through the failure of au officer to affix his seal to the acknowledgment, or other formal defects — but has no right to pass a law making valid conveyances which were not sufficient to pass title when made, under then existing laws.. Maxey v. Wise, 25 Ind. 1; Alabama Ins. Co. v. Blykin, 38 Ala. 510; Journeay v. Gibson, 56 Penn. St. 57 ; Orton v. Noonan, 33 Wis. 102. It could, however, make valid previously executed powers of attorney by mar- ried women to convey their estates, and the conveyances which had been made by virtue of said powers. Deutzel v. Waddie, 30 Cal. 138 ; Randall v. Kreiger, 33 Wall. 187. The above Act of 1771 has been, held not to be one either vesting or divesting titles, but an act confirming and quieting the title of hona fide purchasers. Before that act, there was no statute or charter in force here de- claring the acknowledgment of the married woman to be necessary to pass title ; but a loose and unsettled practice, as regards taking such acknowledgment, prevailed, as set forth in the recital to the above Act of Feb. 1771. Con- sequently, it has been held by the courts of this State, that deeds executed before its enactment, by husband and wife, were valid and operative as against those claiming under the wife, although not acknowledged by her in any form. Jackson v. Gilchrist, 15 Johns. 89; Constantine v. Van Winkle, 6 Hill, 177; 6 Seld. 433; Hardenburgh v. Larkin, 47 N. Y. 109. It has been held, however, that this act does not recognize or affirm the right of a, feme covert to appoint or act by agent or attorney ; therefore deeds executed by her through attorney before the subsequent Act of 1773, mpra, were void, a married woman having no power by the common law to appoint an attorney. Hardenburgh v. Lakin, 47 N. Y. 109. What possession necessary under Act of 1771. — A constructive pos- session was enough, under this Law of 1771, to cure the title to lands held before 1771. Jackson v. Gilchrist, 15 Johns. 89. TIT. III-I MARRIED WOMEN. 73 Act of 1792 as to Dower.— By Law of April 6, 1792 (2 Greenl. 452), it was provided that when married women, non-residents of the State, should join with their husbands in the conveyance on sale of lands, tenements, or hereditaments, they should be barred of dower therein. See post, Ch. VII, "Dower." Provisions in subsequent statutes as to the necessity of " acknowledgments " by married women to pass real estate.— By the provisions of the Laws of February 26, 1788 ; April 6, 1801 ; and Revised Laws of 1813 (vol. i, p. 369) ; and by the Revised Statutes of 1830, vol. i, p. 761, it is also provided that no estate of any married woman residing in this State, shall pass by any conveyance not acknowledged by her on a private examination apart from her husband, as provided by those laws. Acknowl- edgments by married women not residing in tlie State, of lands therein, may be taken as if she were sole to deeds executed with her husband. See particfularly as to the provisions of these laws, the form of acknowledg- ment; and, as to conveyances by ma/rried women not residing in the State, post, Ch. XXVI. And see " Powers of Attorney, "posi, Ch. XIIl, as to powers of attor- ney executed by married women out of the State ; and see as to " Powers " exe- cuted by married women, post, Ch. XII. Transfer of her Separate Estate. — Although at com- mon law a husband was required to join with his wife in executing a conveyance of her real estate, as to her sepa- rate estate, secured to her through trustees, she was treated in equity as a feme sole, and could dispose of it unless spec- ially restrained by the instrument ; and a mortgage exe- cuted by a woman upon her separate estate, even prior to the subsequent acts of 1848-9 and 1860, would be upteld in equity. Such disposition is in the nature of an appointment. Albany Fire Ins. Co. v. Bay, 4 Barb. 407; 4 Corns. 11; Jaques v. The Trustees, &c. 17 Johns. 549; And it has been held by the courts that the wife may dispose of such es- tate without the acknowledgment or private examination, such disposition being held in the nature of an appointment. Albany Fire Ins. Co. v. Bay, 4 Corns. 9. Effect of the above recited Common Law Rules.— It is to be remarked that the rules of the common law, as above set forth, are in force, except so far as modified by subsequent statutes. Modification of the Laws relative to Married Women, 1848, 1849, i860, 1862.— Act of April 7, 1848, ch. 209.— § 1. By law of this date the real and personal property of 74 MARRIED WOMBBT. [CBi. III. any female who may thereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts ; and shall continue her sole and separate property, as if she were a single female. § 2, The real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted. § 3. It shall be lawful for any married female to re- ceive by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, as if she were a single female, real and personal prop- erty, and the rents, issues, and profits thereof; and the same shall not be subject to the disposal of her husband, nor be liable for his debts, § 4. All contrdcts made between persons in contem- plation of marriage shall remain in full force after such marriage takes place. Law of April ii, 1849, ch. 375.— By law of this date, the 3d section of the above Law of 1848 was amended so as to read : " Any married female may take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if she were unmarried ; and the same shall not be subject to the disposal of her husband, nor be liable for his debts." This Law of 1849 further provides, in its second section, as follows, as to her trust estate : "Any person who may hold, or who may hereafter hold as trustee for any married woman, any real or per- TIT. in.] MARRIED WOMEN. 76 sonal estate, or other property, under any deed of convey- ance or otherwise, on the written request of such married woman, accoinpanied by a certificate of a justice of the Supreme Court that he has examined the condition and situation of the property, and made due inquiry into the capacity of such married woman to manage and control the same, may convey to such married woman, by deed or otherwise, all or any portion of such property, or the rents, issues, or profits thereof, for her sole and separate use and benefit." § 3. " All contracts made between persons in contem- plation of marriage shall remain in full force after such marriage takes place." This act applies to conyeyancea made to trustees by a woman for her own benefit, in contemplation of marriage, and subsequent to the act. Thebaud V. Schermerhom, 30 Hun, 333. See also Douglas v. Cruger, 80 N. Y. 15. The trustee has absolute discretion whether to convey or not and the coui't will not direct nor advise him. Matter of Brewer, 48 Hun, 597. Act of July 18, 1853, ch. 576.— As to Wife's Debts contracted before Marriage. — This act provides that an action may be maintained against the husband and wife jointly for any debt of the wife contracted before marriage, but the execution in any judgment in such action shall issue against, and such judgment shall bind, the separate estate and property of the wife only, and not that of the husband. The act further provides that any husband who may hereafter acquire the separate property of his wife, or any portion thereof, by any ante-nuptial contract or otherwise, shall be liable for the debts of his wife contracted be- fore marriage, to the extent only of the property so acquired, as if the act had not been passed. Act of March 20, i860, ch. 90.— By act of this date, § 1, the property, both real and personal, which any married woman now owns as her sole and separate property, that which comes to her by descent, devise, bequest, gift, or grant, that which she acquires by her trade, business, labor, or services carried on or performed on her sole or separate account; that which a woman married in this State owns at the time of her marriage, and the rents, issues, and proceeds of all such property shall, notwith- standing her marriage, be and remain her sole and sepa- rate property, and may be used, collected, and invested by her, in her own name, and shall not be subject to the interference or control of her husband, or liable for his 76 MAKEIED WOMEN. [OH. III. debts, except such debts as may have been contracted for the support of herself or her children, by her as his agent. The second section of this Act of 1860 refers to her personal property and earnings in business. The third section of this act, as amended by the Act of April 10, 1862, ch. 172, post, is as follows: " Any married woman possessed of real estate as her separate property may bargain, sell and convey such property, and enter into any contract in reference to the same, with the like effect, jn all respects as if she were unmarried. [And she may in like manner enter into such covenant or covenants for title as are usual in convey- ances of real estate, which covenants shall be obligatory to bind her separate property, in case the same or any of them be broken.] " The words in brackets were added by the Law of 1862, and a provision in the Law of 1860 struck out that "no such conveyance or contract .shall be valid without the assent in writing of her husband, except as hereinafter provided." The fourth, fifth and sixth sections of the Act of 1860 were repealed by said Act of 1862. These sections made provision as to the obtaining the consent of the husband or conveying without him, under an order of the Supreme Court. Under this provision of the Act of 18C0, consent need not be given at the time of the conveyance ; but if given at any time after would validate the deed. Wing t. Schramm, 79 N. Y. 619. Even if the consent were not obtained the deed was good as to all but the husband, s. c, 13 Hun, 317. The seventh section of the Act of 1860, as amended by the Law of 1862, provides that married women may sue with respect to their separate prop- erty, as if sole, and for damages to person and character, and may execute bonds, etc., in such actions as if sole; the bonds to be enforced against their separate estate. The provision as to bonds was not in the Law of 1860. Vide post, p. 79, Law of 1884, ch. 381, as to contracts by married women. The eighth section of the Law of 1860 was amended by that of 1862 so as to read, that no bargains or contracts made by any married woman in respect to her sole and separate property, or that which she might acquire by TIT. III.] MARBIED WOMEN. 77 descent, devise, bequest, pv/rchase, or the gift or grant of any person except her husband, and no bargain or con- tract with reference to her trade or business, under any State law, should render her husband liable. The words ^'■purchane " and " grant " were added by the Law of 1862. The ninth, tenth, and eleventli sections of the Act of 1860 were repealed by the Act of 1862. They provided that the wife should be joint guardian -with her husband of their children, and that at the decease of the husband or wife without minor child or children, the survivor should have a life estate in one-third of the other's real estate; and that on the decease of either intestate, leaving a minor child or children, the survivor should take all the real estate of the other, and the rents, etc., during the minority of the youngest child, and one-third thereof for life. See fully, as to " Guardians, post, Ch. XXV. The sixth section of the Act of 1862 provides that no man shall bind his child to service, etc., or part with the control of the child, or create any testa- mentary guardian therefor, without the consent in writing of the mother, if living. Vide post, Ch. XXV, as to Guardians. The seventh section provides that a married woman may be sued in any court of the State, and a judgment may be enforced against her separate estate, as if she were sole. The act was to take efiect on the 1st of July then next. Judicial Interpretation of the above Laws of 1848-9, 1860-2.— With respect to the effect of these recent acts upon rights already existing, the courts of this State hold that vested rights in the property of the wife already ac- quired under the law regulating the marriage contract, cannot be disturbed by legislative authority ; but that it is competent for the legislature to modify the incidents of the marriage relation in respect to the property to be ac- quired after the change of the law. With respect to property acquired after the acts took effect, the principle maintained is that the marriage con- tract does not imply that the husband shall have the same interest in the future acquisitions of the wife that the law gives him in the property she possessed at the time of marriage ; but that she shall have whatever in- terest, if any, the legislature, before she is invested with them, may think proper to prescribe. These laws have«been held unconstitutional, there- fore, and not to have a retroactive effect as to property acquired before the acts took effect; but not as to that acquired after, although the marriage occurred before. 78 MABRIED WOMEN. [OH. III. Holmes v. Holmes, 4 Barb. 295 ; Blood v. Colvin, 17 id. 147 ; Blood v. Humphrey, 17 id. 600 ; Watson v. Bonney, 3 Sandf. 405 ; Ryder v. Hulse, 34 N. Y. 373; Kelly v. McOarty, 3 Bradf. 7 ; Snyder v. Snyder, 3 Barb. 631 ; White V. White, 5 id. 474, 485; Sleight v. Read, 18 id. 159; Lawrence v. Miller, 3 Corns. 345; Vartie v. Underwood, 18 Barb. 561 ; Hatfield v. Sneden, 54 N. Y. 380; Tiemeyer v. Turnquist, 85 N. Y. 516. Contract. — A married woman may make a legal contract to purchase lands if she has a separate estate. Hinckley v. Smith, 51 N. Y. 31. As to lands so purchased, ejectment will lie by her against her husband. Wood v. Wood, 83 N. Y. 575. Mortgage. — Effect of duress on mortgage of married women. Vide Wallach v.Hoexter, 17 Abb. N. C. 367. Curtesy. — The husband's curtesy is not destroyed, un- less the wife have conveyed or devised the land, even as to lands acquired after the above acts. Vide " Curtesy," ^os«, Ch. VII ; Hatfield t. Sneden, 54 N. Y. 380. The Acts of i88o and 1887. — Reference is made to laws of those years, ante, p. tO, as to transfers from husband to wife. Right to Administer. — ^Nor is his right taken away to administer upon her estate, and take her personal estate left undisposed of, absolutely. 3 R. S. 1st ed. 74, 75; Shumway v. Cooper, 16 Barb. 556; Ransom v. Nichols, 33 N. Y. 110 ; Ryder v. Hulse, 34 ib. 373. By Laws of 1867, ch. 783, if she leaves descendants, he has no other right of distribution than such as a widow has in the personal estate of her hus- band. Barnes v. Underwood, 47 N. Y. 351. Covenants by Married Women.— By the common law a wife was not answerable in damages on her covenant of warranty entered into during coverture. By Law of March 20, 1860, a married woman, as is above seen, owning real estate, may contract for and con- vey the same as if sole, and make the usual covenants in the deed, which shall bind her separate property. (As amended by Laws of 1862, ch. 172.) Previous to the amendment, the consent of the husband or a county court was necessary. Before this act a feme coverfs covenants did not even work an estoppel, so as to indirectly transfer title. Carpenter v. Schermerhorn, 3 Barb. Ch. 814 ; Jackson v. Vanderheyden, 17 Johns. 167 ; Martin v. Dwelly, 6 Wend. 9 ; Dominick v. Michael, 4 Sandf. 874. See, for construction of mortgage clause binding her separate estate, Rourke v. Murphy, 12 Abb. N. C. 402. TIT. in.] MARRIED WOMEN. 79 She is now also personally liable for breach of covenant, out of her sep- arate estate. Kolls v. Deleyer, 41 Barb. 208 ; Sigel v. Johns, 58 Barb. 620. As to covenants to convey under a settlement made before 1848, vide Van Allen V. Humphrey, 15 Barb. 556. Acknowledgments. — It was held that, under the above laws, a '' married woman's acknowledgment " was un- necessary to pass title to lands acquired since the Statute of 1848. Blood V. Humphrey, 17 Barb. 660 ; Tale v. Dederer, 18 N. T. 365 ; Wiles v. Pick, 26 id. 42. And she may acknowledge the deed as if she were a, feme sole. lb. By L. 1879, c. 249, acknowledgments by married women to any instru- ments may be made as if they were sole. Vide post, Ch. XXVI, more fully, as to acknowledgments. Liability for Loans, Bents, etc. — She is liable for money lent to her and paid to her husband, when she represents that she desires it for the benefit of her separate estate. It is immaterial whether the money was so applied or not. McVey t. Cantrell, 70 N. Y. 295, dist'g'd, 71 N. T. 199 ; Cohen v. O'Connor. 5 Daly, 28; aflPd, 56 N. Y. 613. The representations may have been made by her subsequently, and still bind her. lb. Rent. — She is liable for whole rent of house, leased entire by her for bene- fit of her separate estate, even when part is used for residence of herself and husband. Mouheimer v. MuUer, 1 Week. Dig. 562. This principle distin- guished in Eustaphieve v. Ketchum, 6 Hun, 621. As to this latter case, see also Bush V. Babbitt, 25 Hun, 313. Brokers commissious on mortgage loans or sales. See Turner v. Stymers, 9 Week. Dig. 316. Money loaned to a married woman enlarges her separate estate, and she is liable therefor. Merritt v. Kinney, 18 Week. Dig. 316. Vide post, Law of 1884, as to the necessity of specifically charging her separate estate. Leasing Land, Ejectment, and Trespass. — Under the above laws a married woman may hire premises in her own name; and maintain an action in her own name for ejectment, or trespass thereon, without joining her husband. Fox V. Duflf, 1 Daly, 196; Darby v. Callaghan, 16 N. Y. 71 ; Graham v. Luddington, 19 Hun, 346, 348, n. She may also lease lands leased to her and contract as to them. Prevost V. Lawrence, 51 N. Y. 319. Contracts, Laws of 1884, c. 381.— By this act married women were authorized to contract in all respects as if sole, and their separate estates were made liable upon con- tracts, whether made for their benefit or not, and without necessity for special charge upon such separate estates. By § 2 contracts between husband and wife were ex- empted from the operations of this law. 80 MAKRIBD WOMEN. [OH. III. But see Noel v. Kinney, 106 N. Y. 74, holding that a married woman can authorize husband to make a note in her name. As to Lands Held Conjointly by Husband and Wife.— As before observed, the above statutes of 1848-9 and 1860 do not affect the principles of the common law above referred to, with respect to lands that may be held con- jointly by the husband and wife. Those statutes, it is held, were not intended to enable married women to take and hold property jointly with their husbands, as if they were sole, but to take, hold, and dispose of property as if they had no husbands. See Goelet v. G-ori, 31 Barb. 314 ; F. & M., i&c. Bank v. Gregory, 49 Barb. 155. See ante, p. 67, and a,\so post, Ohap. XI. All of the common law principles in this title, above referred to, are supposed to be still in force, except where specially abrogated or modified by the above statutory provisions. Mechanics' Liens. — Liens under the mechanics' lien laws attach on the separate property of married women, as well as on that of men. Hauptman V. Catlin, 20 N. T. 247. Actions against her Separate Estate. — In such an action her husband has no right to enter an appearance for her ; and she is not bound by the acts of an attorney who appears for her without her authority or knowledge. Lathrop v. Heacock, 4 Lansing, 1. The remedy against a married woman in equity to charge her separate estate for her contracts is superseded by the statutory provisions for judg- ment against her personally. (Law of 1863, ch. 172, § 7.) In the case of the Corn Ex. Ins. Co. v. Babcock (42 N. Y. 613), it is held that where a married woman, having separate real estate, expressly charges her individual property as surety for her husband's debt, she is rendered liable to an ordinary judgment for the amount; and the property to be charged need not be specified. See also, § 274 of the Code of Procedure as amended, § 1306 of the Code of Civil Procedure and the Law of 1862, supra. A charge by bond and mortgage would be valid. Kidd v. Conway, 65 Barb. 158. Hut she was not liable for deficiency unless she expressly covenanted to pay. Merely charging her separate estate was not enough. Mack v. Austin, 29 Hun, 534; affd, 95 N. Y. 513; McKean v. Hagan, 18 Hun, p. 65. But she would be, if the money was applied to the benefit of her separate estate. Jones v. Merritt, 23 Hun, 184. Or whe-e she charged her separate estate in express terms. Yale v. Dederer. 68 N. Y. 339. See for present law, L. 1884, c. 381, ante. Saratoga Co. Bk. v. Pruyn, 90 N. Y. 350. Improvements to Wife's Estate. — A married woman is not chargeable at law for improvements made to her sepa- rate estate under the husl:)aud's contract therefor. Nor is she or her estate chargeable in equity for such. TIT. IV.] ALIBJJS. 81 improvements made under tlie husband's contracb, where no fraud in her induced the contract. Ainsley v. Mead, 3 Lans. 116; overruling, 32 Barb. 371. Provisions of the Code of Procedure as to actions. — By the Code of Procedure, § 114, when a married woman was a party, her husband must be joined with her, except that when the action concerned her separate prop- erty she might sue alone ; when the action was between herself and her hus- band, she might sue or be sued alone; and in no case did she need to prose- cute or defend by a guardian or next iriend. Where husband and wife had joint interests, they must be united In the action. See the cases under the head of actions for or against husband and wife. (Voorhis' and also Wait's edition of the Code of Procedure.) By this Code also, § 387, an execution might issue against a married woman, and it should direct the levy and collection of the amount of the judgment against her, from her separate property, and not otherwise. For cases under this section, see as above. See also, Dunham v. Sage, 53 N. Y. 2S9. Provisions of the Code of Civil Procedure.— By § 450 of the Code of Civil Procedure, a married woman, as a party to an action or special proceeding, is in all respects as if sole. See cases collected in Bliss' edition of Code. Powers of Attorney. — It has been questioned whether, since the above acts of 184>5-9, a power of attorney to convey her land, executed by a wife to her husband, was valid. Hunt V. Johnson, 19 N. T. 279; but see Act of 188T, mpra,. Wills by Married Women. — Vide post, Ch. XV. A married female in- fant could not devise. Zimmerman v. Schoenfetdt, 3 Hun, 693. Married Women as Executrixes, Administratrixes, and Guardians. — Vide post, Ch. XVII and XXV. Partition of Land between Husband and Wife. — By L. 1880, c. 472, deeds to partition land held jointly by hus- band and wife may be made directly by either to the other. Title IV. Aliens. By the common law, an alien cannot take real prop- erty by descent or other mere operation of law, but can by act of a party transferring it. By said law, also, an alien could not have curtesy or dower; nor could a natural-born subject take through an alien, because an 6 82 ALIENS. [CH. III. alien had no inheritable blood through which a title could be deduced. An alien could, by the common law, take by devise or conveyance ; but if he took by devise or conveyance, he could only hold until inquest of office by the State ; and his title, during life, vras only defeasible by such pro- ceedings. His title to land thus held would be good against every person except the State ; and his deed would be good against himself only, and not against the State ; but as he was incompetent to transmit by descent, on his death, or on the death of a citizen, without other than alien heirs, the land would instantly escheat to and vest in the State, without legal proceedings. Craig V. Radford, 3 Wheat. 363 ; Doe v. Governeur, 11 Wheat. 353 ; The People V. Conklin, 2 Hill, 67; Jackson v. Green, 7 Wend. 333; Jackson v. Fitzsimmons, 10 Wend. 10; Fairfax v. Hunter, 7 Granch, 603; Wadsworth V. Wadsworth, 13 N. Y. 876 ; Craig v. Leslie, 3 Wheat. 563 ; Munro v. Mer- chant, 38 N. T. 9; Heeney v. Trustees, &c. 33 Barb. 360 ; affirmed, 39 N. T. 338; Goodrich v. Russell, 43 N. Y. 177; Wright v. Saddler, 20 N. Y. 320; Osterman v. Baldwin, 6 Wall. 116. Vide also ira/ra, Ch. XXXIII, title " Escheat : " also post, " Devises to Aliens," Ch. XV. Under the principles above laid down, a son could not inherit from his grandlather, if his father was an alien, although son and grandfather were citizens. Brothers, or their descendants respectively, how^ever, might inherit from each other, though the father was an alien, the descent between them being immediate. Collingwood v. Pace, 1 Sid. R. 193 ; 1 Vent. R. 413 ; Jack- son V. Green, 7 Wend. 833 ; Parish v. Ward, 28 Barb. 328 ; McGregor v. Com- stock, 3 Coms. 408; Smith v. Mulligan, 11 Abb. N: S. 438; Luhrsv. Eimer, 80 N. Y. 171. And cousins, children of brothers who were citizens, might inherit from each other, though the grandfather was an alien. McGregor v. Comstock, 3 Ooms. 408 ; Banks v. Walker, 8 Barb. Ch. 438. But not if the descent had to be traced through an alien. And a nephew could not inherit from his uncle, if the former's father were an alien. Levy V. Levy, 6 Peters, 102; Jackson v. Green, 7 Wend. 333; Jackson v. Fitzsim- mons, 10 Wend. 1 ; Redpath v. Rich, 3 Sandf. 79. If the next heir of the person last seized, who had heritable blood, was an alien, the land did not therefore escheat, but went to a next remote heir, capable of taking. Thus, a younger son, being a citizen, would inherit from the father in preference to the elder son, an alien. Jackson v. Jackson, 7 Johns. 214 ; Orser v. Hoag, 3 Hill, 79 ; Orr v. Hodgson, 4 Wheat. 453. The estate would not go to the remote heir, however, if he could only de- duce descent through such alien. Levy v. McCartee, 6 Peters, 102. The capacity to take by descent had to exist at the time the descent hap- pened ; and subsequent naturalization will not enable, if alienship existed at the death of the one last seized. People v. Conkling, 2 Hill, 67 ; Heeney v. Brooklyn Benev. Soc. 33 Barb. 360 ; affirmed, 89 N. Y. 833. Naturalization, however, before office found, would enable the alien to hold an estate by purchase against the State. 2 Hill, p. 67, supra. TIT. IV.] ALIENS. 83 Aliens would not be held included in the general descriptive words " heirs at law." Orr v. Hodgson, 4 Wheat. 453. Although under a patent from the State to an alien and " his heirs," alien heirs are entitled to take, and the words are extended to all persons who might inherit. Act of April 2, 1798, ch. 73; of April 18, 1808, eh. 175; Jackson v. Etz, 5 Cow. 314, 897; Goodall v. Jackson, SO Johns. 693; Duke of Cumberland v. Grares, 9 Barb. 595 ; ib. 7 N. Y. (3 Seld.) 305. A trust to a citizen to sell lands and give the proceeds to an alien is held good. Anstice v. Brown, 6 Paige, 448. Adverse Possession. — An alien may hold by adverse possession as against a third person claiming title. Overing v. Russell, 33 Barb. 363. Sale by an Alien. — If an alien sold to a citizen, the right of forfeiture was not lost by the alienation, by the strict rules of the common law. Vide infra, changes by statutes of this State. Dower. — An alien woman was not, by the common law, entitled to dower. Mick V. Mick, 10 Wend. 379 ; Connolly v. Smith, 31 ib. 59. Vide post, "Changes by Statute." Joint Estate of Husband and "Wife. — The alienage of a husband does not prevent the vesting in him, upon the death of his wife, of the entire estate in land conveyed in fee to himself and wife, subject to escheat, on office found. Wright v. Saddler, 20 N. T. 330. Remainders. — A remainder in fee dependent on a valid life estate, may escheat before the death of the life tenant. The People v. Conklin, 3 Hill, 68. And by the common law, devisees in remainder, though aliens, can take and hold as against the heir, and all others except the State. Ib. Private Statutes. — A special statute, enabling an alien to acquire, hold, and alienate real estate, invests him with inheritable blood, and dying intes- tate, his estate would descend the same as that of a citizen by birth, and would not escheat, provided an heir capable of taking by descent could be found. Such a statute would not remove the barrier against alien heirs. Parish v. Ward, 38 Barb. 338. An authority to alienate as above would be authority to devise. Ib. Alien Laws in the various States. — In connection with the subject of alienage in this country, it is to be observed that the statutory provisions of the various States modi- fying the common law disabilities of aliens are not uni- form. In some States the disabilities are removed altogether, and aliens are put upon the same footing as citizens. These various laws, in giving or withholding the privilege of citizenship, have no extra-territorial effect, and the privi- lege is entirely local in its character. The laws of one State are not permitted to prescribe qualifications of citi- zenship to be exercised in another State, in opposition to the laws and local policy of that State. It has been held, therefore, that the article in the Consti- S4 ALIENS. [OH. III. tution of the United States (art. iv, § 2), declaring that cit- izens of each State were entitled to all the privileges and immunities of citizens in the several States, applies only to natural bom or duly naturalized citizens ; and if they re- move from one State to another they are entitled to the privileges that persons of the same description are entitled to in the State to which the removal is made, and to none other. Corfield v. Corgell, 4 "Wash. C. C. 371. Effect of Treaties. — As to the effect of national treaties on the political qualifications of aliens in a State, vide ante, this chapter, Title I. Also Bollerman v. Blake, 24 Hun, 187. Changes by Statute. — The statutes of this State have, on this subject, extensively modified the common law. The following is a summary of the laws, given chronologi- cally : Law of Feb. 28, 1789, ch. 42 (2 Green. 279).— By this law, the title of then citizens of the State, under sales to resi- dent aliens, since January 27, 1770, is not to be prejudiced by alienism in the grantee or of any person holding as by descent or otherwise since such grant or purchase. No title accruing between Sept. 3, 1783, and the pas- sage of the act, to citizens of the State, in lands granted by the colony prior to Oct. 14, 1775, shall be prejudiced on account of alienism of persons througb whom the title came. For the colonial laws respecting citizenship, vide a/ate, p. 6. By Law of April 2, 1798, all conveyances thereafter to any aliens not subjects to a power at war with the United States, shall vest the estate conveyed in him, his heirs and assigns, provided no rent service is reserved ; such convey- ances to be recorded within twelve months after date in secretary of State's office — otherwise the land to escheat. This law was to be in force only three years. An act declaratory of the construction of this act was passed March 3, 1819, ch. 25, p. 29, curing any TIT. IV.] ALIENS. 85 defects in titles then existing, and making any mortgages on said land eflfect- ual. Duke of Cumberland v. Graves, 7 N. Y. 305 ; The People v. Snyder, 41 N. Y. 397 ; 51 Barb. 589. Under the above Law of 1798, alien heirs could take by descent from an alien entitled to hold. Vide above cases. Also their alien devisees and assigns. lb.; and Watson v. Dunnell, 38 Barb. 653 ; How- ard V. Moot, 64 N. Y. 263, 270. By Law of March 26, 1802, ch. 49 (2 Kev. Laws, p. 540), purchases of land made or to be made by aliens who Jiave become inhabitants of the State, to an extent not over 1,000 acres, are made valid, and they may make mortgages on the sales thereof. This act also provided that the title of any citizen to land theretofore conveyed and then in his possession, should not be impeached through the alienism of any one through whom title was derived (excepting bounty lands in counties of Onondaga and Cayuga). The provisions of said act were, by Law of April 10, 1804, extended to the date of said last-mentioned act. (2 K. L. p. 543.) By Law of March 3, 1805, extended to all aliens who may have become inhabitants of the State a,t the close of the then legislative session. (3 Rev. Laws, p. 543.) Extended by Act of April 4, 1807, and April 8, 1808, to all becoming inhabitants at the close of the then session, and that such aliens might also take by devise or descent as well as by purchase. (3 R. L. p. 543.) These acts of 1803 and 1808 enabled aliens acquiring lands under those acts to transmit them by descent to their alien heirs. 5 Cow. 314 ; 7 N. Y. 305. By the above Law of 1807, the title of no citizen to lands theretofore conveyed was to be impeached for alienism of any through whom title was derived. Under these acts of 1803, 1808, if an alien died intestate, hia lands de- scended to his heirs, although they were aliens. If he died without heirs, the lands escheated ; but until office found, the State had no right to enter and take possession; and a grant by it before office found, conveyed no title. Jackson v. Adams, 7 Wend. 367. Dower. — As to dower of an alien widow mider the Law of 1803, vide Priest V. Cummings, 30 Wend. 338. The above laws were re-enacted in the revision of 1813, and a section was passed in 1813 (3 R. L. 543, § 3), which enabled alien mortgagees, who were authorized to sell and dispose of real estate, to re-purchase on foreclosure sales thereof, and to hold the same, as they were held by the mortgagor. Alienism of Ancestor— Possession before 1825. — By Law of 1826, ch. 297, no title of a citizen of the State who was in the actual possession of lands on April 21, 1825, or at any time before, shall be defeated or prejudiced, etc., on account of the alienism of any person through or from whom the title may have been derived. Re-enacted in the Revised Statutes of 1830. 86 ALIENS. [OH. III. Revised Statutes of 1830— Alienism of Ancestor.— By Revised Statutes of 1830, it is provided tliat uo person capable of inheriting shall be precluded by the alienism of any ancestor of such person. ■I -p a '754 This provision first altered the common law rule. It was taken from the English statute of 11, 13 William III, ch. vi, which, however, had no opera- tion in this State. Levy v. McCartee, 6 Pet. 102. This provision has been held prospective. Redpath v. Rich, 3 Sandf. 79; Jackson v. Green, 7 Wend. 333. . , . ■■ This provision is held to protect the inheritance, whether title was derived through Uneal or collateral ancestors, or both. McCarty v. Marsh, 1 Selden, 263 it does not, however, enable a person to take by inheritance by descent through a living alien relative of the deceased, who would himself inherit were he a citizen. McLean v. Swanton (citing The People v. Irvin, 21 Wend. 138), 13 N. T. 585; St. John v. Northrup, 23 Barb. 26. See modi- fications of this statute. Laws of 1868 and 1872, infra. Devises to Aliens.— Devises to aliens are declared void by statute, and the interest devised shall descend to the testator's heirs, if competent to take, and in default there- of to residuary devisees, if any are competent to take. (2 Eev. Stat, of 1830, p. 58.) Downing v. Marshall, 28 N. T. 366. This held not to apply to an alien devisee born after the death of the testator as not being within the strict words of the statute. Wadsworth v. Wadsworth, 2 Kernan, 376. Tide infra this title as to devises to aliens under more recent laws. Naturalization Laws and Citizenship.— As to citizenship and its renunciation, and the naturalization laws, and treaties bearing on citizenship, vide ante., this chapter, Title I. Holding Lands on a Declaration of Intention. — By Law of 1825,* p. 427 (as amended by Law of 1834, ch. 272), 1 Rev. Stat. p. 720, any alien who has or may come in the United States, on filing with the secretary of State a deposition to be taken before and certified by an officer authorized to take proof of deeds, of residence in and of intention to reside in the United States, and to be a citi- zen thereof as soon as he can be naturalized, and that he has taken the incipient steps for naturalization, may take * The original provision applied only to aliens becoming residents of this State. TIT. IV.] ALIENS. 87 and hold land to himself and heirs and assigns forever ; and for six years thereafter may dispose thereof and de- vise and mortgage the same in any manner as if a citizen (except by lease until he is naturalized). This Law of 1825 is held to apply to former alien residents as well. Ken- nedy V. Wood, 20 Wend. 330. The deposition is to be filed with and recorded by the Secretary of State, in a book kept by him for that purpose ; and the certificate, or a certified copy, is made evidence. By the Revised Statutes taken from the said Law of 1825, such alien was not to be capable of taking or hold- ing any lands or real estate, which may have descended or become devised or conveyed to him previously to his having become such resident and made the deposition aforesaid. It is held that the provisions of the Law of 1835, that the alien is not to be capable of taking land acquired by bim previous to his making the depo- sition, is merely a limitation of the preceding sections, and prevents his title thus acquired being good as against the people, but does not impair the com- mon law rule. The provision therefore leaves the common law in force as to lands previously acquired, and as to aliens who have not complied with the statute. Wright v. Saddler, 20 N. Y. 330. -By Law of 1826, p. 348, if the alien died within the six years intestate after filing the deposition, any heirs, inhabitants of the United States, would take as if he had been a citizen. This section was repealed by the general repealing Act of 1828, but in- corporated in the Revised Statutes of 1880. The above Act of 1825 was also incorporated in the Revised Statutes of 1830, the original act being repealed in the general repealing act. The Act of Nov. 35, 1827, conferred upon alien heirs of an alien denizen the right to inherit equally with those who were citizens — but not if the alien ancestor afterwards became naturalized. McCarty v. Terry, 7 Lans. 336. Mortgage Sales and Purchases Thereon. — The Revised Statutes of 1830 also provided that if an alien sell real estate, which he was authorized to dispose of, he, his heirs and assigns, may take mortgages for the purchase-money, re-purchase on any mortgage sale, and hold the same in the like manner and with the same authority as the same were originally held by the mortgagor. (2 Rev. Laws of 1813, p. 542.) Purchases of Lands without Filing the Certificate. — By Law of April 15, 1830, ch. 171, if a resident alien has purchased land without making the deposition, he may 88 ALIENS. [CH. III. hold it by filing the deposition within a year after the passage of the act. The act conflrnjs all grants, mort- gages, etc., theretofore made by such alien to a citizen of the United States. Even if he had not filed the deposition, an alien could still take by purchase, and hold against all but the State. 2 Hill, 67; 4 Edw. 395. This act was extended until April 15, 1835, hyJ^^^^i April 18, 1831, ch. 172; April 17, 1882, ch. 171; April 18, 1838, ch. leT^ ^ A la WW as passed May 13, 1836, enabling resident aliens to hold and convey land by filing the deposition within a year from the passage of the act, or taking the conveyance. This act was to be in force only for five years from date. The time was extended to April 13, 1839, within which the deposition might be filed by Act of February 7, 1838. See McCarty v. Deming, 4 Lan- sing, 440, as to such limitations as to time. Naturalized Citizens before 1843.— By Law of 1843 (ch. 87), any naturalized citizen of the United States, being grantee or devisee of real estate (legal or equitable) within the State, or to whom it would have descended if a citizen at the time of decease of the person last seized, may hold it as if a citizen at the time of purchase, de- vise, or descent cast ; and all deeds and mortgages there- tofore made by such citizen are confirmed. Reservation is made of escheats, if instituted, and of any vested in- terests. The above Act of 1843 is held not to apply to an alien who had not been in possession; and removes no disabilities as to alienage of ancestors, and none except growing out of the alienage of the party claiming its benefit. Redpath v. Rich, 3 Sandf. 79. This act also held purely retrospective, and not to remove the disability of an alien to take by descent. The naturalization must have occurred be- fore dSgee^jfSr. Heeney v. Trustees, &c., 33 Barb. 360; affirmed, 39 K. Y. 333. Rights 01 Grantees, etc., accruing before the Filing.— By Law of April 30, 1845, p. 94, ch. 115, any resident alien of the State who had or might thereafter purchase and take a conveyance of land in the State, or to whom it had been or might be devised before filing the deposition, might, on filing, hold the land as if a citizen of the United States at the time of acquisition. This Act of 1^45 does not operate to confirm a title previously conveyed by an alien heir. : Brown v. Sprague, 5 Denio, 545. TIT. IV.] ALIENS. 89 OitizeDs are not included under this act. Luhrs v. Eimer, 80 N. Y. 171. See for consideration of the efifect of this act, Goodrich v. Kussell, 43 N. T. 130; Hall V. Hall, 81 N. Y. 130 ; Maynard v. Maynard, 36 Hun, 227. Alien Resident's Heirs.— By same Law of 1845, § 4, the alien or other heirs of any alien resident of the State, who has taken or may take by cov/oeyance, may hold the land as if citizen, provided the male heirs file the deposition, if of age and not citizens, otherwise they shall not hold as against the State. By this law, alien heirs of resident aliens could take, but not if the intes- tate were a citizen. Larreau V. Davignon, 5 Abb. N. S. 367. The heirs may be non-resident aliens. Goodrich v. Russell, 42 N. Y. 177. Amendment of 1874.— By L. 1874, c. 261, § 4, of the Act of 1845, was amended so as to extend the provisions of that law to citizens or alien heirs of citizens or resident aliens. Amendment of 1875.— By L. 1875, c. 38, this section was farther amended so as to apply to alien or citizen dev- isees, as well as heirs of citizens or resident aliens. Stamm v. Bostwick, 40 Hun, 35. Devisees or Grantees of Resident Aliens.-r-By same Law of 1845, if any resident alien die who has taken or may take real estate by conveyance, his alien or other devisees or grantees may take and hold the same, provided that if of full age, and any are aliens, they file said deposition, in order to hold as against the State. Devises to Resident Aliens by Citizens. — These confer a conditional title defeasible only by the State until the making and filing of the deposi- tion to become a citizen. Hall v. Hall, 81 N. Y. 130. Grants and Devises by Aliens who have filed the Depo- sition.— By same Law of 1845, any resident alien who has purchased and taken, or may take by deed or devise, and who has filed or shall file the deposition, may grant and devise the land to any citizen or to any alien resident of the State ; but the latter, if a male of full age, must file the certificate. Grants and Devises by Aliens who have omitted to file the deposi- tions.— This does not defeat his grant or devise sanctioned by § 5 same law. Dusenberry V. Dawson, 9 Hun, 511; Hall v. Hall, 81 N. Y. 130. 90 ALIENS. [CH. III. Alien Resident Women Devisees.— By same Law of 1845, §§ 7, 8, every alien resident woman may take and hold real estate under the will of her husband, or any other person capable of devising real estate, and may execute any lawful power relative thereto. She may also take beneficial interests under trusts theretofore or thereafter created in lawful wills or mar- riage settlements, subject to the laws relative to uses and trusts. Confirmation of Former and Future Grants, Leases, etc., by Aliens.— By same law, § 9, every grant, devise, demise, lease, or mortgage of any land or interest therein, within this State, theretofore duly executed by an alien to any citizen of the State or to any resident alien capable of taking and holding real estate, or which may thereafter be made by any resident alien capable of taking and holding real estate within this State, to any citizen of this State, or to any resident alien capable of taking and holding real estate, or any beneficial interest therein ; and all rents reserved or hereafter reserved, and all law- ful covenants and conditions in any such lease or demise, are thereby confirmed and made effectual, as if made by or between citizens of this State. By § 13, all provisions of part 1, ch. 9, title 13 (relative to escheats), in- consistent with this act, are repealed, and the provisions of § 19 (38), title 1, ch. 1, part 3 (relative to aliens taking land sold under foreclosure of mort- gages to them), are made applicable. The Laws of April 39, 1833, and April 36, 1833 (relative to escheats), are repealed. Bona fide Rights not affected. — By same law, § 15, it is provided that nothing contained in the act shall prejudice the rights hona fde acquired by purchase or descent without notice before the act should take eflfect. Escheat Suspended. — The act also provided that all future proceedings to recover land held by a resident alien, by reason of his alienage, shall be suspended on his filing the deposition aforesaid, but reserves the rights, of the State in proceedings commenced, and also vested interests of any person. The act is not retrospective solely, but applies as well to aliens becoming residents subsequent to its passage. Hall v. Hall, 81 N. Y. 130. Confirmation of Grants, Leases, etc.— By the Law of 1857, ch. 576 (April 15), it is provided that the several TIT. IV.J ALIENS. 91 provisions of the above Act of 1845 are extended and ap- plied to any such grant, demise, devise, lease, or mortgage, as are enumerated in said Act, and vv^hich have been ih&retofore made, and shall be as effectual tq^pass the title thereto as though the persons by, from, or through whom the title shall have so passed had been citizens of the United States, and as though the several provisions of said act had been, as they are, re-enacted. " The deposition required to be made by tbe first section of said act shall be made and filed within two jears from the time when this act shall take effect ; and if any person who, according to the provisions of said act, is re- quired to make and file such certificate, shall omit to file the same within the time herein limited, be or she so neglecting or omitting to make and file such deposition or affirmation shall not be entitled to the benefit of this act. (This act to take effect immediately.)" An alien cannot avoid fulfilling a contract to purchase land on the ground that he is an alien. 1 Edw. 513. . A purchase-money mortgage given by an alien is valid, and only the equity of redemption escheats. The privileges conferred by statute on aliens are local and territorial in their nature. Leases by Aliens. — Vi&e "Estates for Years," Ch. YSl,fost. Trusts for Aliens. — Aliens were under like disabilities as to uses and trusts arising out of real estate. By the Revised Statutes, all escheated lands are liable to the same trusts as if they had descended. It has been held that on a conveyance of land to a citizen upon express trust to hold for the benefit of an alien in fee, the trust estate is acquired for the State. Hubbard v. Goodwin, 3 Leigh, 493; Leggett v. Dubois, .5 Paige, 114. Such a trust in a will is void. Beekman v. Bonsor, 23 N. Y. 398. On the other hand a conveyance of land to a citizen as trustee on express trust to sell the same and pay over the proceeds to a creditor who is an alien, is a valid trust. Craig v. Leslie, 3 Wheaton's Rep. 503 ; Anstice v. Brown, 6 Paige, 448. But not if done to avoid the alien laws. 5 Paige, 114. Alien as Trustee. — An alien can act as trustee, if otherwise capable of holding lands. Duke of Cumberland v. Graves, 9 Barb. 595; 7 N. Y. 305; and see post, '' Trustees," Oh. X. Administration, etc.— Letters testamentary and of ad- ministration cannot be granted to aliens if not inhabitants of the State. 3 Rev. Stat. 69, 75. Widows of Aliens and Alien Wives of Citizens.— By the Revised Statutes of 1830, the widow of any alien, who, at the time of his death, shall be entitled by law to 92 AI;IENS. [OH. III. hold any real estate, if she be an inhabitant of this State at the time of such death, shall be entitled to dower, of such estate, in the same manner as if such alien had been a native citizen. Alien Widows. — The naturalization of a feme covert, who is an alien, would not have a retroactive operation so as to entitle her to dower in lands of which her husband was seized during coverture, and which he had aliened previous to her naturalization. Priest v. Cummings, 30 Wend. 338. Aliens before 1802. — ^It is held that the widow of a natural born citizen, who was an alien when the Act of 1803 was passed, supra, is not entitled to dower under the provisions of that act, where the lands in which dower was claimed were acquired by the husband, and the marriage took place previous to the passage of the act. Ih. As to Act of 1825. — It has been held also, that, in view of the provisions of the Act of 1835, supra, an alien widow, whose husband being a citizen, purchased lands during their coverture in 1833 and died in 1838, was not entitled to dower. Currin v. Finn, 8 Den. 339; Sutliff v. Forgev, 1 Cow. 89; aff'd, 5 Cow. 713. Dower of Wife of Alien Resident.— By above Law of April 30, 1845, § 3, iS, the wife of an alien resident of this State who has heretofore taken by con- veyance, grant, or devise, and become seized of any real estate, and who has died before the passage of this act, and the wife of any alien resident of this State, who may hereafter take by conveyance, grant, or devise, any real estate within this State, shall be entitled to dower therein, whether she be an alien or citizen of the United States ; but no such dower shall be claimed in land granted or conveyed by the husband before this act shall take effect. Formerly an alien widow could not be endowed, though her husband were a citizen. Mick v. Mick, 10 Wend. 370; Connolly v. Smith, 31 Wend. 79. Alien Wife of Citizen. — By same chapter, § 3, any alien woman who has heretofore married or who may hereafter marry a citizen of the United States, shall be entitled to dower in the real estate of her husband, within this State, as if she were a citizen of the United States. Formerly the alien wife of a citizen could not have dower in lands pur- chased since the Act of 1825, unless she had filed the deposition as above. Currin v. Finn, 3 Den. 329. Held to apply to an alien woman residing abroad at time of marriage, although husband afterwards naturalized. Burton v. Burton, 1 Keyes, 359. See Goodrich v. Eussell, 43 N. T. 177. By Act of Congress of 1855, any woman naturalized and married to a citizen of the United States, shall be deemed a citizen. See above case of Burton v. Burton, and ante. Tit. I, as to said Law of 1855. This act is held to mean that whenever a woman who, under previous acts might be naturalized, is in a state of marriage to a citizen, she becomes by that fact a citizen also. Kelly v. Owen, 7 Wallace, 496. This Law of 1845 confers the right of dower on an alien widow of an alien resident, but is silent as to her rights where the land descended. By the ReT. Stats., supra, this was- covered. Marriage with an Alien. — Neither the marriage of a female with an alien husband, nor her residence in a foreign country, will constitute her an alien so as to prevent her taking real estate in this country. Beck v. McGillis 9 Barb. 85. TIT. IV.] ALIENS. 93 Law of 1868. Alienism of Ancestors.— The Law of May 1, 1868, ch. 513, provides as follows: The title of any citizen or citizens of this State to any land or lands with- in tlie State, and now in the actual possession of such citi- zen or citizens, shall not be questioned or impeached by reason of the alienism of any person or persons from or through whom such title may have been derived ; provided, however, that nothing in this act shall effect the rights of the State in any case in which proceedings for escheat have been instituted. See also, Renner v. MuUer, 44 Super. Ct. (J. & S.) 535. As to Alienage of Former Owners, &c. — Act of March 27, 1872, ch. 141. The title of any citizen of this State to lands therein is not to be questioned or impeached by reason of the alienage of any persons from or through whom such title may have heen derived. The rights of the State are reserved where proceedings for escheat have been commenced. Nothing in the act is to effect or impair the right of any heir, devisee, mortgagee, or creditor by judgment or otherwise. This act was re-enacted, L. 1875, c. 336. Descendants of Female Citizens married to Aliens. — Law of 1872,* ch. 120. By Law of March 20, 1872, ch. 120, it is provided that real estate in this State, now be- longing to or hereafter coming or descending to any woman born in the United States, or who has been otherwise a citizen thereof, shall, upon her death, notwithstanding her marriage with an alien and residence in a foreign country, descend to her lawful children of such marriage, if any, and their descendants, in like manner and with like effect as if such children or their descendants were native born or naturalized citizens of the United States. Nor shall the title to any real estate now owned by, or which shall * Reference may be made to a learned treatise on the alien laws of the various States of Europe and this country, bearing upon this question of the alienship of children of a female citizen married to an alien; by the Hon. W. B. Lawrence, of Rhode Island. (New York, 1872, Baker, Voorhis & Co.) 94 ALIENS. [OH. III. descend, be devised, or otherwise conveyed to such woman, or her lawful children, or to their descendants, be im- paired or affected by reason of her marriage with an alien, or the alienage of such children or their descend- ants. /- Act of April 24, 1872, as to Title through Aliens.— By law of this date (ch. 358), the title of citizens of the State to lands therein ^'heretofore'''' purchased by such citizens from aliens, and for which a conveyance has been taken from such aliens, is not to be impeached on account of the alienage of such persons, or by any devise of any such lands to any such persons, in any will being inoperative or void on account of the alienage of such persons. All devises heretofore made to aliens, from whom a convey- ance of such lands shall have been heretofore taken by citizens of this State, are declared effectual, so far that the title of such citizens shall not be affected by any in- validity of such devise. The rights of the State are reserved where proceed- ings for escheat have been instituted prior to January 1, 1872. Military Bounty Lauds held by Aliens. — Early statutes were passed on this subject in 1790, 1794, 1798, 1807, and 1813. Vide 1 Rev. Laws, p. 209. Private Acts. — ^Various private acta have been passed authorizing individ- ual aliens to take lands as if citizens. These acta have been in some cases held to confer upon the alien heirs also the right to hold lands. But this rule did not apply where the alien becomes a citizen. McCarty v. Terry, 7 Lans. 236. Title through Aliens.— L. 18T7,ch. 111. By this act it is provided that " the right, title, or interest of any citizen or citizens of this State, in or to any lands within this State, now held or hereafter acquired, shall not be ques- tioned or impeached by the reason of the alienage of any person or persons from or through whom such title may have been derived,''' saving rights of the State in proceed- ings then begun, as also the rights of heirs, devisees, mort- gagees, and creditors. There may be some doubt as to what the word " derived " in this act may be held to mean on adjudication. TIT. VI.] THOSE SENTENCED TO IMPBISONMENT. 95 Devises to Trustees for benefit of Aliens. — Although a direct devise to an alien is void (2 R. S. 57, § 4), yet a devise to a citizen in trust to receive the I'ents and profits of real estate and apply them to the use of an alien is valid. Marx V. McGlynn, 88 N. T. 357. One Citizen among Aliens. — Where all the heirs were aliens but one, who had been naturalized, held that he took the entire inheritance. Leary V. Leary, 50 How. Pr. 132. Title V. Coepoeations, Lunatics, Idiots. The right of the above classes to hold and convey land is reviewed at length in subsequent chapters. Title VI. Those Sentenced to Impeisonment. A sentence of imprisonment in a State prison for any term less than life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts during the term of such imprisonment. A person sentenced to a State prison for life shall thereafter be civilly dead. 3 Rev. Stat, of 1830, part 2, eh. 1, title 7. Provision is made by statute for the appointment of trustees of the estate of persons imprisoned for a term less than life. Their powers and duties are given in Rev. Stat. vol. ii, p. 15. As to service of process on such persons, vide 7 Paige, 150. It is held that service of process upon a convict in the State prison is valid , and gives the court jurisdiction. Davis v. DufBe, 4 Abb. N. S. 478. CHAPTER IV. OF ESTATES IN LAND. Title I. — Teanspkr, by what Law oovkrnbd. Title II. — Definition of " Estate " and Land. Title III. — The Feudal System. Title IV. — The Feudal Principle in this State. Title V. — Substitution op Allodial Estates for Feudal Tenure. Title VI. — Division op Estates. Title I. Transfer, by what Law governed. The title to real property, and all modes of its alien- ation or transfer, and the effect and construction of deeds conveying it, is exclusively governed by the law of the country where it is situated. Likewise, a title to land can only be lost under and by virtue of such law. In this country, rights affecting real estate are governed by the existing laws of the States where the lands are situated, respectively — the States being sovereign in that particular, and in all matters appertaining to their domes- tic concerns — unless it is otherwise provided by the Fed- eral Constitution. Clark V. Graham, 6 Wheat. 577 ; Story, Conflict of Laws, cb. x, § 424 ; Kerr v. Moon, 9 Wheat. 565 ; Levy v. Levy, 33 N. Y. 97 ; McCormick v. Sul- livan, 10 id. 193 ; White v. Howard, 53 Barb. 594 ; affirmed, 46 N. Y. 144 ; Oakey v. Bennet, 11 How. TJ. S. 33; McGoon v. Scales, 9 Wall. 33 ; Lynch v. Clarke, 1 Sand. Ch. 58^ ; Hosford v. Nichols, 1 Paige, 330 ; U. S. v. Pox, 4 Otto, 315 ; Brine v. Ins. Co. 6 Otto, 637. Consequently, the sale of land in one State, under authority of the court of another State, would pass no title, unless the parties in interest submitted to the juris- diction of the court. If the court obtained jurisdiction, so as to act in personam, it might compel a performance of contracts. Williams v. Fitzhugh, 37 N. Y. 444, and cases cited. TIT. I.] tra:n8Pee, by what law gotbrnbd. 97 The decisions of the tribunals, acting under the com- mon law, both in England and America, is, in a practical sense, uniform on the above subject. All the authorities in both countries recognize the principle that real estate, or immovable property, is exclusively subject to the law of the government within whose territory it is situate. As to the Capacity of Persons capable of Taking, etc., Realty.— In accordance with the above general principle, the party taking land must have a capacity to take, accord- ing to the law of its situs / otherwise he will be excluded from ownership. Thus, if the laws of a country or State exclude aliens from holding lands, either by succession, or by purchase, or by devise, such a title becomes wholly inoperative as to them, whatever may be the law of the place of their domiciL This principle extends to all per- sons incapacitated or restricted, in any way, by the laws of the place where the land lies, such as minors, married women, lunatics, etc. On the other hand, if, by the local law, aliens or others may take and hold lands, it is wholly immaterial what may be the law of their own domicil, either of origin or of choice. This is the rule also generally prevailing among civil jurists, althougli there is a diversity of opinion among them ; some claiming that the law of the capacity of an individual must be uniformly the same everywhere, and that the law of the domicil ought to regulate it. Boe v. Vardill, 5 Bam. & Cress. 438 ; Buchanan v. Deshon, 1 Har. & Gill, 380 ; Sewall v. Lee, 9 Mass. 3G3 ; Story, Conflict Laws, § 430 ; Boyce v. City of St. Louis, 29 Barb. 650. Vide ante, Ch. Ill, Title I, " Citizens ; '' also ib. Title IV, " Aliens," See also "Idiots," "Lunatics,"' " Infants," etc., ^o«<. In respect to real estate situated in this State, claimed by a foreign corporation, it is for the courts of this State to construe the charter of such corporation, and de- termine whether the corporation is authorized thereby to take or hold such real estate. A foreign corporation, not authorized by its charter, or by statute, to take and hold real estate, cannot take by devise lands lying within this State. Boyce v. City of St. Louis, 29 Barb. 650. See also. Chamberlain v. Cham- berlain, 43 N. Y. 424. 98 TRANSFER, BY WHAT LAW GOVERNED. [CH. IV. Medium of Transfer.— As regards the medium and forms of passing real estate, the rule is also that the local law governs. Hence, executory contracts for the sale, and devises and conveyances for the transfer of land, or any interest therein or lien thereon, must be made, executed, and delivered in accordance with the formalities of that law. In relation to a will, also, or instrument made else- where, transferring or affecting real estate in this State, it is the province of the courts of this State to construe such instruments, and pass upon their validity or invalidity ac- cording to the laws of this State. U. S. V. Crosby, 7 Cranch, 115 ; Cutler v. Davenport, 1 Pick. E. 81 ; Hos- ford V. Nichols, 1 Paige, R. 320 ; Willis t. Cowper, 3 Hamm. R. 134 ; Wil- cox's B. 378 ; Kerr v. Moon, 9 Wheat. 566 ; McCormick v. Sullivant, 10 Wheat. 193; Darby v. Mayer, 11 Wheat. R. 465; White v. Howard, 53 Barb. 394 ; affi'd, 46 N. Y. 144 ; Goddar v. Sawyer, 9 Allen (Mass.), 78 ; Chapiaanv. Robertson, 6 Paige, 627 ; McCraney v. Alden, 46 Barb. 373. An assignment of a mortgage, however, has been held to be governed by the law of the State where made, and not of the State where the property is. Dundas v. Bowler, 3 McLean, 397 ; 3 Story, Conf. Laws, § 435. Transfers by Operation of Law. — The principles above expressed apply equally (independent of any contract ex- press or implied) to transfers of immovables by opera- tion of law. Thus no estate of dower, or by the curtesy, or an inheritable estate or interest in immovable property, can be acquired, except by such persons and under such circumstances as the local law prescribes, and the law of the situs absolutely governs in regard to all rights, inter- ests, and titles in and to immovable property transferred as well by operation of law as by acts of parties. There- fore the law of this State would control, as to real estate within it, the succession or right of succession to such real estate, Brodie v. Barry, 3 Ves. & Beames, 137 ; Gambier v. Gambler, 7 Simm. R. 363 ; Story, Conflict Laws, § 463 ; White v. Howard, 53 Barb. 294 : affi'd, 46 N. Y. 144. ' The Subject-matter of Transfer.— The law as to the lex loci, prevailing as above stated, will apply not merely to what is actually immovable, but to what may be deemed TIT. II.] DEFINITION OF "ESTATE" AND LAND. 99 to partake of an immovable or real nature by the law of the locality. In other words, resort must be had to the lex loci rei for determining what is technically immovable heritable or real property. Thus servitudes, easements, rents, and other incor- poreal hereditaments and interests in, and appurtenances to land in this State, and structures thereon, would come within the legal definition of land as subject to the laws of the State. Chapman v. Robertson, 6 Paige, 627; Levy v. Levy, 33 N. Y. 97; Story, Con. Laws, § 464. As regards personal property the rule is different. It is supposed to have no locality per se, and follows the domicil of its owner, and the law of his domicil would regulate its condition and transfer. White v. Howard, 52 Barb. 294; aff'd, 46 N. Y. 144. Leasehold estate being personalty is governed by the law of domicil. Despard v. Churchill, 53 N. Y. 192. Compare Co. Civ. Proc. § 2700. Title II. Definition of "Estate" and Land. The word " estate " means whatever and all interest a person has in land. The word "land" comprehends, in legal signification, any ground or soil whatever, and all structures and things that are attached to or growing thereon. The word also includes " water," which, if the subject of conveyance, must be described as land covered by water. Vide Ch. XLIII, post, as to land under water. As to what is land with reference to tayation, vide Laws of 1881, ch. 293 ; also post, Ch. XL VI. The Revised Statutes of 1830 provide that the terms " real estate " and "lands," as used in chap, i, part ii, relative to estates in land, shall be con- strued as co-extensive in meaning with " lands, tenements, and heredita- ments." Vol. i, p. 750. By "land" in a wiU or deed, expectant estates will pass. Pond v. Bergh, 10 Paige, 140. Interests in Land.— The words " real estate," when applied to an interest in lands or other real property, in- clude all estates or interests which are held for life, or some greater estate, but do not embrace terms for years and other chattel interests in land. Westervelt v. The People, 20 Wend. 416. A servitude is an interest, but not an estate. Nellis v. Munson, 24 Hun, 575. 100 DEFINITION OF " ESTATE " AND LAND. [OH. IV. Incorporeal hereditaments also partake of the " realty," and are made the subjects of conveyance and inheritance. The most important of them are: easements, ways, aquatic rights, rents, rights of common, offices, and fran- chises. Land has also, legally, an indefinite extent upwards as well as downwards. The legal maxim is, " Cujus est solum, ejus est usque ad ccehimP 2 Bl. 13 ; 3 Kent, 401 ; Norris v. Baker, 1 Rol. R. 393 ; Lodie v. Arnold, 2 Salk. 458 ; 3 Step. Com. 500 ; Masters v. Pollie, 3 Rol. R. 141 ; Orabbe on Real Prop. § 96 ; 2 Bour. Inst. 158, 1670, 1576. Title deeds are so closely connected with land that the right to their pos- BCEsion passes with it. But where executors have a power of sale they have a right to the title deeds superior to that of a devisee. Mills v. Mead, 7 Hun, 36. OTHER INTERESTS. Timber. — The word "land," also, would apply to growing timber ; and contracts or deeds for the same are within the recording statutes. Vorebeck V. Roe, 50 Barb. 302; Goodyear v. Vosburgh, 57 Barb. 343; Hutchms v. King, 1 Wallace, 53; Warren v. Leland, 2 Barb. 613. Trees must be removed by a tenant of a nursery, or they become part of the reversion. So with structures. Brooks v. Galster, 51 Barb. 196 ; Lough- ran V. Ross, 45 N. Y. 792. As to removal of trees from a nursery by a mortgagor, see Hamilton v. Austin, 36 Hun, 138. As regards trees, also, it is held that a person upon whose lands a tree wholly stands is the owner of the whole thereof, and is entitled to all its fruit notwithstanding some of its branches overhang^the lands of another. HoSman V. Armstrong, 48 N. T. 201. Crops, etc. — As to trees, fruits, grass, and emblements, tide post, Chs. VF, VIII, XIV. Partnership Property. — As to whether land held by business partners is to De treated.as realty or personalty, vide post, Ch. XI. Equitable Conversion. Vide post, Chs. XIV and XV ; and as to when proceeds of re»l estate are treated as land. Stock of Land Company. — By Law of 1853, ch. 117, the stock of build- ing and land eojiy)anies authorized by the act is to be considered as personal estate. Stock of R. R. Companies. — This is also considered to be personal estate. Rent Charge. — A rent charge with condition of re-entry is held to be real estate. Van Rensselaer v. Hays, 19 N. T. 68; Cruger v. McLaughry, 41 N. Y. 219; and see post, Ch. V, Title III. Real Estate under the Statute of Descents. — As to this, vide post, Ch. XIV ; and as ts proceeds of infants' lands. Pew. — The interest of the lessee of a pew in perpetuity is an interest in real estate, and is sutgeetito all the incidents thereof. It is, howeyer, a mere TIT. 11.] DEFINITION OF " ESTATE " AND LAND. 101. right of occupaBcy,'and gives no right to the soil or to the body of the church. The interest of the pew holder is a qualified interest. It is limited to the use thereof during divine worship. It is limited, also, as respects time. If the house is burnt, or destroyed by time, the right is in general gone. The building and soil are vested in the religious corporation usually through trustees. In case of a destruction of a pew for convenience only, or in a wanton abuse of power by the trustees, a pew-holder will have a right of action for damages. Voorhees v. The Presbyterian Church, 8 Barb. 135 ; affirmed, 17 Barb. 103 ; St. Paul's Church v. Ford, 34 Barb. 16. As to the rights of pew-holders, vide Cooper v. First Presbyterian Church, 32 Barb. 222 ; and also as to above point, see post, Ch. XXIV, " Corpora- tions; " also Woodworth v. Payne, 74 N. T. 196 ; affirming, 5 Hun, 551. As to lease of seat in a theatre, vide Morse v. Cheney, 22 Blatch. 508; see also, " Easements," ^o««, Ch. XXXVI. Erections on Real Estate of Another.— When a build- ing is erected by one person on the land of another, it becomes part of the realty, and passes with a conveyance of the land. There are certain exceptions, based on the doctrine of estoppel, in equity. An exception, also, exists with respect to unattached constructions erected for pur- poses of trade or farming, by a tenant, during the time the relation of landlord and tenant exists, when the right of removal must be exercised during the terra, or imme- diately on its cessation. Brooks V. Galsten, 61 Barb. 196 ; Loughran v. Eoss, 45 N. T. 792 ; Ritch- mayer v. Morss, 3 Keyes, 349 ; Voorhies v. McGinnis, 48 N. Y. 278 : Noyes V. Terry, 1 Lans. 219. Soil removed and placed on the land of another becomes part of the realty in certain cases. Lacustrine Co. v. Lake Guano Co., 82 N. Y. 476. A telegraph wire placed on property of a railroad company by a telegraph company as a mere addition to a line owned by the former, but operated by the latter, becomes real estate, and passes by sale on foreclosure. N. Y. Ont. & W. R. R. Co. V. W. U. Tel. Co., 36 Hun, 205. Intention may make a mere attachment a fixture. Funk v. Brigaldi, 4 Daly, 359 ; and vice versa, Tifi't v. Horton, 53 N. Y. 377. Possession is necessary to bring an action for severance of fixtures. John- SOD v. Elwood, 53 N. Y. 431. Where a lessee who was bound to erect a building, put in also a boiler set in brick, which could not be removed without tearing up the sidewalk, the boiler was held a fixture. Finkelmeier v. Bates, 92 N. Y. 173. Fixtures annexed by a tenant under a perpetual lease, are subject to a previous mortgage by lessor. Davidson v. Westch. G. L. Co., 99 N. Y. 558. If a tenant having the right to remove fixtures on demised premises, accepts a new lease of the land, without reservation of or making claim to the buildings, his right of removal is lost, even if his possession has been continuous. Loughran v. Ross, 45 N. Y. 792. Be&post, ''Leases,'' "Mortgages," "Fixtures," etc. 102 ■ THE FEUDAL SYSTEM. [CH. IV. Title III. The Feudal System. The English estates at common law had their origin in the feudal system. The basis of this system was the allotment by the sovereign or military chief of tracts of land to his officers, and these again subdivided them among others. These beneficial allotments were called feuds, fiefs, or fees, and in the course of time were allowed to become hereditary, under definite maxims of inheritance . The paramount ownership of the land was still vested in the head of the community, who exacted, as a recog- nition of title and condition of tenure, allegiance and cer- tain services, military or otherwise, and fines and penalties annexed to the estate. When allegiance was withdrawn, or, in case of the death of the feudatory (or subsequently of his heirs), the land fell back or escheated io the suzerain. The like tenure or relation existed between the mesne lord and the sub-feudatory or "vassal," except as modified by statute. The fundamental doctrine of the feudal prin- ciple was that all land was held either mediately or imme- diately of the Crown. On the Norman conquest, the sys- tem became established in England ; from which country the Common Law, which was based on feudal principles, became established in the Colonial government of this State, and was adopted by the State Constitutions of 1777, 1822, and 1846, except as modified by the statutory law, or the several constitutions of the State. Common Law. — As to its existence here, vide ante, Ch. I, p. 25. Feuds, how Created.— The mode of investiture of a feud was by the words " dedi and concessit'' and by open notori- ous delivery of possession, generally, on the premises, and by a symbolical delivery of some article taken therefrom. This delivery of possession was called " livery of seizin.^'' The grant might be for years or for life, or hereditary ; the eldest male heirs taking in turn, as best calculated to TIT. IV.] THE FEUDAL PRINCIPLE. 103 defend the feud. A class of heirs also might be desig- nated, creating a fee-tail. Livery of seizin was necessary to give effect to a deed as a feoffment. Schott V. Burton, 13 Barb. 173. By the Eev. Stat, of 1830, feoffment with livery of seizin was abolished. 1 R. S. p. 738, § 156. Feuds at First Inalienable.— Feuds were at first inalien- able without the consent of the lord; being looked upon as a personal trust to the feudatory and tJwse of Ms Hood, In time, as military yielded to civil rule, the stringency of the system was relaxed, and feuds became alienable ; and various other modifications and changes were author- ized by law, or established by usage, until the English system of tenures grew into complex and extensive pro- portions, the feudal base of the system still being the prominent and controlling element, as well as the key for its interpretation. At the restoration in 1660, and by sub- sequent statutes in the reign of Charles II, the feudal sys- tem of tenure was virtually abolished; and the tenure of land turned into that of free and common socage, that is to say, not military nor dependent on the will of the lord. Title IV. The Feudal Principle in this State. The feudal principle of tenures is supposed to have, theoretically, at least, existed in this State during its Co- lonial existence, except as positively modified by English statutes and grants from the crown. By an act of Parlia- ment of 25th April, 1660, all military tenures were abol- ished from 24th February, 1645. The provisions of the act of this State of 1787, infra, abolishing feudal tenures, were taken from that English act. While the Colony was under the Dutch government these tenures, and all feudal 1G4 THE FEUDAL PEINCIPLE. [CH. IV. tenures, were unknown. The nearest semWance to them was the order of "^a^oon." Under a provision of the Dutch West India Company, any person who should plant a colony of fifty souls should be deemed a ^'patroon^'' should be entitled to select land, except on Manhattan Island, to a limited extent, and have an absolute property therein, " to be holden of the company as an eternal inher- itance, without its ever devolving again to the company," upon certain conditions of trading. The patroons had also the liberty of disposing of their estates by testament. By the articles of capitulation of 1664, with the English Colonel Nicolls, it was stipulated that the people should still continue free denizens, and should "enjoy their lands, houses and goods, wheresoever they are within this country, and dispose of them as they please^'' and the Dutch " were to enjoy their own customs" concerning their inheritances^'' The grant from Charles II to the Duke of York, of 12th March, 1664 (confirmed in 1674), was of all the lands, etc., in the province, to have and hold "in free and common socage^ and not in capite, hy hnight service, yielding annu- ally forty beaver skins." The tenure of land in the State seems therefore always to have existed as of common socage — *'. «., a service not military or dependent on the will of the lord, it being remembered that military tenures were abolished by the Act of 1660, 12 Charles II, ch. 24, supra. The principles enunciated by the courts, as to the feu- dal principles in this State, are, that no ultimate estate can remain in the grantor of lands in fee simple ; and he has no possible reversion, by escheat or otherwise ; and there are no conditions implied by law in his favor incident to the estate, such as existed under the ancient common law rules, arising out of the feudal relation. But in the decisions of the courts on this subject, an important distinction is drawn between conditions implied by the law of feudal tenures and those which the parties to a grant expressly mention and create in the conveyance, TIT. IV.] THE FEUDAL PKINCIPLB. 105 for tbe purpose of avoiding or defeating the estate. Any condition of the latter kind is held valid, if consistent with the general rules of law ; and if the condition ex- pressed in a grant be valid, a right of entry for its breach, reserved to the grantor or his heirs or assigns by the express terras of the grant, is also held valid, wholly inde- pendent of tenure. It has feeen held therefore, that since the Act of 1787, infra, concerning tenures, whatever was the law before its passage, it has not been possible to create a feudal tenure in this State ; although the owner of an estate might be liable to conditions of rents and services inserted in the deed (as are con- sistent with the general rules of law), which might run with the land and bind heirs and assigns. Van Rensselaer v. Hays, 19 N. Y. 68 ; Van Rensselaer V. Dennison, 35 N. T., p. 393; Cruger v. McLaughry, 41 N.T. 219. See also cases in Title IV, Oh. V, post. Dutch Grants. — As to these, vHe ante, Ch. I. Grants from the Crown after 1775. — Yidis ante, Ch. I. The Duke of York's Charter of 1683. provided for the removal of all feu- dal restrictions on real estate on tbe decease of the ancestor. This charter was revoked, ante, Ch. I. See also Act of 1691, repealed by the Crown. Restraints on Alienation.— By the Constitution of 1846, art. 1, § 15, all fines, quarter sales, or other like restraints upon alienation, reserved in any grant of land thereafter to be made, are void. See also more fully as to this, fo%t, Ch. V, Title IV. Socage Tenure.— By the Statute of 178T, infra^ rent, certain or other services, consistent with socage tenure, were still retained. By socage tenure is meant a fixed rent or service, not military nor liable to change by the will of the lord. See infra, Ch. V, Title IV, more fully as to this subject. General Knowledge of the Feudal Law.— Some knowl- edge of the feudal system of tenures, in view of the prin- ciples of the common law growing out of them, is still not an unnecessary branch of legal knowledge in this State. The interpretation to be placed upon constitutional and statutory law, an intelligent appreciation of the purposes of the changes effected by them, and the elucidation of legal principles in their daily application to the various phases of present civil life, are often due to the researche s 108 SUBSTITUTION OF AliLODIAL ESTATES. [OH. IV, amid the dim ruins of this venerable, social, and legal sys- tem. ' In the consideration of the principles of the common law, applicable to conditions determining "(xrants and leases in fee," in connection with the various constitu- tional and statutory changes in this State, has the light to be derived from an investigation of the ancient law of tenures been most frequently required ; and the variety and frequent change in the expression of the judicial mind, in the range of cases in this State on this subject, is a matter of remark. See a review of such cases, post, Ch. V, Title IV. As the most important of the cases relating to such conditional estates have been decided within the last half century, it is evident that some knowledge of the ancient law bearing upon the subject is still necessary. Title V. Substitution of Allodial Estates foe Feu- dal Tenuee in this State. The statutes of 1779 and 1787 of this State, which in terms abolished feudal tenures, are here given at some length, as frequent reference is made to their provisions. Their application is considered in Ch. V, Title IV, post. Act of 1779, Transferring the Seignory of Lands from the King to the People.— By Statute of Oct. 22, 1779, § 14, the absolute property of all messuages, lands, tene- ments and hereditaments, and of all rents, royalties, fran- chises, prerogatives, privileges, escheats, forfeitures, debts, dues, duties and services, by whatsoever names respect- ively the same are called and known in the law, and all right and title to the same, which next and immediately before the 9th day of July, 1776, did vest in or belong, or was or were due to the crown of Great Britain, were de- clared to be, and since the 9th day of July, 1776, to have been, and forever thereafter were to be, vested in the TIT. v.] SUBSTITUTION OV ALLODIAL ESTATES. 107 People of this State, in whom the sovereignty and seign- ory thereof are and were united and vested, on and from said 9th day of July, 1776 (1 Jones and Varick, 44). The Act concerning Tenures, of Feb. 20, 1787 (i R. L. p. 70). — § 1. The first section enacts, " That it shall for- ever hereafter be lawful for every freeholder to give, sell, or alien the lands or tenements whereof he or she is, or at any time hereafter shall be, seized in fee simple, or any part thereof, at his or her pleasure, so always that the purchaser shall hold the lands or tenements so given, sold, or aliened, of the chief lord, if there be any, of the same fee, by the same services and customs, by which the person or persons making such gift, sale, or aliena- tion before held the same lands or tenements; and if such freeholder give, sell, or alien only a part of such lands or tenements to any, the feoffee or alienee shall immediately hold such part of the chief lord, and shall be forthwith charged with the services for so much as pertaineth, or ought to pertain, to the said chief lord for the same par- cel, according to the quantity of the land or teoement so given, sold, or aliened ; and so in this case, the same part of the service shall remain to the lord, to be taken by the hands of the feoffee or alienee, for which he or she ought to be attendant and answerable to the same chief lord, according to the quantity of the land or tenement given, sold, or aliened, for the parcel of the service so due," By the 2d section, all wardships, liveries, primer seizins, etc., by reason of tenure by knight-service, and all mean rates, gifts, charges, etc., incident or arising for wardships, liveries, etc., are to be deemed taken away from the SOth Aug., 1664. Also, all fines for alienations, seizures and pardons for alienations, tenure by homage, and all charges arising from wardship, livery, tenure by knight service, relief, aids, etc., are taken away from the same date. All tenures by knights' service, and by knights' service in capitS; and by socage in capite, and the fruits and consequents thereof hap- pened or to happen, are abolished, any law, custom, etc., to the contrary notwithstanding. § 3. All tenures of honors, manors, lands, tenements, or hereditaments of any estate of inheritance at the common law, held either of the king or of any other person or persons, bodies politic, or corporate, before July 4, 1776, are turned into free and common socage, and are so to be construed from the time of the creation thereof and forever thereafter ; and said honors. 108 SUBSTITUTION OF ALLODXAIi ESTATES. [OH. IV. manors, etc., shall be forever discharged of all tenure by homage, escuage and charges incident to tenure by knight-service. By the 4th section, all conveyances and devises of manors, lands, tene- ments, or hereditaments, etc., shall be expounded as if said manors, etc., were held in free and common socage only. By the 5th section, the act is not to be construed as taking away rents •'ertain or other services incidental or belonging to tenure in common soc- age, due to the State or any mesne lord, or other private person, or the fealty or distresses incident thereto. By the 6th section, the tenure upon former gifts, grants, conveyance, etc., made, or hereafter to be made, or manors, lands, etc., of any estate of inheritance, by letters patent of the State, or in any other manner, by the people, or commissioners of forfeiture, shall be allodial, and not feudal; and shall be discharged from all wardships, aids, renders, fealty, etc., and all other services whatsoever. This Act of 1787 was repealed (3 K S. of 1830, Ist ed. p. 129), and the provisions of the Revised Statutes, p. 718, ib.; §§ 2, 3 and 4 substituted, as below given. See further, as to this act, Ch. V, Title IV", and as to the English statute, '■'■Qaia emptores^'' of which it was the substitute. Provisions of the Revised Statutes Abolishing Ten- ures, etc.— § 1. The people of this State, in their right of sovereignty, are deemed to possess the original and ulti- mate property in and to all lands within the jurisdiction of the State; and all lands, the title to which shall fail from a defect of heirs, shall revert or escheat to the people. § 2. All escheated lands, when held by the State or its grantees, shall be subject to the same trusts, incumbrances, charges, rents, and services to which they would have been subject had they descended ; and the Supreme Court shall have power to direct the attorney-general to convey such lands to the parties equitably entitled thereto, according to their respective rights, or to such new trustee as may be appointed by the court. § 3. All lands within this State are declared to be allodial; so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates, and all feudal tenures of every description, with all their inci- dents, are abolished. TIT. v.] SUBSTITUTION OF ALLODIAIj ESTATES. 109 § 4. The albolition of tenures shall not take away or discharge any rents or services certain, which at any time hsretofore have been, or hereafter may he, created or re- served; nor shall it be construed to affect or change the powers or jurisdiction of any court of justice in this State. Provisions of the Constitution of 1846.— Art. 1, § 11, The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State ; and all lands, title to which shall fail from a defect of heirs, shall revert or escheat to the people. § 12. All feudal tenures of every description, with all their incidents, are declared to be abolished, saving, how- ever, all rents and services certain, which, at any time heretofore, have been lawfully created or reserved. § 13. All lands within this State are declared to be allodial ; so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners according to the nature of their respective estates. § 14. No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid. § 16. All fines, quarter sales, or other like restraints upon alienation, reserved in any grant of land hereafter to be made, shall be void. Prior to the Constitution of 1846, there was no rule of law in this State prohibiting the reservation of a perpetual yearly rent in a grant of land in fee, as a condition of the estate, the breach of which might determine the estate. Van Rtnnselaer v. Dennison, 35 N. T. 393. It will be observed that in the Revised Statutes (vol. i, p. 718, § 4) rents and services certain which might thereafter be created or reserved, were ex- cepted in the clause abolishing the incidents of tenure. In the Constitution of 1846, those that thereafter might be created were omitted, and the saving clause only applied to those already reserved. The constitution further provides that — " AU grants of land within this State, made by the 110 DIVISION OP ESTATES. [CH. IV. king of Great Britain, or persons acting under his author- ity, after the 14th day of October, 1775, shall be null and void; but nothing contained in this constitution shall affect any grants of land within this State, made by the au- thority of the said king or his predecessors, or shall annul any charters to bodies politic or corporate by him or them made before that day; or shall affect any such grants or charters since made by this State, or by persons acting under its authority," etc. (Similar provisions are in the constitutions of 1777 and 1823.) Restraints on Alienation. — See post, as to "Restraints on Alienation," Ch. V, Title IV. Feudal Tenures in this State. — See further on this subject, post, Ch. V, Title IV. Title VI. Division or Estate, etc. By Eevised Statutes of 1830, part 2, ch. 1, title 3, § 1, estates in land are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance. " § 2. Every estate of inheritance, notwithstanding the abolition of tenures, shall continue to be termed a. fee simple ov fee ; and every such estate, when not defeasible or conditional, shall be termed a. fee simple absolute, or an absolute fee. § 5. Estates of inheritance and for life shall continue to be denominated estates of freehold ; estates for years shall be chattels real I and estates at will or by sufferance shall be chattel interests, but shall not be liable, as such, to sale on executions. § 6. An estate during the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real. § 7. Estates, as respects the time of their enjoyment, are divided into estates in possession and estates in ecc- pectancy. TIT. VI.] DIVISION OP ESTATES. Ill § 8. An estate m possession is where the owner has an immediate right to the possession of the land. An estate in expectancy is where the right to the possession is post- poned to a future period." Real Estate, Lands, etc. — The provisions of the Revised Statutes with relation to "real estate" and "lands," construe those terms as co-extensive in meaning with " lands, tenements, and hereditaments." Vested Rights. — None of the provisions of the chapter of the Revised Statutes relative to estates in land, except those converting formal estates into legal estates, shall be constmed as altering or impairing any vested estate, interest, or right ; or as altering or affecting the construction of any deed, will, or other instrument, which shall have taken effect at any time be- fore the chapter should be in force as a law. 1 R. S. Ist ed. p. 730. Vide Brewster v. Brewster, 33 Barb. 439 ; De Peyster v. Clendening, 8 Paige, 304; 36 Wend. 33. CHAPTER V. FREEHOLD ESTATES OF INHERITANCE. TiTLB I. — Fee Simple Absohite. Title II. — Fees Tail. Title III. — Conditional and Qualified Fees. Title IV. — Grants and Leases in Fee containing Conditions of Forfeiture. A freehold estate was, by feudal law, an estate held by a freeman independently of the will of the lord, as opposed to those of a lower order liable to be determined at his pleasure. The English common law writers divide estates into estates of inheritance or not of inheritance. The former were divided into — 1. Absolute, or fee simple. 2. Limited, such as estates in fee tail. Our Eevised Statutes of 1830 provide that every estate of inheritance, notwithstanding the abolition of feudal tenures, should be termed a fee sintple, or fee, and when without condition or defeasance annexed, a fee sim- ple absolute. Vol. i, p. 722, § 3. Title I. Fees Simple Absolute. Fees Simple.— A tenant in fee simple absolute holds to him and his heirs forever. It is the highest estate in law, and was the most extensive interest that one, by the com- mon law, could have in a feud ; being an absolute inher- itance, clear of any condition of limitation of duration or TIT. I.] FEES SIMPLE ABSOLUTE. 113 restrictions to particular heirs, but descendible to heirs generally. The estate confers an unlimited power of alienation. The word " AeiVs," by the common law is nec- essary, in some part of the grant, in order to confer a fee. If that word was omitted, only a life estate passed. This was a relic of the feudal rule, the donation being made in consideration of the personal abilities of the feudatory, .and for his benefit alone, unless otherwise provided. The rule continued in force in this State until abolished by the Eevised Statutes of 1830. Under the Duke of York's laws (1665), promulgated by the first English governor, Nicolls, estates of inheritance in fee could only pass under these words or words of a like effect, viz. : — " to have and to hold to, etc., his heirs and assigns forever." The strictness of the rule was modified by other rules, and when the transfer of the estate was by "fine" or " common recovery," releases by way of the extinguish- ment or discharge, partition, or to a " corporation ; " and transfers between joint tenants and tenants in common, also, where the intent of a testator in a will is evident to convey a fee, then a fee might pass. See more fully as to this, ^osJ, Ch. XV. Words of Inheritance not necessary since 1830, to pass a fee.— In this State the Revised Statutes of 1830 provide that the word " Aew's," or other word of inheritance^ shall not be requisite to create a fee; and every grant or devise of real estate, or any interest therein, thereafter to be execu- ted, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or inter- est should appear by express terms or be necessarily implied in the terms of such grant. ' Vol. 1, p. 748, § 1. The Revised Statutes also provide that in the construc- tion of instruments the courts shall carry out the manifest intent of parties. It will therefore he necessary, pursuant to the above common law rule, in examining title to real estate where the property passed before 1830, to observe, 8 114 FEES TAIL. [CH, V. whether in the deed or will transferring an estate, the proper words of inheritance are used. As to exceptions to the former rule in cases of de- vises, vide post, Ch. XV. Title II. Fees Tail. Among conditional fees at the common law was a fee restrained to some particular heirs — ^as to the heirs of a man's lody, or to the heirs male of his hody j in which cases only his lineal descendants, or his lineal male descendants, were admitted ; to the exclusion of collateral heirs and lineal females. On failure of these, the land reverted to the lord of the feud or his heirs. These gifts being on condition, if the grantee had the heirs indicated, the condition was considered d& performed, and the estate to which the condition was annexed became absolute, and the grantee could alien the estate, absolutely, after the designated class of heirs were in esse, and thus cut off the reversion. He could even alien on condition, prior to the birth of such issue. To prevent this action of tenants, the statute " De donis conditionalilms^'' 13 Edw. I, ch. i, was passed, which restored, in a measure, the feudal restraints and prevented the alienation, on heirs being born, and thus preserved the reversion. Under this statute it was determined that the donee took a fee tail (or fee taille, or cut-off), and the reversion- ary fee simple of the land remained in the donor expectant on the failure of. issue of the donee. It was also deter- mined that the grantee should have no power to alien the land, and so cut off the prescribed heirs. The several species or varieties of estates tail need not here be enumerated, as the estate, by our law, has been abolished ; although some of the principles and the history of these estates are given, as they have been in existence TIT. II.] FEES TAIL. ]J5 in this State up to a not very remote period, being now turned, by the Revised Statutes, into fees simple ; even at the present day, however, they are occasionally subjects of investigation before our courts. As the word heirs was necessary to create B,fee, so the word body, or some other word of procreation, was neces- sary to create a fee tail as a designation of the class to whom the estate was limited. Both words of inheritance and words of procreation wei-e therefore required ; and an estate tail necessarily implied issue, in an indefinite suc- cession. In wills, however, wherein greater indulgence is al- lowed, an estate tail might be created by less regular and technical mode of expression, provided the intent were manifest. Estates tail thus established remained for a certain time in full force and effect, under the influence of great landed proprietors, being conducive to their power and in- fluence, by preserving their estates in each family, A subsequent policy, however, allowed the heirs to be cut off, and turned the estate into a fee simple, through a " common recovery^'' which was a fictitious proceeding, in- troduced to evade the effect of the statute " De donis^'' and operating in law as an assurance and conveyance of the land. A y2ke had, as against issue, the same effect. These proceedings gave an absolute power of disposal of the estate, as if the tenant in tail were tenant in fee simple. Fines and recoveries were established by the statutes of this State. For the proceedings under them see " An Act concerning Fines and Recoveries, etc.," Law of Feb. 2a, 1787 (1 Green. 377), April 8, 1808 (5 Web. 405), Apiil 5, 1813, April 14, 1837. 1 Rev. Laws of 1813, p. 358. The Revised Statutes, however, expressly abolish them. 1 R. S., p. 343, § 34. Estates Tail Abolished.— Estates tail were introduced into the former part of the law of this State, subject to being barred by a fine or common recovery, until by Statutes of July 12, 1782, and of Feb. 23, 1786,(1 Green- leaf, p. 205 ; repealing the Act of 1782 ; 1 Eev. Laws of 1813, p. 52), they were abolished, and persons seized in 116 CONDITIONAL AND QUAIilFIED FEES. fOH. V. fee tail were to be deemed seized of the same, in fee sim- ple absolute. Grant v. Townsend, 3 Denio, 336 ; Lott t. Wykoff, 3 Corns. 355; Jackson T. Brown, 13 Wend. 347. The Act of July, 1783, acted prospectively. Jack- son V. Van Zandt, 13 Johns. 169. It has been held that this statute of 1786, included an estate tail in remainder, as well as in possession. Wendell v. Crandall, 1 Corns. 491 ; Van Rensselaer v. Poacher, 5 Den. 35 ; Van Rensselaer v. Kearney, 11 How. U. 8. 398. Estates tail are not proliibited by this statute, but when created are turned into fees simple. Lott t. Wykoff, 3 Corns. 355 ; Prindle v. Beveridge, 7 Lans. 325, affirmed as Lytte v. Beveridge, 58 K Y. 593 ; Rivard v. Gisen- hof, 35 Hun, 347. By 'Rev. Stat, of 1830, all estates tail are abolished, and it is provided that every estate which would be adjudged in fee tail, according to the law of this State as it existed previous to the 12th of July, 1782, shall there- after be adjudged a fee simple, and if no valid remainder be limited thereon, shall be a fee simple absolute. Where a remainder in fee shall be limited upon an estate tail, such remainder shall be valid as a contingent limitation upou a fee, and shall vest in possession on the death of the first taker without issue living at the time of such death. Vol. 1, p. 733, §§ 3, 4. Right to Alienate Lands.— By the Act of Feb. 20, 1787 (Sess. 10, ch. 36), all freeholders were authorized to alien at pleasure any lands whereof they were seized in fee sim- ple, subject to any services or charges thereon, and by the Revised Laws of 1813 any person seized of an estate in lands may alien the same. Also by 1 Eev. Stat., p. 719, § 10, any person capable of holding lands may alien the same, or any interest therein subject to the restrictions and regulations of law. Vide post, as to the Law of 1787 more fully. Title IV. III. Conditional and Qualified Fees, A base or qualified fee is one that has a qualification subjoined, and which must be determined whenever the TIT. III.] CONDITIONAL AND QUALIFIED FEES. 117 qualification annexed to it is at an end ; e. g., as a fee to one and his heirs, tenants of such a manor, or until the marriage of A. This estate, though a fee, and one which might endure forever, yet, as its duration might be deter- mined by collateral circumstances, was considered not an absolute, but a qualified or base fee, the condition being subsequent. Other qualified fees haVe conditions annexed, the performance of which is necessary to the vesting of the estate. The determinable quality of these fees follow any transfer thereof. The following conditions, or limitations, on fees have been held valid in this State : A grant on condition that the grantee, his heirs and assigns, shall not at any time manufacture or sell intoxicating liquor, etc., on the premises. Plumb v. Tubbs, 41 N. Y. 443 ; Smith v. Barrie, 32 Alb. Law Journal, 89 (Mich. 1885). Or keep a tavern there. Post v. Weil, 8 Hun, 418. On condition not to build on the land under penalty of forfeiture. Gibert v. Peteler, 38 N. T. 165. On condition that the grantee should support the grantors. Spaulding v. Hallenbeck, 39 Barb. 80. A devise to a person " until Gloversville shall be incorporated as a village." Leonard v. Burr, 18 N. Y. 96. A grant to the corporation of New York of land to be appropriated and used for a public square, etc. Stuyveaant v. Mayor of New York, 11 Paige, 415 ; Mayor v. Stuyvesant, 17 N. Y. 84. A grant on a condition to build and maintain a certain dam. 20 Barb. 455. To erect salt works. 2 Seld. 74. In Massachusetts, a devise of land to a town for a school-house, provided it be built within a certain distance of the church, has been held valid, as a condition subsequent ; and the vested estate would be forfeited and go over to the residuary devisee, as a contingent interest, on non-compliance, within a reasonable time, of the condition. Hayden v. Stoughton, 5 Pick. 528. A base fee held in trust on conditions determining it, is capable of trans- fer. Grant v. Townsend, 2 Den. 336; Mayor v. Stuyvesant, 17 N. Y. p. 34; 4 Kent, 10. And see fully on the point of leases in fee, rights of re-entry, determin- able fees, and restraints on alienation, infra, Title IV. The conditions, on which qualified or conditional fees are held, are either precedent or subsequent. A precedent condition is one which must take place before the estate can vest ; and in general the performance is necessary, and courts cannot relieve from the consequences of a non-per- formance. Whether a condition is precedent or subse- quent depends upon the intention of the parties as ex- pressed in the deed, or to be implied, therefrom; no express form of words being requisite. Towle T. Bemsen, 70 N. Y. 303, 311; 11 N. Y. 315. 118 CONDITIONAL AND QUALIFIED TEES. [OH. V. Subsequent conditions act upon estates already created or vested, and render them liable to be defeated — such as on failure to pay rent, or the performance of other stipu- lations. The effect of a deed with condition subsequent is to vest the estate in fee, subject to be defeated by omis- sion to perform, and entry by the grantor or his heirs, even though there be no clause of re-entry in the deed. •Where the condition has been once performed, and the estate vested thereunder, a subsequent failure to continue the performance of the condition does not, of itself, divest the estate. As the breach of a condition subsequent does not forfeit or divest the estate vested, but confers merely a right of entry on the grantor or his heirs, the perform- ance of the condition may be specifically or impliedly waived by them. The grantor or his heirs can alone enter for the breach of a condition subsequent. A stranger cannot do so. Also m&e, with reference to the above principles, Ives v. Van Auken, 34 Barb. 566; Spalding v. Hallenbeck, 39 Barb. 79; Ludlow v. N. Y. & H. B. K. 12 Barb 440; NicoU v. N. Y. & E. E. Co. 3 Kern. 121 ; Mead v. Ballard, 7 Wall. TJ. S. 290 ; Fonda v. Sparrow, 46 Barb. 109 ; Underbill v. Saratoga &c. R. R. 30 Barb. 456 ; Duryee v. Mayor of N. Y. 96 N. Y. 477 ; Wheeler v. Dunning, 83 Hun, 305 ; Towle v. Remsen, swpra. As to who is a stranger, vide Post V. "Weil, 8 Hun, 418. It is also a principal that if land is granted as one piece, subject to a condition, the condition is entire, and a breach of it gives a right to re-enter for all the land. Tinkham v. E. R. R. 58 Barb. 393. Tide also Title IV, infra. If the condition be destroyed, performed, released, or barred by estoppel or limitation, the estate is no longer defeasible, but becomes absolute ; and if the forfeiture is once waived, the courts will not enforce it thereafter. So also, if the reversion is granted by the maker of a condition contained in a previous grant, the condition is gone. Supra, 53 Barb. 398; Co.Litt. 315, a. b. ; Towle v. Remsen, 70 N. Y. 303; Wheeler v. Dunning, 83 Hun, 305. TIT. III.] CONDITIONAL AND QUAUTIED FEES. 119 Determination of the Nature of the Condition. — Whether the words in an instrument amount to a condition prece- dent or subsequent, or a limitation, or a covenant (sound- ing merely in damages), is matter of construction, and the distinctions on. the subject are nice and artificial, but In the main depend on the sense and meaning of the entire instrument. Erwin v. Hard, 13 Abb. N. C. 91 ; Stanley v. Colt, 5 Wall. 119; McCul- lough V. Cox, 6 Barb. 387 ; Underbill v. Tbe Saratoga, &c. K. R. 20 Barb. 455; Parmlee v. Oswego, &c. R. R. 2 Seld.74; Fonda v. Sage, 46 Barb. 109; and see poet, this chapter. See 2 Abb. N. C. 56 ; Post v. Bernheimer, 31 Hun, 247. In determining whether a condition in a deed is prece- dent or subsequent, the main test is whether the vesting or enlarging of the estate granted by the instrument con- taining it, is postponed until the happening of the contin- gent event forming the condition, or is to be divested by it. If the act or condition does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if, from the nature of the act, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent. The prece- dence of conditions, therefore, depends upon the order of time in which the intent of the transaction requires their performance. Illegal and Impossible Conditions, etc.— If the condition be impossible at the time of making it, or against law, the estate, being once vested, becomes absolute. So if the condition be personal, as that the lessee shall not seU without leave, the executors of the lessee, not being named, may sell without incurring a breach. So also illegal conditions would be nugatory, suet as a general restraint against marriage (except as against the testator's widow), or conditions against public morals or policy. 120 CONDITIONAL AND QUALIFIED FEES. [OH. V. So also if the performance of the condition which is to divest an estate becomes impossible by the act of God, the condition is discharged. McLachlan v. McLachlan, 9 Paige, 534. Non performance of a Condition Precedent. — Advantage cannot be taken of the non-performance of a condition Brecedent by one who has him- self prevented its performance. Jones v. Walker, 12 B. Men. 163; Lamb v. Clark, 2 Wms. (39 Vt.) 273. And, under a condition precedent, the right to the estate does not accrue, although the performance of the condition becomes impossible by the act of God. Mizell v. Burnett, 4 Jones' Law (N. C), 249; Wells v. Smith, 2 Edw. ch. 78; affl'd, 7 Paige, 22. Condition Lost by License. — If a lease contained a condition that the lessees or their assigns should not alien without license, a license given to one of three lessees dispenses with the condition as to all, on the ground that, the condition being entire, it cannot be apportioned or divided. This, however, would not be the case with a covenant not coupled with a condition. Smith's Leading Cases; Dumpor's Case, 4 Co. 119, b. ; 4 Taunt. 735; 14 Veaey, 173; Dakin v. Williams, 17 Wend. 447; affl'd, 22 Wend. 201. Tender of Performance. — A tender of performance at the day, will save a condition ; and, if the tender be refused, the land may be discharged, as in the case of a mortgage, while the debt remains. 4 Kent, p. 146. Covenants as Conditions. — Where mutual covenants in an instrument go to the whole consideration on both sides they are held mutual conditions, the one precedent of the other ; but when the covenants go only to a part of the consideration, the remedy is by damages, and the covenant is held not a condition precedent. Boone v. Eyre, 1 H. Bl. 254; McCullough v. Cox, 6 Barb. 887; 2 Abb. N. C. 56 ; Countryman v. Beck, 13 Abb. N. C. 110. In the case of Grant v. Johnson (1 Seld. 247), the dependence or inde- pendence of covenants is held determined by the order of time of their per- formance. The courts will incline to consider a clause a covenant rather than a con- dition. Countryman v. Beck, 13 Abb. N. C. 110; Howell v. L. I. R. B. Co. 37 Hun, 381. Conditions implied by Law. — The doctrine of estates upon condition in law, that is, such estates as had a con- dition impliedly annexed to them, without any condition expressed in the deed or will, resulted from the obliga- tions arising out of the feudal relation. Estates for life or years were held on implied conditions that the tenant should not alien nor commit waste, or do any other act prejudicing the reversion. Rents and services of the feudatory also were considered as conditions annexed to TIT. III.] CONDITIONAIj AND QUALIFIED FEES. 121 the fief, and, oa default, the donor or his heirs might re- sume possession, and no other persons could, by the com- mon law, take advantage of conditions that required a re- entry to re-vest the estate. When the grantor entered he was seized as of his former estate. His entry, or that of his heirs, defeated the livery made on the creation of the original estate, and, consequently, all subsequent estates or remainders depen- dent thereon. Couditions in Terms for Years. — Where land is given for a term of years, and a condition is annexed determining it, the estate ipso facto ceases as soon as the condition is broken without an entry. An exception to the rule is where the lease provides, expressly, that the landlord shall enter in case of a breach of the condition. 6 Bar. & Cress. 519; Parmelee v. Oswego, &c. E. R. 6 IST. Y. (3 Seld.) 74; Brown v. Evans, 34 Barb. 494; Beach v. Nixon, 5 Seld. 35; Stuyvesant v. Davis, 9 Paige, 431. Actions by Third Parties. — It is lield that persons not parties to a con- veyance may have an action in equity for breach of covenants made for their beneit. Gibert v. Peteler, 88 N. T. 165. As, for example, restrictions against nuisances. Barrow v. Richard, 8 Paige, 351 ; Bleecker v. Bingham, 3 Paige, 346. But breach of a condition will not be enjoined. Brwin v. Hurd, 13 Abb. N. C. 91. And it is a general rule that any one who has an interest in the condition, or in the lands to which it relates, may perform it. Wilson v. Wilson, 38 Maine, 18. Conditions Subsequent as Restraints on Alienation, etc. — Courts will relieve parties, if possible, against the results of non-performance of conditions subsequent, especially where the result of accident or omission ; although they will not relieve against acts of commission directly in the face of the instrument. Conditions suiseqtient are not favored by law, and are construed strictly, and if they are or become impossible, either by the act of God or of the law, or of the grantor, the estate is relieved from them. Conditions are not sustained when they are repugnant to the estate granted, such as a condition annexed to a conveyance or devise in fee, that the grantee or devisee should not alien, or commit waste, nor his wife have dower. Newkirk v. Newkirk, 2 Caines, 345; De Peyster v. Michael, 2 Selden, 468; Jackson v. Delancey, 13 Johns. 537; Same v. Robins, 16 Johns. 537. As to condition reserved in leases in fee, rights of entry, etc., vide post, this chap. Title IV. 122 GEANTS AND LEASES. [CH. V. As to strictness of construction of condition, see Woodwortli v. Payne, 74 N. Y. 196. Limitations.~If the estate be limited in duration, the defeasance is the result of a " limitaUon " which deter- mines the estate without entry by the grantor or his heirs, or he who has the expectant interest — whereas on '■'■condition'''' broken the estate is not defeated until entry, or by ejectment, its substitute. Conditional Limitations. — These were of a mixed na- ture, and generally found in wills and conveyances to uses. They tended to divest, by condition subsequent, the estate before the time limited ; and the estate would vest in a stranger having the expectant estate, without entry, contrary to the rule of law that a stranger could not take advantage of a condition broken. The Revised Statutes provide that " where a remain- der shall be limited on a contingency, which, in case it should happen, will operate to abridge or determine the precedent estate, every such remainder shall be construed a conditional limitation, and shall have the same effect as a limitation would have by law.. Vol. 1, p. 725; Parmelee V. Oswego R. R. 2 Sel. 74. As to the diflference between a condition and a conditional limitation, vide Beach v. Nixon, 5 Seld. 35. There were other refinements of law on this abstruse subject which cannot here be further pursued. See also, Mayor v. Stuyvesant, 17 N. Y. 34. On the determining of a conditional limitation, the land becomes divested, and passes to the parties to whom the estate is limited over, if any. Brown V. Evans, 34 Barb. 594 ; Stanley v. Cox, 5 Wall. 119. Infants and Married Women. — These are under equal obligation as others in the performance of conditions an- nexed to real estate. Garrett v. Scouten, 3 Denio, 334 ; Co. Litt. 2466; Havens v. Patterson, 48 N. Y. 218 ; Ludlow v. N. Y. & H. R. 12 Barb. 440, Title IV. Grants and Leases in Fee containing Conditions of Foeeeiture. Questions on the legality and effect of restrictions or conditions determining estates transferred under leases TIX. IV,] GRANTS AND LEASES. ]23 or grants in fee, have been a fruitful source of litigation in this State, and have called forth much legal research and learning in their investigation. The points raised are of interest, and a brief summary of the legislation and judicial determination bearing on the subject is given ; particularly, as such grants and leases are still frequently presented to the courts for construction, although generally of quite remote origin, many dating back to the Colonial period. According to the English feudal system, tenants, whether holding mediately or immediately of the king, had no right to alien or devise the feud, without consent of the immediate lord of whom they held. This practice was detrimental to the great lords holding fiefs of the crown, as they were deprived of escheats, wardships, fines, and other fruits of the tenure. By charter of Henry III (1225), and the statute of Westminster, commonly called " Quia emptores^'' etc. (18th Ed. I, chap, i), enacted in 1290, important changes were made. This statute recited that purchasers of fees had entered into them to the prejudice of chief lords, who had thereby lost their escheats, and enacted that thence- forward every freeman should be authorized at pleasure to alien his estates ; to be holden, however, by the same services and customs, and of the same chief lord as he of whom it was held before. Tenants in capite, holding of the king, had still to procure a license to alien. The effect of this act was that thenceforth no new tenure of lands which had already been granted by the sovereign could be created. Every subsequent alienation placed the feoffee in the same feudal relation which his feoffer before occu- pied ; that is, he held of the same superior lord, by the same services, and not of his feoffer. The principle of ten- ures was left untouched by the act, but the progress of subinfeudations was arrested. This statute, also, by declaring that every freeman might sell his lands at his pleasure, removed the former 124 GRANTS AND LEASES. [CH. V, feudal restraints, which prevented the tenant from selling his land, without the license of his grantor, who was, before the statute, his feudal lord. The statute, by changing the tenure from the immediate to the superior lord, took away the reversion from the im- mediate lord, *. «., the grantor, and thus deprived him of the power of imposing, by expressed condition, the same restraints as theretofore existed by force of and under the feudal law. This right to restrain alienation ceased when the statute abolished the feudal relation between him and his grantee. Such restraints on alienation were therefore held to be lawful before the statute " quia emptores" but unlawful thereafter, except so far as the king was concerned, whom the statute did not reach. As between the grantor and grantee, also, the statute made all the covenants of the latter personal, and not binding the land in the hands of the assignee ; thus prac- tically preventing subinfeudations. The main object of that statute " quia emptores" and of the first section of our act concerning tenures (1787, ivfra), was to reverse the old rule restraining alienation by tenants, so that the right of alienation was made inci- dent to the grant, and followed, of course. By Stat. Edw. Ill, chap, xii, tenants holding in capite of the crown di- rectly could purchase a license ; and if they sold without one they suffered a specified fine for the alienation. The Statute of Charles II.— By the Stat, of 12 Charles II, ch. xxWjJmes on alienation were abolished, with ex- ception of certain tenants in capite and by copyhold. The same statute abolished tenancy by knight service, or military tenure ; and converted tenures into that of free and common socage ; that is, into a fixed and determinate service not military. The Statute Quia Emptores in this State. — It has been questioned in the range of cases that have passed before our courts, bearing on this subject, whether the statute TIT. IV.] GEANTS AND LEASES. 125 " Quia emptores " ever actually was in force in this State. It has been considered to have been substituted here by the Act of Feb. 20, 1787; concerning tenures (ante Chap. IV. and wfTO)^ and, by some jurists, held not to have been in force at all under the Colonial or State governments. See the case of De Peyster v. Michael, 3 SeJd., infra. Under the views expressed in other cases, however, the principles of the statute " Quia emptores" were supposed to have been transmitted and established here as part of our colonial legal system. In the latter cases, lands were deemed to be holden in this State under grants from the Crown : and, as the king was not within the statute " Quia emptores^'' a certain tenure, which, after the Act of 12 Charles II (Ch. XXIV, supra'), abolishing military tenures, must have been merely that of free and common socage, was created between the king and his grantees. The latter view is entertained, among others, in the case of Van Rensselaer V. Hays (19 N. Y. 96), Judge Denio also expressly holding that the law forbid- ding the creating new tenants by means of subinfeudation was always the law of the colony, and that it was the law of the State, both before and after the Act of 1787, concerning tenures, below mentioned. Consequently no tenures, it was held, arose in the colony upon grants made by others than the crown, although the king could license his immediate tenants to create seignories, and to grant land to be holden of the patentees. The court, in the latter case, comments upon the opinions expressed in the above cited case of De Peyster V. Michael, as to the existence of the statute quia emptores in this colony and State, and holds that there was a misconception of the law as expressed in that case, founded on an erroneous view of the history of tenures in this colony. Under the colonial rule, it is to be observed, a number of manor grants were made, by which manors were created within the province, and the patentees were authorized to grant lands within those manors to be holden of them and their heirs as immediate lords, to whom, by the feudal tenures thus created, fealty was due, and who were entitled to the reversions or escheats in the same manner as the mesne lords in England before the stat- ute "quia emptores." In the above case of De Peyster v. Michael, it is urged as one argument against the existence of that statute in this colony, that if it had existed, such patents as above would not have been made ; and it is claimed there, that the statute of 1787 recognizes them, in excepting from the operation of that statute the fealty and feudal services due to mesne lords on convey- ances made before July 4, 1776. The questions that have arisen and been determined with respect to these manor grants, will be given in a subsequent part of this title. 126 GRANTS AND LEASES. [CH. V. This case of De Peyster v. Michael also holds that, inasmuch as the stat- ute " Quia emptores " was never in force here, it follows that restraints on alienation in grants in fee made in the colony, before the acts of 1779 and 1787, were valid, and that these statutes by their terms acted retrospective- ly, the one from the 9th and the other from the 4th of July, 1776. The Statute of 1779, it was held, transferred the seigniory and escheat of lands to the people of the State, who then became the chief lords of the fee ; and, by the operation of the statute of tenures (1787), the right to escheat lands in fee granted by proprietors of patents before the revolution became vested in the people, on any transfer being made, if not immediately on the passage of the act. Thus tenures between the landholder and the people were substituted for those between landholders and individuals; and the above statutes converted rents upon leases in fee ftom rent service, into rent charges, or rent seek; and by taking away the grantor's right of reversion or escheat, they removed the entire foundation on which the power ot a grantor to restrain alienation by his grantee formerly rested. In Van Rensselaer v. Hays (19 N. Y. 96), however, the court expresses the opinion that the statute of 1787 had no retrospective effect upon tenures. Any change in the common law or tenures in the State affecting grants made before that statute took effect would consequently, under such view, have resulted from the effect of the statute " Quia emptores," which, the court holds, was brought by our ancestors to the Colony, and became part of its law and the law of the State. The decision of Van Rensselaer v. Hays, above quoted, must be consid- ered as overruling other decisions in the State, and particularly certain dicta in that of Van Rensselaer v. Smith, 37 Barb. 104, where it is held that the statute " Quia emptores " was never in existence in this State ; and, there- fore, did not affect fee farm grants or leases here; but that the rules of the common law applied to them, until modified by the subsequent statutes. These subsequent statutes of 1779 and 1787, ire/ra, while in terms de- stroying feudal tenure and substituting allodial estates, preserved some feu- dal incidents, such as rents certain or other services incident to tenure in common socage; and the feudal incidents of fealty and distress were re- served to grantors of lands in fee or for lite or years ; but the right of escheat was divested. The following is a digest of the statutes of 1779 and 1787, above re- ferred to : The Statute of 1779.— By the 14th section of the Act of Oct. 22, 1779, the absolute property of all messuages, lands, tenements, etc., and of all rents, royalties, debts, dues, services, etc, and all right to the same which, before the 9th of July, 1776, belonged to or were due to the crown of Great Britain, were declared to be since said day vested in the people of the State ; in whom the sov- ereignty and seignory thereof are and were declared to be united and vested since said day. The Statute of 1787 (1 R. L. 70), following the prin- ciple of the statute " Quia emptores," made the right of alienation necessarily incident to a grant, unless the par- ties qualified the right by express condition or stipulation, TIT. IV.] GRANTS AND LEASES. 127 which, according to the general rules of law, had to he of such a nature, however, as not to be entirely repugnant to the grant, nor unlawful, nor impossible of per- formance. That statute provided as follows, in its first section, which is substantially a transcript of the statute " quia emptor es :'''' "It shall forever hereafter be lawful for every freeholder to give, sell, or alien the lands or tenements whereof he or she is, or at any time hereafter shall be seized, in fee simple, or any part thereof, at his or her pleasure; so always that the purchaser shall hold the lands or tenements so given, sold, or aliened of the chief lord, if there be any, of the same fee, by the same serv- ices and customs, by which the person or persons making such gift, sale, or alienation, before held the same lands and tenements." The rest of the section provided that any alienee, as above, should, hold of the chief lord, and should be charged with the proportionate part of the serv- ice for the part aliened, to the chief lord. The rest of the section is given in full, ante, Ch. IV ; also a digest of the other sections of said act. This statute was based upon an Act of Apr. 1691 (Brad. 1, 4, repealed in 1697 by the crown), which abolished all feudal military services and in- cidents, also all fines for alienation, seizures, and pardons for alienations, tenure by homage, and all charges incident or arising by reason of wardship, livery, etc., from date of Aug. 30, 1664, when the province was surrendered by the Dutch to the English. This Act of 1787 also abolished all tenure in socage, in eapite ; and converted all manorial and other tenures into free and common socage; and required all conveyances and devises of lands, etc., to be expounded as if so held in free and common socage. The .5th section reserves rents and services due to tenure in free and common socage to those entitled to them ; — i. e., to the people, or any mesne lord, or other person, or the fealty or distress incident thereto. Vide the act, ante, Ch. IV, more fully given. The sections of this act, except the first, are a substantial re-enactment of the Act of 13 Charles II (ch. 34), abolishing military and other incidents of tenure. The Statute of 1787 was repealed by the general re- pealing Act of 1828, and the provisions of the Revised Statutes of 1830 (§§ 3 and 4, 1 Rev. Stat. 714), were sub- stituted {vide ante, Ch. IV). The Revisers, in their notes, ]28 GRANTS AND LEASES. [OH. V. expressed the opinion that the Act of 1187 was unneces- sary, and that no feudal tenures had existed here before its enactment. The question as to whether the statute "Quia emp- tores" ever had existence here had especial reference to the construction of the effect of restraints on alienation and conditions of forfeiture in grants or leases in fee. Such leases in fee created an estate of inheritance in the grantee, his heirs and assigns, subject to the payment of rent reserved and performance of certain conditions. They created what was anciently called a fee farm estate, and the fee farm rent was a perpetual rent charge issuing out of the estate in fee, or a " rent service," if a reversion were deemed to be still remaining in the grantor. Being estates in fee simple, vested in the grantees thereof, it was urged that no reversionary interest what- ever remained in the grantors or lessors, and that they were therefore subject to the operation of the general legal principles which forbid restraints on alienation, in all cases where no feudal relation existed between the grantor and grantee. The important question was to determine whether that technical feudal relation ever existed at all in the Colony, and if it did, how far it had been modified by statute. Definition of Rent Charge and Kent Service, etc. — ^ent service was so called because it had some corporeal service incident to it, at least fealty, or the feudal oath of fidelity. Where fealty was due. therefore, with a pecu- niary rent, and the landlord had the reversionary interest in the demised prem- ises, then the landlord had, by common law, a right to distrain without any power in the lease. 3. Sent charge is a rent reserved where the landlord has no reversionary interest. He would have, for such rent, no right to distrain, unless the power were contained in the lease, or specially conferred by statute. 3. Bent seek is the same rent charge, except there is no right to distrain reserved. As a remnant of the policy of feudal proprietorship, it had become the habit of the great landholders in the Colony, since its earliest history, for the purpose of retain- ing property more or less under the control of the grant- TIT. IV.] GRANTS AND LEASES. 129 ors, and of restricting its occupation to tenants of their own selection, to grant leases for lives, or perpetual leases in fee, to the grantees or lessees and their heirs, on one or more of the conditions, that, in case of sale by the lessee, his executors, etc., or assigns, the lessor or his heirs, etc., should have a, pre-emptive right, or refusal of buying, or that there should be no sale without written permission of the lessors, their heirs, etc.; or that, in case of sale, there should be a proportion of the purchase-money paid to the lessor, etc., within a specified time. In case these conditions were not performed, there was provision that the granted or demised estate should cease, and a right of entry thereupon result. Questions arose as to whether or not these conditions were opposed to the provisions of the law of " Quia emp- tores,^' if it ever existed here, and to that of 1787, as imposing restraints on alienation, and were or were not repugnant to the estate conveyed, and therefore void under the general principles of law; or whether under the operation of the common law they were not valid as not being within the operation of any statutes. It was held, at first, by the courts of this State, that the power to make such leases existed, and particularly that the clause in the lease restricting assignment, un- less by permit, was not repugnant to the grant, and as such void. The estate conveyed was held a valid "/ee simple con- ditional " according to the common law, and not a mere tenure by lease. It was held also that these covenants bound all assign- ees or holders of the lease, and that the estate became for- feited on non-compliance with the conditions. The following early cases sustained these positions : Jackson V. Silvernail, 15 Johns. 378; Jackson v. Schutz, 18 Johns. 174; Jackson v. Groat, 7 Cow. 285. It was held, moreover, and these are principles of law that have not been disturbed, that to work a forfeiture 9 130 GRANTS AND LEASES. [OH. V. under the clause against transfer without consent, the lessee must have parted with his entire legal interest; and that all such restrictions as above are to be strictly con- strued. See also, Livingstone v. Stickles, 7 Hill ; affirming, 8 Paige, 398. It was also determined that the forfeiture, by reason of alienation without consent, would not apply to forced judicial sales in invitum. Jackson v. Corlis, 7 Johns. 531; Jackson v. SilTcmail, 15 Johns. 377; Jackson v. Kipp, 3 Wend. 230. The question of the validity of the condition reserving a proportion of the proceeds of sale to be paid within a fixed time to the landlord, and of that requiring assent before a transfer, were subsequently considered in more recent cases with great care, and it has been determined (overruling in those particulars the cases of Jackson v. Sil- vernail, Jackson v. Schutz and Jackson v. Groat, above quoted) that such reservations contained in leases in fee, made since 1776 at least, were void, although they would be valid in a lease for years or for lives ; and that even in the latter class of leases nothing short of a violation of the covenant, on the most literal and rigid interpretation, would subject to a forfeiture. The courts overruled the previous cases establishing the validity of such conditions in leases in fee, on the principle that the whole estate had been granted, and that no technical reversion, or possibility of reversion, was left to the grantor in the estate by the terms of its limitation. But the conditions restricting transfer with- out assent, and that reserving a portion of the purchase money, were held to be in restraint of alienation, and, as such, repugnant to the grant and void, and the void con ditions being conditions subsequent, the estate would stand divested of them. The reservation to the grantor of a portion of the purchase proceeds on a sale, was also considered in the nature of a fine on alienation, and, on that account, void, and also on the ground that such TIT. IV. J GBANTS AND LEASES. 131 reservations were against public policy and the general spirit of our laws and institutions. Huntington v. Forkson, 6 Hill, 195; Payn v. Beal, 4 Den. 405; over- ruling People V. Haskins, 7 Wend. 463 ; Overbagh v. Patrie, 8 Barb. 38 ; affl'd, 3 Seld. (6 N. Y.) 510 ; De Peyster v. Michael, 2 Seld. (6 N. Y.) 467. The court, in the aboTO quoted case of De Peyster v. Michael, holds that such restraints upon alienation could, by the common law, be only imposed by persons having, at least, a reversion, or possibility of reversion, therein, and that a mere right of re-entry, for non-payment of rent, or non-perform- ance of any other condition in a lease in fee, as well as in an absolute convey- ance, was neither a reversion, or possibility of reversion ; that it was not an estate in the land, but a mere right of action, and that if enforced the person entering would be in by a forfeiture of condition, and not by reverter. The court also intimated the opinion, as before stated!^ that, under the colonial government, the English statute "quia emptores'^ was not regarded as in force, and citizens could therefore convey their lands in fee, to be holden directly of them and their heirs, etc., and such grantors being entitled to the reversion or escheat on failure of the issue of the grantee, could lawfully, during the colonial term, annex conditions to the power of alienation. This view, as seen above, p. 134, as to the existence of the law of "■quia emptores " in this colony, was not sustained in the case of Van Rensselaer v. Hays, al- though the general determination in the two cases is similar. The court further held, in De Peyster v. Michael, that the Act of Oct. 32, 1779, infra (1 Jones & Varick, 44), transferring the seignory of all lands, escheats, etc., from the king to the people of the State, and the above Act of Peb. 20, 1787, concerning tenures, put an end to all feudal tenures between one citizen and another, and substituted in tljeir place a tenure between each landholder and the people, in their sovereign capacity, aiid thus removed the entire foundation on which the right of the grantor to restrain alienation had formerly rested. In the subsequent case of Van Rensselaer v. Dennison, 35 N. Y. 893, it was held, that a conveyance in fee executed in 1789, i. e., after the statute of 1787, with a stipulation for rent, operated in law as a deed of assignment, and not as a deed of lease, and left in the assignor or grantor neither any rever- sion or possibility of reverter. The case was decided on the principle that since the Statute of 1787, whatever was the law before its passage, it has been impossible to create a feudal tenure in this State ; and consequently none of the peculiar incidents of that tenure attach to an estate granted by one citi- zen to another, since that act took effect. Such feudal rules, therefore, it was held, as that an ultimate estate remained in the grantor of a fee simple, or that he had a possible reversion by escheat or otherwise, or that the estate granted was subject to certain inseparable conditions implied by law in his favor, as that the grantee should not alien, or should render service or rent, under a penalty of forfeiture, and other rules of feudal extraction, were abro- gated. The case holds, however, that the assignment of the estate may be under expressed conditions of rents and services consistent with the general rules of law, and independent of the tenure of the land ; and that a right of entry for breach of such conditions, reserved to the grantor, his heirs or as- signs, in the grant, was valid. Before the Constitution of 1846, cited infra, a per- petual yearly rent in a grant of land in fee, it was also held, might be lawfully reserved as a condition of the estate, and such a rent thus reserved, although not a rent service, for want of a reversion in the grantor, was 132 GRANTS AND LEASES. [CH. V. considered a rent charge in fee. Such a rent charge or condition thus expressly mentioned, it was decided, ran with the land, and bound the heirs and assigns of the covenantor ; and an assignee of the rent and right of entry might maintain ejectment. To the same effect was Van Rensselaer v. Slingerland, 36 N. T. 558, which held that conveyances in fee under a rent charge operated as assignments, and not as leases, and left no reversion in the grantor. Such rent was held to be a hereditament, and descended, and was devisable and assignable. Under the above view of the nature of such conveyances the strict rela^ tion of landlord and tenant, as under the feudal rule, was not created be- tween the parties to them. Cagger v. Lansing, 64 N. T. 417. See, also, Lyon v. Chase, 51 Barb. 13. This case was, however, disapproved in Lyon V. Adde, 63 Barb. 89 ; holding that release of rent charge must be by deed. In the case of Van Rensselaer v. Hays, 19 1!^. Y. 68, it was also held as to these conveyances in fee reserving rent, that as there was no reversion in the grantor there was no right to distrain, which is necessarily incident to the reversion, unless there was a clause of distress ; that the rent reserved was a rent charge, which was not an estate in the land but a hereditament, and that it was subject to alienation and descent to heirs as a heritable estate. To the same effect, Tyler v. Heidom, 46 Barb. 489. Restraints on Alienations since 1846. — The Revised Statutes of 1830 (vol. i,«p. Y18, § 5), provides that ten- ures shall be abolished except rents or services certain, which at any time therefore might have been, or " here- after might be created or reserved." By the Constitution of 1846, the words " hereafter created or reserved " are omitted, and it is also provided that leases or grants of agricultural land, wherein rent or service is reserved for a longer term than twelve years, shall be invalid. It is also provided in said Constitution, art. 1, § 15, that all fines, quarter sales, or other like restraints on alienation, reserved in any grant of land thereafter to be made, should be void. Although, therefore, since the Act of 1787, feudal tenures could not be created, by which the estate could be subjected to conditions determining the estate, still con- ditions of rent and service might be stipulated in the in- strument creating the estate, the non-performance of which might terminate its existence. The Constitution of 1846, however, has altered the rule, and forbidden TIT. IV.j GEANTS AND LEASES. 133 such reservation of a perpetual rent or service as the de- terminable condition of a fee. Van Rensselaer v. Dennison, 35 N. T. 393. Manorial Grants.— Manorial grants were issued in many instances by the royal governors of the province, with a reservation of yearly rent. Sub-leases were made by the patentees with reservations of rent in produce or otherwise. The rents due the crown, or, as its successor, the State, were in general subsequently commuted and re- leased for a gross sum. These manorial patients also con- stituted the land granted a " lordship and manor," and gave the patentees, their heirs and assigns, power to hold courts " leete " and "baron," and to enjoy other manorial privileges. In the State legislature, April 6, 1848, a resolution was passed whereby the Attorney-General was directed to ascertain whether the titles of land- lords who had made leases under such grants were valid, and to institute suits for the purpo"se of ascertaining whether the lands held had not escheated to the State. Actions were brought, pursuant to said law, to determine the rights to parties claiming under such manorial grants or patents. The grounds taken in said actions were, among others, that the parties claiming possession had no authority or claim of right thereto, and that the lands claimed belonged to the people as sovereigns of the country and original proprietors thereof, and that neither the colony nor the State had by any acts recognized the possession or claim of the patentees, or those under them, but that the people of the State, since the revolution, became the right- ful owners of such lands, and were entitled to the possession. It was also urged that the provisions of such patents, whereby manorial privileges and franchises were conferred upon the lord of the manor, were in express violation of the established law, not only of England but of the colony, when they were made, and were, therefore, void; and that the Act of 1691, passed upon the accession of William and Mary, for the purpose of confirming certain grants, had no application to these patents ; also, that the mere voluntary payment of quit-rents, or the reception of a commutation by the State, did not amount to a release of the right of the people, or a con- firmation of the patentees' rights. The important legal questions arising under such patents were fully reviewed in the case of The People v. Van Kensselaer (9 N. Y. 5 Seld. 291). The decision of the court was to the effect, that such grants were in the power of the Crown to issue, and the king had a right to grant to his immediate tenant the right to make grants to be held of himself, the tenant, since thus there would 134 GKAKTS AND LEASES. [OH. V. be the assent of all the lords, mediate and immediate ; and that both before and since the statute " Quia emp- tores" the king could' license his immediate tenant, or tenant in capite, to alien to hold of himself the tenant ; and that, inasmucli as the statute was made for the ad- vantage of the chief lords, the king might dispense with and license his tenant to reserve any new service. On the making of such grants, therefore, the patentees be- came the mesne lords, holding of the king, and the gran- tees of the patentees were the tenants paravail, holding (by license from the king as lord paramount) of their immediate lords, the patentees. The court further held, that whether the statute "Quia emptores" -was ever in force here or not was immaterial — and that, if it was, it had no ap- plication to the ungranted crown lands in the colonies — but that, in respect to those, the king was competent to authorize his immediate grantees to create tenants of a freehold manor, by granting lands to be held of them- selves. The court also was of opinion that even if the provisions in the patents relating to a lordship, and manor courts, and other feudal privileges were inoperative and void, under the statute against subinfeudations or any other statute, it would not follow that the grants of the lands were void ; and there would be no legal difficulty in declaring that the patentee was entitled to retain the land, but holding that his alienee must hold of the crown and its successors, instead of holding of the patentee and his heirs. The court also held, that the action of the people in the matter was barred by the statute of limitations (Laws of 1788, 3 Greenl. 93; Laws of 1801, oh. 183, 189 ; 1 R. L. of 1813, 484) ; and that, although there had not been actual adverse occupation, the consent, recognition, payment, and reception of the quit-rents, as between the parties, caused the possession to he recog- nized as in the grantees, and certainly that it was out of the grantors, and the people were estopped from impeaching the validity of the patents. It was also determined tliat such patents, under any circumstances, would be protected under the confirmatory Colonial Act of May, 1691, if not other- wise (Brad. Laws, 7, 77; 8 Barb. 391), which ratified and confirmed patents of the nature of that under review. The opinion of the court, with reference to the limitation of the time for the action, and of the estoppel of plaintifiEs by the reception of rent, was ap- proved in the case of The People v. Trinity Church, 32 N. Y. 44. Bights of Assignees under conveyances and Leases in Fee. — It has been seen, as above, that conveyances in fee, under a rent charge, operate as assignments, and leave no reversion in the grantor. Such rent is held a hereditament, and descends, and is devisable and assignable. Hunter v. Hunter, 17 Barb. 35, and cases cited, supra, p. 131. It is held in the above quoted cases of Van Rensselaer v. Slingerland, 26 N. Y. 680, and Van Rensselaer v. Dennison, 35 N. Y. 893, that rent charges, under such leases or conveyances in fee, run with the land, and bind the heirs and assigns of the covenantors; and that an assignee of the rent and right of entry may maintain ejectment. Also that covenant will lie by the assignee of the lessor against the assignee of the lessee. Vide also Van Rensselaer v. Read, 26 N. Y. 558; De Peyster v. Michael, 3 Seld. 506. TIT. IV.] GRANTS AKD LEASES. 135 The following cases also held that the covenant to pay rent runs with the land, and binds devisees, heirs, and assignees independent of tenure and re- version, and is not a mere personal covenant. Main v. Feathers, 21 Barb. 646; Van Rensselaer v. Hays, 19 N. Y. 68; Tyler v. Heidorn, 46 Barb. 439; Van Rensselaer v. Ball, 19 N. Y. 100 ; Oagger v. Lansing, 64 N. Y. 417. Before the Code of Procedure it was held that in suits against lessees, a grantee could not maintain actions against lessees in his own name, but only in that of his grantor. Harbeck v. Sylvester, 13 Wend. 608. The above decisions, to the effect that rent runs with the land, were made in opposition to the view taken that the statute of Feb. 20, 1787, destroyed all tenure unde» a lease in fee, and did away with the relation of landlord and tenant as between the lessor and lessee in such lease, and discharged the land from the payment of rent to anybody. See also cases below cited. Act of Feb. 6, 1788.— An act was passed of this date (2 Greenl. 13), providing that all persons or corporations, their heirs and assigns, holding, or who may hold lands, manors, tenements, rents, or other hereditaments, or rever- sions thereof, by. gift or grant of the people, or coming from others through the people, or from any others, should have the same advantages against lessees, their executors, etc., or assigns, by entry, for non-payment of rent, for waste or other forfeiture, and on non-performance of con- ditions, covenants, etc., as if the reversions had remained in the original lessors. By the same act, lessees or grantees of lands, manors, etc., their executors, etc., or assigns, under leases for years or life, have th.e same rights against heirs, successors, or assigns, holding from the people or from others, as the lessees had, with exception of recoveries of value by reason of warranty in deed or in law, or by voucher or otherwise. Act of 1805.— By Act of Apr. 9, 1805, ch. 98, after reciting the above Act of 1788, it is provided that the pro- visions of said act, and the remedies thereby given, should be construed to extend as well to grants or leases in fee, re- serving rents as to leases for life or years. The above two acts were re-enacted in the revision of 1813. 1 R. L. 363. This act was somewhat modified and re-enacted in the Rev. Stat, of 1830, infra. For the history of this act, viAe Van Rensselaer v. Smith, 27 Barb. 104, in which it is held that the provisions of this act are retroactive. This case was affirmed. 19 N. Y. 100. Act of 1846. Abolishing Distress for Eent.— By Act of May 13, 1846, 136 GEANXS AKD LEASES. [OH. Y. ch. 274, the 12th to the 17th sections of the IV title, 1st chapter, 2d part, of the Revised Statutes were repealed relative to distress, and distress for rent was abolished. The 3d section provides as follows : '_' Whenever the right of re-entry is reserved and given to a grantor or lessor in any grant or lease, in default of a sufflciency of goods and chattels whereon to distrain for the satisfacnon of any rent due, such re-entry may be made at any time after default in the_ payment of such rent, provided fifteen days previous notice of such iijtention to re- enter, in writing, be given by such grantor or lessor, or his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators or assigns, not- withstanding there may be a sufficiency of goods and chattels on the lands granted or demised for the satisfaction thereof. The said notice may be served personally on such grantee or lessee, or by leaving it at his dwelling- house on the premises. Further as to this see post, Ch. VIII. \ Provisions of the Revised Statutes of 1830.— § 17 (Sec. 23). The grantees of any demised land, tenements, rents, or otlier hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee, or assignee, shall have the same remedies by entry action or otherwise for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor. (As modified by chap. 274 of Laws of 1846.) § 18 (Sec. 24). The lessees of any lands, their assigns or personal representatives, shall have the same remedy by action or otherwise against the' lessor, his grantees, assignees, or his or her representatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate lessor, except covenants against incumbrances, or relating to the title or possession of the premises demised. § 19 (Sec. 25). The provisions of the two last sec- tions shall extend as well to grants or leases in fee, reserv- ing rents, as to leases for life and for years. Act of April 14th, i860.— By act of this date (ck 396), the above Law of 1805, and § 3 of the Revised Laws of 1813, ch. 31, and also § 25 of ch. 1, title 4, part 2, of the Revised Statutes, as above given, are not to apply to deeds TIT. IV.] GRANTS AND LEASES. 137 of conveyance in fee made before the 9th of April, 1805, nor to such deeds " Jiereafter to he madeP Construction of the above Acts of 1805,1830, 1846, and I860.— Various decisions have been made as to effect of the above statutes on leases in fee. Of the most recent and important of them a summary is here given. It is held, that notwithstanding the provisions of the above acts, excepting from their application conveyances in fee made before 1805, an action of ejectment would lie for non-payment of rent by the assignee of the devisee of the grantor, upon a lease made prior to 1805, where the plaintiff had acquired the rights and remedies of the original lessor previous to the Act of 1860 : that that act could not disturb vested rights ; and it was held to apply only to rights acquired under conveyances made prior to 1805 and since 1800, through transfers or assignments executed since the Act of 1860. It has been held also, that although, in general, a right of entry is not assignable, so as to allow an assignee to sue in his own name, that an assignee of the lessor, while the acts of 1805, 1813 and 1830 were in force, could, before the Act of 1860 was passed, under § 111 of the Code, requiring actions to be brought in the name of the party in interest, bring ejectment. Van R. V. Snyder, 8 Ker. 299; Main v. Green, 32 Barb. 448; 33 iS. 136; Main v. Davis, 82 Barb. 461. The case of Van R. v. Hayes, 19 N. Y. 68, also holds that the assignee of the grantor of such lessee in fee, whatever might have been his rights before the statute of 1805, since that statute has the same remedies which his grantor had ; and could have an action of covenant for non-payment of rent. It also holds said statute constitutional as to leases theretofore made, i. «., as not impairing the validity of contracts in relation to the rights of parties existing in leases in fee at the time the statute was passed. Also Van Rens- selaer V. Ball, 19 N. Y. 100. These two cases were decided, it is to be observed, before the statute of 1860. The case of Van Rensselaer v. Slingerland, 26 N. Y. 580, holds that the statute of 1846, ch. 274, § 3 (abolishing distress for rent), recognizes the assignable quality of a condition for re-entry for non-payment of rent, reserved in a grant in fee, and gives to an assignee of the rent the same right to maintain ejectment as was conferred by ch. 98 of 1805, repealed by ch. 896 of 1860, as to grants made prior to its passage. The case of Van Rensselaer v. Read (36 N. Y. 558) decides that the legal right of action, on a covenant for the payment of rent reserved on a convey- ance in fee, passes to the assignee of the rent, at common law, independently of the Act of 1805 or of the Code. The principle of the decision is that a privity of estate subsists between the grantee of the rent and the grantee of the land, although there is no reversion in the former or his grantor. This case also holds that the partial repeal of the statute of 1805 by that of I860 is constitutional as to leases existing. The case further holds that the personal representatives of the original grantor can maintain no action for rent payable after the decease of the grantor; and that a devisee or assignee of the rent can maintain no action against the personal representatives of the original covenantor for default accruing after the death of the covenantor. Apportionments of rents reserved in a lease in fee.— Rents reserved in a lease in fee are considered apportionable among the several tenants occupy- ing the demised premises, and ejectment will lie against a tenant occupying a portion of the land. Main v. Green, 33 Barb. 448. It is held, also, that the owner by inheritance of one undivided portion of a rent charge, under a lease in fee, may bring ejectment for his proportionate part of the lands leased ; and that such a rent charge, though it caijnot be 138 GEAKTS AND LEASES. [CH. V. apportioned by act of the parties, may be by force of law. Cruger v. Mc- Laughry, 41 N. Y. 314. Where land, therefore, is divided by act of parties, the condition still re- mains entire ; and a breach of it as to one piece gives the grantor, etc. , the right to re-enter for the whole land. Tinkham v. Erie R. R. 53 Barb. 393. Or for a separate parcel. Van Rensselaer v. Jewett, 5 Den. 1 ; affi'd, 3 N. T. 135. Tenants in common, under a rent charge, however, may, on partition, apportion the rent, if the lessor concw ; and the release of the lessor to one tenant would only extinguish rent as to the portion released. Van Renssel- aer V. Chadwick, 32 N. T. 32. See also as to apportionment of rent under leases in fee. Van Rens- selaer V. Gallup, 5 Den. 454. Certain taxes under leases in perpetuity. — Under a covenant to pay taxes imposed for or in respect of the premises, it has been held that lessees are not obliged to pay taxes imposed on the landlord under Law of May 18, 1846. Van Rensselaer v. Dennison, 8 Barb. 23. Forfeiture, Re-entry, and Ejectment.— It has been seen that conditions annexed to conveyances in fee stipulating for the payment of rent, with a right of re-entry to the grantor or his heirs, on default, are lawful conditions. Van Rensselaer v. Ball, 19 N. Y. 100 ; Tyler v. Heidorn, 46 Barb. 439 ; and cases cited ante, p. 131. No one but the grantor or his heirs, however, could re-enter for the breach of such a condition " subsequent," at common law. And this principle the courts hold, not- withstanding certain excepting statutes, is still a general principle of law in the State. It is held, however, that although it is a rule of law that conditions in a deed can only be reserved for the grantor and his heirs, and therefore do not pass a right of reentry for condition broken by conveyance before or after such breach, that this principle does not extend to leases in fee reserving rents, nor to leases for life or years in the State of New York. The modification of the common law rule is based upon the provisions of the above statutes of 1805, and its re-enactment in 1830, above quoted. Ante, p. 136, as modified by the Law of 1860. lb. Nicoll V. The N. Y. & Erie R. R., 12 Barb. 604; affirmed, 13 N. Y. (2 Kern.) 131. As to the remedies for rent, the common law rule of demand, and the statutory remedy by ejectment, vide post. Oh. Vllf. It is held that the words " yielding and rendering " in a lease import a TIT. IV.] GRANTS AND LEASES. 139 covenant but not a condition, unless the landlord would otherwise be without remedy in case the rent should not be paid. De Lancey v. Ganun, 13 Barb. 130; affirmed, 5 Seld. (9 N. T.) 9. The case of Main v. Feathers, 31 Barb. 646, had intimated, contra, that the words " yielding and rendering," etc., in leases in fee, implied a condition for breach of which a forfeiture and re-entry could be had at common law. The subsequent cases of Van Rensselaer v. Smith, ib. v. Ball, ib. v. Hays, 37 Barb. 104, holds that parties to such leases stand in the privity or relation of landlord and tenant under a rent service as an incident of socage tenure, and that the words of rendering imply a covenant to perform the condition, which runs with the land, binding assignees. Affirmed, 19 N. Y. 100. The statutes giving the remedy of ejectment in place of demand and re- entry are held not limited to rent service, but are applicable to all cases where there was a right to re-enter at common law, including an annual pay- ment or rent reserved upon a conveyance or lease in fee, as well as to leases for life or years. Van Rensselaer v. Ball, 19 N. Y. 100; Hosford v. Bal- lard, 39 N. Y. 147 ; vide ch. " Ejectment." The case of Van Rensselaer v. Barringer, 39 N. Y. 14, holds that the assignee of the grantor can bring ejectment for condition broken, and con- firms other cases, ante. The case of Van Rensselaer v. Gallup, 5 Denio, 454, and Hosford v. Ballard, 39 N. Y. 147, holds that no prior demand is necessary prior to ejectment for non-payment of rent, on a grant in fee ; that ejectment stands in place of such demand. CHAPTEE VI. FREEHOLD ESTATES NOT OP INHERITANCE. Title I. — Estates for Life. Title II. — Incidents op Estates for Life. Title I. Estates pok Life. An estate for life is a freehold estate, but not of in- heritance. Estates for Life are held for the tema of the grantee's life, or during that of a third person ; they were created by livery of seizin^ and formerly held by the feudal tenure of fealty and service. When the estate is held during the life of another person, it is termed an estate pur autre vie, and esteemed a lower species of freehold than an estate for the grantee's life. By the Revised Statutes of 1830, an estate, during the life of a third person, whether limited to heirs or other- wise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real. Vol. i, p. 723, § 6. It is then excluded from the statutes of descents (R. S. vol. i, p. 755, § 28), and is an asset for administration. 3R. S. p. 183. It has been shown above, that, by the common law, the granting an estate without words of inheritance or other limitation, created an estate for the life of the grantee only, but that the rule is altered by the Revised Statutes of 1830 ; and, since those statutes, the convey- TIT. II.] INCIDENTS OF THE ESTATE. 141 ance or devise of land to a man generally passes to him all the estate held by the grantor. Vide infra, Ch. XV. A grant on ita face in fee simple may be shown aliunde to be only for life. Moyer v. Moyer, 31 Hun, 67 ; Collins v. Collins, 32 Hun, 156. There may be conditional estates for life, determining upon a future con- tingency, but otherwise enduring until the life for which they were created expires. As to provisos restraining alienation annexed to a life estate, vide ante, p. 113. The case of Eockford v. Hackman, 10 Eng. L. & Eq. 64, holds, however, with the other English cases of Brandon v. Robinson, 18 Ves. 429, and Graves v. Dolphin, 1 Simm. 67, that provisos restraining alienation on a life estate are void, as much as if annexed to an estate in fee. Presumption of Decease of Life Tenant. — By the Revised Statutes of 1830 (1 R. S. 749, § 6), a person upon whose life an estate may depend shall be presumed dead, if he remain beyond sea, or shall absent himself in this State or elsewhere for seven years together, unless proof to the contrary be given. What is a reasonable search and inquiry is a mixed question of law and fact, to be determined upon the circumstances of each case. Clark v. Cummings, 5 Barb. 339. Vide also Gerry v. Post, 13 How. Pr. 130; Eagle's Case, 3 Abb. 334 ; McCartee v. Camel, 1 B. Ch. 463. Co. Civ. Proc. § 841, contains the same provision, except that "without the United States" is substituted for "beyond sea." By L. 1875, c. 519, trustees of all property of a person absent for three years might be appointed. But this act is now repealed. L. 1880, c. 345. Forfeiture of Life Estate.— By Eev. Stat. vol. i, p. 739, § 165, a conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully con- vey, shall not work a forfeiture of his estate, but shall pass to the grantee all the title, estate, or interest which such tenant could lawfully convey. This avoided the effect of the old common law rule of forfeiture by a wrongful alienation, which was abrogated, in fact, before the Revised Statutes. Grant v. Townsend, 3 Hill, 554 ; affirmed, 3 Den. 336. The deed, by the Revised Statutes, operates as an estoppel, however, against the grantor or his heirs. As to successive estates for life, and the limitations thereof, and of the power of alienation, vide titles "Remainder" and "Executory Devise," Ch. IX, post. Conveyances in fee simple by tenant for life may be enjoined. Collins v. Collins, 33 Hun, 156, Title II. Incidents op the Estate. Estovers.— Tenants for life are entitled to take reason- able estovers, i. e., wood for fuel, fences, and agricultural 142 INCIDENTS OP THE ESTATE. [CH. TI. erections and purposes, but not so as to commit waste j nor for purposes of sale nor exchange. Timber also may- be cut for necessary repairs, and to clear portions of the land for cultivation. Co. Litt. 73, a. b.; 4 Kent, 73 ; Miles t. Miles, 32 NewHamp. 147; White V. Cutter, 7 Pick. 348 ; Poddleford v. Same, 7 Pick. 150 ; Dalton v. Dalton, 7 Ired. Eq. 197 ; Sarles v. Sarles, 3 Sand. Ch. 601 ; Harder v. Harder, 26 Barb; 409, and see infra, " Waste." They cannot take wood or soil for manufacturing purposes. Livingston V. Reynolds, 2 Hill, 157. Emblements. — The representatives of tenants for life are also entitled to the profits of crops, in case the estate determines by the tenant's decease before the produce can be gathered. This applies to crops sown, and not to the natural products of the soil, such as grass or fruit, not resulting from special cultivation. Under-tenants are also entitled to their emblements, when the life-tenant dies as above. Evans v. Roberts, 6 Barn. & Cress. 829 ; Evans v. Inglehart, 6 Gill & Johns. 171 ; 4 Kent, p. 73 ; Bevans v. Briscoe, 4 Harr. & Johns. 139 ; The Bank of Lansingburgh v. Crary, 1 Barb. 542. Rent due on termination of life estate. Vide post, "Leases," Ch. VIII. Formerly, as between tenant for life and remainder- men, rent accruing upon leases executed by the testa- tor of the parties, and becoming due after the termination of the life estate, could not be apportioned, and the devisees in remainder of the land from which the rent issued could maintain a joint action against the executor of the life-ten- ant for rent collected by him, which became due after the termination of the life estate. This is no longer the law. Marshall v. Moseley, 21 N. Y. 280. Vide post, Chap. XIV, Tit. II, for present law. Charges.— Tenants in life are bound to keep down charges, and preserve the estate from loss and forfeiture by paying interest on incumbrances, taxes, etc. And this the life-tenant is obliged to do, even though it should exhaust rents and profits of the estate, unless TIT. II.] INCIDENTS OF THE ESTATE. 143 the intention of the testator or other party creating the estate be otherwise manifested. 4 Kent, 75; Stillwell v. Doughty, 3 Brad. 311 ; Moseley v. Marshall, 22 N. Y. 300. So in case of lease for life at a nominal rent. Carter v. Youngs, 43 Super. 418. As to what charges should be apportioned see Peck v. Sherwood, 56 N. Y. 615. It is a well-established principle, also, that where there is an estate for life and a remainder in fee, and there exists an incumbrance binding the whole estate in the land, and no special equities between the remainderman and the tenant for life can be shown, the latter is bound to pay the interest accruing during the continuance of his estate, and the owner of the future estate is to pay off the principal of the lien. House V. House, 10 Paige, 158 ; 4 Kent, 74; Moseley v. Marshall, 32 N. Y. 200. See also as to when the personalty and when the realty is bound under a will, etc., Ch XV. Waste.— Tenants for life are bound not to commit waste or destruction of the estate, voluntary or permis- sive ; and are bound to take proper care, so as to prevent deterioration from neglect or decay. Otherwise they may have to respond in damages, even for waste committed by a stranger, and may be stopped by injunction. By the English rule they could not destroy timber growing on the lands. In this country, it is held that a reasonable amount of timber land may be cleared for cul- tivation, and may be cut for use, if the estate be not in- jured and enough is left for permanent use. Timber may be cut, also, for use in mining; and for staves and shingles if the lands were used for those purposes. Jackson v. Brownson, 7 Johns. 327; Parkins v. Coxe, 3 Hayw. 339; Hickman V. Irvine, 3 Dana, 133; Owen v. Hyde, 6 Yerger, 33i; Veel v. Neel, 19 Penn. St. 338; Ballentyne v. Poyner, 2 Hayw. 110; Loomis v. "Wolbur, 5 Mason, 13 ; Harder v. Harder, 36 Barb. 409 ; Rutherford v. Aiken, 2 T. & C. 281. But see McGregor v. Brown, 10 N. Y. 114. If timber is improperly cut, it becomes the personal property of the owner of the inheritance, who may maintain trover for it against any one in possession. See N. Y. Rev. Stat, about Waste, vol. i, 780, § 8 ; Mooers v. Wait, 3 Wend. 104 ; Rodgers v. Rodgers, 11 Barb. 595. 144 INOIDBNTS OF THE ESTATE. L^H. VI. An injunction may be granted against any one who colludes with the tenant to commit waste. Rodgers v. Rodgers, 11 Barb. 595. Damages for Waste. — Damages are to be based not merely on the value of what may be removed, but the solid and permanent injury to the in- heritance caused by the removal. Harder v. Harder, 36 Barb. 408 ; and see infra. Provisions of Former Statutes.— The Revised Statutes (1st ed. p. 334) makes life-tenants and tenants for years, and by curtesy and dower, and also guardians, liable for waste, and the assignees of such tenants; such tenants are liable, if they are in possession, whether they have let and granted the estate or not. Suits, also, for waste may be brought by joint tenants or ten- ants in common against each other ; and heirs may bring the action for waste done in the time of the ancestor as well as in their own time. As to liability of guardians see Torry v. Black, 65 Barb. 414 (rev'd in 58 N. Y. 185, on other grounds). By the Revised Statutes, also, a person seized of an estate in remainder or reversion, might maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years. (Taken from R. L. of 1813, p. 537.) In case of judgment in favor of any other than a joint tenant or tenant in common, judgment was to be for re- covery of the place wasted and treble damages as found. If in favor of the said classes, they might have judgment either for treble damages or to have partition. As to former proceedings for waste, vide the Rev. Stat. 1st ed. p. 334 ; see also as to waste and proceedings for damages. McGregor v. Brown, 10 N. T. 114; Van Brunt v. Schenck, 11 J. R. 438; Kidd v. Denniso, fi Barb. 9; Vanduzen v. Young, 29 Barb. 15 ; reversed, 39 N. Y. 9 ; Carris v. Ingalls, 13 Wend. 70 ; Robinson v. Wheeler, 35 N. Y. 253; Livingston v. Mott, 3 ib. 605; Robinson v. Kine, 70 N. Y. 147; Agate v. Lowenbein, 57 N. Y. 604. By the Code of Piocedure, §§ 450, 451, 453, it was provided as follows: "The action of waste is abolished; but any proceedings heretofore com- menced, or judgment rendered, or right acquired, shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises." '' The provisions of the Revised Statutes relating to the action of waste shall apply to an action of waste brought under this act, without regard to the form of the action, so far as the same can be so applied." Judgment of forfeiture and eviction shall only _ be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the valueof the tenant's estate, or unexpired term, or to have been done in malice." As to proceedings in actions since the Code of Procedure, vide 26 Barb. 409 ; 35 N. Y. 253, supra; and Harder v. Harder, 36 Barb. 409. Provisions of the Code of Civil Procedure. — Proceedings in an action for waste, under the Code of Civil Procedure, are regulated by §§ 1651 to 1659, inclusive, composing Article 6 of Title I, Chap. XIV. The action lies against a tenant by the curtesy, in dower, for life or for years, or the assig- nee of such tenant, or against a guardian by his ward, cither during or after termination of wardship. An heir or devisee may have an action for waste committed during the life of his ancestor or testator, a grantor of the rever- sion for waste committed beiore his grant, or a purchaser on execution sale for waste committed after the sale, against the person then in possession. Treble damages must be given (except that a joint tenant or tenant in com- mon against his co-tenant, shall have his option of treble damages or parti- tion), and if the plaintiff be the person next in reversion, and the damage to TIT. II.J INCIDENTS OF THE ESTATE. 145 the property equals the value of defendant's term, or was maliciously done, the defendant shall, in addition, forfeit all Ms estate in the property to the plaintiff. If, in the case of co-tenants, plaintiff elects a partition, supple- mental pleadings shall be made, if necessary, to bring in any new parties needed for a partition, and plaintiff may either take a judgment for single damages and costs, or be compensated therefor out of defendant's interest, in making actual partition, or out of the proceeds of sale, in case of sale. But he shall not have expenses of the partition. A view is in the discretion of the court or referee. Application for Production of Life Tenants.— By the Code of Civil Procedure, ch. xvii, tit. 5, a person entitled to claim real property after the death of another who has a prior estate therein may, not oftener than once a year, apply by petition to the Supreme Court at special term in a district where at least a part of the property is situated, for an order directing the production of the tenant for life by a person named in the petition against whom an action of ejectment to recover the real property can be maintained if the tenant for life is dead ; or, where there is no such person (§ 2302), by the guardian, husband, trustee, or other person who was or is entitled to the cus- tody of the person of the tenant for life or the care of his estate. Full details of the proceedings are given. If possession be awarded the remainderman under this proceeding, and it appears afterward, that the life-tenant was not, in fact, dead, a similar proceeding may be taken on his behalf for the restoration of possession to him, and mesne profits maybe recovered (§§ 2317, 2318). This supersedes R. S. pt. 3, ch. 5, title 8 ; ib. X R. L. 104. The Code of Procedure, § 471, continued proceedings under the Revised Statutes in force. All these former laws are now repealed. L. 1880, c. 345. These proceedings are not applicable where the occupant has a base fee. Matter of Hyde, 41 Hun, 73. Liability of Guardians, etc., holding over after their Estates have ceased.— By the Code of Civil Procedure a person in possession of real property as guardian or trustee for an infant, or having an estate determinable upon one or more lives, who holds over and continues in possession after the determination of his trust or particu- lar estate, without the express consent of the person then immediately entitled, is a trespasser. An action may be 10 146 INOIDBNTS OF THE ESTATE. [OH. VI. maintained against him or his executor or administrator by the person so entitled, or his executor or administra- tor, to recover the full value of the profits received during the wrongful possession. § 1664, 1 R. L. 167, § 71 ; see Livingston v. Tanner, 14 N. Y. 64 ; Torrey v. Torrey, ib. 430. Dower and Curtesy. — These two species of estates for life are reviewed in the ensuing chapter. CHAPTER VII. DOWER AND CURTESY. Title I. — The Estate of Dower. Title l\. — Dower, how Barred or Defeated. Title III. — Assignment and Admeasurement of Dowbe. Title IV. — Miscellaneous Provisions as to Dower. Title V. — Estates by the Curtesy. I. The Estate oe Dowek. (Also see Title IV, MUcellaneous.) Dower is a life estate created by operation of law, in favor of the wife, on the decease of her husband, by which she is endowed, for life, with a third of the lands of which he was seized of an estate of inheritance, at any time dur- ing covei'tv/re. The title to dower is inchoate on marriage and seizin ; and then attaches to the land, but is not con- summate until decease of the husband. Denton v. Nanny, 8 Barb. 618; Sutliff v. Forgey, 1 Cow. 89; 5 ib. 713. Vid. Statute of Magna Charta of Henry III. By our Revised Statutes, this common law right is con- firmed as follows : " A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage." Rev. Stat. vol. i, p. 740 (substantially the same provision as in 1 R. L. of 1813. p. 56, § 1). The freehold and the inheritance must be in the husband during the mar- riage, mmtl et semel. Beardslee v. Beardslee, 5 Barb. 324 ; 4 Kent, 39. If the marriage is void by reason of a former wife living, and marriage of the husband when the divorce was obtained against him a stncMfo, the widow is not entitled to dower. Cropsey v. Ogden, 11 N. T. 338. In general, however, it attaches in favor of the wife de facto where the marriage is voidable merely. Where a man contemplating marriage fraudulently conveyed away land to avoid wife's right of dower. Held that her dower attached. Youngs v. Carter, 1 Abb. N. C. 136, note; affi'd, 10 Hun, 194; Pomeroy v. Pomeroy, 54 How. Pr. 228 ; Babcock v. Babcock, 53 How. Pr. 97. As to marriage, see Hynes v. McDermott, 9 Daly, 4. 148 THE ESTATE OP DOWER. [CH. VII. Dowress has such interest as will entitle her to subrogation on paying mortgage. Bayles v. Husted, 40 Hun, 376. Joint Seizin.— No title to dower attaches on a joint seizin by the husband and others ; the possibility of the estate being defeated by survivorship defeats dower. But it attaches in case of tenancy in common. Smith v. Smith, 6 Lans. 313. Partnership Lands. — As to dower in such lands, vide post, Ch. XI, as to joint interests in land. See also Winter v. Elkert, N. T. Daily Register, April 7, 1888. Nature of the Seizin requisite. — A seizin *Vi law of the husband is sufficient without actual seizin ; but the seizin must be in fact or in law. If the husband died before entry, the wife is entitled to dower ; unless in case of non- entry for forfeiture, or where a tenant retains his seizin after the determination of a particular freehold estate. Therefore there can be no dower in a reversion in fee, or a vested remain- der expectant, on an estate for life, or the like estate. Durando v. Durando, 33 N. Y. 231 ; Green v. Putnam, 1 Barb. 500. Dower is defeated by entry under a prior title and disseizin of the husband. Beardslee v. Beardslee, 5 Barb. 334. Nor can there be dower in a lite estate pwr omtre vie. Nor in any estate held adversely, after release to the legal owner. Poor v. Horton, 15 Barb. 485. Where a devisee, subject to executor's power of sale died, before exercise of the power of sale, his widow was held to be entitled to dower. . Timpson's Est. 15 Abb. Pr. N. S. 330. As to Dower upon Dower see Aikman v. Hassell, 31 Hun, 634 ; affi'd, 98 N. T. 186; Price v. Price, 83 Hun, 76; Jones v. Fleming, 37 Hun, 337. Where the husband has a life estate, and was vested of the remainder, sub- ject to be divested on a contingency, dower attaches, but will be defeated by the divesting of his estate. House v. Jackson, 50 N. T. 161. Seizin in transitu, — A transitory seizin of the husband for an instant, as a conduit, is insufficient to give dower, although, if it vest heneficially in him for a moment, the right of dower attaches. Cunningham v. Knight, 1 Barb. 399. Wife of a Mortgagee.— Nor is the wife of a mortgagee dowable of a mortgaged estate, unless he acquired an absolute estate during coverture. 1 R. S. p. 740, § 7: Cooper v. Whitney, 8 Hill, 95; Gomez v. Tradesmen's Bank, 4 Sandf. 102 ; Jackson v. Williams, 4 Johns. 41. TIT. I.] THE ESTATE OF DO\\ER. 149 Wife of Mortgagor.— The wife of the mortgagor, even if she join in the mortgage, is always entitled to dower out of the equity of redemption, in lands mortgaged. The dower right is subordinate to the mortgage, where the mortgage was made prior to her marriage, or where it was for a part of the consideration on the purchase of the land by her husband (and that whether accepted by the vendor as part of the consideration or advanced by a stranger) ; or, where she has joined with her husband in the mortgage. But she is entitled to dower in all the land, where the mortgage was made during marriage and she did not join, except as above. Where lands granted by the husband were, after his death, swallowed up hy incumbrances on them, the widow recovered of the husband's grantee for dower in rents, received after the husband's death, but before sale to pay in- cumbrances. Witthaus V. Schaack, 38 Hun, 560. Whore wife joined in mortgage, but not in subsequent deed, the grantee may have subrogation on paying mortgage. Dowress cannot insist on satis- faction so as to extend her dower. Piatt v. Brick, 34 Hun, 121. A widow is not entitled to dower in lands, as against the purchase money mortgagee, or those claiming under him. [1 R. S. 740, 741, § 5] De Lisle v. Herbs, 35 Hun, 485. The wife's dower is affected, when she joins with her husband in a mort- gage, only to the extent of the mortgage. If the mortgage fail as to the hus- band, her dower right is also freed. Hinchcliffe v. Shea, 103 N. Y. 153; rev'g 34 Hun, 305 ; Everson v. McMullen, 4i Hun, 369. If there has been an entry by the mortgagee after forfeiture, under a mort- gage made before coverture, or the equity of redemption has been released to the mortgagee or those claiming under him by the husband, the widow of the mortgagor is not entitled to recover dower at law, but might have relief in equity on paying due proportion of the debt. Van Duyne v. Thayre, 19 Wend. 163; Swaine v. Perrine, 5 Johns. Ch. 482. If the mortgagee, under a mortgage made before coverture, enters, under a foreclosure, or after forfeiture of the estate, and by virtue of his rights as mortgagee, the right of dower of the mortgagor's wife must yield to the mortgagee's superior title; for, as against the title under the mortgage, the widow has no right of dower, and the equity of redemption is entirely sub- ordinate to that title. Smith v. Gardner, 43 Barb. 356. The mortgage in the above case was given for purchase-money, and the wife not made a party to the foreclosure. It was held that the remedy, if any, was by action to redeem, and not ejectment for dower. See also, Jack- son V. Bruyn, 6 Cow. 816. If the wife redeem, she is bound to contribute ratably with the heir to- wards the redemption. If the heir redeem, she contributes by paying during life to the heir one third of che interest on the amount of the mortgage- debt, paid by him, or else a gross sum, amounting to the value of such annu- ity. Swaiue v. Perrine, 5 Johns. Ch. 483: Bell v. Mayor, 10 Paige, 49; House V. House, id. 159; Mills v. Van Voorhis, 20 N. Y. 412; Wheeler v. Morris, 3 Bosw. 524. As in this State the mortgagor, until re-entry or fore- 150 THE ESTATE OF DOWEK. [CH. VII. closure, is regarded to be legally, as well as equitably seized of mortgaged lands, the wife is dowable, as above stated, of an equity of redemption therein, existing at the decease of her husband. Where she has duly executed a mortgage jointly with him, she is only dowable of such, equity. She is endowed of such equity as well when a mort- gage was executed before marriage by her husband sole, as after, when executed jointlj'^, as against every person except the mortgagee and those claiming under him. The equity of redemption may be defeated by foreclosure suit, to which she must beapa/rty. This applies in this State as well to mortgages given as part consideration-money, in which she does not join, as to others. Brackett v. Baum, 50 N. Y. 8. Vide infra, " Foreclosure," Oh. XXYIII, and Russell v. Austin, I Paige, 193; Van Duyne v. Thayre, 14 Wend. 233; Bell V. The Mayor, 10 Paige, 49; Mills v. Van Voorhis, 30 N. T. 412; 1 R. S. 1830, p. 740, §§ 2, 5, 6; Denton v. Nanny, 8 Barb. 618; Wheeler v. Mor- ris, 2 Bos. 534 ; compare Cunningham v. Knight, 1 Barb. 399 ; Eunyan v. Stewart, 12 Barb. 537. The wife's right, both inchoate and vested, in the hus- band's land follows the surplus moneys; and will be pro- tected against creditors, and her one-third will be directed to be invested for her. lb.; and Vartie v. Underwood, 18 Barb. 564 ; Hawley v. Bradford, 9 Paige, 200; IR. S. Isted. p. 741. Where the wife unites with her husband in conveying an estate in which she is entitled to dower, the conveyance is held to be an extinguishment of her right, not only with respect to the grantee and his successors in interest, but also as to third parties. Accordingly, where the husband gave a purchase-money mortgage, and he and his wife conveyed, subsequently, the land to another person, and after- wards the mortgage was foreclosed, it was determined that as between her- self and the strangers to the conveyance, the wife was not, after her husband's decease, entitled to dower in the surplus moneys. Elmendorf v. Lockwood, 4 Lans. 393; affi'd, 57 N. T. 322. A mortgage given by husband and wife to secure the purchase-money of mortgaged premises, cannot, after having been satisfied and discharged of record, be set up by the assignee of the husband as a bar to his widow's right of dower. Runyan v. Stewart, 13 Barb. 537; Bartlett v. Musliner, 38 Hun, 335. In an aj)pIication for dower out of surplus moneys, sums due to the estate from the widow cannot be recouped, though, perhaps, they might be, if she elected a gross sum in lieu of dower. The amount due on the mortgage, and the costs and expenses of foreclosure, must be deducted, but not taxes or assessments, before computing dower. Taylor v. Bentley, 3 Redf. 84. TIT. I.] THE ESTATE OF BOWEB. 151 Dower in Hereditaments, etc.— A woman is dowable in all hereditaments appertaining to the reality, as well as to lands of which her husband was seized ; this would in- clude rents, commons, mines, if opened, and other incor- poreal s, partaking of the realty. Stoughton V. Leigh, 1 Taunt. 403 ; Coates v. Cheever, 1 Cow. 460 ; 4 Kent, 41. Dower would not apply to such a right as the using of water for hydraulic purposes. Kingman v. Sparrow, 12 Barb. 301. Nor to share in a land company, of which the husband had disposed in his lifetime. McDougal v. Hepburn, 5 Fla. 568. Grass and Fruits.— A widow has no dower in graaa and fruits, and other spontaneous productions of the soil growing on her husband's lands at the time of his decease. Kain v. Fisher, 3 Seld. 597, vide, infra, "Crops," p. 163. Beneficial Estates. — Strictly, the wife of a cestui que trust was not dowable in an estate in which her husband had only the equitable and not the legal estate during coverture, as of a use or trust ; and this is still the English rule, except where modified by statute. By various provisions of statutes, in this State, the wife has her dower in certain inheritable interests of the husband, in lands whereof he died seized, of the equitable, but not of the legal, estate, as will be seen under ap- propriate heads. A wife is not endowable of lands held by a party in trust to sell and dis- pose of the same, and then to pay debts and legacies, the residue to belong to the trustees. This is on the principle that the husband is seized of no estate in the land ; but has a mere power in trust, inasmuch as he is not entitled to the rents and profits as well as to the possession. Germond v. Jones, 3 Hill, 569. Nor in lands held as equitable mortgagee, subject to the right of redemp- tion in the cestui que trust. Terrett v. Crombie, infra. Trust Estates. — The widow of a trustee of lands has no dower in them. Cooper V. Whitney, 3 Hill, 95 ; Terrett v. Crombie, 6 Lans. 83 ; affl'd, 55 N. Y. 683. Dower in Lands Purchased under Execution.— By the Code of Civil Procedure (§14*73), the wife also is to have dower in lands purchased by the husband at sale on execution, when the husband dies before the expiration of the time for redemption, and the lands are subsequently conveyed to the executors or administrators of the deceased husband, in trust for the heirs. So formerly by 3 R. S. 874, § 64; repealed by L. 1880, oh. 345. And see post, " Sales under Execution." Dower in Lands Contracted to be Sold.— By the Revised Statutes, a wife also had dower in lands held by the husband 152 THE ESTATE OF DOWEK. [OH. VII. at the time of his death, by contract of purchase. This was also the general rule in equity. 3 E. S. p. 112: also. p. Ill, § 84. Repealed L. 1880, c. 345. Vide Co. Civ. Proc. §§ 3793-4. Knolls v. Barnhart, 9 Hun, 443; affi'd, 71 N. Y. 474. The Chancellor, in Hawley v. James, 5 Paige, 318, 453, and 16 Wend., holds that a widow is dowable only of lands lield by the husband by contract at the time of his death ; and if aliened in his lifetime, he holds her not en- titled to dower. In Hicks v. Stebbins, the right is held to apply to lands which the deceased held by contract as purchaser, without regard to the time of the death of the husband, or whether he had or had not parted with the contract before his decease. The court, however, reluctantly refuses to disturb the Chancellor's decision. 3 Lans. 39; vid.post, "Contracts of Sale,'' Ch. XIX. Equitable Conversion, and Lands Taken Subject to a Power. — In equity^ lands agreed to be turned into money, or money into lands, are considered as that species of property into which they were agreed to be converted; and the right of dower is regulated in equity by the nature of the property in the equity view of it. Green V. Green, 1 Ham. Ohio, 349; Coster v. Clarke, 3 Edw. Ch. 437; Kent, p. 50 ; Church v. Church, 3 Sandf. Ch. 434. When specific performance was decreed against the vendor's widow, who was also sole devisee, she was held not entitled to dower. Myers v. De Mier, 53 N. T. 647. If lands descend subject to a power of sale subsequently exercised, the widows of heirs and devisees take dower in the proceeds respectively. Timp- son's Estate, 15 Abb. N. S. 130. Lands Exchanged.— Our statutes prescribe that if a husband, seized of an estate of inheritance in lands, exchange them for other lands, his widow shall not have dower of both, but shall mate her election ; and if such election be not evinced by the commencement of pro- ceedings to recover her dower of the lands given in ex- change within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange. § 3, p. 740, vol. i. Rev. Stat. This means a mutual grant of equal interests. If the husband take back merely an equitable interest, and gives a fee, the wife's dower is not removed. Wilcox V. Randall, 7 Barb. 633. As to enforcing specific performance where lands exchanged are subject to a dower right, see Sternberger v. McGovern, 15 Abb. N. S. 357. Statutes of Descent— By R. S., vol. i, p. 754, § 21, it is provided that the estate of a widow as tenant in TIT. II.] DOWEB, HOW DEFEATED. 153 dower shall not be aflPected hj any of the provisions of ch. ii, title 5, part 2d, of R. S., relative to the descent of real property. Lands taken by the Public— A widow has no dower where the land is taken for public purposes during the coverhire, as by a municipal corporation, according to law. Moore v. The Mayor, 8 N. T. 110; affirming, 4 Sandf. 456; Melizst's Ap- peal, 17 Penn. St. 449 ; Weaver v. Gregg, 6 Ohio St. 547. Btft an inchoate right of dower in lands taken under eminent domain is a subsisting interest which will ie protected. Simar v. Canaday, 53 N. T. 298 ; limiting Moore v. Mayor, supra. Title II. Dower, how Defeated oe Barbed. (See also Title IV, Miscellaneous.) As a general rule, no act, deed, or conveyance of the husband, or judgment or decree confessed by or recovered against him or his heirs, can prejudice the wife's right to her dower; nor can deeds fraudulently made by him to defeat dower, have that effect. Neither can courts, unless under express statutory provision, compel a widow to accept a gross snra in lieu of dower. Grain v. Oayana, 36 Barb. 410, overruling Jackson v. Edwards, 33 Wend. 498. Jointure — The wife may be barred, with her assent, by a pecuniary provision or by having a jointure settled upon her in lieu and satisfaction of dower. If the jointure be made before marriage, with her assent, it bars the dow- er (even if she be an infant ; McCartee v. Keller, 2 Paige, 511 ; affirmed, 8 Wend. 267; Matter of Estate of Young V. Hicks, 92 N. Y. 23.5) ; but if made after marriage or before mari'iage, without Tier consent, the wife, on the death of her husband, has her election to accept of the jointure, etc., or her dower. Her assent as aforesaid is evidenced by her being a party to the conveyance, if of full age, and if an infant, by her joining with her father or guardian therein. 1 R, S, p. 741. The legal or equitable provisions to bar the dower estate must be a fair equivalent therefor, and be a reasonable and competent livelihood, to make 154 DOWBB, HOW DEFEATED. [CH. VIT. them absolutely binding in the first instance. 8 Wend. 367; 3 Paige, 511, supra; Curry v. Curry, 10 Hun, 366. Unless they are carried out, dower will not be barred. Ellicott v. Hosier, 11 Barb. 31 ; 7 N. Y. 301 ; Sheldon v. Bliss, 4 Seld. 31. Nor unless they are to take eflfect immediately on decease of the husband. Crain v. Oavana, 86 Barb. 410. The above provisions are taken from the R L., 1813. An ante-nuptial agreement to accept a certain sum in lieu of dower may be enforced by specific performance. Carpenter v. Carpenter, 40 Hun, 363. But where, by the agreement, the provision in lieu of dower was to be a lien, and it was held that the agreement did not effect this, and the provi- sion failed, dower was not barred. Mundy v. Munson, 40 Hun, 804. Ante-nuptial agreement gives no estate per se in lands subsequently ac- quired though so intended and expressed. Johnston v. Spicer, 41 Hun, 475. But it can be enforced by specific performance. lb. As to being too indefinite to be a lien, see Mundy v. Munson, 40 Hun, 304. Jointure, etc., when Forfeited. — ^Every jointure, devise, and every pe- cuniary provision in lieu of dower shall be forfeited by the woman for whose benefit it shall be made, in the same cases in which she would forfeit her dower; and upon such forfeiture, any estate so conveyed for jointure, and every pecuniary provision so made, shall immediately vest in the person or his legal representatives, in whom they would have vested on the determination of her interest therein, by the death of such woman. Vol. i, p. 743, § 15. Provisions by Will and Deed. — § 13, ib. If provision be made to a woman by will, in lieu of dower, she shall also make her election. She shall be considered to have chosen the jointure or provision, unless within oree year from her husband's death she commences proceedings for dower or enters on the lands to be assigned to her for dower. 1 R. S. p. 743, § 14; Palmer v. Voorhis, 35 Barb. 479. Where a legacy is not expressed in lieu of dower, it will not be so intended, unless the intention is manifest from the will. 3 Johns. Ch. 448 ; 7 Cow. 387; 4 Barb. 30; 9 N. Y. 503; 13 Barb. 106; Savage v. Jackson, 10 Paige, 366; Savage v. Burnham, 17 N. Y. 563; Dodge v. Dodge, 31 Barb. 413; Palmer v. Vorhis, 85 Barb. 479; Bull v. Church, 5 Hill, 206; aflirmed, 3 Den. 480 ; Wetmore v. Peck, 66 How. Pr. 54 ; Bond v. McNiflF, 38 Super. 83 ; affi'd, 41 Super. 453 ; White v. Kane, 51 Super. 395 ; Konvalinka v. Schlegel, 104 N. Y. 135. A provision by will in lieu of dower, if accepted, bars the wife's dower in lands which the testator had conveyed before the date of the will. 35 Barb. 479, supra; Steele v. Fisher, 1 Edw. 435. She is barred after the year, whether she knew of the provisions of the will or not. 35 Barb. 479, supra. Provision by Deed. — Where a deed of husband and wife is set aside for fraud on creditors her dower is revived, and she need not take a gross sum in lieu thereof. Lowry v. Smith, 9 Hun, 514. When Election Binds. — ^Election induced by fraud is not binding. This is not a statute of limitation. Akin v. Kellogg, 39 Hun, 353. Widow must have full knowledge of the nature and extent of the estate, or her election will not bind her. Hindley v. Hindley, 39 Hun, 318. Election of provision in will is in ease of the estate, and bars the widow from sharing in lapsed legacies. Matter of Accounting of Benson et. al. 96 N. Y. 499. TIT. II.] UOWER, HOW DEFEATED. 155 Where widow accepts devise of whole estate in trust for her benefit, dower is abrogated. Asch v. Asch, 18 Abb. N. C. 83. (Savage v. Burnham, 17 N. Y. 561.) When Dower Defeated.— As a general principle, the wife's dower is liable to be defeated by every subsisting claim or incumbrance in law or in equity existing before the inception of the title, and which would have defeated the husband's seizin. An agreement by the husband to convey, before dower attaches, will, if enforced in equity, extinguish the claim to dower; also a judgment recovered against the husband before marriage, and a sale under it, overreaches the wife's right of dower. 3 Paige, 117. So where the husband elects to rescind a sale to him for fraud, dower is lost. Hammond v. Pennock, 61 N. Y. 145. But not by a conveyance made before marriage with the intent of depriv- ing the wife of dower. Youngs v. Youngs, 10 Hun, 194. Defeasance. — Dower is also defeated by the disseizin of the husband, by paramount title or re-entry, on condi- tion broken, and by the operation of collateral limitations determining the estate. Acts of the Husband.— By 1 R. S., p. Y42, § 16, no act, deed, or conveyance executed or performed by the husband, without the assent of his wife, evidenced by her acknowl- edgment thereof, in the manner required by law to pass the estates of married women, and no judgment or decree confessed by or recovered against him, and no laches, de- fault, covin, or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto. Denton v. Nanny, 8 Barb. 618. The Statute of Apr. 6, 1793 (2 Greenl. 453), made provision that a wife's dower would be barred if she were a non-resident of the State, and if she joined in a conveyance by her husband. Her deed concludes her as an estoppel, not as a grant. Maloney v. Horan, 83 Barb. 29; rev'd, on other grounds, in 49 N. Y. 111. The legal effect of a. wife's uniting with her husband in a conveyance of his lands is to release her dower. Before admeasurement, she has no interest or estate in the lands, and her deed operates not as a grant but as an estoppel. Dower is not removed if the wife is an infant at the time of the acknowl- edgment. Cunningham v. Knight, 1 Barb. 399 ; Sanford v. McLean, 3 Paige, 117; Wells v. Seixas, 33 Blatch. 343. Nor is her dower barred by a deed of separation. Carson v. Murray, 3 Paige, 433. As to how far it is barred if she join in a deed, subsequently set aside as fraudulent or void, see post, Ch. XX[; Manhattan Co. v. Evertson, 6 Paige, 467 ; Maloney v. Horan, 4ft N. Y. 111. Vide infra, "Release." See also ante, pp. 73, 73. 156 DOWER, HOW DEFEATED. [CH. VII. As to what duress on the part of the husband will avoid her deed or re- lease, see Rexford v. Rexford, 7 Lans. 6. where husband and wife joined in a deed, absolute on its face but really a mortgage, and the grantee afterward re-conveyed to the husband taking back a mortgage from him alone, dower attached. Taylor v. Post, 30 Hun, 446. Foreign Divorce. — A woman divorced in Illinois for the husband's desertion will not have dower here, if she has appeared in the action. Van Cleaf V. Burns, 43 Hun, 461. Adultery of Wife.— By the Laws of 1787, Sess. 10, c. 4, § 7, the wife was barred of dower who eloped with an adulterer, unless subsequently reconciled to her husband. By the Revised Statutes of 1830, in case of divorce a vinculo for the misconduct of the wife, she shall not be endowed. These provisions superseded the above. Vol. ii, p. 146, § 61 ; vol. i, p. 741, § 8. See also Code Civ. Proc. § 1760. As to a case arising under adultery committed before 1830, "eidie Reynolds V. Reynolds, 24 Wend. 193. If condoned her inchoate right is not affected. Pitts v. Pitts, 13 Abb. N. S. 272; affirmed, 53 N. Y. 593. A decree of limited separation can make no provision affecting dower. Crain v. Cavana, 62 Barb. 109. Adultery will not, per se, bar dower. Only a decree of divorce for adultery will suffice. A decree in another action establishing the fact has no effect. Pitts V. Pitts, 52 N. T. 593 ; Schiffer v. Pruden, 64 N. Y. 47. Even a decree in action for divorce finding adultery of wife, but re- fusing divorce because of husband's adultery, will not bar dower. Schiffer T. Pruden, 39 Super. 167; affi'd, 64 N. Y. 47. Adultery of the Husband. — It has been questioned whether a woman wbo has obtained a decree for a divorce a vinculo matrimonii, for the adultery of Tier husband, was entitled after his death to dower in her estate. In Wait V. Wait, 4 Barb. 192, it was held that she was not. This case, however, was reversed, and the contrary rule estab- lished by the Court. of Appeals. Wait V. Wait, 4 Corns. 95. See also, Forest v. Forest, 8 Abb. 144 ; s. c, 35 N. Y. 501. By Code Civ. Proc. § 1759, it is provided that where final judgment is rendered dissolving the marriage on the wife's application, the plaintiff's right of dower in any real property of which the defendant is or was thereto- fore seized, is not affected by the judgment. But she is not entitled in lands of which he became seized after the divorce. Kade v. Lauber, 16 Abb. Pr. N. S. 388. She is entitled to dower iu lands of the husband of which he was seized before divorce, even where she re-marries. Van Voorhis v. Brintnall, 23 Hun, 360; rev'd, 86 N. Y. 18, on other grounds. Provisions under Law of I860.— Under Law of March 20, 1860, ch. 90, p. 159, on the decease of husband or wife, leaving no minor child, the sur- TIT. II.] DO WEE, HOW DEFEATED. 1.57 vivor took a life estate of one-third of the estate of which the other died seized. If he or she died intestate, leaving minor child or children, the survivor took the income of the whole real estate during the minority of the youngest child, and of one-third for life. 71iese provisions were repealed by Law 1862, ch. 173, but affected rights vested under them. Release.— The wife may release dower during life of husband in no other way than by Joining in a conveyance to a third person. Carson v. Murray, 3 Paige, 483 ; Elmendorf v. Lockwood, 57 N. Y. 833, 330 ; People v. Knicker- bocker Life Ins. Co. 66 How. Pr. 115; Ford v. Knapp, 31 Hun, 522; re- Tersed on another point, 103 N. Y. 135. As to wife's inchoate right of dower, and how she may release same. Wltthaus V. Schack, 105 N. Y. 333; rev'g 38 Hun, 590. An agreement during coverture or between husband or his trustee and the wife to relinquish her dower, is invalid. 3 Sandf. 811. Or a release by her to him. Crain v. Cavana, 36 Barb. 410; 3 Paige, 483, supra. See also cases, ante, p. 70. Neither do the laws of 1848 and 1849, for the protection of married women, enable a wife to release her dower directly to her husband. Graham V. Van Wyck, 14 Barb. 531 . Nor agree with him to do so. Crain v. Cavana, 36 Barb. 410. If she release to a purchaser Jor value she shall be deemed to release in every character which enabled her to give effect to her deed. Hitchcock V. Dundas, 12 How. 256. The release of dower to lessees of the husband is not an abandonment of dower as between the widow and the husband's heirs. Williams v. Cox, 3 Edw. 605. The court cannot compel a husband who has married a woman having a dower right, nor the female either, to join in a deed releasing it. In re Lane, 1 Ed. Ch. 349. It has been held, as a principle regulating the estate, that a release of dower is held to operate only as a release, and that it does not operate as the transfer of an independent estate ; that therefore if the principal instrument (a deed or mortgage, as the case may be) accompanying it is cancelled, or never takes effect, or ceases to operate, the release of dower falls with it, and the right of dower revives. Halstead v. Eldridge, 3 Halst. 393; Douglas V. McCoy, 5 Ohio R. 537; Powell v. Morrison, &c. 3 Mason, 347; Hall v. Savage, 4 id. 373; Barker v. Parker, 17 Mass. 56; Summers v. Babb, 13 LI, 483; Stinson v. Summers, 9 Mass. 143; Kitzmiller v. Rensselaer, 10 Ohio St. 63; Taylor v. Fowler, 18 Ohio, 567; Robinson v. Bates, 3 Mete. 40 ; Woodworth v. Paige, 5 Ohio St. 70 ; Miller v. Wilson, 15 Ohio St, 108. The case of Maloney V. Horan, 53 Barb, 39, does not appear to be in accord with the cases, but that decision was reversed on appeal. See Maloney v. Horan, 49 N. Y. 113. As to a release during coverture of part of an estate held in trust, vide Martin v. Smith, 46 N. Y. 571. Quitclaim or release of dower by a married woman to a stranger to the title will not divest her of the inchoate right of dower. Merchants Bk, v. Thompson, 55 IST. Y. 7. An agreement by a wife in articles of separation to release her dower is not binding after the husband's death. Guidet v. Brown, 3 Abb. N. 0. 395. Even though she long accepted a pecuniary provision thereunder. li. Where a widow set aside as to herself a deed of her husband's in which she had joined, it was held that her dower attached as to the original grantee, but not as to hona fide purchasers from him before the revocation of the deed. Witthaus v. Schaack, 31 Hun, 590. Where an infant wife joins in a deed she may disavow it at any time before the statute has run. Mere inaction will not confirm it, and, when disaffirmed, dower attaches. Wells v. Seixas, 33 Blatch. 343. A deed in which the wife joins need not expressly release dower eo nomine to operate as a release. Other words may do. Gillilan v. Swift, 14 Hun, 574. 158 DOWBE, HOW DEFEATED. [CH. VII. Estoppel.— A widow may be estopped by her own acts from setting up dower. As, when an innocent grantee has taken a deed under a statement from a widow that her dower had been extinguished, and relying upon it. Maloney v. Horan, 49 N. Y. Ill; Lawrence v. Brown, 5 N. Y. 394; Wood V. Seely, 32 N. T. 105 ; Jewett v. Miller, 10 N. Y. 402. See also Witthaus V. Schaack, 81 Hun, 590. Limitation.— It is also provided that, " an action for dower must be commenced by a widow within twenty years after the death of her husband; but if she is at the time of his death, either — 1. Within the age of twenty-one years ; or, 2. Insane ; or imprisoned on a criminal charge, or in execution upon conviction of a criminal ojffense for a term less than for life, the time of such disability is not a part of the time limited by this section." Co. Civ. Proc. § 1596. The provisions formerly in force, which are substantially the same, are found in 1 R. 8., p. 742, which was repealed by L. 1880, c. 245. This section would apply to cases where the husband died before the Rev. Stat, of 1830. Brewster v. Brewster, 82 Barb. 428; contra, Stewart v. Smith, 14 Abb. 75; Ward V. Kilts, 12 Wend. 137; Williamson v. Field, 3 Sandf. Ch. 569. By L. 1882, c. 277, the above section of the Code was amended by adding a provision that if, before dower is barred, the owners of the land subject to it shall execute an acknowledgment of it under seal, and acknowledged like a deed, or it shall be recognized by a judgment to which such owners are parties, the statute shall run only from such acknowledgment or judgment. Assignment in Bar.—" The acceptance by a widow of an assignment of dower in satisfaction of her claim upon the property in question bars an action for dower, and may be pleaded by any defendant." Co. Civ. Proc. § 1604, following 1 R. S. p. 743, § 23, which is repealed by 1. 1880, c. 245. But the intent to so assign and admeasure must be clear, Aikman v. Harsell, 98 N. Y. 186. Partition. — Where there has been actual voluntary par- tition among tenants in common, the dower rights of each wife attach to the share in severalty of her husband. Wilkinson v. Parish, 3 Edw. 658; Jackson v. Edwards, 7 Paige, 386; 22 "Wend. 498. As to provisions relative to dower, in partition suits, vide " Partition," Ch. XXX, post. And a sale in partition will extinguish the wife's right of dower, if she is TIT. III.] ASSIGNMENT OP DOWER. 159 made a party. 7 Paige, 386 ; 23 Wend. 498, Bupra. Jordan v. Van Bpps, 85 N. Y. 437, holding that her only remedy is by appeal; she cannot attack the sale collaterally. Title III. Assignment and Admeasurement of Dowee. {8ee also Title IV, Miscellaneous.) The Code of Civil Procedure prescribes that after as- signment in satisfaction of the widow's claim of dower to all the lands of her husband, and her acceptance, it may be pleaded in bar of any further claim of dower, by any defendant. § 1604. So formerly by 1 R. S. 743, § 28 ; repealed by L. 1880, c. 345. Dower may be assigned by parol followed by occupation. Gibbs v. Estey, 22 Hun, 267. Proceedings to Admeasure Dower.— The Statutes of this State abolished the old writ of dower, and substituted the action of ejectment, and the statutory proceedings. 2 Rev. Stat. 303, 343. The assignment also could be made in pais, by parol, by the party who has the freehold. Proceedings for the recovery of dower are provided in the Code of Civil Procedure, §§ 1596 to 1625, inclusive. The Supreme Court has a general jurisdiction of these proceedings, and also the " County Courts," and the "Superior City Courts," for land situated within their respective cities or counties (Code, §§ 263 and 340). These proceedings take the form of an action and supersede the old procedure for admeasurement of dower. They are, however, based on similar principles. Formerly the Surrogate also had jurisdiction by 2 R. S. 220, | 1, but this was repealed by L. 1880, c. 345. The Surrogate was not ousted by the pen- dency of a partition suit in which the widow claimed dower. Matter of Hughes, 3 Redf. 18. . , ,. , For former procedure vide R. S. pt. 3, ch. 8, tit. 7. These proceedings for the admeasurement of dower were substantially enacted by Law of Feb. 30, 1806 (1 Rev. Laws, p. 60), giving the Supreme Court, and the Surrogate's and Common Pleas Courts of the county, jurisdictidn. The details of them are not appropriate to this treatise. They were amended by Laws of 1869, ch. 433. See as to the proceedings, Stewart v. Smith, 4 Abb. Ap. Cas. 306. 160 ASSIGNMENT OF DOWBK. [CH. VII. The dower, it was then provided, should be admeasured, on notice and assigned by commissioners. As amended by Law of 1869, c. 433. The adverse parties must have had reasonable notice, in writing, of the proceedings, or they would be set aside. 15 Johns. 532. Tenants for years were not entitled to notice. Ward v. Kilts, 12 "Wend. 137. See also In re Sipperly. 44 Barb. 371. A substantially similar proceeding is now provided (Co. Civ. Proc. §§ 1607-1K13) as to parties. Vide Co. Civ. Proc. §§ 1597, 1598, 1599. The widow cannot insist on having dower assigned out of each parcel where others would be injured. Price v. Price, 41 Hun, 486. ' The question of practicability is for the referee. O'Dougherty v. Remington Paper Co., 42 Hun, 192. Effect of Admeasurement. — The admeasurement of dower, being made and coniirmed, was to be at the expiration of thirty days from the date of such confirmation, unless appealed from, binding and conclusive as to the location and extent of the widow's right of dower, on the parties who applied for the same, and on parties appearing or who had notice. Under the Code of Civil Procedure, a formal judgment is entered which does not difier in its incidents from other final judgments. Co. Civ. Proc. § 1613. Yide 2 R. S. 1 ed. pp. 513, 634, as to further details of the procedure. 10 Wend. 414. By Law of 1869, ch. 433, the appeal did not stop her recovery of posses- sion, if she gave security as ordered by the court. The right to dower can be aliened. Formerly it was held inalienable. Vide 20 Johns. 412; 13 Wend. 524; overruled by Payne v. Becker, 87 N. T. 153. Pope V. Mead, 99 N. Y. 201, holding the right to unassigned dower assignable. The proceedings under the Revised Statutes were expressly continued in force by the Code of Procedure, § 471. Uower might be also admeasured under the statute of " Arbitrations." Vide 2 Rev. Stat. p. 541. It is to be remarked that the admeasurement was binding and conclusive only as to the location and extent of the dower right, and did not preclude the controverting the title to dower at law. After admeasurement, to get possession, the widow had to bring ejectment, when the validity of her claim to any dower, the title of her husband, his seizin, and her marriage, might be controverted and tried. Vide 2 R. S. p. 303 ; 4 Wend. 640 ; 4 Bradf. 15 ; Wood V. Seely, 32 N. Y. 105. Ejectment for dower has now been abolished (Co. Civ. Proc. § 1499), and all the questions may be tried in the action for dower. It was not until the dower had been fully assigned that the widow ac- quired a vested estate for life, which would enable her to sustain her eject- ment, or to subject it to sale under execution, although it might be released or assigned. Moore v. Mayor, 4 Seld. 110; Greene v. Putnam, 1 Barb. S. C. R. 500; 3 id. 319; 2 Selden, 597; 10 Wend. 421. Payne v. Becker, 22 Hun, 28, holding right of dower before assignment to be inalienable, was reversed, 87 N. Y. 153, and the opposite rule established. See also Pope v. Mead, 99 N. Y. 201. But she could have had ejectment before assignment against tenants hav- ing interests less than a freehold. EUicott v. Hosier, 11 Barb. 574; affirmed, 7 N. Y. 201. Until assignment the widow's interest is a chose in action or claim, which is extinguished by a sale under a surrogate's order. But where it has been actually assigned by the decree of a competent court, it cannot be sold under said proceedings. Lawrence v. Miller, 2 Corns. R. 245 ; Stewart v. McMartin, 5 Barb. S. C. R. 488. After assignment, a widow's seizin relates back to the time of her marriage, or when the husband became seized, and any order for the sale of the lands by the surrogate, for debts due, is void as to her life estate. 1 Seld. 394; 4 TIT. III.] ASSIGNMENT OF DOWER. 161 Kent, 69. And no livery or writing was necessary to an assignment in pais. 3 Sandf. 385. Amount fixed by final judgment in dower cannot be altered by order. Mclntyre v. Clark, 43 Hun, 853. As to appeal from admeasurement before the Code, see Smith v. Smith, 6 Lans. 318. Taxes and Assessments should be paid by the heirs or devisees before the dower in the lands is admeasured. Harrison v. Peet, 56 Barb. 251. An assessment must be borne by the heirs, the widow being required to bear a third' of the interest of the capital of the assessment on the lotg assigned to her, at seven per cent., to commence from the confirmation ; or, if not confirmed until after the husband's death, then from such death. Wil- liams V. Cox, 3 Edw. 605 ; and see post, p. 164. Estimation of Lands and Improvements. — In case of alienation by the husband, the widow was to have her dower assigned according to the value of the lands at the time of alienation. Dorchester v. Coventry, 11 Johns. 510; Shaw v. White, 13 Johns. 179; Walker v. Schuyler, 10 Wend. 480; Marble v. Lewis, 33 Barb. 433. By the Code of Civil Procedure, no damages are to be estimated for any permanent improvements made after decease of the husband, as against the heirs or other owners. §§ 1600, 1601. This principle was found also in the Revised Statutes. 1 R. S. p. 743. But the improvements may be assigned as a part of the dower. Brown V. Brown, 4 Robt. 688 ; Parks v. Hardey, 4 Bradf. 15. In making admeasurement under the Code of Civil Procedure (§ 1609, sub- div. 3), as formerly under the Revised Statutes, permanent improvements, made by any heir, guardian of minors, or other owners, since the death of the husband, or since the alienation by him, are to be considered ; and if practica- ble, those improvements must be awarded within that part of the lands not allotted to such widow ; and if not practicable so to award the same, they are to make a deduction from the lands allotted to such widow, proportion- ate to the benefit she will derive from such part of such improvements as is included in the portion assigned to her. Judge Kent, from a review of the American cases, claimed the rule to be that the improved value of the land from which the widow was to be ex- cluded in the assignment of her dower, as against a purchaser from her hus- band, was that which had arisen from the actual labor and money of the owner, and not that which had arisen from extrinsic and general causes. The courts in this State made, however, no such distinction, but followed the rule given above. The whole question is now settled by Code Civ. Proc. § 1609, subdiv. 3, supra. By Co. Civ. Proc. § 1613, as formerly by Laws of 1869, ch. 433, the court may order the value of one-third of the land to be paid to the widow. Assignment in certain Cases under the former procedure. — If the property were not divisable, or arose from rent, common, rights of return of yield, mines, etc., then the assignment might be made in a special manner, as of a third of the profits or the use for every third month. So also rooms, and the use of halls and passages might be assigned. Parks V. Hardey, 4 Bradf. 15. If the widow is evicted by paramount title of her land, she may recover a third part in value of the two remaining third parts of the lands whereof she was dowable. Her remedy on eviction is by a new assignment of dower. If the assignment was by the alienee of the husband she has no recourse as against him. 4 Kent, 69 ; Perkins, § 419 ; St. Clair v. Williams, 7 Ohio, 110. Ejectment ; and Admeasurement thereon. — Provision was made by the Revised Statutes for the admeasurement of the lands after judgment for the wife in ejectment, and the obtaining possession of the lands by a writ of pos- session. But now ejectment for dower is abolished. Co. Civ. Proc. § 1499. 11 162 ASSIGNMENT OF DOWER. [CH. VII. 2 R. S. 1 ed. p. 331 ; and Ellicott v. Hosier, 7 N. Y. 205, as to the parties against whom the action was to be brought. By Law of 1869, ch. 433, regulating appeals from judgments awarding the land admeasured to the widow, no appeal was to stay the issuing of a writ of possession on her giving the security as provided. In an action of ejectment for dower, it was held that a purchaser or heir, holding under or through the husband, was estopped from showing that the husband was not seized of such an estate as would entitle the wife to dower. This was so held in Browne v. Potter, 17 Wend. 164, and the various cases therein cited. These cases have been overruled, however, so far as the gran- tee's right exists to controvert the right to dower. Sparrow v. Kingman, 1 Corns. 242; Finn v. Sleight, 8 Barb. 401. Damages for Withholding Dower.— The Code makes provision for the recovery of damages for withholding dower. They cannot be recovered for a period over six years. (Co. Civ. Proc. § 1600.) The details of these pro- ceedings are not appropriate to this treatise. See Kyle v. Kyle, 67 N. Y. 400. The damages are to be one-third of the annual value of the mesne profits of property of which her husband died seized, from the husband's death, in a suit against heirs ; and from the time of demand in a suit against any other person, up to the time of trial or application for judgment. Where the property has been aliened by the heir, the amounts recovered from either the heir or other person respectively are to be deducted from what the widow would otherwise be entitled to recover of the other. Where the husband has aliened the property before his death damages can only be recovered from the commencement of the action. These damages are to be recovered in actions for dower, but in no case can damages be had of any defendant for property not occupied by him. Co. Civ. Proc. §§ 1600-1603. Where the whole premises were aliened during the life-time of the hus- band, the damages, it was held, could be recovered only from the time the dower was demanded, not from the death of the husband. Marble v. Lewis, 53 Barb. 482. The damages are not to be estimated for the use of any permanent im- provements made after the decease of the husband by his heirs or by any other person claiming title. Co. Civ. Proc. §§ 1600, 1601. Damages could formerly be recovered only for lands of which the husband died seized. Palmer v. Voorhis, 53 Barb. 480. This has now been changed. See supra. A widow is not entitled to recover rents and profits as an independent cause of action but only as an incident to the recovery of her dower. Kyle v. Kyle, 67 N. Y. 400. TIT. IV.J MISCELLANEOUS PROVISIONS. 163 But the above doea not prevent a widow, who had assented by mistake to the execution of a conveyance by her husband of certain lands from having an accounting as to proceeds of sales, it appearing that such lands had passed into the hands of bona fide purchasers who were discharged of her claims for dower. Witthaus v. Schaack, 31 Hun, 590. Title IV. Miscellaioeous Pbovisions as to Dower. Consent to Accept a Sum in Discharge of Dower. — By Co. Civ. Proc. §§ 1617-1625, a widow may file a consent, in an action to admeasure or recover dower, to receive a gross sum in satisfaction. The court may decree a sale of any of the lands free of incumbrances, pay all liens, the sum to the widow, and the surplus to those entitled there- to, or may sell subject to liens. The court, if a consent is filed, may also allot portions of land in fee simple to the widow. Full details of the proceedings are given in the Code. So formerly by L. 1870, ch. 717; amended by L. 1874, ch. 258 and L. 1880, eh. 487, and repealed by L. 1880, ch. 245. Remedy of Infant Heir.— If dower is wrongfully recov- ered where there is no right thereto, by default or collu- sion with the guardian of an infant heir, the heir, when of age, may recover the lands wrongfully awarded for dower, with damages from entry by the widow, though more than six years before the action, Co. Civ. Proc. § 1605. So formerly, 1 R. L. of 1813, 57; 1 Rev. iitat. p. 743 ; repealed by L. 1880, ch. 245. Crops.— A widow may bequeath the crop in the ground of tbe land holden by her in dower. IR. L. p. 368;1R. S. p. 748. She is entitled to growing crops in the land set off to her. Clark v. Bat- torf, 1 T. & C. 58. Quarantine.— A widow is entitled to tarry in the chief house of her husband forty days after his death, without being liable for rent, and to have reasonable sustenance out of his estate. 1 Rev. Stat. 742. Legislative Acts affecting Dower Rights.— It has been held, in the court of another State, that it is competent 164 ESTATES BY THE CURTESY. [CH. VIT. for the legislature to modify tbe laws relative to dower, so as to affect cases where the marriage and seizin have taken place before the passage of the law, when the title to dower has not been consummated by the death of the hus- band. Magee v. Young, 40 Miss. 164. A.nd see various cases cited abojre in this chapter, ante, p. 158. Waste Committed by a Dowress. — A tenant in dower is liable for waste. For proceedings therefor, vide ante, Ch. IV. Alien "Women and Widows of Aliens, Dower of. — As to these, vide ante, Ch. Til, Title IT. Sales by Order of Surrogates. — As to the reservation of proceeds for dower claims under such sales, vide post, Ch. XVIIF. These proceedings do not authorize the sale of the widow's estate in dower, where it has been assigned to her. Lawrence v. Miller, 3 Corns. 245. Sale of Infants' Estate. — As to reservation of certain proceeds for claims in dower, vide post, Ch. XXV. Partition Sales. — As to payment of claims for dower out of proceeds of such sales, vide post, Ch. XXX. Taxes. — All taxes and charges accruing on the lands admeasured to the widow are to be held by her, subject to the payment of all taxes and changes accruing thereon subsequent to her taking possession. Co. Civ. Proc. § 1613. So formerly, 9 Wend. 310; and see ante, p. 161. Power of Attorney. — Releases through, vide post, Ch. XIII. y. Estates by the Cuetesy. Tenancy by the curtesy is an estate for life, created by operation of law. It arises to the husband on the decease of a wife who has been seized at any time during the coverture, of an estate of inheritcmce, either in severalty or in common, and has had a child issue by him, born alive, and which child might hy possibility i/nherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband. He then holds the land during his life, by the curtesy of England, so called. It is deemed a legal estate and not a mere charge. Mack V. Roche, 18 Daly, 108. It is immaterial whether the issue be living at the time of the seizin, or at the death of the wife, or whether it was born before or after the seizin. 4 Kent, p. 26 ; Jackson v. Johnson, 5 Cowen, 74. If the issue take as purchaser, the husband is not entitled to take by curtesy, as where there was a devise to the wife and her heirs ; but if she TIT. v.] ESTATES BY THE CURTESY. 165 died leaving issue, then to such issue and their heirs. Barker v. Barker, 3 Simm. 249. But see Kirk v. Richardson, 33 Hun, 434. Four things are requisite to an estate by the curtesy, viz. : marriage, seizin of the wife during coverture, issue born alive during the life of the mother (Marselis v. Thalimer, 2 Paige, 35), and death of the wife. The law vests the estate in the husband immediately on the death of the wife without entry. His estate is initiate on issue had, and consummate on the death of the wife, although technically the estate or right is supposed to vest during coverture, Furguson v. Tweedy, 56 Barb. 168 ; 43 N. Y. 543 ; Ellsworth v. Cook, 8 Paige, 643 ; in re Winne, 3 Lansing, 21 ; Knapp v. Smith, 27 N. Y. 377. Seizin of the Wife.— The seizin of the wife by the Eng- lish law had to be mfact and in deed, and where her title is incorhplete before entry, a seizin in fact would seem essential even in this country. Pond V. Bergh, 10 Paige, 140-154 ; Jackson v. Johnson, 5 Cow. 74; Graham v. Ludingtoa, 19 Hun, 246 ; GHbbs v. Bsty, 23 Hun, 266. It would not be necessary, however, if the outstanding life estate is a mere equitable interest (Adair v. Lott, 3 Hill, 183) ; nor where her title is acquired by virtue of a conveyance, which, under the statute of uses, passes the legal title and seizin, without the necessity of an entry or other act to perfect the estate in the grantee. Lb. The general rule is much relaxed, in this State, and a constructive seizin of the wife is sufficient, where it is not rebutted by an actual disseizin. Jackson v. Sellick, 8 Johns. E. 263 ; Davis v. Mason, 1 Peter's U. S. R. 503; Ellsworth v. Cooke, 8 Paige R. 643; Adair v. Lott, 3 Hill, 182; Vrooman v. Shepherd, 14 Barb. 441; Furguson v. Tweedy, 56 Barb. 168; 43 N. Y. 543. So held, particularly in the case of wild lands not held ad- versely. Jackson v. Sellick, 8 Johns. 263. So a judgment in partition or ejectment would give a constructive seizin. Ellsworth v. Cook, 8 Paige, 643. So where a wife was devisee Jof a partner. Buckley v. Buckley, 11 Barb. 43. Where there is an outstanding life estate, however, it must be ended before the death of the wife, otherwise there is no seizin in fact. Be Cregier, 1 Barb. Ch. 598; Taylor v. Gould, 10 Barb. 388; and there must be either possession or a title to possession in the wife. Burke v. Valentine, 53 Barb. 412; Furguson v. Tweedy, 43 N. Y. 543. To entitle the husband to curtesy also, by the common law, the husband had to be a citizen, not an alien. This necessity is in a manner obviated by the aUen laws of the State. Vide title " Aliens," Ch. HI, Title IV. Curtesy exists if the wife has an equitable estate of inheritance, notwith- standing the rents and profits are to be paid to her separate use during the coverture. The receipt of the rents and profits is considered a sufficient 166 ESTATES BY THE CURTESY. [OH. VII. seizin of the wife. Payne v. Payne, 11 B. Mon. 138; Powell v. Gossom, 18 j&. 179; Pitt V. Jackson, 2 Bro. 0. 0. 51; Morgan v. Morgan, 5 Madd. 408. The husband of a mortgagee in fee is not entitled to curtesy, though the estate become absolute at law, unless there has been a foreclosure, or unless the mortgage has subsisted so long a time, as to create a bar to the redemp- tion. Vide ante, p. 148, the same principle as to dower. The wife is seized through the possession of a covenant in common. 11 Barb. 44. Curtesy would also exist in what was intended to be land, as where money had been agreed to be laid out in the purchase of land, the money being treated as land by a court of equity. Watts V. Ball, 1 P. Wms. 108; Chaplin v. Chaplin, 3 iJ. 299; Casborne V. Scarfe, 1 Atk. 603 ; Cunningham v. Moody, 1 Vesey, 174 ; Dodson v. Hay, 3 Bro. 405 ; Coster v. Clarke, 3 Ed. Ch. 428 ; 4 Kent, p. 50 ; Vrooman v. Shepherd, 14 Barb. 441. Curtesy in Beneficial Interests. — At common law, the husband could not be tenant by the curtesy of a use ; but he may be of an equity of redemp- tion and of land of which the wife has only a beneficial interest, through a trustee ; unless, perhaps, by the deed or trust, curtesy is expressly excluded. Watts V. Ball, 1 P. Wms. 108 ; 1 Sumner, 1 38 ; Alexander v. Warrance, 17 Mo. 228; Pierce v. Hakes, 33 Penn. 231 ; 4 Kent, 31. In Conditional Estates. — Curtesy applies to conditional and qualified, as well as to absolute estates in fee ; but, as a general rule, curtesy can only be commensurate with the original estate, and if that is determined curtesy falls with it, unless curtesy is tacitly annexed as an incident to the estate, through the terms of the grant to the wife, as also where the seizin was wrong- ful and there is eviction under a title paramount, curtesy will not attach. Hatfield v. Sneden, 54 N. Y. 280; reversing, 42 Barb. 615; Stanhouse v. Gaskell, 17 Eng. L. & Eq. 140 ; Matter of Kirk v. Richardson, 82 Hun, 434. Statute of Descents. — Curtesy is not affected by any of the provisions of the statutes of descents. 1 R. 8. .p. 754. Curtesy since the Acts of 1848-9.— The Act of 1848, "for the more effectual protection of the property of married women," so far as it affects the husband's existing rights under a marriage contracted before the act, has been declared unconstitutional^ as taking away the husband's property, in violation of Art. 1, §§ 1, 6, of the constitu- "^ tion. This would apply to lands acquired before the act. Under that act, and the Act of 1849, ante^ p. 74, the hus- band continues to take as tenant by the curtesy even of lands acquired subsequent to them, where the wife dies seized of the estate, without having transferred it. The object of those statutes was simply to protect the wife TIT. v.] ESTATES BY THE CUETEST. 167 during coverture, and to empower her to convey by deed or d&vise. Vide decisions, anUy p. 78, and White v. White, 5 Barb. 474. The right of curtesy is upheld as to lands acquired since those acts in all cases, subject to its being defeated by a disposition of the lands by deed or will. Hurd V. Cass, 9 Barb. 366 ; Clarke v. Clarke, 24 id,. 581 ; Jaycox v. Collins, 26 How. Pr. 496 ; Rider v. Hulse, 33 Barb. 264 ; 24 N. T. 872 ; Burke v. Vttlentine, 53 Barb. 412, overruling Billings v. Baker, 28 Barb. 248; Scott V. Guernsey, 60 Barb. 163 ; affi'd, 48 N. T. 106 ; the case of Winne, 2 Lansing, 21, overruling, 1 Lans. 508. Act of March 20, I860.— It is questionable whether, by the Statute of March 20, 1860, ch. 90, p. 159, in this State, curtesy was not abolished or Diodified in certain cases, for a short time. That act provides that at the decease of a husband or wife learning no minor child or children, the survivor shall have a life estate of one third of all the real estate whereof the husband or wife died seized, and at the decease of the husband or wife intestate, leav- ing minor child or children, the survivor shall have the income of all the real estate whereof the intestate died seized, during the minority of the youngest child, and one third during his or her life. These provisions were repealed by Law of 1862, ch. 172; but they are given here, as they may affect interests vesting when they were in force. Partition Suits.— As to the disposition of rights of curtesy in partition suits, vide post, Ch. XXX. Effect of Divorce upon. — In case of a judgment of divorce a vinculo, at the instigation of the wife, the hus- band loses all right in the income of the wife's separate real estate. 2 R. L. of 1813, 197; 2 Rev. Stat, of 1830, p. 146. Curtesy Liable to Creditors.— When the estate by cur- tesy is once vested in the husband it becomes liable for his debts, and may be sold on execution. Watson v. Watson, 13 Conn. 83; Van Duzer v. Van Duzer, 6 Paige, 866; Wickes V. Clarke, 8 ib. 161. Waste. — Tenants by the curtesy committing waste without license in writing, are subject to an action of waste. Co. Civ. Proc. § 1651, superseding 2 R. S. 1 ed. 334, which was repealed by L. 1880, c. 245. As to proceedings for waste, vide ante, p. 144.J CHAPTEK VIII. ESTATES LESS THAN FREEHOLD. Title I. — Estates for Years. Title II. — Leases. Title III. — Assignment and Subletting. Title IV. — Eviction. Title V. — Forfeiture. Title VI. — Ejectment and Ee-entry. Title VII. — Estates at Will. Title VIII. — Estates at Sufferance. Title IX. — Merger. Title X. — Surrender. Title XI. — Miscellaneous Provisions. Title I. Estates pok Yeaks. {See alto Title XI, post, '' Miseellaneoua Provisioni.") An estate for years is one giving the possession of lands, for some determinate period ; generally at a certain rent. The period being certain or fixed, caused the appel- lation terminus, or term, to be applied to the estate. An estate for any number of fixed years, although they should exceed the ordinary limit of human life, is only a chattel, and is considered part of the personal estate. It is termed a chattel real. 1 Kev. Stat. 742. The English law on the subject of long terms, upheld in equity through trusts and attendant upon inheritances, is involved in great intricacy, and is superseded in this country by statutory enactments abolishing trusts, except for certain purposes, and providing for the record of conveyances an notice for the protection of lonaflde purchasers and mortgagees, which prevent outstanding terms from operating when coming in collision with a registered conveyance. By the common law, leases for years might be made to commence in fuVwro; for, being chattel interests', they were never required to be created TIT. II.] LEASES. 169 \)j feoffment and livery ot seizin. The tenant was never technically seized/ he was the mere representative of the reversioner, and could not even defend a real action. At common law actual entry was requisite to give the lessee the rights of a tenant in possession, and make him capable of receiving a release of the reversion by way of enlargement of the estate. Before entry, the lessee had only an executory interest or interesse termini, and not an estate capable of surrender, though it might be released or assigned. When the words and consideration of a lease, however, were deemed sufficient to raise a use, the Statute of Uses operated upon the lease, and annexed the possession to the use without actual entry. Bacon's Abrid. title Leases; 4 Kent, 98; Hannen V. Ewalt, 18 Penn. St. 9 ; Doe v. Brown, 30 Eng. L. & Eq. 88. See post, Ch. X, "Uses and Trusts." There are many complicated principles of law applica- ble to estates for years, growing out of the relation of landlord and tenant, that do not properly come within the province of this general review of the subject. They will be found in special treatises bearing directly on that relation ; and the subjects of estates for years and leases, can be only treated here with reference to their more gen- eral features ; such as the nature of the estate created, and the general relations and obligations of parties interested in them. Title II. Leases. {See Miscellaneous Provisions, Title XI.) Terms for years are generally created under convey- ances technically termed " leases." Whether an instrument is a lease or not often depends upon the intent of parties to be ascertained and gathered from the whole instrument. It is sometimes doubtful whether the instrument amounts to a lease or la merely a contract to lease. Where the agreement appears not to vest an interest but to rest in contract, it is construed the latter. Jackson v. Dela- croix, 3 Wend. 433 ; Pearce v. Golden, 8 Barb. 532 ; Averill v. Taylor, 8 N. T. (4 Seld.) 44. A lease to begin infuturo is not an executory contract, but a lease. Alline v. Whitney, 1 Hill, 484. Letting lands upon shares for a crop is not a lease. 1 Hill, 334 ; Austin V. Sawyer, 9 Cow. 39; Bradish v. Schenck, 8 Johns. 116; Harrower v. Heath, 19 Barb. 331; Dinehart v. Wilson, 15 Barb. 595. A receipt by the landlord setting forth the terms and conditions of the tenancy, held a good lease. Gibbons v. Dayton, 4 Hun, 451. One entering under agreement to lease, and refusing to take lease or sur- 170 LEASES. [OH. Vm. render possession, is a trespasser from the time of the demand for possession. "Welch V. "Winterburn, 35 Hun, 437. Leases in Fee or for Life.— Leases in fee or for life, like grants of iree- hold estates, must be sealed and witnessed or acknowledged. 1 R. S. p. 738. See fully as to such leases, ante, Oh. V, Title IV. Leases to be in Writing.— By the Eevised Laws of 1813, and the Eevised Statutes of 1830, no estate or inter- est in lands, etc., other than leases for a term not exceeding one year, shall be created, granted, assigned, surrendered, or declared, unless by operation of law or a deed or convey- , ance in writing subsciibed by the party (or his agent au- thorized in writing) creating, granting, etc. ; and every contract for the leasing for a longer period tlian one year, or for the sale of lands, or any interest therein, is declared void, unless the contract or some note or memorandum be in writing expressing the consideration and subscribed by the party by whom the lease or sale is made, or by his agent lawfully authorized. Durand v. Curtis, 57 N. Y. 7 ; R. S. vol. 3, p. 134-5, §§ 6, 8, 9; 1 R. L. 75. A parol lease for one year, to commence in fvturo, was held void under this statute, and also as being a contract not to be performed within one year from the making thereof. Croswell v. Crane, 7 Barb. 8. C. Rep. 191. The Court of Appeals, however, overruled this decision and declared such a parol lease valid. Young v. Dake, 1 Seld. 463; Becar v. Flues, 64 N. Y. 518. Parol leases for a year or under make a legal title. McGune v. Palmer, 5 Robt. 607 ; Supp v. Kensing, ib. 309 ; Hurlburt v. Ryerson, 1 Bos. 28. The agent's authority to contract may be by parol to make his act a con- tract, but not a deed under seal. Worral v. Prall, 1 Sel. 339 ; see post, Ch. XIX, ' ' Contracts ; " and post, Ch. XX, as to decisions on the above sections. A lease for years, to end on the 1st May, expires at noon on that day, but a lease from another day to the 1st May, expires at midnight on April 30. The People v. Robertson, 89 Barb. 9. Assignments of interests in leases must be in writing, even between suc- ceeding firms. Agate v. Q-ignoux, 1 Robt. 378. A contract to lease void under the Statutes of Frauds is null for all pur- poses. Dung V. Parker, 52 N. Y. 494. Parol lease for a year with privilege of four years, held valid for one year; and, in case of holding over to constitute a tenancy from year to year. Dorr V. Barney, 12 Hun, 259. See Thomas v. Nelson, 69 N. Y. 121 ; Loughran v. Smith, 75 N. Y. 206. As to leases from year to year, see Alb. Law Journal, vol. 19, p. 46. The lease may merge all previous negotiations and preclude an action to reform or cancel ; the remedy then is damages. Genet v. Del. & Hudson Can. Co. 86 N. Y. 635; affl'g 10 "Week. Dig. 886. "With appurtenances" carries a right to have windows remain unob- structed. Doyle v. Lord, 64 N. Y. 432. Where a lessor falsely told a lessee that oral agreements would remain in TIT. II.] LEASES. 171 force though there was a written lease, the lease was reformed. Monng v. Ayer, 52 Super. 139. As to what is delivery, see Witthaus v. Starin, 13 Daly, 236. Patent ambiguity in lease cannot be corrected by parol. Vandevoort v. Dewey, 42 Hun, 68. Leases by Estoppel. — A lease may be created or made effective by way of 0i^f>^l, as when made by a person who has no vested interest at the time but afterwards ac- quires it. It then takes effect, by way of estoppel, from the time the grantor acquires the interest. But not so if the grantor had any interest at tlie time. Helps V. Hereford, 2 B. & Aid. 243; Brown v. McCormack, 6 Watts, 60; Bank of Utica v. Mersereau, 3 Barb. Ch. 528 ; Bush v. Cooper, 18 How. IT. S. 83; Jackson v. Bradford, 4 Wend. 619. If the conveyance be with general warranty, a subsequent purchaser from the grantor of Hs after-acquired title would be equally estopped; and the es- toppel runs with the land. See the notes to Trivivian v. Laurence, Smith's Leading Cases, vol. ii; White v. Patten, 24 Pick. 124; Mo Williams v. Nis- ley, 2 Serg. & Rawle, 507 ; Laury v. Williams, 13 Maine, 381 ; Cheeney v. Ar- nold, 18 Barb. 434; afil'd, 15 N. T. 345; Van Rensselaer v. Kearney, 11 How^ U.S. 397; 4 Kent, 99. Who may Lease. — A lease may be granted by the party or parties having a sufficient interest, coupled with the right of possession. Thus, trustees may make leases, as if seized of the beneficial as well as the legal interest ; and life tenants may lease for a period terminable with their es- tate. As to leases by guardians, etc., vid.post. One of two tenants in common, or joint tenants, cannot singly make a lease to bind both. Kingsland v. Ryckman, 5 Daly, 13. Where a general assignee leased a farm included in the assignment and re- ceived rent, the lease was sustained as to the lessee. Smith v. Newell, 32 Hun, 501. Powers to Lease. — Although a lease cannot be granted for a period beyond that at which the lessor's estate de- termined, it may be upheld if made under a power to make leases, and if made for a reasonable time ; and sometimes the power is implied, and equity may uphold or annul the lease; and a trustee may lawfully make a lease which may extend beyond the term of his trust. Vide Greason v. Kettletas, 17 N. Y. 491. By Revised Statutes a power may be given to tenant for life to make leases for not over twenty-one years, to commence during his life. The power is annexed to the estate, and passes by any conveyance thereof; and if spec- ially excepted therein, becomes extinguished. It may also be extinguished by release to the remainderman or reversioner. The power is bound by any mortgage made by the life-tenant, and the mortgagee may enforce the power. 17'2 LEASES. [OH. VIII. Seepost,Ch.Xn, "Powers;" ]5N. Y. 370; Root v. Stuyvesant, 18 Wend. 357. The power is not separately assignable. Courts may authorize a receiver in partition to make a lease for a fixed period, possibly extending beyond the pendency of the action and then shorten the term afterward, regardless of the rights of the lessee. Weeks v. Weeks, 106 N. Y. 626. Restrictions, Conditions and Covenants, Including Rent. — These are various in character, and as agreed on by the parties to tlie lease. Sometimes covenants will be implied, Bestrictlons as to use of Premises. — Restrictions as to sale of intoxi- cating liquors on the premises leased, are binding. People v. Bennett, 14 Hun, 63. Improvements, Alterations, etc. — A stipulation that tenant may tear down and rebuild and that new building shall be purchased at end of term by landlord, gives no right to tenant to alter existing building at expense of landlord. Smith v. Cooley, 5 Daly, 401. In the absence of express agreement the landlord is not liable for ad- ditions and improvements made by tenant. Chemung B. R. Co. v. Erie R'y Co. 13 Week. Dig. 166. Kent. — See also " Eviction." A tenant holding over after notice to quit or the rent would be raised is deemed to have assented to such increased rent. Mack v. Burt, 5 Hun, 38. Where the rent is payable monthly, in advance, the tenant who abandons the premises on the first day of the month is liable for the month's rent. MacKellar v. Sigler, 47 How. Pr. 30. Eviction of a tenant by summary proceedings for non-payment of rent does not discharge him from payment of rent, taxes and assessments already due ; the lease is annulled only as to the future. Johnson v. Oppenheimer, 55 N. Y. 2S0. (Compare Code Civ. Proc. § 3253.) Rice v. Bliss, 66 How. Pr. 186. Where lessor reserved the right to enter for purposes of repair and pres- ervation, and afterwards premised to remit one month's rent if allowed to enter and shore up building against excavations on the next lot, the agree- ment was upheld as upon a good consideration. White v. Mealio, 42 Super. 163. But an agreement to reduce rent for part of an unexpired term requires a new consideration. McMaster v. Kohner, 44 Super. 358. A verbal reduction of rent specified in an unsealed lease is binding after payment of the reduced rent and acceptance of it in full. Nicoll v. Burke, 78 N. Y. 580. Succeeding partner of lessee held liable for rent as presumed assignee. Eernochan v. Whiting, 43 Super. Ct. 490. An assignee is only liable for rent Vfhile he occupies. Stem v. Florence S. M. Co. 53 How. Pr. 78. A receiver is liable for rent in full on a lease. People v. Nat'l Trust Co. 83 N. Y. 283. Landlord may assign the rent of lands leased and still retain the land, or may convey the land and reserve the rents. Bennett v. Austin, 81 N. Y. 308. Sureties are responsible without notice of default, or demand by landlord upon the lessee. Ducker v. Rapp, 41 Super. Ct. 335 ; rev'd, on other grounds, 67 N. Y. 464; Turnure v. Hoheiithal, 36 Super. Ct. 79. A deposit by tenant to secure rent, is recoverable back, on dispossession, less the rent accrued. Scott v. Montells, 50 Super. Ct. 448 ; contra. Rice v. Bliss, 66 How. Pr. 186. Where rent is payable in advance on first day of month, which is Sun- TIT. II.] LEASES. 173 day, tenant has till midnight of the second to pay his rent. Boehm v. Rich, 31 Week. Dig. 510. Rent cannot be increased by verbal understanding. Smith V. Kerr, 83 Hun, 567. Covenant to Repair. — If there be no agreement or stat- ute to the contrary, a landlord is not bound to repair the demised premises or to allow the tenant for repairs made without his authority ; and the tenant (if occupant of the whole demised premises) is bound to repair at his own ex- pense to avoid the charge of permissive waste. Any ob- ligation of a lessor to repair rests solely on express con- tract, and even when there is such an express contract specific performance cannot be enforced. The tenant who is bound or not to repair, is liable for damage to third per- sons from the ruinous state of the premises ; and, if they were in good condition when leased, the landlord is not liable. Kabus V. Frost, 50 Super. Ct. 73; Moffat v. Smith, 4 Coms. 136; Bears V. Ambler, 9 Barr, 193 ; Witty v. Matthews, 53 N. Y. 513 ; City of Lowell v. Spalding, 4 Gush. 377 ; City of N. Y. t. Corlies, 3 Sandf. 301 ; Eakin v. Brown, 1 E. D. Sm. 36 ; Suydam v. Jackson, 54 N. Y. 450 ; Beck v. Allison, 56 N. Y. 366. Nor is there any implied warranty that the buildings are safe, well built or fit for any particular use (Oleves v. Willoughby, 7 Hill, 83 ; Jafle v. Har- teau, 56 N. Y. 398 ; Edwards v. N. Y. & Harlem R. R. Co. 98 N. Y. 345 ; But- ton V. Gerrish, 9 Gush. 89) ; nor that the landlord shall keep them in tenant- able condition (Post v. Vetter, 3 E. D. Sm. 348) ; nor that the land shall re- main in the same condition (1 Sneed [Tenn.], 613). Where the landlord is to make repairs before possession by the tenant, it is a condition precedent ; and the tenant's entry before the stipulated day is no waiver. Strohecher v. Barnes, 31 Geo. 430; see also, Mumford v. Brown, 6 Cow. 475; Howard V. Doolittle, 3 Duer, 464; Bloomer v. Warren, 39 How. Pr. 359. A parol promise to repair is void. 3 Swee. 184 ; Mayor, etc. v. Cooper, 49 Super. 409. If the premises be made untenantable by act of the landlord, before the ten- ancy begins, covenant for rent will not be sustained (Oleves v. Willoughby, 7 Hill, 83) ; aliter, if they become so after the term begins. 3 Swee. 184. Where the lease is in writing, parol evidence cannot be given to show that the landlord, at the time of executing it, promised to repair, nor to modify or alter any agreement as to repairs. Cleves v. Willoughby, 7 Hill, 83 ; Hartford & N. Y. Steamb't Co. v. Mayor, etc., of N. Y. 78 N. Y. 1. A lessee is liable in damages for breach of his covenant to repair. Green V. Eden, 3 T. & C. 582. Upon the breach of a covenant by lessor to repair, the lessee has the option to make the repairs and to recover the expense from the landlord, or to sue for damages. Hexter v. Knox, 63 N. Y. 561 ; Thomas v. Kingsland, 13 Week. Dig. 431 ; Myers v. Burns, 35 N. Y. 269. As to the lessee's covenant to keep the whole house and premises in good repair, see Green v. Eden, 3 Supm. Ct. 583. Covenant for "necessary re- pairs" means only such as the lessee may consider necessary. White v. Albany Railway, 17 Hun, 98. Third Ferson Iiijnred. — An action against the landlord does not arise in 174 LEASES. [OH. Till. favor of a third person for injuries caused by neglect on the part of the lessee of premises to observe a covenant to keep in repair. Clancy v. Byrne, 56 N. y. 129. As to injuries to tenant. Cesar v. Karntz, 60 N. Y. 329. Where the landlord makes repairs he is liable lor their negligent execution. Walker v. Shoemaker, 4 Hun, 579 ; McVie v. McNaughton, 31 Week. Dig. 89; Worthington v. Parker, 11 Daly. 545. The owner of premises, on which is a nuisance at the time of leasing, is liable tor injuries caused thereby, although the negligence of the tenant con- tributed thereto. Walsh v. Mead, 8 Hun, 387. But in case of a nuisance not so per se, but becoming such by negligent use of lessee, landlord is not liable. Swords v. Edgar, 59 N. Y. 38. Where a coal hole has been excavated in a city sidewalk and was used by subsequent lessee, the lessee was held liable separately or conjointly with the landlord, for injuries resulting to a third person therefrom. Irvine v. Wood, 51 N. Y. 324. A general covenant to repair does not take the case out of the statute of 1860, c. 345, infra, where the premises become untenantable. Butler v. Kid- der, 87 N. Y. 98. Under the lessee's covenant to repair, if to keep in repair, it be necessary that the premises should first be put in repair, the covenantor is bound to per- form that duty. Heintze v. Erlacher, 1 City Ct. 465 ; citing Myers v. Burns, 35 N. Y. 371, and 272 ; also Ward v. Kelsey, 38 N. Y. 80. No agreement of a lessor to repair can be implied in a written lease, and there must be a new consideration to support a subsequent promise to repair. Fox V. Abbott, 16 Week. Dig. 159. One tenant of many in a building not bound impliedly to repair. Bold v. O'Brien, 13 Daly, 160 ; Dowd v. Fitzpatrick, 18 Weekly Dig. 343 ; Donohue v. Kendall, 50 Super. Ct. 386. But notice to landlord must be shown. Henkel v. Murr, 81 Hun, 38. Owner of an apartment house bound to keep the building in ordinary re- pair. Worthington v. Parker, 11 Daly, 545 ; Bold t. O'Brien, 12 Daly, 160. Covenant to repair on part of landlord is not a ground for recovery by tenant for personal injuries where landlord had no notice. Spellman v. Ban- nigan, 36 Hun, 174. A covenant by tenant to repair does not.enure to benefit of a stranger who sustains an injury by its breach. Odell v. Solomon, 99 N. Y. 635. Lessee is liable for culpable negligence in making repairs, lb. Rent is not suspended by landlord's occupancy for purpose of making, re- pairs. McClenahon v. The Mayor, &c., 103 N. Y. 75. Destruction by Fire or Otherwise. — Formerly under a covenant to repair, a lessee was bound to rebuild in case of fire, and to pay rent for the premises even if the build- ings were entirely destroyed (Howard v. Doolittle, 3 Duer, 464 ; Warren v. Hitchins, 5 Barb. 66 ; Kingsbury v. Westfall, 61 N. Y. 356); but, by Statute of April 13, 1860, ch. 345, the lessees or occupants of any buildings which shall, without fault or neglect on their pa/rt, be des- troyed, or be 80 injured by the elements or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless TIT. 11.] LEASES. 175 otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold and oi the land so leased or occupied. See also Graves v. Berdan, 36 N. Y. 498 ; 39 How. Pr. 263. Where the building has been injured by fire, the land- lord cannot be compelled to rebuild or repair it for the benefit of his tenant, even though he has expressly cove- nanted to do so. The only remedy of the tenant is by an action for damages. Doupe V. Genin, 45 N. T. 119 ; Beck v. Allison, 56 N. T. 366. A covenant to deliver up the premises in the same condition, natural wear and tear excepted, does not bind the tenant to rebuild after a fire (Warner v. Hitchins, 5 Barb. 666) ; or to repair other similar accidental dam- ages. U. S. V. Bostwick, 4 Otto, 53. Act of 1860. — The Act of 1860 does not affect the common law rule as to repair. Sheary v. Adams, 18 Hun, 181. It does not apply where the lessee knew the premises to be untenantable. Alsheimer v. Krohn, 45 How. Pr. 137. Nor to ordinary deterioration from the weather. Suydam v. Jackson, 54 N. Y. 450. A surrender to be effectual must be complete. Johnson v. Oppenheimer, 55 N. Y. 280. A landlord or sub-letting tenant is not liable to strangers for injuries caused by deterioration during the letting or sub-letting, nor upon their covenants with each other. Clancy v. Byrne, 56 N. Y. 139. _ Tenant cannot be estopped from claiming that the premises were unten- antable by reason of continued occupation by sub-lessee. Kip v. Merwin, 34 Super. 531 ; affi'd, 52 N. Y. 542.. But see Smith v. Sonnekalb, 67 Barb. 66. Where a clause in a lease provided that in case the demised premises become damaged by fire, so as to render them untenantable, the rent should be paid up to such time, and cease until they were put in repair, it was held to be optional with the landlord to determine the lease by not electing to repair. Witty v. Mathews, 53 N. Y. 512. A covenant that the tenant shall not be required to pay rent, if the prem- ises become untenantable by fire, takes the case out of the Statute of 1860, in case of damage by other elements. Butler v. Kidder, 87 N. Y. 98. A tenant refusing to allow shoring up of walls, etc., on excavations being made in an adjoining lot, is not released from rent on the premises becoming untenantable (Laws 1855, c. 6). Johnson v. Oppenheim, 55 N. Y. 280. Tenant has a reasonable time, by the Statute, in which to move out after a fire. Bassett v. Dean, 34 Hun, 250. Dampness injurious to health arising during tenancy is within the act. Franke v. Youmans, 17 Week. Dig. 252. Offensive odors are not. Sutphen V. Seebass, 14 Abb. N. 0. 67, n. ; Coulson v. Whiting, ib. 60. Nor is defec- tive plumbing. Chadwick v. Woodward, 13 Abb. N. C. 443. Except in apartment houses. Bradley v. De Goicouria, 14 Abb. N. C. 53. A general covenant by lessee to repair will not take the case out of the act. Butler v. Kidder, 87 N. Y. 98. But no particular words are needed if it is clear that the act is' not meant to apply. Jb. ; Achlers v. Rehlinger, 1 City Ct. 79. 176 LEASES. [CH. VIII, The act does not apply to lawful destruction by the public authorities. Ih. ; Connor v. Bernheimer, 6 Daly, 295. Covenant to Pay Taxes, "Water Rates, etc.— Upon default of the lessee upon such a covenant, the lessor may pay the taxes and recover the amount. Gallup V. Albany R. W. 7 Lans. 471 ; affi'd, 65 N. Y. 1. An action will lie for the breach of such a covenant without a payment being made by the lessor. MuUer v. Earle, 35 Super. Ct. 461. A covenant by a lessee to pay taxes "when due and payable," has been held not to require him to pay them until after notice by the re- ceiver of taxes that they are due and payable. Whitman v. Mcol, 58 Super. Ct. 528. Ejectment will lie for breach of this covenant, but may be defeated by payment at any time before judgment. Giles v. Austin, 38 Super. 215 ; affi'd, 62 N. T. 486. In absence of express covenant a lessee is not bound to pay water rates, and where he covenants to pay the "usual rates" he need not pay extra rates imposed. Moffat v. Henderson, 50 Super. 211. Covenants by lessee held to cover antecedent requirements of Board of Health. See Hull v. Burns, 17 Abb. N. C. 317. Covenants for Renewal, etc.— Covenants for continual or perpetual renewals are not upheld, as tending to create perpetuities, nor a covenant generally to renew on such terms as might be agreed on, it being too uncer- tain. 1 Hoff. Oh. 110 ; affirmed, 26 Wend. 57 ; Banker v. Braker, 9 Abb. N. C. 411 ; Muhlenbrinck v. Pooler, 40 Hun, 526. These covenants run with the land, and bind the grantee of the reversion. Livingston v. Sage, 95 N. Y. 289. Covenant that at the expiration of the term lessee might continue to oc- cupy the premises for such further time as he should choose, paying same rent, held to create, at most, a tenancy from year to year; and when the land- lord died before the expiration of the original term, that the lessee was not entitled to any renewal. West'n Transp'n Co. of Buffalo v. Lansing, 49 N. Y. 499. Such a covenant for renewal construed as an option. See Bruce v. Fulton Nat. Bk. 79 N. Y. 154. A lessee's right to be paid for buildings is not affected by taking a renewal. Livingston v. Sulzer, 19 Hun, 375. A clause in a lease giving " privilege of six years more at the same rent," is equivalent to a covenant of renewal. Crawford v. Kastner, 27 Hun, 440. A renewal of a lease operates as a renewal of all the provisions contained in or made a part of the lease. Wadsworth v. Wadsworth, 2] Week. Dig. 520. As to facts showing election by lessor between renewing lease or buying fixtures, see Crosby v. Moses, 48 Super. 146, modified in 92 N. Y. 634.* Lease with general covenants for renewal held to run out on expiration of second renewal which contained no covenant for further renewal, and the last lease could not be reformed. Syms v. The Mayor, &c. 105 N. Y. 153. Covenant for Quiet Enjoyment.— A covenaat for quiet enjoyment in a lease means only that the tenant shall not be evicted by paramount title. It relates only to the title, and not to the actual occupation. Howard V. Doolittle, 3 Duer, 466; Coddington v. Dunham, 35 Super. Ct. 413 ; Connor v. Bernheimer, 6 Daly, 295. * A number of N. Y. cases on covenants by lessor are collated in 16 Gent. L. J. 362. TIT. II.] LEASES. 177 A covenant for quiet enjoyment is ordinarily implied in a lease, in ^pite of the provisions of the Revised Statutes against implied covenants in deeds (ci. »x). Boreel v. Lawton, 90 N. Y. 293 : Mock v. Patchin, 42 N. T. 167 ; People v. Gedney, 10 Hun, 151. But if one is expressed, none will be im|)lied. Burr v. Stenton, 43 N. Y. 462. Eviction is necessary to constitute a breach of this covenant. Boreel v. Lawton, 90 N. Y. 293. If a constructive eviction, there must be a surrender of possession. lb. It seems that a lessor who omits to keep in order water-pipes under his control, is liable for damage to his lessee of adjoining apartments. Vann v. Rouse, 94 N. Y. 401. Trespass as to which landlord is not a party is not a breach of this cove- nant. Walter v. Fowler, 17 Weekly Dig. 225. Tearing down an unsafe building by the city is not a breach. Connor v. Bernheimer, 6 Daly, 293. Implied Covenants. — As to implied covenants in a lease, vide supra, and post, "Conveyances," Ch. XX; and also as to covenants generally. Condition of the Premises and Representations by Landlord. — Between, landlord and tenant no contract or warranty on the part of the landlord that the premises demised shall be or .continue fit for the tenant's business or occupation is ever implied from the mere fact of let- ting. Jaffe V. Harteau, 56 N. Y. 398; 59 Barb. 497 ; Edwards v. N. Y. & Har- lem R. R. Co., 98 N. Y. 245. And none can be inferred against the landlord's grantee. Outerbridge v. Phelps, 45 Super. Ct. 555. A landlord who lets premises, knowing that they are infected by a conta- gious disease, without notifying the tenant thereof, is liable to the latter in case the disease is communicated. Caesar v. Karutz, 60 N. Y. 229. Fraudulent suppression by landlord, or agent of landlord, of a latent de- fect rendering premises untenantable, is held to rescind the contract. Sequard V. Corse, 9 Week. Dig. 51; Jackson v. Odell, 14 Abb. N. C. 42; s. c. 12 Daly, 345. Where a written lease contains no covenant by which damage from water is assumed by landlord, he is not, in the absence of negligence, under obli- gation to recompense the lessee for injury from leaks from pipes. Opdyke V. Prouty, 6 Hun, 242. Where in such a case the pipes leaked and the landlord turned off the water and prohibited the lessee from turning it on, it was held that it was the landlord's duty to keep the pipes in repair; and the tenant having left, that no rent could be recovered beyond the actual occupation of the premises. West Side Svgs. Bk. v. Newton, 76 N. Y. 616. The owner of a tenement is not obliged to keep a fire escape in sufBcient condition of repair to be used as a balcony, when not presumably intended for such use. McAlpin v. Powell, 70 N. Y. 126. In general, a landlord is not bound to disclose defects in the struc- ture or condition of the premises, such as a defect in the plumbing, that make them unfit for habitation. Coulson v. Whiting, 14 Abb. N. C. 60. Landlord's fraudulent concealment that premises had been formerly oc- 12 178 LEASES. [CH. vm. cnpied as a house of prostitution, is a defense to action for rent when tenant has been deceived to his damage. Ehinelander v. Seaman, 13 Abb. N. C. 455, note. Statement by landlord as to habitability of premises not a continuing ■warranty that they shall continue so. Fowler v. Stevens, 49 Super. Ct. (J. & 8.) 479. A statement by landlord, regarded merely as a statement of opinion, as regarding good order of plumbing. Coulson v. Whiting, supra.^ There is no implied covenant on the part of lessor as to plumbing. Chad- wick V. Woodward, 13 Abb. N. 0. 443. In an action for rent, tenant cannot counterclaim for damages by reason of defective plumbing. Chadwick v. Woodward, 1 City Ct. Snpp. 94 ; affg. 13 Abb. N. C. 441. See also poBt, " Evictions." Conditional Limitations.— When a breach of condition will determine a lease, and when not, without entry, vide ante, title " Conditional Estates," Ch. V, Title IV. The principle is that the lessee's estate will ipso facto cease, on breach of a condition determining it, in case there is no qualification or right of entry given to the lessor which implies an election to be exercised on his part. See Title V, "Forfeiture." Denying Title of Lessor. — In general a lessee is es- topped from denying the lessor's title existing at the time of demise. Prevot V. Lawrence, 51 N. Y. 319. Under the common law. a denial of the landlord's title worked a forfei- ture; but a parol denial did not forfeit a written lease. Delanccy v. Ganong, 6 Seld. 9. A tenant or purchaser cannot controvert the title of one under whom he holds or whose title he has recognized (7 Wend. 401 ; 9 N. T. 9; 1 E. D. Smith, 141), unless the landlord's title has expired or been extinguished. 2 N. Y. 345 ; 6 Wend. 666. But he can controvert any assignment of the lease. 15 N. Y. 374. Or he may set up a subsequent title acquired by himself. 23 Wend. 131; Hetzel v. Barber, 69 N. Y. 1. A tenant can show that the title has passed from the landlord to another person subsequent to the time of his entry as tenant. Ryers v. Farwell, 9 Barb. 615. Neither the tenant nor his assignee can set up adverse possession against the landlord. Bradt v. Church, 39 Hun, 262; and see post, " Title by Pos- sesion." Recording Leases.— See chap. " Deeds," recording of deeds. By Kev. Stat. vol. i, p. 763, part 2, ch. 3, the provisions relative to the proof and recording of deeds should not extend to leases for life or lives or years, in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Co- TIT. II.] LEASES. 179 Vumbia, Delaware and Schenectady. Law8 of 1823, p. 413, § 5. Otherwise the laws relative to the records and proof of deeds applied to leases, except to those not exceeding three years. 1 Rev. Stat. p. 762. Vide post, Ch. XXYl, as to acknowledgment and record of instruments. Leases of Agricultural Lands,— By the Constitution of 1846, it is provided that leases of agricultural land, wherein rent or service is reserved for a longer term than twelve years, shall be Invalid. This has been held to apply only where rent is payable at stated periods, and not to a grant or lease for a long term for a specified consideration. Par- cel! V. Stryker, 41 N. Y. 480. Covenants for renewal beyond the twelve years, in the leases of, agricultural lands, would be void, but the lease would be good for the twelve years. Hart v. Hart, 22 Barb. 606. The above provision is held to apply merely to rents and services that are certain and periodical, and issue out of the land in return for its use. It would not apply to covenants binding the person only, and not the land, for the performance of duties not certain or periodical ; e. g., as to support a per- son. Stephens v. Reynolds, 6 N. T. (2 Stld.) 454. A lease for more than twelve years is void in toto. Two leases, one for eight years and the other for twelve, to begin at the expiration of the for- mer, are to be considered as one lease for twenty years, and void. Clark v. Barnes, 76 N. Y. 801. The nature of the lands and not the intended use is the test. Addell v. Durant, 62 N. Y. 524. Leases by Guardians in Socage.— Such guardians may lease the lands of infant heirs until they become of age ; but the lease is subject to be avoided either by such com- ing of age or the appointment of a general guardian. Emerson v. Spicer, 55 Barb. 408 ; affl'd, 46 N. Y. 560. Vide post, Ch. XXV, " Guardians in Socage." See People v. IngersoU, 20 Hun, 216. Leases in Fee.— For leases in fee, reserving rents or services. See Ch. V, Title IV, ante. Rights of Heirs, Mortgagees, etc., in Leases for Five Years and Over.— If a lessee who has an unexpired term of over five years is removed for non-payment of rent, he, his representatives, mortgagees, assignees, or judgment creditors may, within a year, redeem the term. Co. Civ. Proc. §§ 2256 to 2259, inclusive. Formerly regulated by Laws of 1842, ch. 240. Repealed, L. 1880, c. 245. Leases by Trustees.— See ^os«, p. 183. Judgments a Lien.— By the Code of Civil Procedure, 180 ASSIGNMENT AST) SUBLETTING. [CH. VIII. judgments are a lien on chattels real, and they may be sold under execution. §§ l!i51, 1252. So formerly by 2 R. S. p. 359, »m&" Judgments," and " Sales on Execution," po»t, Ch. XXXVII. Assets.— Leases for years are excluded from the stat- ute of descents, and are assets for administration. Vol. 2 R. S. p. 754, § 28; ib. p. 169. Attornment.— An attornment is a continuation of the existing lease in all respects, except that another is substi- tuted, by acknowledgment of the tenant, for the original landlord. An attornment to one having no color of title, or a stranger, is void, unless on consent of the landlord or under a judgment or decree, or to a mortgagee after for- feiture of the mortgage. Austin V. Aheame, 61 N. Y. 6 ; Rev. Stat. vol. 1, p. 744; 5 Wend. 246; 13 Johns. 537; or after surrender, 10 id. 485; Laurence v. Brown, 5 N. Y. 394; O'Donnell v. Mclntjre (No. 2), 37 Hun, 623. A conveyance by the landlord is valid without attornment, but the tenant is not bound unto the grantee until he has had notice. 1 Rev. Stat. p. 739. The People v. The Mayor, 19 How. 289. See also, post. Title XF. Attornment under judgment afterward reversed is avoided by the rever- sal. Ross V. Eernan, 31 Hun, 164. Leases by Aliens.— By Rev. Stat. vol. 1, p. 720, § 25, no alien shall have power to lease or demise lands which he may take or hold by virtue of the deposition made that he intends to become a citizen (§ 24), until he becomes naturalized. Law of 1845, Leases by Aliens. — The Law of 1845, ch. 115, § 9, provides that all leases duly executed heretofore by aliens to citizens, or to resicLent aliens capahle of holding real estate, or which may hereafter be executed by tMch aliens to any such alien or to a citizen, are confirmed and made valid. See also Ch. Ill, title " Aliens," ante, p. 81, and Law of 1857, p. 90, et seq. Leases of Railroads. —Construction of. See Matter of N. Y. C. R. R. Co., 49 N. Y. 414. Sub-Leases by Corporations held Void.— Met. Cone. Co. v. Abbey, 52 Super. 97. Title III. Assignment and Subletting. A lessee for years may assign or grant over his whole interest, unless restrained by covenant not to assign with- TIT. III.] ASSIGNMENT AND SUBLETTING. 181 out leave of the lessor. Unless so restrained, also, he may underlet for any less number of years than he himself holds. Jf the deed passes all the estate or term of the termor, it is an assignment. But if it be for a less portion of time than for the whole term, it is an under-lease, and leaves a reversion in the termor, and he alone is entitled to re- newal. Lynde v. Newcombe. 37 Barb. 415; Jackson v. Silvernail, 15 Johns. 378; Jackson v. Harrison, 17 ii. 60; Bedford v. Terhune, 30 N. Y. 353; Wood- hull V. Rosenthal, 61 N. Y. 383 (distgd. 71 N. Y. 48, 54). An under-lease made for the whole unexpired term, but at a different rent, or reserving the right to re-enter for breach of covenants, is not an assign- ment, but is a sub-lease. The People v. Robertson, 39 Barb. 9; Post v. Kearney, 3 N. Y. 394; Collins v. Hasbrouck, 56 N. Y. 157 (approved, 71 N. Y. 48, 54). A covenant not to underlet is not broken by underletting a portion of the premises. Jackson v. Silvernail, 15 Johns. 378 ; Post v. Kearney, 3 Corns. 394; Jackson v. Harrison, 17 Johns. 66; People v. Elston, 39 Barb. 9; Roose- velt v. Hopkins, 33 N. Y. 81. Nor will a covenant not to let or underlet prevent the lessee from making an assignment. Lynde v. Hough, 27 Barb. 415. A landlord's consent would discharge the covenant against assignment wholly, and the assignee would take the lease free therefrom. Siefke v. Koch, 31 How. Pr. 383. A covenant that the assignor has a right to transfer, etc., does not war- rant the landlord's title. Knickerbacker v. Killraore, 9 Johns. 106. A subletting with knowledge of the landlord, who subsequently received the rent, is a waiver of any forfeiture under a covenant against subletting. Ireland v. NichoUs, 46 N. Y. 413. A mere change in the business firm of the lessee's, incident to the ad- mission of a new partner, or the withdrawal of an old one, does not violate a provision against subletting. Roosevelt v. Hopkins, 33 N. Y. 81. As to assignments between partners, vide 1 Robtn. 371. A mortgage upon leasehold premises is not an assignment or transfer ■within the covenant; nor is a judicial sale in foreclosure. Riggs v. Purssell, 66 N. Y. 193. As to lease taken by one partner with covenant against assignments. Mitchell V. Reed, 61 N. Y. 133. Acceptance of rent by lessor after a breach of the covenant is a waiver. The condition once dispensed with is also dis- pensed with forever. Murray v. Harway, 56 N. Y. 337 ; Heiter v. Eckstein, 50 How. Pr. 445. Under a contract to transfer a lease, " free from incumbrance," rent not accrued is not apportionable. Hull v. Stevenson, 58 How. Pr. 135 n. But see Matter of Eddy, 10 Abb. N. C. 396. Possession of part of premises under a sub-lease is notice to a purchaser of the lease from lessee. Burke v. Martin, 3 Alb. L. J. 150. Landlord who has taken an assignment back from tenant after sub- letting may recover against sureties of sub-tenant, and lease does not merge. Townsend v. Read, 15 Abb. N. C. 285. An assignee of lease cannot get more than the equity if there be a mort- gage. Alford V. Cobb, 35 Hun, 651. Sub-tenant may pay Rent to the original Lessor. — A sub-tenant may protect himself against ouster by paying rent to the lessor, although he is not 182 ASSIGNMENT AND SUBLETTING. [CH. VIII. liable to the fonner, and there is no privity between them. Peck v. Tnger- soll, 7 N. Y. (3 Seld.) 538; MacFarlan v. Watson, 3 Comst. 386; Bedford v. Terhune, 30 N. T. 438; Eten v. Luyster, 60 N. Y. 252. Assignments may be Proved by Acts in pais.— 9 Cow. 88 ; 30 N. Y. 4S3. Continuing liability of the Lessee and of the Assignee.— The lessee, after assignment, still remains liable upon all his covenants to the lessor, by reason of his privity of con- tract. And the assignee of the lessee will be liable to the lessor upon such covenants only while he remains tenant. For though there is no privity of contract between them, there is privity of estate. He may relieve himself of re- sponsibility by assigning over to another. Post V. Jackson, 17 Johns. 239; Carter v. Haramet, 18 Barb. 608; Van Schaick v. Third Avenue R. R. Co. 49 ib. 409 ; affi'd, 38 N. Y. 34 ; and vide in/ra, pp. 183, 184, and 9 Cow. 88, and Dnrand v. Curtis, 57 N. Y. 7 ; Tate V. McCormick, 23 Hun, 218. He is not liable for breaches of covenant before he got the estate. Astor V. Hoyt, 5 Wend. 603. Rights of Assignees as to Lessors' Covenants. — As seen above, p. 134, lessees and assignees of leases and their representatives, have the same rights against the lessor, his grantees, assignees, or his or their representatives, as the lessee might have had against the lessor, except on covenants against incumbrances, or relating to the title or possession. Act of Feb. 6, 1788; 1 R. L. 863; 1 R. S. Ist ed. 747. Also, same option as to renewal ; but if not availed of the original lessee inay avail himself of the covenant. Hume v. Hendrickson, 79 N. Y. 117. By Law of April 9, 1805, ch. 98, these provisions are extended to grants or leases in fee reserving rents. 12 N. Y. 301. By Law of April 14, 1860, ch. 396, the above provisions are not to apply to deeds of conveyance in fee made before the 9th of April, 1805 ; nor to such deeds to be made after the act. As to the application of these statutes to leases in fee, iiide ante, pp. 134, 135, 136, where the above statutes are fully set forth. See also Van Rensselaer v. Bradley, 3 Den. 185; overruled. Van Rens- selaer v. Chad wick, 24 Barb. 333 ; aflS'd, 22 N. Y. 32 ; Van Rensselaer v. Jewett, 5 Den. 454 ; affirmed, 2 N. Y. 141 ; Van Rensselaer v. Smith, 27 Barb. 104 ; Van Rensselaer v. Ball, 19 N. Y. 100; Main v. Green, 32 Barb. 448; 33 id. 186; Main v. Davis, 32 Barb. 463; Van Rensselaer v. Secor, 32 Barb. 469; Tyler V. Heidorn, 46 Barb. 440. Covenants to Repair. — Covenants by a lessor to repair run with the land, and bind the reversioner ; and a covenant to repair implies a covenant to re- build in case of total destruction by fire. Allen v. Culver, 3 Den. 285. Vide also.,nrate, Title II. When a lease of land embraces also personal chattels, the lessees covenant TIT. HI.] ASSIGNMENT AND SUBLETTING. 183 to return or replace them, or pay for them, does not pass to the grantee of the reversion. Nor does it bind the assignee of the lessee. lb. Covenants of Renewal. — These run with the land, and the assignee of the lessee may take advantage of them. Wilkinson v. Petit, 47 Barb. 230. VUe also, ante, Title II, and^o«i, p. 185. Downing v. Jones, 11 Daly, 245. Obligations and Liabilities of Assignees.— The assignee of the lease becomes liable to the landlord on covenants only so long as he remains in the legal relation of assignee ; and when he assigns to another who accepts the assign- ment, his liability ceases. Stoppani v. Richards, 1 Hilt. 509; Siefke v. Koch, 31 How. Pr. 383; Johnston v. Bates, 48 Super. Ct. 180 ; Carter v. Hammet, 18 Barb. 108 ; Stern v. Florence S. M. Co. 17 Week. Dig. 567; Stewart v. L. I. R. R. Co. 102 N. Y. 601. Vide also, ante, p. 183. The mortgagee of a term is not personally liable, before entering, as an assignee of the interest of the lessee in the premises. Childs v. Clark, 3 Barb. Ch. 52 ; Calvert v. Bradley, 16 How. U. S. 580. Kent, in his Commentaries, holds that the mortgagee of the whole term is liable on these covenants, even before entry, quoting Williams v. Basanquet (1 Brod. & Bing. 288), and therefore suggests that the mortgagee take by way of under-lease, leaving a few days of the original term. His view is probably based on the former doctrine of law, that the mortgagee took the legal estate, and not a mere security. The assignee is not liable unless the whole term has been assigned. Davis v. Morris, 36 N. Y. 569. . Trustees are bound on covenants in leases made by them ; also their suc- cessors in office. Greason v. Kettletas, 17 N. Y. 491. Sub-lessees are bound by the covenants in the lease, as they run with the land. The Importers' Ins. Co. v. Christie, 5 Robtn. 169 ; Barrington Apart. Ass'n V. Watson, 28 Hun, 545, and post, p. 191. After the original landlord has received rent directly from a sub-tenant, and has thus recognized him as the person responsible to him, and accepted him as his tenant, he cannot resort to the assignors of such sub-tenant for the rent (Carter v. Hammet, 18 Barb. OOS); and the landlord may bring an ac- tion for rents. Marshall v. Lippman, 16 Hun, 110. See a special case in equity by which an assignee was held bound even after transfer. Van Shaick v. The Third Av. R. R. 49 Barb. 409 ; 38 N. Y. 346. An equitable assignee of a lease is liable on the covenants for rent dur- ing the period of his occupancy. Astor v. Lent, 6 Bos. 612; Close v. Wil- berforce. 1 Beav. 113. The whole term must be assigned to make an assignee liable. Davis v. Morris, 36 N. Y. 569. An assignee for the benefit of creditors does not assume the lease by en- tering and remaining only long enough to remove his assignor's goods. Johnston v. Merritt, 10 Daly, 308. Upon what Covenants the Assignee is Liable. — The assignee of the term is liable to the lessor or his grantee of the reversion upon all covenants that run with the land, although not expressly named in the lease ; but he is not liable upon covenants which are merely personal or col- 18i ASSIGNMENT AND SUBLETTING. [CH. VIII. lateral, as to pay a note, build a house, etc. The general rule is, that no covenants run with the land, unless they touch or relate to the thing demised. Gilbert v. ■Wiman, 1 Comst. 50^; Norman v. Welles, 17 "Wend. 136; vide Comyn. Landl. v. Tenant, 257; Jaques v. Barber, 20 Barb. 269; Dolph t. White, 12 N. Y. (2 Kern.) 295. As to the above principles, more fully, and as to when an assignee of a lessee is not bound when named, or is bound although not named, vide Spen- cer's Case and notes thereon in Smith's Leading Cases, and Allen v. Culver, 3 Den. 284 ; Dolph v. White, 12 N. Y. (2 Kern), 296. As a general rule, where a covenant relates to a thing not in esse, but to be done upon the land demised, assignees are bound if so specified, but not if it be not so stated. Tallman v. Coffin, 4 Corns. 134. But a covenant or condi- tion that attaches to the estate («. ff., not to cut wood) binds the assignee though not named. Verplanck v. Wright, 23 Wend. 506. Assignees of a lease, however, as well as grantees of real estate, are not liable for breaches of covenant, which were committed by those who have preceded them in the enjoyment of the estate. Tillotson v. Boyd, 4 Sandf. 546 ; Hull v. Stevenson, 13 Abb. N. S. 196, said to have been reversed, 58 How. Pr. 135 n. See post, p. 185. Covenants in Leases in Pee. — As to these, vide ante, Ch. V, Title IV. CovenaBt to Pay Assessment. — A lessee's covenant to pay assessment runs with the land, and binds the assignee of the term. Post v. Kearney, 3 N. Y. (2 Corns.) 394. Vide post. Title XI, as to taxes and assessments. Rights of Grantees, Assignees, etc., of Lessor. — As above seen (p. 136) the heirs and grantees of demised lands or rents, or the reversion thereof, or the assignees of the lessor, and their heirs, executors, etc., are to have the same remedies for non-performance of covenants for rent, or for waste or forfeiture, in grants or leases for life, years, or in fee, as their grantor or assignor had. This provision was taken from the Law of Feb. 6, 1788, re-enacted by the Revised Laws of 1813 (I R. L. 363), and by the Revised Statutes (1 R. S. p. 747). By Law of April 9, 1805, ch. 98, it was extended to leases in fee; and by Law of April 14, 1860, ch. 396, declared not to apply to deeds of convey- ance in fee made before the 9th of April, 1805, nor to deeds to be made after the act. These laws are given in full, ante pp. 135, 136, and also decisions bearing upon their relation to grants and leases in fee. These statutory provisions in favor of the assignees of lessors and their representatives changed, in this State, the common law rule whereby conditions in a deed could only be re- served for a grantor and his heirs, and a stranger could not take advantage of a breach of them. See also, with relation to the above laws, Dolph v. White, 2 Kern. 296 ; Willard v. Tillman, 2 Hill, 274 ; Slocum v. Clark, 2 Hill, 475; Harbeck v. Sylvester, 13 Wend. 608; McKeon v. Whitney, 8 Den. 453; Van Rensselaer V. Jewett, 5 Den. 121 ; 2 N. Y. 141 ; NicoU v. The N. Y. & E. R. R. 12 Barb. 460; affirmed, 12 N. Y. 121; Van Rensselaer v. Smith and Hayes, &c. 27 Barb. 104; 19 N. Y. 82, 100; Main v. Green, 32 Barb. 448; jTyler v. Heidorn, 46 Barb. 440 ; Huerstel v. Lorillard, 6 Robtn. 260 : Towle v. Remsen, 70 N. Y. 363. TIT. IV.] EVICTION. 185 The assignee of a lease who has been recognized as such by the tenant, may sue in his own name for the rent, although he has no interest in the re- version. MoSat v. Smith, 4 Corns. 126; Schaefer v. Heukel, 75 N. Y. 378. The liability of an assignee of a lease extends only to covenants broken while he remains possessed of the estate, and he is not chargeable for breaches happening previous to the assignment. Day v. Swockhamer, 3 Hilt. 4 ; and ante, pp. 183, 184. Only the grantee of the reversion of the demised premises, or of the rent reserved, can maintain an action against the assignee of the lease. There must be a privity of contract or estate. Dolph v. White, 12 N. Y. 295. Covenants to Renew. — Covenants to renew the lease run with the land, and bind the assignee of the reversion. Piggot v. Mason, 1 Paige, 412: Wilkinson v. Petit, 47 Barb. 230. See also, as to these covenants, Carr v. Ellison, 20 Wend. 178; Willis v. Astor, 4 Edw. 594; Abeel v. BadcliflF, 13 Johns. 297 ; Rutgers v. Hunter, 6 Johns. Ch. 215 ; Whilock v. Duffleld, 20 Wend. 57 ; 17 Wend. 137. Aliter as to a covenant by lessor to pay at expiration of the term, half the value of a building to be erected by the lessee. Johnston v. Bates, 48 Super. Ct. 180. An agreement to sell to the lessee by the lessor can be enforced against a grantee of the lessor with notice; and is a good counterclaim in an action for rent. Lazarus v. Heilman, 11 Daly, 189. Lessee cannot, by surrender, affect the rights of tenant under unexpired sub-lease. Eten v. Luyster, 87 Super. 486. Title IV. Eviction. The rule is well settled that a wrongful eviction of the tenant by the landlord from the whole or any part of the demised premises, before the rent becomes due, precludes a recovery thereof, until possession is restored. To render an eviction of a tenant a valid defense, how- ever, against the landlord's claim for rent, it must take place before the rent falls due ; and the rule is the same although the rent is payable in advance and the eviction occurs before the expiration of the period in respect of which the rent claimed accrues. It is settled also, that such eviction need not be forcible, but may be made in- directly ; as where the lessor is guilty of acts, by creating a nuisance, or otherwise, which preclude the tenant from a beneficial enjoyment of the premises, in consequence of which the tenant abandons the possession before the rent becomes due. In such case the lessor's right to recover the rent is barred, as his act is considered a virtual expul- sion of the tenant. 186 EVICTION. [OH. VIII. It is also a principle pertaining to the law of eviction that, in case of eviction from a portion of the premises only, the lessee's rights are the same as if wholly evicted, and the law will not apportion the rents in favor of the wrongdoer. The landlord, therefore, cannot recover any compensation even for the part of the premises occupied by the tenant while the eviction continues, nor will any action for use and occupation lie therefor. It is also a principle restricting the above rules that, if the lessor's wrongful act stop short of depriving the tenant, actually or impliedly, of the occupation of any portion of the premises, although the injury inflicted may be great, and the holding of the land by the lessee become less beneficial than it otherwise would have been from the tortious acts of the lessor, the latter will not be barred from his rent. Also, if the tenant actually remains in possession of the demised premises his obligation to pay rent continues ; and damages resulting from acts of mere trespass or neg- ligence by the landlord, cannot be set off against the rent. For cases establishing the above principles, vide Cohen v. Dupont, 1 Sandf. 260; Dyett v. Pendleton, 5 Cow. 738 ; affl'd, 30 N. Y. 383; Ogilvie v. Hull, 5 Hill, 53; Christopher v. Austin, 1 Eer. 3 17; Giles v. ComstocI:, 4 Corns. 370; Edgerton v. Page, 30 N. T. 381. It has been also held that, where, hy the lessor's per- mission, there has been a material interference with the beneficial use by the lessee, even though the act done does not amount to an actual eviction, the right to abandon the premises exists; and there can be no claim for rent after an abandonment made under such circum- stances. Rogers v. Ostrom, 85 Barb. 533. The acts complained of, however, must have been by the landlord's direction or with his connivance. Gilhooley v. Washington, 4 Corns. 317. See also, Johnson v. Oppenheimer, 55 N. T. 280, as to excavations on an adjoining lot. It is also held that when the estate out of which rent issues is gone (e. g., when certain rooms are leased, and the building is destroyed), and the demised tenement has absolutely ceased to exist, the rent must terminate, and the obligation to pay it is at an end. The lessee's estate does not revive on TIT. IV.] EVICTION. 187 rebuilding. Graves v. Berdan, 29 Barb. 100 ; affirmed, 26 N. Y. 498. See ante. Title IF. A re-entry by landlord and reletting dispenses with a formal surrender and operates as a rescission of the lease and an eviction of the tenant. Renn V. Diederick, 3 Alb. Law Journal, 30; MacKellar v. Sigler, 47 How. Pr. 20. Non supply of water from leakage in other parts of premises than that oc- cupied by tenant is not an eviction, nor a counterclaim in an action for rent. Coddington v. Dunham, 35 Super. Ct. 413. Alterations of approach to premises in pursuance of a public ordinance not an eviction. Gallup v. Albany R. R. Co. 65 N. Y. 1. Dampness of premises where tenant agreed to repair does not constitute an eviction. Truesdell v. Booth, 6 Snpm. Ct. 379. Negligence or trespass by landlord does not bar the rent. Ih. But other- wise where he does acts which preclude the tenant from the beneficial enjoy- ment, lb. Vermin or noxious smells do not constitute an eviction. lb.; also Sutphin v. Seebas, 13 Daly, 139. Nor insults by landlord. Edwards v. Candy, 14 Hun, 596. To evict a tenant from a farm, carrying him to the highway is sufficient. Lawrence v. Mead, 5 Hun, 179. Interference with light, etc., constitutes an eviction. Denison v. Ford, 7 Daly, 384. Constructive eviction bars summary proceedings. People v. Gedney, 10 Hun, 153. Where plumbing in a flat was so bad that it oocasioned sickness, and landlord did not repair though ordered by the Board of Health to do so, it was held a constructive eviction. Bradley v. De Goicoaria, It Daly, 393. But see Coulson v. Whiting, 12 Daly, 408, contra. See Law of 1860, ch. 345, authorizing tenant to abandon premises made untenantable, without default of tenant, ante, Title II. Evidence of bad smell under this act must go to the jury on constructive eviction. St. Michael's, &c. Ch. v. Behrens, 13 Daly, 548. There must be real destruction or injury, not merely fears of it. Tallman V. Gashweiler, 13 Daly, 555. Rooms let with steam heat, inadequacy of heat held an eviction. Laurence v. Burrell, 17 Abb. N. C. 313. Rescission of lease by tenant on account of former bad character of prem- ises, not allowed unless made at once on discovery. Ih. Eviction by Title Paramount.— Where a tenant is actu- ally evicted from the demised premises by title paramount, or surrenders possession in consequence of a judgment for its recovery, he is discharged from the payment of rent ; but if he is only ejected from a portion of the prem- ises by such title, the landlord may recover for the por- tion still enjoyed by the tenant. The Home Ins. Co. v. Sherman, 46 N. Y. 370; Christopher v. Austin, 1 Kern. 11 N. Y. 316; Hurlburt v. Post, 1 Bosw. 38. Under a covenant for quiet enjoyment a tenant, on a partial eviction by title paramount, is entitled to an abatement of the rent. Blair v. Caxton, 18 N. Y. 529. The erection of a building by strangers on an adjoining lot, so as to shut off light from the demised premises, is not an eviction of the tenant by the landlord. Johnson v. Oppenheim, 55 N. Y. 380. J 88 rORFEITURB. [CH. VIII. Attachment and sale by sheriff, of leased premises, at suit of landlord for rent, is not an eviction to bar-a claim for future rent as it accrues. G-ray V. Sheridan, &c. Co. 19 Abb. N. C. 152. Tenancy under a Mortgagor after Foreclosure. — It has been determined that the interest of a tenant under a demise from a mortgagor, made after the execution of the mortgage, is extinguished by a foreclosure and sale ; and if the tenant attorn to the purchaser under the sale, at his request, although he may not have been actually evicted, the right of the lessor to the future rents is extin- guished, and it is an eviction in law. It is also held, that although the lessor may assign the lease to the purchaser, and consent that the rent for the residue of the term be paid to him, the tenant may, not- withstanding,, go out of possession and refuse to pay the subsequent rents. The eviction in such a case comes under the class of evictions by title paramount. Lane v. King, 8 Wend. 584: Simers v. Saltus, 3 Den. 314. If the lessee choose he can attorn to a mortgagee after the mortgage has become forfeited, or to the purchaser. lb. and 1 R. S. 1st ed. 744 ; Jones V. Clark, 20 Johns. 51. Title V. Foefeituee. Forfeiture. — A term may be determined by conditions stipulated or covenants broken, or other act creating a forfeiture. Formerly an alienation in fee worked a forfeiture, but by the Revised Statutes, no conveyance of a greater estate than can be lawfully conveyed has that effect. 1 R. S. p. 739; Grant v. Townsend, 3 Hill, 554. The premises may be forfeited by act of the lessee's assignee, as seen above, Title III. Where the condition renders the estate voidable only, it requires the act of the lessor to determine it. If not so determined the estate continues under the lease and not as a tenancy by sufferance. Clark V. Jones, 1 Ben. 516; Garner t. Hannah, 6 Duer, 262; Stuyvesant V. Davis, 8 Paige, 427. TIT. v.] FORFEITURE. 189 Before the provisions of the Revised Statutes adverted to in the succeeding title, to work a forfeiture and re-entry, on non-payment of rent, the common law required a pre- vious demand of the rent due on the exact day, and at the place where payable, with circumstances of great particu- larity. Ejectment now stands in place of such demand. Jackson v. Kipp, 3 Wend. 230 ; Van Rensselaer t. Jewett, 5 Denio, 121 : 2 N. Y. 181 ; Tyler v. Heidom, 46 Barb. 439. A forfeiture operating as to a portion of demised premises worked a for- feiture of the whole. Clarke v. Cummings, 5 Barb. 339. A forfeiture may be waived ; and if so, the waiver cannot be retracted un- less the forfeiting act is continuing. 26 Barb. 41 ; Bleecker v. Smith, 13 Wend. 530 ; Clark v. Jones, 1 Oen. 516 ; Collins v. Hasbrouck, 56 N. Y. 157. The courts may relieve when the case is one which admits of compensa- tion, and where the breach is not willful, or is the result of accident er mis- take. Garner v. Hannah, 6 Duer, 262 ; Baxter v. Lansing, 7 Paige, 350. The acceptance of the rent is not a waiver, of forfeiture, unless the rent re- ceived accrued subsequent to the act which works a forfeiture. Bleecker v. Smith, 13 Wend. 530 ; Jackson v. Allen, 3 Cow. 220 ; Hunter v. Osterhoudt, 11 Barb. 33; Graham v. Baker, 9 Week. Dig. 82. It is not a waiver if it be so stipulated and understood. Stuyvesant v. Davis, 9 Paige, 427 ; Manice v. Millen, 26 Barb. 41. If lessor is ignorant of the forfeiture it is not waived by acceptance of rent. Clarke v.. Cummings, 5 Barb. 339 ; Keeler v. Davis, 5 Duer, 507. Rent accrued previous to the forfeiture may be recovered after re-entry by the lessor, but not that accrued after forfeiture as landlord, although he may recover them as mesne profits. Mattice v. Lord. 30 Barb. 382 ; 5 Rob. 169. Mere default in the payment of rent, where there is a covenant for its pay- ment and no condition in the lease providing for re-ent/ry, does not work a for- feiture of the term, and no ejectment lies. Van Rensselaer v. Jewect, 2 Coms. 141 ; affi'g, 5 Den. 121 ; Delancey v. Ganong, 12 Barb. 120; affl'd, 9 N. Y. 9. This last case also holds that the words "yielding and rendering" in a lease import a covenant but not a condition, unless the landlord would other- wise be without remedy in case the rent should not be paid. If, by the lease, forfeiture is provided on non-performance of covenants, if the lease also contains the clause that in case of non-performance the land- lord may re-enter, the lease is voidable only, at the election of the landlord, but not void. Stuyvesant v. Davis, 9 Paige, 427 ; and ante, p. 121. As to forfeiture under leases in fee, vide ante, Ch. V, Tit. IV. Acceptance of rent after an action commenced for fsrfeiture is not a waiver. Importers' Co. v. Christie, 5 Rob. 170. Upon breach of a condition terminating the lease, upon default in pay- ment of rent, the lessor may resort to an action of ejectment to recover pos- session of the demised premises, although no right of entry is expressly re- served in the lease. Horton v. N. Y. Ccn. R. R. Co. 12 Abb. N. C. 30. Provision in lease of an apartment house as to ceasing of lease at land- lord's option, upon objectionable conduct of tenant, etc., construed a con- dition subsequent, and not a conditional limitation. Penoyer v. Brown, 13 Abb. N. C. 82. Provision for re-entry need not be in particular words, if substantially effective. Post v. Morau, 10 Daly, 502. A waiver of forfeiture for breach of certain conditions, e. g., against assignment dispenses with them forever. Murray v. Harway, 56 N. Y. 337. By L. 1878, c. 583, if the tenant carry on an unlawful business the lease 190 EJECTMENT. [CH. VIII. becomes void; and landlord may re-enter. If he does not do so he becomes jointly liable with the tenant. Title VI. Ejectment. The remedies which the grantor or lessor may pursue in the event of non-payment of rent or other violation of conditions, are 1. An action to recover the rent itself, either as be- tween the original parties, or as between parties who have succeeded to their rights and obligations. 2. Ejectment to recover the premises. There are also certain "Summary Proceedings," pro- vided by the statutes of this State, to obtain speedy pos- session where rent is unpaid, or where a tenant holds over, that will be adverted to in a subsequent chapter (Ch. XLI), in whicli the proceedings in an ejectment suit, in order to make title under it, are given. "^ To work a forfeiture for non-payment of rent, as seen in the preceding title, and to authorize ejectment thereon, the common law required a previous demand of the rent due on the exact day, with circumstances of great partic- ularity. The Code of Civil Procedure, however, provides that " when six months' rent or more is in arrear, upon a grant reserving rent or upon a lease of real property, and the- grantor or lessor, or his heir, devisee or assignee has a sub- * sisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear or re-entry on the property." Co. Civ. Proc. § 1504, following the Revised Statutes formerly in force, t E. L. 440, § 23 ; 3 R. S. p. 505 ; repealed, L. IBiO, c. 345. At any time before final judgment, it is further pro- vided, the defendant may tender or pay into court the rent, with interest and costs to be taxed, and thereupon the complaint must be dismissed. Co. Civ. Proc. § 1506. TIT. VL] ejectment. 191 Within six months after possession taken under an execution of judgment as above, the lessee, his assigns or personal representatives, may pay or tender to the lessor, his personal representatives or attorney, or pay into court, the rent, interest, costs, and charges, and the court, upon application within three months thereafter, on proof of the facts and payment of rent which has accrued since judg- ment, must make an order restoring possession to the appli- cant, who shall hold upon the old terms without any new- grant or lease. Co. Civ. Proc. §§ 1508, 1509. Mortgagees out of possession may also redeem as ahove. lua. Whatever sum the plaintiff might have made out of the premises in the interim must be set off against the rent. Co. Civ. Proc. § 1510. As to the above proceedings under the Revised Statutes and the practice thereunder, reference may be made to the following cases, most of which are more particularly referred to in other parts of this chapter, under their appro- priate heads: 7 Wend. 521 ; 1 Wend. 135; 7 Cow. 747; 18 N. Y. 539, 484; 13 N. Y. 299; 27 Barb. 176, 104; 18 Barb. 157; 2 Barb. 316; 5 Den. 127,453, 480; 14 Wend. 172; 9 Wend. 147; 2 Duer, 507; 12 Abb. 475; 26 How. Pr. 292; 19 N. Y. 100; 2 N. Y. 141 ; 19 Barb. 484. Formerly the remedy, by ejectment, to enforce ft forfeiture on the non- payment of rent, whs not allowed except where a right of re-entry was ex- pressly stipulated for between the parties to the lease. Viin Rensselaer v. Jewett, 5 Den. 121; affirmed, 2 Coms. 141; Tyler v. Heidorn, 46 Barb. 439. As to the remedy by ejectment, where the land was apportioned, vide Title V, s^ipra, and ante p. 138. . Ejectment will lie for breach of covenant to pay taxes. Giles v. Austin, 34 Super. 171; s. c. (on another appeal), 38 Super. 215, as to such action. Code of Civil Procedure as to Re-entry.— By this Code (§ 1505), whenever the right of re-entry is reserved for rent due to a grantor or lessor in default of sufficient goods whereon to distrain, it may be made, or an action to recover the property may be maintained, on fifteen days' written notice after rent due, given by the grantor or lessor, his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators, or assigns. 192 ESTATES AT WILL. fCH. VIII. This provision follows L. 1846, c. 274, which was repealed by L. 1880, c. 245. The above provisions, requiring fifteen days' notice, etc., do not apply when the right of entry arose on the breach of any other covenant than that for the payment of rent. Gamer v. Hannah, 6 Duer, 262. It is immaterial, since the abolition of distress, whether there is sufScient property for distress or not. Van Rensselaer v. Snyder, 13 N. Y. 299. The Statute of 1846 rendered inoperative the words in the Revised Stat- utes, " and no sufficient distress can be found, etc.," and authorized the landlord to re-enter at any time after default in payment, provided he gave notice in writing as required. This Act of 1846 a;so abolished " Dittress" for rent. The provisions of the Revised Statutes on the subject of ejectment for non-payment of rent were held not repealed by the above Act of 1846. A landlord also might still, it was supposed, reenter at common law, or he might proceed under said Law of 1846. The service upon the tenant of the notice required by said act is the only prerequisite to the right of re-entry under the statute. Such notice wag not intended to be in addition to the formalities of the common law proceeding. Williams v. Potter, 2 Barb. 316; Van Rensselaer v. Snyder, 9 Barb. 302; affirmed, 13 N. Y. 299: The Mayor V. Campbell, 18 Barb." 136. See also, Van Rensselaer v. Smith, 27 Barb. 104; 19 N. Y. 100. The fifteen days' notice might be waived by the tenant. Williams v. Potter, 2 Barb. 316. As to the notice, vide 27 Barb. 104. Where ejectment was brought for non-payment, and the proceedings were according to the course of the common law, a strict demand of the rent made with great nicety, was essential. This common law demand is now rendered unnecessary under our statutes, as above. The service of the notice under the tbird section of the Act of 1846 (Laws of 1846, ch. 274), rendered unnecessary the proof of the want of any sufficient distress. Actual entry in order to bring ejectment is now unnecessary; but only a right to enter for condition broken and to immediate possession is requisite. Tyler v. Heidorn, 46 Barb. 439. The case of Hosford v. Ballard, 39 N. Y. 147, holds that the clause in the Statute of 1846, requiring fifteen days' notice of an intention to re-enter did not apply to a grant in which the right to re-enter arises on default of pay- ment by the tenant, but only where such right depends on the sufficiency of goods whereon to distrain. See also, Cruger v. McLawry, 41 N. Y. 219. This Act of 1846 was held to have a retrospective effect, and not to be unconstitutional in its retrospective application. Stocking v. Hunt, 3 Den. 274; Conley v. Palmer, 2 Corns. 182; Guild v. Rogers, 8 Barb. 502; Conkey V. Hart, 14 N. Y. (4 Kern.) 22; Van Rensselaer v. Snyder, 3 Kern. (13 N.Y.) 299. See also, " Ejectment and Summary Proceedings," post, Ch. XLT. As to forfeiture, re-entry and ejectment in cases of " Conditional Grants and Leases in Pee," vide ante, Ch. V, Title IV. Title VII. Estates at Will. Another species of estates, not of freehold, is an estate at will. By the Revised Statutes, they and estates at sufferance are termed chattel interests, but shall not be, as such, liable to sales on executions. Vol. i, p. 722, § 5. TIT. VII.] ESTATES AT WILL. 193 An estate at will, in general, is where lands and tene- ments are leased to be held at the will of the lessor. A reasonable notice had to be given of the election to deter- mine the estate, so that the tenant might remove the em- blements, and also his family and property. Jackson v. Wheeler, 6 Johns. 273 ; Phillips v. Covert, 7 Johns. 1 ; Brad- ley V. Covel, 4 Cow. 349 ; Newman v. Marshall, 53 Super. 203. Nor could the tenant determine the estate before the period of payment arrived, so as to cut off the landlord from his rent. Walker v. Furbush 11 Cush. 366; 4 Kent, p. 111. This was the old common law tenancy at will. The old tenancy at will was succeeded in many cases by a tenancy from year to year, created under a contract for a year implied by the courts ; such tenancy could not be determined by either party, except at the end of the year. A tenancy, for example, at an annual rent, which had been paid for several years, without lease or agree- ment, was considered a tenancy from year to year. The reservation of an annual rent was the leading cir- cumstance that turned leases for uncertain terms into leases from year to year. But tenancies at will, properly so called, are still in existence, and have their distinctive characteristics. Thus, a tenancy without any term prescribed or rent reserved, or one expressly during the will of the lessor, or a simple permission to occupy, creates a tenancy at will, unless there are circumstances to show an intention to create a tenancy from year to year. What were formerly held estates at will, however, at an annual rent, where no certain term is agreed on, and especially where the occupation continues after a deter- mination of an estate for years, are generally now con- strued to be tenancies from year to year. The continued occupation is held to be evidence of a tacit renovation of the contract, without any definite period, and is construed to be a tenancy from year to year, requiring notice of determination by either party. Such a tenancy continues 13 194 ESTATES AT WILL. fOH. VIII. until terminated by a legal notice, and the tenant cannot withdraw at his pleasure. Pugsley V. Aiken, 1 Ker. 494 ; reversing, 14 Barb. 114 ; Witt v. The May- or, 6 Robtn. 441 ; Nichols v. Williams, 8 Cow. 13 ; Jackson v. Salmon, 4 Wend. 327 ; Conway v. Starkweather, 1 Denio, 113 ; Taggard v. Roosevelt, 8 How. Pr. 141 ; 3 E. D. S. 100 ; Jackson v. Wilsey, 9 Johns. 317 ; Jackson v. Miller, 7 Cow. 747 ; Dorr v. Barney, 12 Hun, 259. A renting by the month, and then from month to month, is not such a letting as to require a month's notice to terminate. Such a contract in the city of New York cannot be construed as a tenancy at will, and does not ex- tend the tenancy to the first of the following May. People ex rel. Oldhouse V. Goelet, 14 Abb. Pr. N. S. ISO; s. c, 64 Barb. 476. Compare 7 Daly, 417; 4 Hun, 451. Imposing improper conditions invalidates the effect of notice. Lore v. Pierson, 10 Daly, 273. The cases on the question of the time of notice, in the cases of a tenancy from year to year, are full of contradictions, and i.t is difficult to lay down any exact rule from them. See Wright v. Mosher, 16 How. Pr. 454; Witt v. The Mayor, 6 Robt. 441 ; Reeder v. Sayre, 70 N. Y. 180. See infra, as to notice in cases of tenancy at will and at sufferance. A tenancy from year to year, was considered, under the provision of the Revised Statutes, as to " summary pro- ceedings," and would probably be under the provisions of the Code on that subject, a tenancy for one or more years; and a tenant may be removed without notice, unless there is a discretion given in the lease as to its determin- ation by either party. Park V. Castle, 19 How. Pr. 29. See also, on this point, in a special case of tenancy from year to year, Wright v. Mosher, 16 How. Pr. 454: People v. Darling, 47 N. T. 666 ; ib. 679. It is frequently difficult to draw the line between and determine what are tenancies at will, properly so called, and tenancies from year to year. The following decisions show the different aspects in which tenancies qi this uncertain character are viewed : A tenant in possession at or after a sale on execution, is tenant at will to the purchaser, and cannot set up an outstanding title. Colvin v. Baker, 2 Barb. 306 ; Dickinson v. Smith, 25 Barb. 102. As would also be the former owner holding over. Nichols v. Williams, 8 Cow. 13. A tenancy " for one year and an indefinite period thereafter," is one from year to year; also, where one enters on land by permission, as an occupant. Pugsley V. Aikin, 11 N. Y. (1 Ker.) 494; Jackson v. Bryan, 1 John. 323; Western Transp. Co. v. Lansing, 49 N. Y. 499 ; Reeder v. Sayre, 70 N. Y. 180. A parol gift of lands creates a tenancy at will. Jackson v. Rogers, 2 Ca. Ca. 814. ^ A tenant without any term prescribed or rent reserved is a tenant at will. Sarsfleld v. Healy, 50 Barb. 345 ; People v. Field, 1 Lans. §24 ; King v Van Duzer, 12 Week. Dig. 562 ; Lamed v. Hudson, 60 N. Y. 102. TIT. VU.J ESTATES AT WILL. 195 This would not apply to any employee, Kerrains v. People, 60 N. Y. 231. Also, one " during the will and pleasure of the lessor; " and a month's notice, is sufficient. Post v. Post, 14 Barb. 253 ; Doe v. Wood, 14 Mees. & W. 682. Holding over after the expiration of a lease for a year or more is a contin- uation of the former tenancy, which becomes one from year to year, under the terms of the original lease. Webber v. Shearman, 3 Hill, 547 ; 6 Hill, 32; Witt V. The Mayor, 6 Robtn. 441 ; Hall v. Wadsworth, 3 Wms. (28 Vermont), 410; Conway v. Starkweather, 1 Den. 113; Klwood v. Forkel, 35 Hun, 202; Austin V. Strong, 47 N. Y. 679 ; Lounsberry v. Snyder, 31 N. Y. 54 ; Dorr v. Barney, 18 Hun. 359. Or the landlord may, at his option, treat lessee as a trespasser. Schuyler v. Smith, 51 N. Y. 309 ; Smith v. Allt, 7 Daly, 492. Where possession is taken, under a parol lease void by the statute, it en- ures as a tenancy from year to year, and cannot be terminated by either party except at the end of the year. Taggard v. Roosevelt, 8 How. Pr. 141 ; 2 E. D. S. 100 ; Loughran v. Smith, 75 N. Y. 305 ; Pougera v. Cohn, 43 Hun, 454. Where the holding is at a stated rent, it will, after notice to quit termi- nating the tenancy at will, become a tenancy from year to year, requiring six mouth's notice to quit. Bradley v. Covel, 4 Cow. 349. A person in peaceable possession, with the knowledge and acquiescence of the owner, is a tenant at will, entitled to notice. Marquart v. La Parge, 5 Duer, 559. A party entering under an agreement to accept a lease for a term of 20 months, and subsequently refusing to accept, becomes a tenant at will or by sufferance. Anderson v. Prindle, 19 Wend. 391; id. 23 Wend. 616. By L. 1882, c. 803, tenants from month to month, in New York, are en- titled to five days' notice in case of holding over. Not so except by statute. People V. Goelet, 14 Abb. N. S. 130. See infra, as to notice to terminate tenancy at will and by suflFerance. Determination of Tenancy at Will by Notice under Statute.— The Revised Statutes provide that any tenancy at will or sufferance, created by the tenant holding over his term, or otherwise, may be terminated by one month's written notice requiring the tenant to remove ; and the landlord may re-enter at the expiration of the month. He may also maintain ejectment, or proceed in the manner provided by law to remove the tenant, without further notice. Laws of 1820, 177; 1 R. S. 745. See anU, p. 194. The Revised Statutes further provide as to how the above notice shall be served. Where the tenancy is expressly at will, the notice may be given at any time. Vrooman v. Shepperd, 14 Barb. 453. The notice required by the Revised Statutes need not specify the time within which the premises must be surrendered. It is sufficient if the ten- ant has thirty days' notice of the intention to terminate the tenancy. Burns v. Bryant, 31 N. Y. 453. See conPra, Wright v. Mosher, 16 How. Pr. 455. No notice is necessary to a tenant where the terms on which a lease is 196 ESTATES AT WILL. [CH. Vltl. to terminate are fixed by the agreement of the parties. Allen v. Jaquish, 21 Wend. 638; Doyle v. Gibhs, 6 Lans. 180. Nor in cases where the relation of landlord and tenant does not exist ; as in case of a trespasser. Torrey v. Torrey, 14 N. Y. 430 ; Doolittle v. Eddy, 7 Barb. 74 ; vide 1 R. S. 1st ed. 749. Or a mere licensee. Doyle v. Gibbs, 6 Lans. 180. If the tenant merely holds over without assent, he is not a tenant at suflferance requiring notice. Rowan v. Lytle, 11 Wend. 616 ; Smith v. Little- field, 51 N. T. 539. A disclaimer of the tenancy dispenses with the notice to quit, as taking a deed from a stranger. Jackson v. Wheeler, 6 Johns. 373 ; Woodward v. Brown, 13 Pet. 1; Sharpe v. Kelley, 5 Den. 430; Clarke v. Crego, 47 Barb. 600 ; affl'd, 51 N. T. 646. Or an act of waste. Phillips v. Covert, 7 Johns. 1. An acceptance of rent after the expiration of notice to quit is a waiver of the notice. Prindle v. Anderson, 19 Wend. 391; 23 ih. 616. Vide also. People Y. Darling, 47 N. Y. 666 ; ib. 679. Other Determination of the Estate. — An estate at will ia also determined by a conveyance to a third person, or by the commission of voluntary waste ; also by any written disclaimer, such as giving a deed in fee. Philips V. Covert, 7 Johns. 1 ; Jackson t. Wheeler, 6 Johns. 373 ; Sharpe v. Kelly, 5 Den. 431 ; Jackson v. Vincent, 4 Wend. 633. Liable for Waste.— A tenant at will is liable for willful but not for permissive waste; for which trespass quare clausum f regit lies. Starr v. Jackson, 11 Mass. 519; Gibbons on Dilapidations, p. 47. See ante, as to waste, p. 144. Effect of Covenants in the Lease. — A tenant holding over holds subject to all covenants in the expired lease, which are consistent with yearly tenancy. Hyatt V. Griffiths, 33 Eng. L. & Eq. 75 ; Vrooman v. McHaig, 4 Md. 450; Prockett v. Ritter, 16 111. 96 ; Conway v. Starkweather, 1 Den. 13. Assignable Interest. — An actual tenant at will has not any assignable interest, though it is sufficient to admit of an enlargement by release; and if he assigns, the ten- ancy is determined. On the other hand, estates which are constructive tenancies from year to year may be as- signed. City of New York. — The Revised Statutes of 1830 provide that agree- ments for the occupation of lands or tenements in the city of New York, which shall not particularly specify the duration of such occupation, shall be deemed valid until the first day of May next after the possession under such agreement shall commence ; and the rent, under such agreement, shall be TIT. Vin.] ESTATES AT SUFFERANCE. 197 payable at the usual quarter days for the payment of rent in said city, unless otherwise expressed in the agreement. Laws of 1820, 178, § 4; 1 E. 8. 1st ed. 744. vide Wolfe v. Merrit, 21 "Wend. 338 ; Marquart v. La Farge, 5 Duer, 569 ; Clarke v. Eichardson, 4 E. D. S. 173 ; Taggard v. Roosevelt, 3 E. D. S. 100. But the presumption created by the statute may be rebutted. Wilson V. Taylor, 8 Daly, 353. Contracts of Sale.— As to occupation under a contract of sale, vide post, Ch. XIX. See also, " Estates at Sufferance," infra. Title VIII. Estates at Sctfeeranob. Another estate, not of freehold, is an estate at stjffee- ANCE — that is, where the tenant comes into possession of land by lawful title, but keeps it over after the determina- tion of his interest. He has only a naked possession, without power to sell or to transact, and was not, by com- mon law, entitled to notice to quit, and, independent of statute, was not liable to pay rent. Jackson v. Parkhurst, 5 Johns. 138 ; Jackson v. McLeod, 12 Johns. 183 ; Livingston v. Tanner, 13 Barb. 481. The distinction between at tenancy at will and at suf- ferance is, that the former is created by the consent, and the latter by the laches of the landlord, who may enter and put an end to the tenancy when he pleases. But, before entry, the lessor cannot maintain an action of trespass against the tenant by sufferance, as his first occupation was, through the act of the lessor, and there- fore lawful. The purchaser of a life estate, who holds over after its termination, is a tenant by sufierance to the remainderman. Livingston v. Tanner, 13 Barb. 481. Where the grantor of land holds over after day agreed on, he is a tenant at sufferance. 4 Johns. 150, 813 ; 15 Johns. 106. See also, as to tenants at sufferance under the common law rules, 1 Johns. Ca. 123; 4 Johns. 150, 313; 15 Johns. 106, 133. Formerly, tenants at sufferance were not entitled to notice to quit before ejectment. Jackson v. Parkhurst, 5 Johns. 128. Determination of the Tenancy by Notice. — By Revised Statutes ^vol. i, p. 745, § 7), wherever there is a tenancy at will, or by sufferance, created by the tenant's holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice, in writing, to the 198 MBEGEB. [OH. VIII. tenant, requiring him to move. At the expiration of the month, the landlord may re-enter or bring ejectment, or remove the tenant. Where a tenant for a year holds over, he is not entitled to notice to quit as a tenant at sufferance ; but may be removed by summary proceedings, unless he hold over for such a length of time as to imply assent of the landlord. Rowan v. Lytle, 11 Wend. 616 ; Smith v. Littlefleld, 51 N. T. 539. Kor is a tenant for lives, holding over -without permission, a tenant at sufferance, entitled to notice. Livingston v. Tanner, 14 N. Y. 64 ; Nims v. Sabine, 44 How. Pr. 353. See, more fully, as to the above statutory notice, its service, and when it is requisite, ante, pp. 195, 196. Sales on Execution.— Estates at will or by sufferance, as such, are not liable to sales on execution. 1 R. S. 723, § 5 ; Colvin t. Baker, 3 Barb. 306 ; Dickinson v. Smith, 25 Barb. 102. But a tenancy from year to year may be so sold. Bigelow v. Finch, 17 Barb. 394. Grants by Tenants at Will or Sufferance.— A tenant at will or by sufferance has no estate that can be granted by him to a third person. And one who enters under a lease or assignment from a tenant at will, is a disseizor, and is liable in trespass at the option of the landlord. Reckhow v. Schanck, 43 N. T. 448. Guardians, etc., Holding Over. — Guardians and trustees of infants, and every other person who shall hold over without consent, any estate determined on any life or lives, shall be adjudged a trespasser, and liable in damages. Co. Civ. Proc. § 1664, following 1 R. S. p. 749. See also, '•Ejectment" and "Summary Proceedings," post, Ch. XLI. The Revised Statutes covered Jllso the case of husbands seized in right of their wives. Title IX. Merger, The doctrine of merger is applicable not only to estates for years, but to other interests and estates, legal and equitable. Its main features are given collectively in this chapter, as being a more convenient arrangement for reference than their distribution under the various chap- ters to which they may respectively relate. TIT. IX.] MERGER. 199 When the term of years and the next expectant estate meet in one person, a merger takes place lay which the elder term merges in the latter, and becomes extinct. Or when a greater estate and a less fall together in one person, the latter is merged in the former. The more remote estate must be the next vested estate in reversion or remainder, without any intervening estate vested or contingent; and the estate in reversion or remainder must be at least as large as the preceding estate. As a general rule, also, where the estates are equal there is no merger. The doctrine of merger applies only where there is a legal estate ; as where the title and a lien, or a legal and an equitable, or a larger and a lesser estate meet. Where the two estates are successive, and not incompatible, there may be no merger. Doe v. Walker, 5 Barn. & Cress. Ill ; 4 Kent, 101 ; Schermer- hom V. Merrill, 1 Barb. 512 ; Reed v. Latson, 15 Barb. 9 ; James v. Morey, 2 Cow. 246. An estate may merge for one part of the land and continue in the remain- ing part of it. If the estates are held in different legal rights, there will be no merger, provided one of the estates be an accession to the other merely by act of law, as by marriage, by descent, by executorship or by intestacy. When the other estate had been added by act of the party, as by purchase, then the merger takes place, if the power of alienation extends to both estates. Preston on Con. iii, 25; 4 Kent, 101; Hosford v. Merwin, 5 Barb. 51. Under the above principles, an estate for years may merge in an estate in fee or for life ; and an estate pour a/wl/re vie may merge in an estate for one's own life. So, also, if the legal and equitable estates in land are co-extensive and unite in the same person, the equitable is merged in the legal estate, which would then descend according to the rules of law applicable to it ; as, for ex- ample, if the legal estate in fee descend ex parte materna, and the equitable estate in fee ex parte paterna, the equi- table estate is merged in the legal, and both go in the line of descent of the legal estate (as per rules of descent, post, Ch. XIV). Vide Nicholson v. Halsey, 1 Johns. Ch. 417. So, also, if the owner of the equity of redemption pays off an existing mortgage and takes an assignment of it, it 200 MBRGBK. [OH. VIII. will be intended that the mortgage is extinguished, unless it is made to appear that he has some beneficial interest in keeping the legal and equitable estates distinct, or has so declared his intention. He will not be allowed to keep the mortgage on foot to the prejudice of a hona fide pur- chaser under him. The mortgage will be kept on foot if for the benefit of an infant's estate. Purdy V. Huntington, 43 N. T. 334; Gardner v. Astor, 3 Johns. Ch. 53; Starr V. Ellis, 6 Johns. Ch. 393; James v. Morey, 6 Johns. Ch. 417; iS. 3 Cow. 346 ; In re DeKay, 4 Paige, 403 ; Cooper v. Whitney, 3 Hill, 96 ; Smith V. Roberts, 91 N. Y. 470; Abbott v. Curran, 98 N. Y. 665. When the mortgage has become once merged, it cannot be restored so as to give priority over a junior lien. Angel v. Boner, 38 Barb. 435. The conveyance of mortgaged premises from the owner thereof to the mortgagee, will not operate as a merger of the mortgage in the legal title, where it was not the intention of the parties that it should have that effect. Van Nest t. Latson, 19 Barb. 604; DeLisle v. Herbs, 35 Hun, 485. A charge will not merge in the inheritance if contrary to the interest of the owner of the estate. Davisv. Barrett, 11 Eng. L. & Eq. 317; Johnson v. Webster, 31 ib. 98. Where the executor of a mortgagee purchased, in his own right, the prem- ises under the foreclosure of a second mortgage, it was held that the first mortgage was not merged in the fee. Clift v. White, 13 N. Y. 519. Where the owner of the equity of redemption of mortgaged premises made a second mortgage, and then took an assignment of the first mortgage, which he afterwards assigned to a third person, it was held that the existence of the second mortgage at the time of these assignments prevented the merger of the first one. Evans v. Kimball, 1 Allen, 340. See also, Purdy v. Huntington, 42 N. Y. 334; Smith v. Roberts, 63 How. Pr. 196. The owner of land, who paid off a mortgage on it in ignorance of a sub- sequent judgment lien, had the mortgage re-instated. Barnes v. Mott, 64 N. Y. 397. Where a mortgagor, who had sold the equity with covenants of assump- tion took an assignment, there was merger. Fairchild v. Lynch, 46 Super. 1. Although when the greater and less estate meet and coincide in the same person, the less estate, at law, be- comes annihilated, in equity the rule is not inflexible. There, it depends on the intention of the parties and other equitable considerations. Merger is not favored in equity, and is generally allowed merely to promote the intention of the party. At law, merger will operate, even though one of the estates be held in trust, and the other bene- ficially, by the same person; or if both the estates were held by the same person on different trusts. Equity, how- ever, would interpose and prevent the merging, if the jus- tice of the case required it. TIT. X.] SUEEENDEE. 201 As a general rule, an equitable estate would merge in the legal title if subsequently acquired by the cestui qui trust. In equity, the rule would be modified by the inten- tion of the party and the requirements of justice, so that the equitable estate, if necessary, might be kept in exist- ence. Thus, if an equity of redemption were conveyed to a mortgagee, with an express agreement between the parties that the deed should not operate as a merger of the mortgage, except at the election of the mortgagee, equity would preserve the two estates distinct, unless the mortgagee appear to have elected that they should be merged. So, also, if the executor of the mort- gagee purchase the fee in his individual capacity, he has the right of election in equity. So, also, if it be for the interest of a person in whom the legal and equitable estate unite, or if the person, being an infant, or lunatic, cannot elect, and it is for his interest, the law will imply an intention to keep the equitable estate on foot. Willard v. McMullen, 5 Hun, 273 ; affi'd, 68 N. T. 345 ; Delisle V. Herbs, 25 Hun, 485 ; Jackson v. Littell, 56 N. T. 108 ; Purdy v. Huntington, 42 N. Y. 334; Sheldon v. Edwards, 35 N. T. 279; Reed v. Latson, 16 Barb. 9; Spencer v. Ayrault, 10 N. Y. (6 Seld.) 302 ; 4 Kent, 108; Olift v. White, 2 Ker. (12 N. Y.) 519; reversing, 15 Barb. 70; James v. Morey, 2 Cow. 246; Cooper V. Whitney, 3 Hill, 95 ; Bostwick v. Frankfleld, 74 N. Y. 307 ; Binnse V. Paige, 1 Ct. of App. Cas. 139. Vide also, post. Oh. XXIII, "Mortgages," Title Vm. Title X. Sueeendee. Where an estate for life or years is yielded up to the next estate in reversion or remainder, the former estate becomes extinguished by act of the parties. The sur- render is made by act of parties, and not by operation of law, as in case of merger. The surrender must be to the immediate lessor or his assignee or privy in estate ; and, as has been seen above, must be in writing (a7ite, Title II), if the lease is for over a year. Willard v. McMullen, 68 N. Y. 346. The surrender of an estate being required by statute to be in writing (3 R. 8. 134, § 6), the calling it a forfeiture, and agreeing it shall be a forfeiture, cannot dispense with the requirements of statute, or change its character. Allen V. Brown, 60 Barb. 39. Nor is a parol agreement to terminate a lease good without a surrender if it has more than a year to run. Wilson v. Lis- ter, 64 Barb. 431. See contra, 40 Hun, infra. The Revised Statutes provided that, if a lease be sur- rendered to be renewed, and a new lease be made by the 202 SUBRBNDER. [OH. VIII. chief landlord, such new lease shall be valid without sur- render of the underleases derived out of the surrendered lease ; and the chief landlord, the lessee, and the holders of the under leases, shall have the same rights as if the original lease was continued; and the chief landlord shall have the same remedies for rent, etc., as under the original lease, and to the extent of the rents and duties therein reserved. (1 R. L. 442 ; 1 R. S. p. 744 ; Laws of 1846, ch. 274.) Accepting a new, valid lease, operates in law as a surrender of the old. Livingston v. Potts, 16 Johns. 28; Van Rensselaer v. Pennimer, 6 Wend. 569; Schieflfelin v. Carpenter, 15 Wend. 400 ; Abell v. Williams, 3 Daly, 17. Such intention is presumed from the acts of the parties, but such intention cannot be presumed, if evidently against the intent of the parties, and the rules of common sense. 6 Wend. 509, svpra; Coe v. Hobby, 72 N. T. 141. The unexpired term of a year in a lease for three years may be surren- dered by parol. Smith v. Devlin, 23 N. Y. 363. But see Wilson v. Lister, 64 Barb. 431; Smith v. Niver, 3 Barb. 180; Harrower v. Heath, 19 Barb. 331. Modification as to rent is not surrender. Coe v. Hobby, 7 Hun, 157; affi'd 72 N. Y. 141. Where the landlord entered upon premises abandoned by the tenant, leased them and took the key, held that this discharged payment of subse- quent rent. Smith v. Wheeler, 8 Daly, 135. Also Morgan v. Smith, 70 N. Y. 637. But mere acceptance of the keys by landlord without consent to the sur- render is not a surrender and acceptance. Thomas v. Nelson, 69 N. Y. 118; 17 Hun, 319. Surrender to be operative must be to some one qualified to accept it, or to release the tenant. Baylis v. Prentice, 74 N. Y. 604. Acceptance of new tenants by landlord operates as an acceptance of a sur- render. Fobes V. Lewis, 2 Week. Dig. 65. In case of surrender by mutual consent the parties are restricted to the legal rights which each had indepen- dent of its covenants. Harris v. Hiscock, 91 N. Y. 340. Surrender by parol of unexpired term of more than one year held good. Vandekar v. Reeves, 40 Hun, 480. A surrender, also, may be implied in law. A surrender of an estate for life or years to the owner of the next immediate estate in reversion or remainder is implied by law, where an estate incompatible with the existing estate is accepted by the lessee — e. g., as where the lessee takes a new lease of the same lands from the reversioner or remainderman ; strictly, such new estate must be transferred by writing. Where a tenant restores possession to the landlord, or where the tenant assents to the landlord leasing to a third person, a surrender will be also implied. In such cases, TIT. XI. J MISCELLANEOUS PROVISIONS. 203 however, it is considered that no surrender. will be implied in law unless there is an actual change in possession. SchiefEelin v. Carpenter, 15 Wend. 400; Van Rensselaer's Heirs v. Penni- man, 6 Wend, 569; 4 Kent Com. 103; Nickells v. Atherstane, 10 Ad. &. El. N. S. 944; Dodd v. Acklom, 6 Mann & Gr. 673 ; Lawrence v. Brown, 1 Seld. 394; Springstein T. Schemerhorn, 12 Johns. 357. Where rent in a lease was payable at the end of each month and the ten- ant, upon the request of the landlord let in a new tenant during the last month, having ceased to occupy himself. Held a surrender and acceptance and no rent due for that month. Smith v. Wheeler, 8 Daly, 135. A new agreement made by a landlord with a third party, with the assent of the tenant, will also operate in law to discharge the lessee from the cov- enants of a lease, and will be construed as a virtual acceptance of a surrender offered by the tenant. Murray v. Shave, 2 Duer, 183. It has been held that a rescission of the lease may be implied by abandon- ment and other acts in pais, without a written surrender. Hegeman v. Ar- thur, 1 E. D. S. 147 ; Townsend v. Albers, 3 E. D. S. 560. An agreement to surrender may be enforced. Bogert v. Dean, 1 Daly, 259. Such an agreement may be inferred. Bedford v. Terhune, 30 N. T. 463. An agreement to accept surrender maybe qualified, as that the lease shall be canceled as of a certain date, and rent will be due to such date. Roe v. Con- way, 74 N. T. 201. A surrender by mutual agreement does not bar an action by tenant for damages for breach of covenant to repair. Rewey v. Riley, 17 Weekly Dig. 573. As to implied surrender by acceptance of rent from another, see Wilson v. Lester, 64 Barb. 431. Acceptance or surrender does not discharge from rent already due. Conk- lin V. White, 17 Abb. N. C. 315. Title XI, Miscellaneous Provisions. Emblements.— The tenant for years, at the end of the term, is not entitled to emblements — i. e., crops, etc., in the ground, provided the lease be for a certain period. It is otherwise where the determining event is uncertain — i. e., if a tenant for life make a lease for years, the lease being determined by his death. So in the case of the de- termination of a tenancy at will. Clarke v. Rannie, 6 Lans. 210; Reeder v. Sayre, 70 N. T. 180;Mahoney v. Parley, 17 Weekly Dig. 277. As to emblements, vide ante, p. 142. As to emblements in case of ejectment for non-payment of rent see full discussion in Samson v. Rose, 65 N. Y. 411, Estovers. — A lessee is entitled to reasonable estovers — i. e., timber for fuel, fencing, etc. Vide ante, pp. 141, 143, 7 T. R. 234 ; Clark v. Cummings, 5 Barb. 339. 204 MISCELLANEOUS PROVISIONS. [OH. VHI. But the cutting of trees, except under special circum- stances, is an act of waste. McGregor v. Brown, 6 Seld. 114. Attornment.— By the Revised Statutes, the attornment of a tenant to a stranger is made absolutely void, and shall not in any wise affect the possession of his landlord, unless it be made — 1. With the consent of the landlord ; or, 2. Pursuant to, or in consequence of, a judgment at law, or the order or decree of a court of equity ; or, 3. To a mortgagee after the mortgage had become for- feited. Vide decisions, ante, p. 180. Notice to Quit by Tenant. — If a tenant give notice of his intention to quit, and shall not deliver up possession at the time specified, the tenant, his executors or administra- tors shall thenceforward pay the landlord, his heirs or assigns, double rent while the tenant is in possession. 1 R. L. 440; 1 R. S. 1st ed. 745. Tenants Holding Over alter Notice to Quit. — If any tenant for life or years, or any other person who may have come into the possession of lands, etc., under or by collu- sion with such tenant, shall willfully hold over any lands, etc., after the termination of the term, and after demand made and one month's notice in writing given, in the manner prescribed, he is liable for double the yearly value of the lands or tenements for so long as he keeps the per- son out of possession, and also for any special damage incurred; and there shall be no relief in equity against any recovery at law therefor. 1 R. L. 440 ; Laws of 1820, 179 ; Laws of 1846, ch. 274; 1 R. S. 1st ed. 745. Holding over tenant remaining in possession after the end of term may, at option of landlord, be held to have renewed. Phillips v. Fogarty, N. T. Daily Reg. Feb. 22, 1884, citing Schuyler v. Smith, 51 Ni T. 309, and Giles v. Comstocli, 4 id. 370; Tuomey v. Dunn, 42 Super. 391. See also Long v. Stafford, 103 N. Y. 274. Rent Payable after a Life Estate, etc.— As between ten- ants for life and remaindermen, rent accruing on leases TIT. XI.] MISCELLANEOUS PEOVISIOKS. 205 executed by the testator of the parties and becoming due after the termination of the life estate, could not, at common law, be apportioned, but belonged to the remaindermen. Marshal v. Mosely, 21 N. T. 380. And so it was between executors of a lessor and re- maindermen. A remainderman who succeeded to the reversion was entitled to the whole rent as an entire sum due him, if it was not payable until after the decease of the testator. The heir also took it as against the ex- ecutors as an incident of the reversion. But now, by L. 1875, c. 542, apportionment may be made in all such cases. Fay V. HoUoran, 35 Barb. 395 ; Jones v. Felch, 3 Bos. 63. See also, ante, p. 143. By the Revised Statutes, if a tenant for life die on or after rent due and payable to him on a demise made by Mm, his executors, etc., may recover from the under ten- ant the whole rent due. If he die before the rent is to become due, they may recover the proportion of rent which accrued before his death. 1 R. S. Ist ed. p. 747. As to apportionment of rent charges and services, vide 3 Den, 135; 1 Bos. 88; 23 N. Y. 32, and ante, p. 137. Deeds of Lease and Release. — The Revised Statutes provide that deeds of lease and release may continue to be used, and shall be deemed grants ; and as such shall be subject to all the provisions in the chapter (ch. 1, art. 4, title 2, part 1) concerning grants. Vol. i, Ist ed. p. 739. As to this form of conveyance for the transfer of fees, vide post, Ch. XX. Fixtures.— As to what fixtures and structures by ten- ants are considered as attached to and part of the realty so as to be incapable of removal by the tenant after the expiration of his term, vide ante, p. 101. The law on this subject belongs more appropriately to works on the relation of landlord and tenant than to a review of this nature. The cases are full of refinements 206 MISOBIiLAlirBOUS PEOVISIONS. [CH. VIII. on this subject, and the law undergoes frequent change. The general principle is, that nothing of a personal nature is considered a part of the realty, unless it be brought within the denomination of a fixture by being in some way permanently, or at least habitually, attached to the land or some building on it. It need not be constantly fastened ; nor need it be so fixed that detaching will dis- turb the earth, or rend any part of the building. It is also, however, a general principle of modern adop- tion that constructions, though firmly affixed by a tenant to buildings, if so fixed for the purpose of carrying on a business of a nature personal to the tenant, are personal property, end may be removed by him. Vanderpoel v. Van Allen, 10 Barb. 157; Goddard v. Gould, 14 id. 662; Laflin v. Griffiths, 35 id. 58 ; Murdock v. GiflEord, 18 N. T. 38 ; Ford t. Cobb, 30 id. 344 ; Swift v. Thompson, 9 Conn. Rep. 68 ; Gale v. Ward, 14 Miss. 853 ; Voorhies v. McGinnis, 48 N. Y. 378 ; Cook v. The Champlain Transp. Co., 1 Den. 93 ; McKeage v. Han. Fire Ins. Co., 81 N. T. 38; Davidson v. Westch. G. L. Co., 99 N. T. 558. Vide, as to assets for administration, 3 R. S. 83, § 6, and Oh. XVII, post. It is also, however, a rule that whatever is annexed or affixed to the freehold, by being let into the soil or an- nexed to it, or to some erection upon it, to be habitually used there; particularly if for the purpose of enjoying the realty, or some profit therefrom, is a part of the free- hold. Buckley v. Buckley, 11 Barb. 48, and cases cited. But not fixtures for trade, etc., not essential for support. 2 R. S. 169. See as to fixtures in general, McRea v. Cent. Nat. Bk., 66 IT. T. 489 ; Finkel- meier v. Bates, 93 N. Y. 173; Hart v. Sheldon, 34 Hun, 38. Wine plants are not fixtures. 46 Barb. 378. Nor is nursery stock. Dufiiia y. Bangs, 48 Hun, 53. Tenants Sued in Ejectment.— A tenant sued in eject- ment, or for the recovery ox the land occupied by him, or the possession thereof, shall forthwith give notice thereof to his landlord, under the penalty of forfeiting three years value of the premises, to be sued by the person of whom he holds, or his landlord. 1 R. L. 444 ; 1 R. S. 1st ed. p. 748. Use and Occupation.— By the Revised Statutes, a land- TIT. XI.] MISCELLANEOUS PEOVISIONS. 207 lord may recover a reasonable satisfaction for use and occupation by any person, under any agreement, not made by deed. If any parol demise or agreement not made by deed, by wbich a certain rent is reserved, appears in evi- dence, the plaintiff may use it as evidence of the amount of the damages. 1 R. S. 1st ed. 748. This statute is taken with certain modifications from the Law of 1813. 1 R L. ofl813, p. 444. This action for use and occupation lies only where the relation of landlord and tenant exists. It is founded on contract, express or implied ; and an action therefor can- not be sustained if that relation has ceased during the time sued for. Bancroft v. Wardwell, 13 Johns. 489 ; Jennings v. Alexander, 1 Hilt. 154 ; Osgood V. Dewey, 13 Johns. 340; Cleves v. Willoughby, 7 Hill, 83; Feather- stonaugh ads. Bradshaw, 1 Wend. 134. The lessee may be sued for the use and occupation of his under-tenant. Moffat V. Smith, 4 Corns. 136 ; Bedford v. Terhune, 30 N. Y. 453 ; Kiersted V. O. & A. R. R Co., 69 N. T. 343. It was held, at first, that a landlord could only recover in an action for use and occupation, for the time the ten- ant had actually entered into possession and occupied the premises, either by himself or by his sub-tenant or agent. Crosswell V. Crane, 7 Barb. 191; Seaman v. Ward, 1 Hilt. 53. It is held, however, in the case of HofEman v. Delahanty, 13 Abb. 388, that the action would lie where the lands were held by the defendant with- out being actually occupied, even since the Revised Statutes. The cases of Wood v. Wilcox, 1 Den. 37, and Beach v. Gray, 3 i6. 84, were overruled in that particular. The above case of Hoffman v. Delahanty was sustained in Hall v. The Western Transportation Co., 34 N. Y. 384, where it is held that if the power to use and occupy is given by the landlord to the tenant, so far as the landlord is concerned he has performed on his part, and the action is maintainable. The action for use and occupation lies where the holding is under an im- plied, as well as where it ia under an express permission, and the tenant who goes in under an implied license is not to be permitted to dispute the title. Pierce v. Pierce, 25 Barb. 343. As to the evidence of value in the action, vide Williams v. Sherman, 7 Wend. 109. The action will not lie against a vendee who took possession, but did not complete the purchase. Smith v. Stewart, 6 Johns. 46 ; Bancroft v. Ward- well, 13 Johns. 489. It lies against a lessee holding over. Abeel v. Radcliffe, 13 Johns. 397. See also, Vemam v. Smith, 15 N. Y. 338. It seems that it lies against one who entered under a void lease and occu- pied. Thomas v. Nelson, 69 N. Y. 118. 208 MISCELLANEOUS PEOVISIONS. [CH. VIII. Waste.— Tenants for years are liable for waste. Vide ante, p. 144; and McGregor v. Brown, 6 Seld. 114; McCoy v. Wait, 51 Barb. 225 ; United States v. Bostwick, 4 Otto, 53. A condition in a lease giving a right of re-entry in ease of -waste, is not a limitation of the estate, but a condition which makes the estate a conditional one, which could only be determined by a trial and adjudication, or by the legal surrender of all the rights of all the parties in interest. Allen v. Brown, 60 Barb. 40. An alteration of a building leased is not necessarily waste. Aberle v. Pajen, 43 Super. 217. In absence of express covenant not to do so, a tenant may paint signs on the wall of the building leased by him. Baldwin v. Morgan, 43 Hun, 355. The Words " Real Estate " and *• Conveyance " as ap- plied to " Leases."— The Kevised Statutes provide that the term " real estate," as used in the chapter relative to the proof and recording of deeds shall be construed as co-ez- tensive in meaning with " lands, tenements, and heredit- aments," and as embracing all chattels real, except leases for a term not exceeding three years. The word " con- veyance " is to include such leases. 1 R. 8. 1st ed. 762; 16 N. T. 153; 35 Barb. 334. The provisions of the chapter were not to extend to leases for life or lives, or for years, in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware, and Schenectady. Laws of 1823, 413, 1 R. 8. p. 763. Remainders on Terms of Years. — Vide post, Ch. IX. Tenants who have Paid Taxes. — Where taxes have been collected against tenants, where others are liable therefor, they may recover the same, or deduct the same from rent due or accruing. 1 R. S. 1st ed. p. 419. Assessments.— Tenants for a less term than twenty- five years may also deduct from their rent assessments for work on the highway, at one dollar per day, unless other- wise agreed. Laws of 1836, 338; R. S. pt. i, ch. 16, title 1, art. 3, § 31, as amended Laws of 1864, ch. 395. See Laws of 1849, ch. 350; 1837, ch. 431, 1833, ch. 107. Action for Debt on Leases for Life. — Any person hav- ing rent due on a lease for life or lives may have the same TIT. XI.] MISCELLANEOUS PROVISIONS. 209 remedy to recover such arrears "by action of debt as if such lease were for years. 1 R. S. Isted. 747. This also applies to rents dependent on the life of another. 11. 1 R. L. 438. Executors and Administrators.— May have the same remedies for rent due their testator that he might have had if living. 1 R. S. 1st ed. 747. Lessee of a Corporation cannot set up ultra vires. Mayor v. Wylie, 43 Hun, 547. Oil Leases Construed.— Eaton v. Wilcox, 42 Hun, 61. Computation of Time.— Time is to be computed accord- ing to the Gregorian or new style: the 1st of January to be reckoned the first day of the year since the year 1752. Whenever the term ''years" is used in any statute, deed, contract, or public or private instrument, it shall be deemed to consist of 365 days ; a half-year, of 182 days; and a quarter of a year, of 91 days; and the added day of a leap year, and the day immediately preceding, shall be reckoned as one day. The word " month " is to be taken, when used as above, as a calendar and not a lunar month. 1 R. 8. 1st ed. p. 610. Yearly rent, payable from and after May 1, is not due until May 2 of following year. Mock v. Burt, 5 Hun, 28. Taxes on Leases.— As to assessment of leases against persons entitled to rents in leases for over twenty-one years. Vide Law of Mav 13, 1846, ch. 327; as amended, Law of April 19, 1858, oh. 357; see also, 15 N. T. 452; 7 Barb. 250; 4 Barb. 11. Champerty.— Leases in violation of the spirit as well as the letter of the statutes against champerty are void. The People v. The Mayor, 19 How. Pr. 289. 14 210 MISOBLLANBOtrS PEOVISIONS. [OH. VIII. Leases of State Salt Lands.— F«c?(3 Law of April 15, 1859, eh. 346, §§ 23, 44. Leases by Executors.— When an order has been made by the surrogate for the mortgage, lease, or sale of a dece- dent's estate, if the executor, administrator, etc., is dis- qualified or removed, etc., the order may be carried out by the administrator, de bonis non. Law of April 6, 1850, ch. 162; repealed, L. 1880, ch. 345; Co. Civ. Proc. § 3770. Railroads Held Under Lease.— Vide Law of April 3, 1867, ch. 254; and Law of May 11, 1869, ch. 844. Leases on Land taken for Streets in New York City. — By Law of April 9, 1813 (2 K L. p. 417, § 181), where land is taken in New York city for streets held under lease, all parties are discharged therefrom. Where part only of the lands is taken, the lease continues as to the remainder, and a proportionate part of the rent is pay- able therefor. The above provisions in favor of the tenant may be waived by him. Phyfe V. Conner, 45 N. Y. 103. Assets for Administration. — Leases for years and lands held from year to year, are assets for administration. 3R. S. Isted. 83; 1 R. L. 365. Judgments as liens on Estates for Years.— FwiSe^os^, Ch. XXXVII. Bawdy-Houses.— If lessees are convicted of a misde- meanor in keeping a bawdy-house on the demised prem- ises, the lease or agreement shall be void, and the landlord may have the same remedies as against a tenant holding over. 4 N. Y. 317; 3 R. S. 1st ed. 703; 3 Sandf. S. 0. 333; 3 Parker's Crim. R. 544. By Law of 1868, ch. 764 (repealed, L. 1880, ch. 245), and now by Co. Civ. Proc. § 3237, persons keeping such houses may be removed by the landlord or others. Possession by Tenant.— The possession by a tenant shall be deemed the possession of the landlord until the expiration of twenty years from the determination of TIT. XI.] MISOBIjLANEOTIS pkovisions. 211 the tenancy, or where there has been no written lease until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the said periods. 2 R. S. 1st ed. 294 ; Code of Procedure, § 86 ; Code of Civil Procedure, § 373; Tyler v. Heidom, 46 Barb. 439. Redemption of Leases under Sales on Execution. — Vide post, Ch. XXXVIII, ''Sales on Execution," and Law of May 16, 1837, ch. 462, repealed by L. 1877, ch. 417. Provision for redemption is now made by Co. Civ. Proc. § 1430, making leasehold property real estate as to exe- cutions. Rents Payable by Estate of a Decedent.— The Revised Statutes provide that a surrogate may give a preference to rents due or accruing upon leases held by a testator or intestate, over debts of the fourth class, in the payment of debts, if it appear of benefit to the estate. Distress for Rent.— Was abolished by Law of 1846, ch. 274. Vide ante, p. 185. St. Regis Indians, Leases by.— Law of 1841, ch. 143. Summary Proceedings to recover Possession of Lands.— As to these and the rights of lessees for over five years to redeem, vide post, Ch. XLI. Forcible Entry and Detainer.— Vide post, Ch. XLI. Leases by Special Partners.- L. 1872, ch. 114.— They may lease to general partners. Surplus Moneys.— As to interest of lessees in surplus moneys, after foreclosure against their lessor, see Clarkson V. Skidmore, 46 N. Y. 297. CHAPTEE IX. EXPECTANT ESTATES. Title I. — Estates in Remainder. Title II. — Rule in Shelley's Case. Title III. — Executory Devises. Title IV.— Suspension op the Power of Alienation. Title V. — Direction tor Accumulation. Title VI. — General Provisions as to Future Estates. Title VII. — Estates in Reversion. By the Revised Statutes, estates in eaapeGtcmcy are de- fined to be those where the right of possession is post- poned to a future period, and are divided into, 1. Estates commencing at a future day, which are de- nominated. Future Estates ; and 2. Reversions. A Future Estate is one limited to commence in posses- sion on a future day, either without the intervention of a precedent estate, or, on the determination by lapse of time, or otherwise, of a precedent estate created at the same time. See Hennessy v. Patterson, 85 N. T. 91, for explanation of doctrine of remainder, both vested and contingent under the Revised Statutes and at common law. Also see 6 Alb. Law Journal, 361, as to contingent remain- ders. Title I. Estates in Remainder. {See also Title VI, General Provisions.) An estate in remainder is a future estate, depending upon a particular prior estate created at the same time, and limited to take eifect and be enjoyed after that prior or precedent estate is determined — the two together con- stituting only one entire estate in fee. Definition under the Revised Statutes.— In the New York Revised Statutes of 1830, a remainder is defined to be an estate limited to commence in possession, at a future TIT. I.] ESTATES IN REMAINDER. 213 day, on the determination by lapse of time, or otherwise of a precedent estate created at the same time. Where it is uncertain whether the person holding the antecedent estate is still alive, provision is made by statute to ascertain the fact, and to estab- lish the presumption of decease. A person being absent for seven years together, is presumed dead in any action concerning lands, unless there is proof to the contrary. Co. Civ. Proc. § 841 ; 1 R. S. p. 749, § 6, based on Law of Feb. 6, 1788; 3 Greenl. 30 [vide ante, p. 141). The Revised Statutes also declare, that where a future estate is dependent on a precedent estate, it is a remainder, and may be created and transferred by that name. (IB.. S. p. 723.) The law of remainders, under the common law, is intricate and voluminous. It is now much simpli- fied by the statutes of this State. Some of the most important common law rules, how- ever, as well as the statutory enactments modifying them, it may be well to refer to, particularly as the statutory provisions of 1830 would not affect rights vested before they took effect. Remainders on a Fee. — By the common law no re- mainder could be limited after the grant of an estate in fee simple (although this might be done as a future use or executory devise). The Eevised Statutes, however, declare that two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly. They have also altered the common law, so as to allow contingent remainders in fee, to be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined, before they attain their fall age. Temple v. Hawley, 1 Sandf. Oh. 154; Van Home v. Campbell, 100 N. Y. 387. They also allow a fee to be limited on a fee, on a con- tingency to happen within two lives in being. Vide infra, Title IV; IB. 8. ch. 1, title 3, § 34. 214 ESTATES IN REMAINDEK. [OH. IX. The Precedent Estate. — By the common law there must always be a, precedent or partimilar estate supporting the remainder, which precedent estate had to be created by livery of seizin, even if a chattel interest for a term of years, because no freehold estate could pass without immediate Iweiry of teizin. The livery to the tenant of the particular estate enured to the benefit of the remainderman, the two estates being considered one in law. If the particular estate was void in its creation, or was afterwards defeated, the re- mainder was defeated also, if it rested upon the same title as the particular estate; and, by the common law, the remainder had to vest during the con- tinuance of the particular estate, or eo instanti, it determined. The rule was somewhat relaxed in " Wills " and " Conveyances to Uses." Inasmuch as if there was any interval between the remainder and the particular estate the remainder became void, on the principle that a freehold could not be made to commence in futuro, the particular estate was often, vested in trustees, to prevent the defeat of the remainder by the cessation of the particular estate. Kemainders were thus upheld by way of use, the inheritance or use, until the contingency arose, resulting to the grantor or his heirs, or springing or shifting as provided. Remainders created by wills were also upheld as exeautory devises, when they would as remainders be void (vide Title III, post). As to limitations in trust to preserve contingent remainders when such trusts were legal in this State, vide Vanderheyden v. Grandall, 2 Den. 9 ; 1 Corns. 491 ; Van Rensselaer v. Poucher, 5 Den. 35. As will be seen hereafter (post, Oh. X), all uses and trusts are by the Revised Statutes abolished in this State, except as specially provided, and are now turned into legal estates ; and, under the laws applicable to expect- ant estates, as herein set forth, there is no necessity for such legal machinery as above to preserve remainders. The old conveyances to use would not now be valid under our statutes, but the use would vest in the beneficiary as a legal estate. Tide post, Ch. X. The Revised Statutes provide that no expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate, by disseizin, forfeiture, surrender, merger, or otherwise. The above provision is stated not to be construed to prevent an ex- pectant estate being defeated in any manner or by any means provided by the party creating the estate, nor shall any expectant estate, thus liable to be defeated, be on that ground adjudged void in its creation. Vol. i, p. 735, §§ 33, 38. The statute also prescribes that no remainder valid in its creation, shall be defeated by the determination of the precedent estate, before the happening of the contingency ; but the remainder shall take effect on the happening of the contingency. § 34, *. TIT. I.] ESTATES IN REMAINDER. 215 Two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly. § 25, ib. Commencement of the Estate. — The Revised Statutes provide that the delivery of the grant where an expectant estate is created by grant, and, where it is created by devise, the death of the testator, shall be deemed the time of the creation of the estate. Hemainders are either vested or contingent. Vested Remainders, or remainders executed, are those where there is a present fixed right of future enjoyment; when the interest is fixed, though it is uncertain whether it will ever take effect in possession. It is not the uncer- tainty of enjoyment in future, but the uncertainty of the right to that enjoyment which makes the difference be- tween a vested and contingent interest. Hawley v. James, 5 Paige, 318; 16 Wend. 61. The Revised Statutes define them as " When there is a person in being, who would have an immediate right to the possession of the lands upon the ceasing of the in- termediate or precedent estate." Under this definition, if there is a person in being who would be entitled to take if the precedent estate should presently determine, his interest is a vested future estate, notwithstanding that it may be liable to be defeated by the decease of the person before the precedent estate actually determines. Vol. i, p. 733, § 13; Crowall v. Shererd, 5 Wall. 368; Sheridan v. House, 4 Abb. Ap. Cas. 218. Where a devise is to minors, for example, but that they should not take until they severally arrived at full age, the estate vests in interest on testator's death, al- though possession is postponed. Post V. Hayes, 30 Barb. 313 ; Young v. Langbein, 7 Hun, 151. Compare Magill V. McMillan, 23 Hun, 193. 216 ESTATES IN EEMAIHDEE. [CH. IX. No remainder will be construed to be contingent, which may be held vested. Moore v. Lyons, 35 Wendell, 119 ; 5 Wall, mfra; Williamson t. Fields, 5 Sandf. Ch. 533 ; McKinstay v. Sanders, 3 Supm. Ct. 181. The distinction is often nice and difficult to draw, but is important, as it may affect the right of survivorship and inheritance, as well as the right of conveyance, before the provision of the Revised Statutes, allowing the trans- fer of expectant estates, whether vested or contingent. Where an estate is limited to a man for life, remainder to his children, the children living at the death of the testator take vested remainders, subject to open and let in subsequent born children for their vested proportions, and their interest is not divested by their dying before the life-tenant. Miller v. Macomb, 36 Wend. 339 ; affl'g 9 Paige, 365 ; Baker v. Lorillard, 4 Coms. 357 ; Vanderheyden v. Crandall, 3 Den. 9 ; aflB'd, 1 Coms. 491 ; Hatman v. Osborne, 4 Paige, 836 ; Moore v. Little, 41 N. Y. 66 ; Doe v. Provost, 4 Johns. 61 ; Liv- ingston V. Green, 6 Lans. 50 ; affi'd, 58 N. Y. 118 ; Manice v. Manice, 43 JT. Y. 868; Matter of Brown, 39 Hun, 413; Lockman v. Keilley, 39 Hun, 434; rev'd on other grounds in 95 N. Y. 64; Howell v. Mills, 56 N. Y., 336; Mc- Gill v. McMillan, 33 Hun, 193; Embury v. Sheldon, 68 N. Y. 338; Smith v. Scholtz, 68 N. Y. 43; Stowell v. Graves, 2 N. Y. S. C. 311; Hopkins v. Hop- kins, 3 N. Y. S. C. 536 ; Lane v. Brown, 39 Hun, 383 ; Sheridan v. House, 4 Abb. Ap. Oas. 318 ; Chinn v. Keith, 4 N. Y. S. 0. 136. Person having a vested remainder in a future estate has a right to in- come accruing between death of life-tenant and vesting in possession, if not otherwise disposed of, it passing "to the person presumptively entitled to the next eventual estate." Embury v. Sheldon, 68 N. Y. 337. The existence of a trust does not prevent the gift to a remainderman from vesting (citing 70 N. Y. 513; 89 id. 335). Lyons v. Mahan, 1 Dem. 180. Postponement of enjoyment will not prevent vesting. Matter of Hulse, 35 Hun, 331. But where a remainder is limited to issue of the life-tenant who survive him, it will not vest. Byrnes v. Labagh, 38 Hun, 533. Contingent or Executory Remainders. — ^These are where the estate in remainder is limited to take effect, either to a dubious or uncertain person, or upon a dubious and uncertain event,. so that the particular estate may chance to be determined, and the remainder never take effect. The Revised Statutes define a remainder as contingent, whilst the person to whom, or the event upon which, it is limited to take effect, remains uncertain. A remainder is vested where the interest is fiixed, although it will be uncertain whether it will ever take effect in possession. 30 Eng. Law & Bq. 435; Crofts v. Middleton, 35 *. 466; 34 ib. 207; TIT. I.] ESTATES IN BEMAINDBR. 217 Williamson v. Field, 5 Sand. Ch. 533 ; Wolfe v. Van Nostrand, 2 Corns. 486 ; Grout V. Townsend, 3 Den. 386 ; Nellis t. Nellis, 99 N. Y. 505. The Contingency.— A general rule by the common law as to contingent remainders, was that the remainder must be limited to some one that might by common prob- ability be m esse at the time or before the particular es- tate determined. It had to be a common or near pos- sibility, as death, or death without issue, or coverture. If founded on a remote possibility it was void. In a devise, a limitation over to the heirs of B. would pass a fee, al- though B. were living, otherwise if the devise were of a present estate. Campbell v. Eawdon, 19 N. Y. 412 ; rev'g 19 Barb. 494. A possibility upon a possibility held void (.lackson v. Brown, 13 Wend. 487), on a devise to the son of an unborn child, made before the Revised Statutes. The Revised Statutes provide that no future estate otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect. Vol. i, pp. 724, 725, §§ 36 and 37; Purdy v. Hayt, 93 N. Y. 446, 456. Conditional Limitations. — As above seen, by the rules of the common law, a remainder had to be limited so as to await the natural determination of the particular estate, and not to take effect in possession upon an event which prematurely determined it; as in case of a for- feited condition, which would determine the precedent estate before its natural limitation. If limitations on such estates, however, were made in conveyances to uses and in wills, they were good as con- ditional limitations, or future or shifting uses, or executory devises ; and upon breach of the condition, the first estate ipso facto determined, without entry, and the limitation over commenced in possession. By our Revised Stat- utes, a remainder may be limited on a contingency which in case it should happen would operate to abridge or determine the precedent estate, and every such remain- der shall be construed a ccnditional limitation, and shall have the same effect as such limitation could have bylaw. 1 R. S. p. 735, § 27. 218 ESTATES IN KEMAINDEK. [OH. TX. By the Revised Statutes also, when a remainder on an estate for life or years shall not be limited on a contingen- cy defeating or avoiding such precedent estate, it shall be construed as intended to take effect only on the death of the first taker, or the expiration by lapse of time of such term of years, the income pending its taking effect, if not otherwise disposed of, going to the remainderman. lb. § 39; Embury v. Sheldon, 68 N. T. 227. Transfer of Remainders. — All contingent and executory interests were assignable in equity. And all contingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest where the person to take was certain, were transmissible by de- scent, and were devisable and assignable. If the persons were not ascertained, they were not then possibilities coupled with interest, and they could not either be de- vised or descend, at the common law. A mere contingency or possibility not vested, where the grantor had no right at the time but a mere possibil- ity, could not, prior to the Revised Statutes of 1830, it was held, be transferred, and would not pass a title sub- sequently acquired, except where there was a warranty in the conveyance which operated by way of estoppel. This was considered the settled law of this State prior to the Revised Statutes, as decided in the following well known cases : Jackson v. Wright, 14 Johns. R. 193 ; Jackson v. Winslow, 9 Cow. R. 1 ; Pelletreau v. Jackson, 11 Wend. 110; Jackson v. Waldron, 13 Wend. 178; Edwards v. Varick, 5 Denio, 664. Not fully followed in the more recent case, however, of Lint- ner v. Snyder, 15 Barb. 621. It was there held a present right, though not to vest in possession until a future event, might be released to one in pos- session; and in Miller v. Emans, 19 N. Y. 385, it was held that a future contingent interest could pass by release, and the old cases were overruled so far as conflicting in that particular. See also, Moore v. Little, 41 N. T. 66 ; Pond v. Ber^h, 10 Paige, 140 ; and Wilson t. Wilson, 32 Barb, 328, which holds that such an interest could be mortgaged. By our Revised Statutes (vide vol. i, p. 725,), all estates in expectancy are descendible, devisable, and alien- able, in the same manner as estates in possession. Kenyon v. See, 94 N. T. 563 ; Griffin v. Shepard, 40 Hun, 355. Even since the Revised Statutes, however, it was held that contingent remainders cannot be sold under execution. Jackson v. Middleton, 62 Barb. 9; Nichols v. Levy, 5 Wall. 488; 12 N. Y. 188; 7 Paige, 76; 45 B. TIT. II.] THE RULE IN SHELIiEY'S CASE. 219 469. The joint deed of life-tenant and remainderman will not convey ■whole estate if latter's estate depends on his living longer than some third person. Norton v. Duffy, 16 Week. Dig. 539. A Msted remainder, althoun;h it be liable to be defeated by a subsequent event, may be sold on execution. Sheridan v. House, 4 Abb;ijAp. Cas. 318. A court of equity will uphold an assignment of a bare possibility made for value, e. g., the right of an heir apparent. Storer v. Eyclesheimer, 4 Abb. Ap. Cas. 309. As to descendibility of contingent remainder, see Henessy v. Patterson, 85 N. T. 91. Title II. The Rule in Shelley's Case. (See also Title VI, General Provisions.) It has been seen (ante, p. 113) that a grant without additional words of inheritance gave only an estate for life. Hence the word heirs was necessary to create a fee simple, and heirs of the body a fee tail. These are called words of limitation, as limiting or describing the interest. But if a remainder were given to the heirs of A., where an estate of freehold is at the same time given to A., the heirs took by descent, and not by purchase. Taking by " pii/rchase," in law, comprehends every species of acquisi- tion in contradistinction to hereditary descent and escheat. The celebrated rule in Shelley's Case (1 Co. 104) is this, viz. : " When the ancestor, by any gift or conveyance, takes an estate oi freehold, and in the sam,e gift or convey- ance, an estate is limited, either mediately or immediately, to his heirs in fee or in tail, in such cases the word heirs is a word of limitation of the estate, and not a word of pwchase,''' and the remainder was said to be executed in the ancestor, where there is no intermediate estate, or vested where an estate for life or in tail intervened. By force of the rule, the ancestor took the whole estate, and the heirs, if they took at all, could only take by descent, which of course might be barred by grant or devise. The technical legal principle of the rule was that the words " heirs " or " heirs of the body " created a remainder in fee or in tail, which the law, to prevent an abeyance, until 220 THE RULE IN SHBLLBY'S OASB. [CH. IX, the heirs could be determined, vested in the ancestor, who is tenant for life; and by the conjunction of the two es- tates he be^me tenant in fee or in tail. The word heirs had to be used to make the rule applicable, and the estate of the ancestor had to be a freehold. The words " lawfiil issue" have been held to have as extensive a signification as heirs of the body. Kingsland v. Rapelyea, 3 Ed. Ch. 1. If the heirs were designated nominatim or as a class, the rule did not apply, nor if the person to take the first estate were deceased. Brunt V. Gelston, 3 Johns. Cas. 384. The rule was also often relaxed in inter- preting wills and marriage settlements, and in executory trusts. Tallman v. Wood, 36 Wend. 9. If the word "issue" was defined as referring to a cer- tain class, as issue living at tJie time of the devisee's death, or "children," the rule did not apply. 4 Paige, 345; ib. 393; 3 Sandf. Ch. 64; Christie v. Phyfe, 19 N. T. 344; Post v. Post, 47 Barb. 73; Eogers v. Rogers, 3 Wend. 508; Campbell v. Rawden, 18 N. Y. 413. The origin and polity of the rule arose from the feudal tenure, which favored descents, among other reasons, be- cause if the heirs took as purchasers, the lord would be deprived of certain feudal incidents. By reflecting on this theory of the rule, the rule itself is easily remembered. Upon the abolition of feudal tenures, the reason for the rule no longer existed, but the rule itself remained. This rule in Shelley's Case was recognized and adopted in the courts of this State, and considered to be of bind- ing authority, and where words of procreation were used the fee tail was turned into a fee simple, under the statute of 1786, ante, p. 115. The rule was held applicable alike to equitable and to legal estates (Brant V. Gelston, 2 Johns. Cas. 384 ; Kingsland v. Rapelyea, 3 Eds. Chan. 1 ; Sohoonmaker v. Sheeley, 3 Den. 485 ; Brown v. Lyon, 3 Seld. 419), but not to an executory trust under a will in certain cases. Wood v. Burnham, 6 Paige, 513 ; 26 Wend. 9. See also, Crowall v. Shererd, 5 Wallace, 368, and the cases aljove cited ; also the more recent case. Post v. Post, 47 Barb. 73. Nor does it apply where the first taker's estate was equitable and the re- mainder legal. Smith v. Scholtz, 68 N. "t. 43 ; Seaman v. Harvey, 16 Hun, 71. Nor to a devise to testator's son " during his natural life, and after his death to his issue lawfully begotten of his body, to such issue, their heirs and assigns forever." Daniel v. Whartenby, 17 Wall. 639. The revisers of the Statutes in 1830, however, recom- mended the abolition of the rule as being one " purely arbitrary and technical, and calculated to defeat the in- tentions of those who are ignorant of technical lan- guage." TIT. III.] EXECUTORY DEVISES. 221 Abolition of the Rule since 1830.— The New York Ee- vised Statutes have accordingly declared that where a re- mainder shall be limited to the heirs, or heirs of the body of a person, to wJiom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs or heirs of the body, of such ten- ant for life, shall be entitled to take as purchasers by vir- tue of the remainder so limited to them. Vol. i, p. 725, 11 N. Y. 401. The practical operation of the abolition of the rule is, in cases where the rule would otherwise apply, to change what would under the rule be a fee, into a precedent es- tate and remainder. A devise therefore, or grant, since the Revised Statutes of 1830, to A. for life, and after his decease to his heirs and assigns for ever, would give the heirs a vested intQvest in the land, subject to open and let in after-born children; the interest of each, however, being liable to be defeated by his death before the first taker. Moore v. Little, 40 Barb. 488 ; affirmed, 41 N. Y. 66 ; Campbell v. Raw- don, 18 N. Y. 416. Title III. Executoet Devises. {See also Title VI, Oeneral JProviiions.) The above and other strict rules of the common law applicable to remainders were, in the case of devises, some- what relaxed. In wills, what would often be a bad re- mainder under the above rules, would, in order to efi^ectu- ate the intention of the testator, be upheld as an executory devise. Though) by rule of law, what is capable of being supported as a contin- gent remainder, is never construed an executory devise (Wolfe v. Van Nos- trand, 3 Comstock, 436) ; and it is often questionable whether a devise will be held a contingent remainder or a conditional fee with an executory devise over on the determination of the fee. 30 Eng. L. & Eq. 435. An executory devise of lands is defined as such a dis- position of them, by will, that thereby no estate vests at the death of the devisor, but only on some future contin- 222 SUSPENSION POWER 01" AIIBNATION. [CH. IX. gency ; and it is one that could not take effect as a contin- gent remainder. Thus, it needed no particular estate to support it, and a fee might be limited to commence in fuim/ro on a contin- gency — a fee also might be limited on a fee, which could not be done as a contingent remainder. Nor could an executory devise be defeated by destruction of the prece- dent estate, nor by a common recovery, generally. Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 16 Johns. 537; Prindle V. Beveridge, 7 Lans. 325 ; affirmed, 58 N. T. 593. See cases -poit, Ch. XV, Title IX, on "Inconsistent Devises." Any contingencies provided for, however, had to be such as would hap- pen within a reasonable time, i. «., lives in being and 21 years. Jackson v. Billinger, 18 Johns. 368. Otherwise it might be void as creating a perpetuity. See posj, Title IV, as to " Perpetuities." In an executory devise also, a term of years might be limited over, after a life estate created in the same term. An executory devise has been held valid to a corporation to be created. Inglis V. Trustees, &c., 3 Pet. 99. But a contingent remainder would not take effect limited to a corporation that had no power to take. Leslie v. Marshall, 31 Barb. 560. See jjosi, Ch. X, " Trusts for Charitable Uses," and pes*, Ch. XV, "Devises to Corpora- tions." A change of circumstances either before or after testator's death might convert an executory devise into a remainder. Where there is a valid execu- tory devise, and the freehold is not in the meanwhile disposed of, tbe inher- itance descended to the testator's heir, until the event happened. As todis- tinction between contingent remainders and executory devises, vide Leslie v. Marshall, 31 Barb. 660. Title IV. Suspension of the Powee of Alienation. (8ee also Title VI, General Provisions.) By the common law perpetuities and restraints upon alienation were not encouraged or sustained, and limita- tions were resorted to, by way of executory devise, to continue the possession of estates in families and prevent alienation ; thereby avoiding the strict rules of the com- mon law which prohibited the limitation of a fee on a fee, or the creation of a freehold mfuturo, except as a remain- der. In time, the principle establishing the limitations of terms in remainder, in succession, were firmly settled by judicial decision. TIT. IV.] SUSPENSION POWER OP AUENATION. 223 Time. — The utmost length allowed by the common law, for the contingency of an executory devise of any kind to happen, is that of a life or any number of lives in hdng, at the time of the creation of the estate, and twenty-one yean'S afterwards, and the period of gestation for a person not in esse. This was the rule established in the case of the Duke of Norfolk (3 Cases in Chan. 1), in 1685, and in Stevens v. Stevens (2 Barn. K. B. 375), in 1736, where the doctrine was finally settled and defined by precise limits. It was recognized in this State in the case of Jackson v. Billinger, 18 Johns. 368, and others; and any further period held too remote as tending to create a perpetuity. See also, Lorillard v. Coster, 5 Paige, 177-188 and 319 ; rev'd, 14 Wend. 265; Hawley v. James, 16 Wend. 61-114. The law was changed by our Kevised Statutes of 1830; and the absolute power of alienation cannot be suspended by any limitation or condition whatever, for a longer pe- riod than during the continuance of not more than two lives in being at the creation of the estate, except in the single case of a contingent remainder in fee, which may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency by which the estate of such p&rsons may be determined before they attain the full age. Vol. i, pp. 723, 734. Radley v. Kuhn, 97 N. T. 36. The construction and application of this apparently plain provision of our statutes has been attended with great difficulty and much diversity of opinion. The lead- ing features of construction evoked in its interpretation will be here briefly given. The Revised Statutes further provide as follows : § 14. Every future estate is declared to be void in its creation, which suspends the absolute power of alienation for a longer period than is above prescribed, and such power of alienation is declared to be suspended when there are 224 SUSPENSION POWER OF ALIENATION. [OH. IX. no persons in heing by whom an absolute fee in possession can be conveyed. The suspension which it is the purpose of the statute to limit, may be effected by one of two methods ; either by providing for the creation of future estates to take effect upon the happening of some prospective event, the occurrence of which is essential to the vesting of such future estate, or by conveying the estate to trustees upon some authorized trust. The law against the suspension of the alienation is held applicable to every species of con- veyance and limitation, whether it be by deed or will ; whether it be directly to a party or indirectly in trust to the U-se of a party, or to one thereafter to come into exist- ence ; and whether limited by an executory devise or a springing use. It also applies to present as well as to future estates, and to naked powers in trust as well as to estates in trust. Hawley v. James, 16 Wend. 61; Coster v. Lorillard, 14 Wend. 365; Amory v. Lord, 5 Seld. 403 ; Yates v. Yates, 9 Barb. 324. But not to limitation of time in which to exercise a power of sale. Stew- art V. Hamilton, 37 Hun, 19 ; Robert v. Corning, 89 N. Y. 235 ; Bettg v. Betts, 4 Abb. N. C. 317. As to purpose of the law, see Beardsley v. Hotchkiss, 96 N. Y. 201. As to fullest possible limitation of an estate, see Kelso v. Lorillard, 85 N. Y. 177. The rule against a suspension does nbt apply to a bequest to a charitable corporation to be perpetually invested by its trustees, and the income used for the purposes of the charity. Wetmore v. Parker, 52 N. Y. 450. But the payment cannot be unduly postponed, or vesting prevented for a fixed time. Garvey v. McDevitt, 73 N. Y. 556. As it would be impossible to fully digest the many cases under this rule of law, otherwise than as to main points, a list is given of cases, in many instances not else- where cited, illustrating various decisions had upon special wordings and constructions, viz. : McGrath v. Van Stavoren, 8 Daly, 454 ; Kelso v. Lorillard, 85 N. Y. 177, (affi'g 8 Daly, 300) ; Guggenheimer v. Sullivan, 12 Weekly Dig. 541 ; Colton V. Fox, 67 N. Y. .'548 (affi'g 6 Hun, 49) ; followed in Morris v. Porter, 52 How. Pr. 1 ; Bowers v. Beekman, 16 Hun, 368; Monarque v. Monarque, 80 N. Y. 330; distgd. Ward v. Ward, 105 N. Y. 68; Tiers v. Tiers, 32 Hun, 184; affi'd, 98 N. Y. 568; Seaman v. Harvey, 16 Hun, 71. Character of the Limitations.— The rule is well settled that any limitation is void by which the suspension of the TIT. IV.] SUSPENSION POWER OE ALIENATION. 225 power of alienation will not necessarily, under all possible circumstances, terminate within the prescribed period. It is not enough that it may so terminate. If the limitation may, by possibility, exceed two lives in being, it is void. The validity of the limitation is to be determined by the character of the limitation when cre- ated, and not by the event as it turns out in fact. Coster V. Lorillard, 14 Wend. 265 ; 5 Paige, 173 ; Schetler v. Schetler, 41 N. T. 338 ; Fowler v. Depau, 36 Barb. 334 ; Hawley v. James, 16 Wend. 61 ; Everitt v. Everitt, 39 Barb. 112; rev'd, 29 N. Y. 39; Williams v. Conrad, 30 Barb. 534 ; Amory v. Lord, 5 Seld. 403 ; Tayloe v. Gould, 10 Barb. 398 ; Brown v. Evans, 34 Barb. 594 ; De Barante v. Gott, 6 Barb. 493. In the cases of Lang v. Ropke, 5 Sandf. 363, and Griffin t. Ford, 1 Bos. 133, a con- trary view is expressed; but these latter cases are considered to be overruled inOdellv. Youngs, 64 How. Pr. 56. See Radley v. Kuhn, 97 N. Y. 36; Shipman v. Rollins, 98 N. Y. 311, as to suspended bequest. As to elimination of estate, causing the over suspension before will goes into effect, not remedying the defect, see Odell v. Youngs, 64 How. Pr. 56 ; or by refusal of wife to accept a life estate in lieu of dower, Bailey v. Bailey, 38 Hun, 603; 97 N. Y. 460. Allowing reasonable time, after full statutory limit has been reached, in which to sell, held not to further suspend vesting. Betts v. Betts, 4 Abb. N. C. 317. The Lives in Being. — Lives in being at the death of the testator, or the time of the conveyance, are alone to be con- sidered. By the statute, successive estates for life can only be limited to persons in being at the creation thereof. Stevens V. Muller, 3 Dem. 597. The lives must be designated, either by naming the persons in particular, or by limiting the estate on the first and second lives in a designated class, so that the persons whose lives are to furnish the measure of suspension can be ascertained in the instrument by which the disposition is made. Hawley V. James, 16 Wend. 61 ; Jennings v. Jennings, 5 Sandf. 174 ; 7 N. Y. 547 ; Lang V. Ropke, 5 Sandf. 363; Dodge v. Pond, 33 N. Y. 69; Griffin v. Ford, 1 Bos. 133 ; Gott v. Cook,' 7 Paige, 531 ; affirmed, 24 Wend. 641 ; Eve- ritt V. Everitt, 39 N. Y. 39 ; Manice v. Manice, 43 N. Y. 303. A future estate or interest in property may be valid if it is so limited as to vest in interest, so as to be alienable at the termination of two lives in being at the time of the creation thereof, although it will not vest in possession im- mediately upon the determinaition of such two lives. Kain v. Gott, 7 Paige, 531 ; affirmed, 34 Wend. 641. The lives which limit the duration of a trust need not be those of the beneficiaries. Crook V. County of Kings, 97 N. Y. 421 ; Bailey v. Bailey, 97 N. Y. 460; Woodgate v. Fleet, 64 N. Y. 566 ; Crooke v. County of Kings, 97 N. Y. 431. Absolute Term in Lieu of Lives.— No absolute term, 15 226 SUSPENSION POWER OF ALIENATION. [CH. IX. however short, in lieu of lives, is valid. Life must, in some form, enter into the limitation. Hone V. Van Schaick, 20 Wend. 564 ; Tucker v. Tucker, 1 Seld. 408; Boynton v. Hoyt, 1 Den. 53; Hawley v. James, 16 Wend. 61 ; Dodge v. Pond, 33 N. T. 69; Garvey t. McDevitt, 73 N. T. 556; Rice v. Barrett, 103 N. Y. 161. But an absolute term in the alternative would not vitiate. Phelps v. Phelps, 38 Barb. 121 ; aflB'd, 33 N. Y. 60. So suspension to a day named would be void. DeKay v. Irving, 5 Den. 646 ; Williams v. Williams, 4 Sel. 535. Or to hold property until a certain corporation might be created. Yates V. Yates, 9 Barb. 834. Or to suspend alienation imtil certain mortgages are paid. Killam v. Allen, 53 Barb. 605. Or to trustees to manage an estate for life and a year after. Tucker v. Tucker, 5 Barb. 99 ; aflSrmed, 5 N. Y. 408. A suspension for three years is also held invalid. Moore v. Moore, 47 Barb. 357; Smith v. Edwards, 88 N. Y. 92; Garvey v. McDevitt, 73 N. Y. 556. But a power to sell lands may be restricted for a fixed period. Stewart V. Hamilton, 37 Hun, 19. The Remainder need not be to a Person in Being.— A remainder in fee in real estate, to take effect after the ex- piration of two lives in being at the testator's death, may be created in favor of a person not in being at the time ; and in such a case a further contingent remainder in favor of a person not in being at the creation of the estate, may be limited to take effect in the event that the person to whom the remainder is first limited shall die under the age of twenty-one years. Vide ante, p. 333 ; Manice v. Manice, 43 N. Y. 303. Same in case of a trust. De Peyster v. Beekman, 55 How. Pr. 90. A trust to accumulate rents, etc., during the minority of the first of such remainderman, and for his benefit, is valid. lb. ; Kilpatrick v. Johnson, 15 N. Y. 323. But a limitation during the life of the wife of a son unmarried at testa, tor's death, being possibly for a life not in esse, is void. Tiers v. Tiers, 98 N. Y. 568 (following 41 N. Y. 328) ; Lee v. Lee, 3 How. Pr. N. S. 76. Minorities.— A limitation upon minorities is held vir- tually a limitation upon lives. Post v. Hover, 30 Barb. 312; affl'd, 33 N. Y. 593; Tayloe v. Gould, 10 Barb. 388 ; Lang v. Ropke, 5 Sandf. 363 ; Jennings v. Jennings, 7 N. Y. 3 Seld. 547; Everitt v. Everitt, 39 N. Y. 39. So, a limitation until the youngest of four daughters becomes of age is good. James v. Beasley, 14 Hun, 520. An express trust suspending alienation during a mi- TIT. IV.] SUSPENSION POWEE OF ALIENATION. 227 nority is not an absolute term of years, irrespective of life, but is determined by the death of the minor before he arrives at full age. Lang V. Bopke, 6 Sandf . 363 ; McGowan v. McGowan, 2 Duer, 171 ; Bene- dict V. "Webb, 98 N. Y. 460. Where trustees, however, are directed to hold and manage an estate until the youngest of three children becomes of age, it is held that the provision is void if the interest in the fund does not vest in the children until the youngest becomes of age. But if the respective interests vest distributively in the children on the death of the testator, but the fund is not payable to them until the happening of the event mentioned, then the power of aliena- tion is not unduly suspended, and the trust is valid. So, also, if the interests were joint instead of in common, and the whole remained contingent and uk- in vested until the majority of the youngest of the three children, the absolute ownership would be suspended during three minorities, which would be illegal. Everitt v. Everitt, 29 N. T. 39 ; Hawley v. James, 16 Wend. 61 ; Coster V. Lorillard, 14 id. 265 ; Patterson v. Ellis, 11 Wend. 260 ; Matter of Lapbam, 37 Hun, 15; James v. Beasley, 14 Hun, 520; MuUer v. Struppman, 6 Abb. N. C. 348 ; Simpson v. English, 4 Supreme Ct. 80. The leading inquiry upon which the question of vest- ing or not vesting turns, is whether the gift is immediate, and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the benefici- ary arriving at full age or surviving some other person, or the like. If futurity be annexed to the substance of the gift, the vesting is suspended ; but if it appear to re- late to the time of paym ent, only, the gift vests instcmter • and words directing division or distribution between two or more objects at a future time, are equivalent to a direction to pay. Eadley v. Kuhn, 97 N. T. 26. See Jarman on Wills, 700 ; Gilman v. Eeddington, 24 N. T. 9. A trust to continue until the testator's youngest chUd, if living, attain the age of twenty years, has been held void ; or for a life, and until five minors attain full ag6. Boynton v. Hoyt, 1 Den. 53 ; Tayloe v. Gould, 10 Barb. 388 ; Post V. Hover, 80 Barb. 312 ; Savage v. Bumham, 17 N. Y. 561. In a certain case, however, the words, " on my youngest child attaining twenty-one," were construed as the youngest child Uving at the death 'of the testator. Eels v. Lynch, 8 Bos. 465. Also, a trust for the education of four minors, with a provision for the accumulation of the surplus, and the division of the fund as they successively become of age, when each cestm que trust was to receivfe his portion of it, has been held void. Jennings v. Jennings, 3 Seld. (7 N. Y.) 847 ; afiBrming, 5 Sandf. 174; Vail v. Vail, 7 Barb. 226; affirmed, 10 N. Y. 69. In the case of Burke v. Valentine, 52 Barb. 412, it was held, that where the executors do not take an estate in trust, but the interest of the estate is in the Vife and children, a direction to the executors to convert the estate into money and apply it to the use of the wife and children, and after the youngest child should arrive at age to divide it among the children, share 228 SUSPENSION POWER OP ALIENATION. [CH. IX. and share alike, was valid. This case was so decided on the principle that the limitation would depend on the life or minority of the youngest child, and would vest at once in all the children living when either event happened — i. e., the child's majority or his decease. The principle of the distinction between the above cases seems to be that where the youngest of a class is specifically referred to, the limitation maybe valid, but otherwise if the limitation is made to an entire class. In construing the clauses of the James will, in Hawley v. James, above referred to, Nelson, 0. J. , states, in holding the limitation invalid, that the words, " youngest of my children and grandchildren," standing alone, might well enough refer to the youngest of each class. The clause was held in- valid, because it, in addition, specified the youngest living and attaining the age of twenty-one years, by which the intent to apply it to all the children was apparent. • The above is also the distinction made in McGowan v. McGowan, 3 Duer, 57, where the limitation was made that upon the youngest son (being named) coming of age the estate was to be divided among testator's seven children (naming them), and should any die, that the estate should be divided among the survivors. It is held, also, that although, by statute, the power of alienation of real estate may be lawfully suspended for the term of a minority, after the expi- ration of two lives in being, by means of a contingent remainder, to take effect in the event of the death of the first remainderman in fee during his minority, the absolute ownership of personal estate cannot be suspended be- yond two lives in being. Manice v. Manice, 43 N. Y. 303; B.owe ads. De Hay, 5 Denio, 646. A suspension by a condition limiting an estate over on the contingency that a person shall leave no children that arrive at the age of 31, was held void ; inasmuch as it was on the lives of an uncertain number of children who might die before 31. Brown v. Evans, 34 Barb. 594; see also Tayloe v. Gould, 10 Barb. 389. The Statute has reference only to lives that suspend the power of alienation.— In the case of Hunter v. Hunter, 17 Barb. 25, it is held that a devise to E. for life, then to I. in fee, and, on his dying without leaving lawful issue at the time of Ms death, over to his sisters in fee, is not too remote, the power of alienation not being suspended by the lives of the children of I. The statute is beld to have reference to lives only the continuance of whicb actually suspends the power. This case also holds that a suspension of the power of alienation result- ing simply from minority, is not such as is contemplated by the statute. See also Woodgate v. Fleet, 64 N. Y. 566 ; Provost v. Provost, 70 N. Y. 141. Annuities and Charges.— In view of the provisions of statute which forbid the alienation of trust estates, direc- tions to trustees for the disposition of property will be upheld, as powers in trust or as mere charges o*n the realty, if possible, instead of trust estates in the lands, so TIT. IV.] SUSPENSION POWER OE ALIENATION. 229 that the provisions may be saved from invalidity, as against the law relative to perpetuities ; and the lands will be treated as subject to alienation in spite of the power in trust, or as not held through the trust as one of the estates on the existence of which the limitation is based. Annuities therefore will be upheld, if possible, as charges on real estate, where the ti'ust for their payment is void. Tucker v. Tucker, 1 Seld. (5 N. Y.) 408 ; McGowan v. McGowan, 3 Duer, 57; Emmons v. Cairns, 3 Barb. 243; Hunter v. Hunter, 17 Barb. 33; Manice V. Manice, 43 Barb. 303 ; Killam v. Allen, 53 Barb. 605 ; Griffin v. Ford, 1 Bos. 123 ; Lang v. Ropke, 5 Sandf. 363. A charge upon the income of a testator's estate for the education of his grandchildren, is held not void as illegally suspending the power of aliena- tion of the real estate, and the absolute ownership of the personal property. Hunter v. Hunter, 17 Barb. 35. And a mere charge on lands to raise annuities is held not to suspend the power of alienation. O'Brien v. Mooney, 5 Duer, 51 ; Bells y. Lynch, 8 Bos. 465. Separate Estates or Distributive Interests.— There should be a specific division and several appropriations, otherwise if there is a devise in trust to more than two for life jointly of the whole fund or estate, the courts will not divide the shares as independent trusts, although they will construe them so if they can. Limitations over would refer to the time appointed for the division, and not its completion, unless there is direction otherwise. Westerfleld v. Westerfleld, 1 Brad. 137; Thompson v. Thompson, 28 Barb. 433; Tucker v. Bishop, 16 K. Y. 403; McSorley v. Wilson, 4 Sandf. Ch. 515 ; Mason v. Jones, 3 Barb. S39 ; Coster v. Lorillard, 14 Wend. 265 ; Hone V. Van Schaick, 7 Paige, 221 ; affl'd, 20 Wend. 564 ; Kane v. Gott, 7 Paige, 521 ; 34 Wsnd. 641 ; Wagstaff v. Lowerre, 33 Barb. 309 ; Van Vechten v. Van Vechten, 8 Paige, 104; Cromwell v. Cromwell, 3 Bdw. 495; Harrison V. Harrison, 43 Barb. 162 ; affl'd, 36 N. Y. 543 ; Everitt v. Everitt, 39 N. Y. 39 ; Jennings v. Jennings, 8 Seld. 547 ; Amory v. Lord, 5 Beld. 403 ; Manice V. Manice, 43 N. Y. 303 ; Vail v. Vail, 7 Barb. 336 ; Matter of Ver Planck, 91 N. Y. 439 ; Colton t. Pox, 67 N. Y. 348. When, therefore, a capital is appropriated for annuities, there should be a distinct capital for each annuity, and the lives are applied to such capital distinctively. Mason v. Mason, 2 Sandf. Ch. 432 ; Lang v. Ropke, 5 Sandf. 363; Boynton v. Hoyt, 1 Den, 53 ; Savage v. Burnham, 17 N. Y. 561. The courts lean to holding a gift to several, to be in severalty, although there be no direction to sever the shares pending the trust. Matter of Lapham, 37 Hun, 15 ; Matter of Ver Planck, 91 N. Y. 439 ; Wells V. Wells, 88 N. Y. 833 ; Dickie v. Van Vleck, 5 Redf . 384 ; Leavitt v. 230 SUSPENSION POWER OF ALIENATION. [CH. TX. Wolcott, 65 How. Pr. 51 ; rev'd on another point, 95 N. Y. 212; Moore v. Hegeman, 72 N. Y. 376 ; Monarque v. Monarque, 80 N. Y. 330 ; dist'g'd, Ward V. Ward, 105 N. Y. 68 ; Bingham v. Jones, 35 Hun, 6 ; Meserole v. Meserole, 3 N. Y. 8. C. 192. Effect of a Power to Exchange or Re-invest.— A mere power to exchange, change, or re-invest the estate or fund does not obviate the objection as to inalienability within the rule against perpetuities. Hawley v. James, 16 Wend. 61, and 9 Paige, 318 ; Belmont v. O'Brien, 2 Ker. 394 ; Brewer v. Brewer, 11 Hun, 147. A power of sale cannot be deemed to contravene the statute restricting suspension of the power of alienation. lb. and Eels v. Lynch, 8 Bos, 465 ; Manice v. Manice, 48 N. Y. 308. Power to Lease or Sell.— The absolute power of alien- ation is considered suspended, notwithstanding a quali- .fied power is given to trustees to lease the estate, and to sell such portions as might be necessary to discharge liens, etc. Amory v. Lord, 5 Seld. (9 N. Y.) 404; Hobson v. Hale, 95 N. Y. 588. Any direction for the holding beyond two designated lives in being is not invalid, however, if there are persons in being by whom a valid legal title to the property may be conveyed. Everittv. Everitt, 29 Barb. 113; 29 N. Y. 89; (Jilman v. Reddington, 24 N. Y. 9; Smith v. Scholtz, 68 N. Y. 41. Successive Life Estates.— By the Revised Statutes, also, successive life estates shall not be limited, except to per- sons to being at the creation thereof; and where a re- mainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void. And upon the death of those persons, the remainder shall take effect in the same manner as if no other life estate had been created. 1 R. S. p. 723, § 17; vide post, Title VI; Purdy v. Hoyt, 93 N. Y. 446; Bailey v. Bailey, 38 Hun, 603 ; Leavitt v. Wolcott, 65 How. Pr. 51 ; Wood- rnflfv. Cook, 61 N. Y. 638. But this applies only in favor of realty. Strang V. Strang, 4 Redf. 376. As to distribution of Jproflts to persons entitled to next eventual estate, gee Van Emburgh v. Ackerman, 3 Redf. 499. Valid and Invalid creation of Future Estates If sue- TIT. IV.J SUSPENSION POWEE OF ALIENATION. 231 cessive life estates are created beyond the terms allowed by the Revised Statutes, as above, the first two would be valid, and the others void ; but if mere equities all depend- ent upon a trust which is continuous are created, and the trustees are clothed with the entire estate, legal and equitable, and the trust is void, the equitable interests have been held all to fail, as they are all dependent upon the trust, and fail with it. Tucker V. Tucker, 5 Barb. 99; affirmed, 5 N. Y. 408 ; Hone v. Van Schaick, 20 Wend. 564; Hobson v. Hale, 95 N. Y. 588. Successive Life Estates in Trust.— If the trust sought to be created fail or be ineffectual, a bequest may be sup- ported. So, if the purposes of the trust are separable, and some of them must arise within two lives, and others only become operative after two lives, the former may be sustained and not the latter; but not if all parts of the trust are dependent and entire, or the separation would work an injustice. Everitt v. Everitt, 29 N. Y. 39 ; Post v. Hover, 33 N. Y. 593 ; Clemens v. Clemens, 60 Barb. 366 ; Manice v. Manice, 43 N. Y. 803 ; Benedict v. Webb, 98 N. Y. 460. The equitable and later view in this State is that courts will, if possible, separate the trust, if not absolutely entire, and pronounce ulterior limitations invalid, and uphold leas remote ones, so as to carry out, at least partially, the intent of the testator. Harrison v. Harrison, 41 Barb. 1 63 ; Savage v. Burn- ham, 17 N. Y. R. 561 ; overruling Amory v. Lord, 5 Seld. 403 ; Tiers v. Tiers, 83 Hun, 184 ; affl'd, 98 N. Y. 568. The doctrine held by the earlier cases and the Court of Appeals, in Amory v. Lord, 9 N. Y. (5 Seld. ) 404, seems modified by the latter and more liberal doctrine of the courts in subsequent cases, and it appears now to be established as a principle controlling the interpretation of trusts, that although limitations bad by statute may be enveloped in a single trust with others that are good, the trust may be supported for its valid purposes. . The Revised Statutes also provide, as a rule of guid- ance for the courts, that in the construction of every instrument creating or conveying, or authorizing the crea- tion or conveyance of any estate or interest in lands, it shall be the duty of courts to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and it is consistent with the rules of law. 1 R. S. 1st ed. 747 ; see also Westerfleld v. Westerfleld, i Brad. 137 "Woo druff V. Cook, 47 Barb. 304 ; 61 N. Y. 641. As to the construction of th 232 susPBursiON powbe of alienation. [CH. IX. above last-named provision, reference may be made to the following cases : 8 N. Y. 539; 33 Barb. 45; 18 ib. 137 ; 5 ». 103 ; 3 ib. 368 ; 33 Wend. 489 ; 9 Paige, 116 ; 1 Sand. Ch. 375; 3 S. S. C. 110; 3 Duer, 554; 30 How. Pr. 321; 11 Abb. 37. See also, more fully, ^os«, Ch. X, Title IV. Limitations in the Alternative.— Limitations made to take effect on alternative events, one of which is too remote, and the other valid, as within the prescribed limits, although the limitation be void, so far as it depends on the remote event; will be allowed to take effect on the hap- pening of the alternative one. Fowler v. Depau, 36 Barb. 334 ; Schettler v. Smith, 41 N. T. 338 ; 1 B. S. lat ed. 734, § 25. Suspension of Ownership of Personal Property. — By the Revised Statutes, the absolute disposition of personal property shall not be suspended by any limitation or con- dition whatever for a longer period than during the con- tinuance and until the determination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more than two lives in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the chapter relative to real estate. Strang v. Strang, 4 Redf. 376 ; 1 R. 8. 1st ed. p. 743, § 1 ; Act of Dec. 10, 1838 ; 6 N. T. 333 ; 13 N. Y. 380 ; 8 N. Y. 531 ; 7 N. Y. 343 ; 33 Barb. DOl ; 27 Barb. 394; 15 Barb. 145 ; 10 Barb. 388; 9 Barb. 344 ; 7 Barb. 236, 596; 4 B. 88, 382 ; 2 B. 470 ; 7 Paige, 531 ; 4 Paige, 342 ; 3 Paige, 30; 2 S. Ch. 377 3 Edw. 496, 561 ; 34 Wend. 641 ; 3 Barb. Ch. 355 ; 34 N. Y. 609 ; 31 N. Y. 19 13 N. Y. 273; 38 Barb. 145, 193; 35 Barb. 136; 4 Paige, 342 ; 3 Barb. Ch. 93 35 N. Y. 371; Smith v. Edwards, 23 Hun, 233; affi'd, 88 N. Y. 93. The rules respecting perpetuities are substantially the same as to trusts, both in personal and real property ; except that the absolute ownership of personal property cannot be suspended for a longer period than the two lives in being, in any case. Vail v. Vail, 7 Barb. 236 ; Kane v. Gott, 7 Paige, 531 ; 34 Wend. 641 ; Everitt v. Everitt, 29 N. Y. 39 ; affirming, 39 Barb. 412; Thompson v. Livingston, 4 Sandf. 539 ; Manice v. Manice, 43 N. Y. 303 ; Simpson v. English, 4 N. Y. S. C. 80. Corporations. — A bequest to a corporation for any or all the purposes of its incorporation is valid, although, the duration of the trust be unlimited. Wetmore v. Parker, 53 N. Y. 450 ; Robert v. Corning, 23 Hun, 299, 305. TIT. V.J DIRECTIONS FOR ACCUMULATION. 233 The above provisions specified in this title, and the provisions embraced in the ensuing titles of this chapter, apply as well to remainders as to executory devises (for- merly so called), and are contained in article i of title iii, part ii, of the Revised Statutes. Title V. Directions For Accumulation. {See also Title VI, General Provigions.) Dispositions of the rents and profits of lands, it is provided by the Revised Statutes, to accrue and be re- ceived at any time subsequent to the execution of the instrument creating such disposition, shall be governed by the rules established in the article of the Statutes in rela- tion to future estates in land. (See Title IV.) Provision is made relative to the disposition by will or deed of the rents and profits of lands, to be governed by the above rules, and if accumulation be directed to com- mence on the creation of the estate, it must be made for the benefit of one or more minors in being, and to termi- nate with their minority; and if the accumulation is to commence at any time subsequent to the creation of the estate, it shall commence within the time above limit- ed for the vesting of future estates, and during the minor- ity of the persons for whose benefit it is directed, and terminate on their attaining full age. All accumulations beyond such minorities are void. If there be at any time a valid suspension of the power of alienation or of the ownership, during which time the rents are undisposed of, and there is no valid direction for their accumulation, they will belong to the person pre- sumptively entitled to the next eventual estate. 1 R. S. p. 726, §§ 36 to 39. All directions for the accumulation of the rents and profits of real estate, except such as are allowed in the article as above, are declared void. lb. § 88. Vide Title. IV; also "Trusts." Savage v. Burnham, 17 N. Y. 561. 234 DIRECTIONS FOE ACCUMULATION. [OH. IX. An accumulation for three and also ten years held invalid. Morgan v. Masterton, 4 Sandf. 443 ; Converse v. Kellogg, 7 Barb. 590. Or until the long- est liver of a class die. Lovett v. Eingsland, 44 Barb. 561. The above prohibition of the Revised Statutes does not apply to trusts created before they went into effect. Bryan v. Knickerbacker, 1 Barb. Oh. 409. If the trust be void, the income descends as if the testator had died intes- tate. Vail V. Vail, 4 Paige, 317 ; 7 Barb. 226. If the accumulation operates for the benefit of adults as well as minors, the trust is Toid ; and the beneficiaries must, by the terms of the will, be minors at the decease of the testator. Kirkpatrick v. Johnson, 15 N. T. 323. A postponement of a division of a testator's estate, makes in law an accumulation. Converse v. Kellogg, 7 Barb. 590 ; Vail v. VaU, ib. 336 ; Simp- son V. English, 4 N. T. S. 0. 80. A trust to accumulate rents and profits for the benefit of the testator's wife and minor children would be void ; such trusts being allowed for the benefit of minors only. Boynton v. Hoyt, 1 Den. 53. A trust to accumulate income for children not in existence at the time when the accumulation is to commence, or whose right to the accumulated fund is contingent, is void. Haxtun v. Corse, 2 Barb. Ch. 506 ; Kirkpatrick V. Johnson, 15 N. T. 323. Vide also, infra, as to minors in esse. If the estate limited to an infant is contingent, the accumulation cannot be considered to be for his benefit. Manice v. Manice, 43 N. T. 303. A trust for an accumulation for a lunatic would be void, unless a minor. Craig V. Craig, 3 Barb. Ch. 76. A trust for accumulation may be implied from the general terms of a vdll. Vail V. Vail, 4 Paige, 317. Where a class is designated, it is not necessary that all should be living when the accumulation commencesj provided that at the commencement it goes for the benefit of such as are m esse exclusively, and that those who subsequently become entitled fall within the prescribed rules laid down by the statute. Such a succession of accumulations is not objectionable, if they are all made to terminate within the prescribed legal limits. Mason v. Mason, 2 Sand. Ch. 432. A trust to accumulate rents and profits for the benefit of an infant who was not in esse at the creation of the trust, in order to be valid, must be so limited, that the accumulation will commence and terminate within the compass of some two ascertained lives in being at the creation of the trust. Gott V. Cook, 7 Paige, 531 ; Craig v. Craig, 3 Barb. Ch. 76. A trust to accumulate during minority, and thereafter to pay over the en- tire income of the accumulated fund to the beneficiary for life, the principal, at his death, to go to other persons, is void. Pray v. Hegeman, 92 N. T. 598. So also a trust to accumulate for life. Cook v. Lowry, 39 Hun, 20 ; affl'd, 95 N. Y. 103. A void direction for accumulation will not render a legacy wholly void. The direction might be stricken out of the will, and the legacy and the gen- eral purposes for which it was given might remain. Williams v. Williams, 8 N. T. (4 Seld.) 525. See also as to the above statutory provisions, Dodge v. Pond, 23 N. T. 67 ; Robinson v. Robinson, 5 Lan. 165; Manice v. Manice, 43 N. T. 303; Crom- well V. Coddington, N. Y. Daily Reg. Mch. 3, 1884; Barbour v. DePorest, 95 N. Y. 13 ; Oilman v. Healy, 1 Dem. 404. Accumulations vest absolutely when minor is 21, and cannot be divested afterward. Gilman v. Healy, 1 Dem. 404. Trusts for years and accumulations to pay legacies are void. Matter of Starr, 2 Dem. 141. Accumulation of Personal Property. — The Revised Statutes provide that an accumulation of the interest money, the produce of stock, or other TIT. T.] DIRECTIONS TOR ACCUMULATION. 235 income or profits arising from personal property, may be directed by any in- strument sufficient in law to pass sucti personal property, as follows: If it be directed to commence from the date of the instrument or the death of the person exeputing the same, it must be for the benefit of one or more minors then in being, or in being at such death, and to terminate at the expiration of their minority. If the accumulation is to commence at any period subse- quent to the above, it must be directed to commence within the time allowed in the provision, as to the suspension of alienation of personal property, and at some time during the minority of the persons for whose benefit it is intended, and must terminate at the expiration of their minority. All other directions are void, except that those for a period beyond the minorities are only to be void for the excess. 1 R. 8. 1st ed. p. 773. The following cases may be consulted as to the above : 15 N. T. 325 ; 8 N. T. 531 ; 7 N. T. 357 ; 31 Barb. 83; 30 ib. 138; 15 ib. 139; 2 ii. 248; 3 B. Ch. 93; 5 Pai. 480; 4 Pai. 338; 2 S. Ch. 474; 16 How. Pr. 353 ; 3 B. Ch. 518; 4 Barb. 283; 7 ib. 590, 236 ; 16 N. Y. 333. An accumulation of the income of personal estate, if it is to commence at any period subsequent to the death of the testator, must be directed to com- mence " within the time allowed by the first section of the title for the sus- pension of absolute ownership," which time is, " during the continuance and until the termination of not more than two lives in being at the death of the testator." 1 R. S. 773, 774, 1st ed. ; 43 N. T. 303. As to real estate, the statutory provisions allow an accumulation to com- mence at a time when a future estate might be allowed to vest, viz., immedi- ately after the termination of two lives ; but as to personal property, it must commence with the period which is allowed to precede the vesting, viz., during the continuance, and till the termination of the two lives ; and therefore before the expiration of the second life. Kane v. Gott, 7 Paige, 531 ; 24 "Wend. 641 ; Manice v. Manice, 43 N. T. 803. A void trust for the accumulation of the income of personal property does not invalidate a bequest of the principal, where the direction for such accu- mulation does not involve an illegal suspension of the absolute ownership. The direction only will be held void, and the income received will belong to the persons presumptively entitled to the next eventual estate in the principal. Kilpatrick v. Johnson, 15 N. Y. 333 ; Lang v. Ropke, 5 Sandf. 363. Accumulations of the income of personal property are placed on the same general footing, and are governed by the same rules as accumulations of the rents and profits of real estate, except as specified otherwise. Mason v. Jones, 2 Barb. 239; see Savage v. Burnham, 17 N. Y. 561. Vide Robison v. Robison, 5 Lans. 165 ; Barbour v. De Forest, 92 N. Y. 515; overruling 38 Hun, 615. Where Accumulations may be taken for Education of Minors.— By the Revised Statutes, when any minor for whose benefit a valid accumulation of the interest or in- come of personal property shall have been directed, shall be destitute of other sufficient means of support or of education, the Supreme Court upon the application of such minor or his guardian, may cause a suitable sum to be taken from the moneys accumulated, or directed to be accumulated, and to be applied to the support or educa- tion of such minor. IR. S.-lsted. 173. 236 PROVISIOSrS APFECTIJJ& estates. [oh. IX. Maintenance for infants cannot be allowed by the Court of Chancery out of a fund which, upon the happening of the event contemplated by the testa- tor in the bequest of such fund, will not belong to the infants but to some other person. In re Davison, 6 Pai. 136. See In re Turner, 10 Barb. 553. Posthumous Children. — These would take under a direction for accumu- lation for "children " or " issue," and they will be construed to be " child- ren " during the lifetime of the father. Mason v. Jones, 3 Barb. 399. See also, ante. Title IV, as to provisions for the benefit of minors that may unduly suspend the power of alienation. Also " Trusts." Title VI. Gtenebal Pbovisions AFFECTiifG Futuee Estates. The Kevised Statutes on the subject of the limitation and creation of future estates hy act of parties, have in effect destroyed the distinctions between contingent re- mainders and executory devises. They are now equally future or expectant estates, sub- ject to the same provisions, and may be created either by grant or will, and every species of future limitation is brought within the same definition and control. The rules for the creation and construction of future estates established by the common law, however, apply to cases arising previous to the Revised Statutes, and, in that view, are still a necessary branch of legal knowledge. They cannot, in a work of this kind, be more than briefly alluded to, and the various refinements and intricacies of the subject, built up through the course of centuries, under the requirements of social intercourse, will have to be specially referred to when cases necessitating further in- vestigation may arise. The Revised Statutes abolish all expectant estates other than provided for in article i, part ii, title ii, ch. i. Vide Kent, vol. 4, as to the prior law regulating expectant estates. Through the operation of our statutes also, uses being abolished, as will be adverted to more particularly here- after, all expectant estates in the shape of springing, shifting or secondary uses, created by conveyances to uses, have, in effect, become contingent remainders, and subject TIT. Vl.j PROVISIONS AFFEOTIKG ESTATES. 237 to the same rules. In this connection, the law relative to Uses and Trusts, post, Cb. X, will have to be attentively considered. The following additional general provisions affecting future estates were enacted by the Revised Statutes of 1830, in part ii, art. i, ch. i, title ii. The old sections of the statutes are given. Snccessive Estates for Life. — § 17. Successive estates for life cannot be limited, unless to persons in being at the creation thereof. And where a remainder shall be limited on more than two successiye estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons, the re- mainder shall take effect in the same manner as if no other life estates had been created. Estates for Life on a Term of Tears. — § 31. Nor can an estate for life be limited as a remainder on a term of years, except to a person in being at the creation of such estate. Life Estate in a Term. — A point of difference formerly existing between a remainder and an executory devise was, that by an executory devise, a term of years might be given to one man for his life, and afterwards limited over to another, which could not be done by deed. At common law, the grant of the term, to a man for life, would have been a total disposition of the whole term, and a freehold had to be limited on a freehold. The Revised Statutes provide that an estate for life may be created in a term of years, and a remainder limited thereon. (§ 34.) Remainder on Life Estate, pour autre vie. — By the Revised Statutes, also, it is provided that no remainder shall be created upon an estate for the life of any other person or persons than the grantee or devisee of such estate, unless such remainder be in fee ; nor shall a remainder be created on such an estate, in a term of years, unless it be for the whole residue of such term. Vol. i, p. 724, § 18. When a remainder shall be created on such a life estate, and more than two persons shall be named as the persons during whose Uves the life estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been intro- duced. (§ 19.) § 20. Remainder on a Term. — A contingent remainder cannot be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest during the continuance of not more than two lives in being, at the creation of such remainder, or upon the termination thereof. Vide Butler v. Butler. 3 Barb. Ch. 304. §23. Chattels Real.— All the above provisions relative to restriction on alienation, shall also apply to chattels real, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. Of the Words " Dying without Issue," before the Revised Statutes. — Previous to the Revised Statutes, if an executory devise were limited to take effect on a dying without heirs, or on failure of issue, or "without leaving issue," or " without issue," the limitation was held to be void, because the contingency was too remote, as it was interpreted not to take place until after an indefinite failure of issue, i. e., until the line became extinct, and the estate 238 PROVISIONS AFFECTING ESTATES. [OH. IX. might not vest within the compass of twenty-one years and nine months after lives in being, unless a contrary intention were manifested in the will, limiting the vesting of the estate to the time of the death of the first taker, and show- ing that a definite failure of issue was intended. Jackson v. Billinger, 18 Johns. 368 ; 3 Sandf . Ch. 64 ; Miller v. Macomb, 36 Wend. 239 ; Patterson V. Ellis, 11 "Wend. 359 ; Seaman v. Harvey, 16 Hun, 71 ; and see cases infra. The case of the Trustees, &c. v. Kellogg, 1 6 N. Y. 83, holds that the words " dying without lawful issue," meant issue living at the death of the first taker, as judged by the context in that case. In case the remainder over was so held to vest on an indejinite failure of issue, the courts determined that the first taker took a fee, cut down to a fee tail which the New York statute turned into a fee (Kingsland v. Eapelye, 8 Eds. Chan. 1 ; Jackson v. Billinger, 18 Johns. 368), and the limitation over was void as being too remote. Th^ strict rule was often relaxed, however, where a contrary i-ntent to creating the perpetuity was manifested from the context or qualifying words, and the limitation might be construed as an executory devise, without contemplation of indefinite failure of issue. Unless such qualifying words, however, were used, on the interpretation of wills made before the Revised Statutes, the words, '■'dying withmt issue," were construed as meaning an indefinite failure of issue. The caises in this State are numerous, and support the strict English com- mon law rule above given. The leading ones are Patterson v. ElUs, 11 Wend. 359 ; Miller v. Macomb, 36 Wend. 339 ; Van Vechten v. Pearson, 5 Paige, 513; Jackson v. Waldron, 13 Wend. 178; Wilkes v. Lyon, 3 Corns. 333; Tator v. Tator, 4 Barb. 431; Wilson v. Wilson, 33 Barb. 338; Lott V. Wyckoflf, 3 Coms. 355. A contrary intent would be inferred by the use of the words "living," or "leaving issue behind,'' or "without children," or to the "survivors of issue," or "brothers." Or if the devise over were of a life estate, or the estate were charged with payments to a person in being, or his executors, a defmite failure of issue would be inferred as the intention of the testator. As if the devise over were to a collateral, e. g., a brother of the first taker ; or, if the devise over were on a failure of "legitimate heirs," construed as children. Anderson v. Jackson, 16 Johns. 383; Cutter v. Dougherty, 23 Wend. 513 ; Lovell v. Buloid. 3 Barb. Oh. 137 ; Ferris v. Gibson, 4 Edw. 707; Hill v. Hill, 4 Barb. 419 ; Wilson v. Wilson, 83 Barb. 328 ; Heard v. Hor- ton, 1 Den. 165 ; Trustees, &c. v. Kellogg, 16 N. Y. 83 ; Weller v. Weller, 38 Barb. 588 ; Jackson v. Elmendorf, 3 Wend. 323 ; Prindle v. Beveridge, 7 Lans. 335 ; affi'd, 58 N. Y. 593. Where there was a devise to two or more, and upon the death of either without issue, then to the survivors, the mention of survivors and the devise over to surviving devisees were sufficient to show that the testator intended a definite failure of issue, i. e., at the, death of the first devisee. Fosdick v. Cornell, 1 Johns. 440 ; Jackson v. Staats, 11 Johns. 387; Anderson v. Jackson, 16 Johns. 382 ; Wilson v. Wilson, 33 Barb. 338 ; Cutter v. Dougherty, 33 Wend. 613. Change by Revised Statutes as to the words "Dying Without Issue."— By our Eevised Statutes it is declared that where a remainder in fee shall be limited upon any estate, which would be adjudged a fee tail, according to the law of the State, as it existed before the abolition of entails, *. e., July 12, 1782, the remainder shall be valid as a contingent limitation upon a fee, and shall vest in pos- TIT. VI.] PROVISIONS AFFECTING ESTATES. 239 session on the death of the_^s^ taher without issue living at the time of such death. Vol. i, p. 723, § 4. It is further declared, that when a remainder shall be limited to take effect on the death of any person without heirs or hei/rs of his body, or without " issued the words " heirs " or '' issue " shall be construed to mean heirs or issue living at the death of the person named as cmcestor. Rev. Stat. vol. i, p. 733, § 33 ; Sherman v. Sherman, 3 Barb. 385. The introduction of these words ' ' without issue limng at tJie time of such death," removes the former obscurity, which, on this subject, was a fruitful source of litigation, and was the cause of legal controversy for many years. This provision is applicable to wills made before the statute, where the testator died after it. Depeyster v. Clendennin, 8 Paige, 395; affi'd, 36 Wend. 23; Bishop v. Bishop, 4 Hill, 138 ; Sherman v. Sherman, 3 Barb. 885 ; Prindle v. Beveridge, 7 Lans. 335 ; affi'd, 58 N. Y. 592. Posthumous Children. — Posthumous children are also allowed to take in the same manner as if living at the death of their parents, and are considered included in the words " Tieirs, issue, or child/renr And a future estate de- pendent on a decease without issue, etc., may be defeated by the birth of a posthumous child capable of taking by descent. (§§ 30, 31.) An unborn child, after conception, if it be subse- quently born alive, and so far advanced towards maturity as to be capable of living, is considered as in esse from the time of its conception. Home V. Van Schaick, 3 Barb. Ch. 488. Freehold Estates in future and other Provisions by Statute. — The Revised Statutes further prescribe (ih. § 24) ; " Subject to the rules established in the preceding sections of this .article, a freehold estate, as well as a chattel real, may be created to commence at a future day. An estate for life may be created in a term of years, and a remainder limited thereon. A remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years, and a fee may be limited on a fee, upon a contingency, which, if it should 240 PROVISIONS APFECTING ESTATES. [CH. IX. occur, must happen within the period prescribed in this article." At common law, owing to the necessity of au im- mediate livery of seizin, a freehold estate could not be created to commence in possession at a future day, unless as a remainder, and if an estate in remainder were limited in contingency, and amounted to a freehold, a vested free- hold had to precede it, and pass at the same time out of the grantor. Transfer of Expectant Estates, vide cmte, p. 218. Charitable Uses. — As to the law of trusts for chari- table uses as affecting restrictions on the alienation of property, vide Ch. X, Title VIII, post. Other Provisions affecting Expectant Estates.— Fi'c?e ante, Title I, and Ch. X, post, on " Uses and Trusts." Abolition of other Expectant Estates. — The Revised Statutes provide that all expectant estates, except those enumerated therein, and as above set forth, are abolished. (§ 42.) Tbe complicated law on tbe above subjects, in con- nection with tbe law of uses and trusts, which, based on the feudal relation, grew up with the development of the Eng- lish nation into proportions ever extending as the require- ments of tbe age demanded, wbich became a science so subtile and so profound as to occupy the lives and en- gross the intellects.of the most cultured thinkers of the day, and which taxed all the learning and logical dis- crimination of a Mansfield, a Hale and a Hardwicke to expound and apply ; this law has been, as is above seen, by wise legislation, reduced into simple and express rule, consonant with the institutions and polity of this country. The Revision of 1830 has cut away the complex forms and stubborn dogmas that had grown, through time, aroynd the law of future estates, arising out of feudal rules TIT. VI.] PROVISIONS AFFECTING ESTATES. 241 and the efforts at their evasion, and has placed before the modern student such law modified, shaped and reduced into strong, plain features, adapted not only to modern requirement, but to modern legal attainment. Apportionment and Sales of Real Estate for Taxes and Assessments where there are Future Estates. — By Law of May 26, 1841, ch. 341, where there are several persons having estates in possession, reversion, or re- mainder, in any village or city in the State, and it is sold, or liable to sale, for taxes or assessments, a suit may be instituted for an apportionment of moneys for their pay- ment, or for redemption of the lands, and the court may extend the time for redemption to six months after the judgment, or may order a sale of a portion for such pay- ment or redemption. Contingent owners, if unknown, need not be made parties to make title. Interests that have been unduly charged may be equalized hy charges against other estates, and shall be a lien thereon. The act is not to affect contracts or covenants as to taxes, nor relative rights of persons as to their liability for such payments. VuL. Laws of 1842, ch. 154, and of 1854, ch. 393, as to mode of making sales, and testing the validity of the assessment. By Law of 1855, Ap. 13, ch. 837, the law was made applicable also to persons being presumptively entitled by virtue of any deed or will, on the death of any person in being, or on the happening of any contingency in the instrument expressed. Provisions are made as to the sale and redemption by unknown owners. By Law of May, 1869, ch. 859, the law was made applicable to all real estate in the State. It is to be observed that before the Law of 1855, the judgment and sale only passed the rights of parties to the suit. This Law of 1855 has been held constitutional, and that possible or contingent interests, and those of persons not in being, could be cut ofi by a sale. The same principle ap- plies as in partition suits, where future contingent interests of persons not in being are barred by the proceedings, as being virtually represented by those in whom the present estate is vested. Jackson v. Babcock, 16 N. Y. 246 ; Mead v. Mitchell, 17 N. Y. 210; Leggett v. Hunter, 19 N. Y. 446; Nors- worthy v. Bergh, 16 How. Pr. 315; Powers v. Barr, 24 Barb. 142. Apportionment may also be made as to a dowress and the other owners. Law of 1858, Ap. 12; Linden v. Graham, 34 Barb. 310 ; Graham v. Duni- gan, 2 Bos. 516 ; ib. 6 Duer, 629. The above cases it may he. well to consult as to the practice in such ac- tions, form of decree, etc. See also 2 How. Appl. Cases, 489. Presumed Death of Life-Teriant.— A person, upon whose life an estate in real property depends, who remains without the United States, or absents himself in the State 16 242 PKOVISIONS AT'PEOTIKG ESTATES. [OH. IX. or elsewhere, for seven years together, is presumed to be dead, in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. Co. Civ. Proc. § 841. Vid. 1 R. L. 103, § 1 ; i R. S. 1st ed. 749 ; 13 How. 120; 3 Abb. 234; 1 Barb. Ch. 462; ante, p. 141. Liabilities of Guardians and others holding over.— A person in possession of real property, as guardian or trustee for an infant, or having an estate determinable upon one or more lives, who holds over and continues in possession after the determination of such particular estate, without the express consent of the person then im- mediately entitled, is a trespasser. An action may be maintained against him or his executor or administrator, by the person so entitled, or his executor or administrator, to recover the full value of the profits received during the wrongful occupation, Co. Civ. Proc. § 1664 ; 1 R. L. 167, § 7 ; 1 R. S. lat ed. p. 749 ; vide 14 N. Y. 64,430; ante, -p. 145. Remedies of Reversioners and Remaindermen for Waste or Trespass. — A person seized of an estate in re- mainder or reversion may maintain an action of waste or trespass for any injury done to the inheritance, notwith- standing any intervening estate for life or years. Co. Civ. Proc. §§ 1665, 1666; 1 R. L. 527, § 33; 1 E. S. p. 750, 1st ed.; 29 Barb. 15 ; 13 J. K. 208; 29 N. Y. 24; 25 N. Y. 357; 47 Barb. 309; Rob- inson V, Robinson, 70 N. Y. 147 ; i>id. ante, p. 143. Ejectment.— As to the rights of reversioners and re- maindermen to have ejectment after decease of the person holding the life estate, who has yielded up the estate or made default, vide post, "Ejectment," Ch. XLI. Recoveries in Real Actions as affecting Remaindermen and Reversioners.— As to recoveries by agreement of par- ties or by fraud affecting such persons, vide post, " Eject- ment," Ch. XLI. Partition Suits as affecting Remainders.— T^e ^osi, "Partition," Ch. XXX. TIT. Vll.] ESTATES IN KEVEESION. 243 Writs of Error by Reversioners and Remaindermen.— As to these, vide 2 Eev. Stat. 1st ed. p. 591. Real Actions.— Rights of reversioners and remainder- men in, vide post, Ch. XLI. Private Statutes divesting the Estates of Remainder- men.— As to nnconstitutionality of these vide infra, Title VII. Title VII. Estates in Reveesion. An estate in reversion is the residue of an estate left with the grantor or his heirs, to commence in possession after the determination of some particular estate granted by him. It arises not by deed or devise, but by opera- tion of law, and is transferable as other estates. It is founded on the feudal principle of the fief reverting to the lord on the death of the feudatory and his heirs. The Revised Statutes describe a reversion as " the resi- due of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the de- termination of a particular estate granted or devised." There can be no reversion upon a fee, whether the fee be absolute or conditional; and where a condition is an- nexed to the grant of a fee, the estate granted is not determined by a breach of the condition, but by entry, and therein it differs from a reversion, which takes effect im- mediately on the determination of the particular estate. Vide ante, Ch. V, Titles III and IV, " Estates on Condition " ; and Phoenix V. Commissioners, &c. 12 How. Pr. 1. Acts Divesting Title of Owners in Remainder or Re- version. — A private statute authorizing proceedings divest- ing such owners of their estates by sales through trustees is unconstitutional, they being not incapacitated by infancy or otherwise, and no necessity for legislation being ap- parent, none such will be presumed. And the existence of a necessity for legislative action will not be presumed 244 ESTATES IN REVBESION. [OH. IX. when the facts which would create it are neither shown by proof nor recited in the statute. Powers V. Bergen, 6 N. T. (3 Seld.) 358 ; Leggett v. Hunter, 19 N. T. 446 ; Brevoort v. Grace, 53 N. T. 345 ; vide also, post, Ch. XXV, " Infants Estates." Any title, therefore, through trustees, under such a statute, would be in- valid. It is held, however, that the legislature, in the exercise of its tutelary power over the persons and property of infants and others under disability, may provide by public or private acts for converting real estate in which they have vested or contingent interests into personal property or securities, when necessary for their benefit, and may exercise this power as well in respect to the rights of persons in esse as to the contingent interests of persons yet to be born. Vide above cases, a,nd post, Ch. X, " Trusts ; " as to sales and mortgages by trustees, Ch. XXV, "Sales of Infants Estates," and Ch. XVIII, "Sales by Order of Surrogates." Apportionment of Taxes and Assessments and Sales of the Estates of Reversioners therefor. — As to this, vide ante, p. 241. Sale on Execution.— A reversionary interest, although it is uncertain, may be sold on execution. Woodgate v. Fleet, 44 N. T. 1. CHAPTER X. USES AND TRUSTS IN REALTY. Title I. — Uses and Trusts before the Revised Statutes. Title II. — Changes bt Statute in this State. Title III. — Creation of Trusts. Title IV. — Trusts Allowed by Statute. Title V. — Implied and Ebsulting Trusts. Title VI. — Assignment and Transfer of Trusts. Title VII. — The Trustee. Title VIII. — Trusts for Charitable Uses. Title IX. — Miscellaneous Provisions as to Trusts. Title I. Uses and Tetjsts beeoee the Revised Statutes. A use is defined as existing where the legal estate of lands is in one person, in trust or confidence, that another shall enjoy the possession, take the profit, and direct their conveyance for his own benefit. "While the formal legal title remains in the former, the beneficial interest is vested in the latter. Uses were originated by sacerdotal corporations to evade the statutes of mortmain, and were gradually estab- lished to mitigate the evils of the feudal system, and save lands from attainder, forfeiture, and other incidents. Before the Statute of Uses hereafter adverted to, a use was a mere beneficial interest of an equitable nature, the feoffee or trustee being the real owner of the estate at law, and the cestui que use having only a beneficial enjoyment arising out of the confidence or trust. The confidential obligation required no consideration to raise it, and would be enforced in equity ; and if no use 246 USES AND TRUSTS. [OH. X. were declared, and the feoffee had taken without con- sideration, a use resulted to the' feoffor. The Court of Chancery would not compel the execution of a use unless it had been raised for a good and valid consideration ; and where one made a feoffment to another without any con- sideration, equity presumed that he meant it for the use of himself, unless he expressly declared it to be to the use of another ; the grantor in the former case became entitled to the use of the lands conveyed. If a valuable considera- tion appeared, equity raised a use correspondent to such consideration ; and if, in such case, no use was expressly declared, the person to whom the legal estate was con- veyed, and from whom the consideration moved, was en- titled to the use. Whenever the use limited by a deed expired or could not vest, the title reverted to him -who raised it, unless on consideration paid, when it passed to him who paid it, if the conveyance was in fee. Vandervolgen v. Yates, 9 N. T. S19; affirming 3 Barb. Ch. 243; Jackson v. Myers, 3 Johns. 888; Fisher v. Fields, 10 Johns. 504. Uses were descendible, alienable and devisable, with- out words of limitation, and might be" created in fu- tuTO without previous limitation, and might be shifted to vest in the alternative, or depend upon contingencies, or be made revocable and the use changed ; and might be limited over upon the liappening of future events to an in- definite extent. Uses being serviceable in evading the strict rules of the common law, and in facilitating transfers of property not allowed by it, became perverted to mischievous pur- poses, and led to the practice of abuses, the defrauding of creditors and purchasers, the defeating of dower and curtesy, and great confusion and obscurity of title pre- vailed. The Statute of Uses.— An entire reform of the law was made by the Statute of 27 Henry VIII (ch. x), commonly called the Statute of Uses, which transferred the uses into possession, by turning the beneficial interest of the cesPai TIT. I.] USES AND TRUSTS. 247 que use into a legal estate, and declared that the legal estate should be annexed to the use. The object of the law was to destroy that double property in land, which had been introduced by the invention of uses. After the statute, as every deed capable of raising a use was, by force of the statute, rendered also capable of passing the legal estate, new forms of conveyances were introduced, by which the title and the possession of lands were transferred without livery of seizin, which, at common law, was indis- pensable to pass a freehold. These conveyances will be specially referred to in a subsequent chapter. The Statute of Uses, however, did not, in effect, as will be seen, change the qualities ov properties of uses, although the beneficial interest was transferred into a direct legal estate in the land. It might still be subject to the condi- tions and limitations characteristic of uses, and future interests in land were created and upheld as contingent, springing, shifting, or secondary and resulting uses, to be limited under the restrictions adopted against perpe- tuities, the abstruse law on wbich subjects cannot be here pursued. The Revised Statutes, in allowing all convey- ances of future as well as present interests in lands to be made by grant or assignment (1 Revised Statutes, p. 726), as well as devise, and by abolishing uses except as speci- fied, have simplified the means of transfer of real estate, a,nd rendered most of the common law on the subject of uses and trusts inoperative here, although cases may still arise under instruments made before the Revised Statutes, that may require special investigation of this intricate subject. Under the construction given by the courts to the Statute of Uses, the object of the statute, which was to convert nominal uses into legal estates, was not carried out. The construction of the statute, by the courts of equi- ty, operated so as not altogether to destroy uses, but up- held them under another name. Although a use upon 248 USES AND TKTJSTS. [CH. X. a use was void at law, the statute, it was held, executed the first use, and the courts of equity enforced the second use as a trust, under the plea that the second uses were uses to which the statute did not transfer the possession, but that they still continued distinct from the legal estate. Therefore, under a bargain and sale of deed to A. in fee, to the use of B. in fee, the statute (through the bargain raising the use) passed the estate to A. by executing the use, and effectuated the use to B., as a trust to be enforced in equity, although void, nominally, as a use. In the interpretation of the Statute of Uses by the courts, it was considered that it was not the intention of the statute to defeat and destroy the beneficial interest of the cestui que use, but only to change his mere equitable interest in the use of the property into a legal estate, in the property itself, of the same quality and duration as the equitable one. Where the beneficial use, therefore, could not take effect, as a legal estate, in the cestui que use, it was held to take effect as a trust (in the same manner as if the statute had not been passed), where it could take effect as a trust consistently with the rules of law. Thus secondary uses were established as trusts j and a system of trusts was gradually formed as fiduciary estates distinct from the legal estate, and to be enforced in equity ; and a trust became what a use was before the statute, and was said to be a use not executed by the statute. The cestui que t/rust was considered seized of the freehold in equity, and his interest was disposable, de- scendible, and devisable, as if a legal estate ; and might be created subject to the same limitations; and curtesy, though not dower, was also allowed in trust estates. An assignment of the trust, if the intent were manifest, carried the fee without words of inheritance; and the cestui que trust might pass his interest without the tech- nical forms required by the common law to pass the legal estate. The whole practical effect of the act, therefore, was to change, not the estate, but the trustee, by execut- TIT. I.] USES AND TEIIST8. 249 ing the first use, but preserving the second. Thus, by a strict construction of the Statute of Uses, passive uses might still be created, by limiting a use upon a use, as the statute only executed the use in the first cestui que use, who was allowed to hold the estate for the benefit of the second. Neither the letter, nor policy of the statute, it was also held, prevented the creation of active trusts, that is legal estates, impressed with some active duty in their control, management, or disposition for the benefit of some person or class of persons other than the trustee. Trusts of this kind gradually grew up and expanded to meet the wants and wishes of the community, accord- ing to tbe discretion of the author of the trust, and unde- fined by any statute or rule. Where the instrument did not, in terms, vest the legal title in the trustee, there was always a question whether the nature of the trust or duty declared, was such as to render the presence also of the legal estate necessary or convenient. If so, the title was deemed to vest in the trustee accordingly. If not, then the estate remained in the donor and his heirs, subject to the trust as a power. Powers were equally undefined as trusts. The intention, as to the legal estate, being unexpressed, powers began where trusts terminated; but to ascertain the dividing line between them was often attended with difficulty, and perplexing questions arose on the subject, and are still of frequent occurrence before the courts of the State. The distinction between trusts and powers, although sought to be defined by our statutes, and the limits of each expressed, is still a matter of con- siderable obscurity in the interpretation of instruments creating them. A trust to pay the rents and profits to J. during life, and after her death to convey to such of her children as should survive her, contained in a deed of bargain and sale made before the Revised Statutes, was not executed as a legal estate in the cestui que trust, by the law of uses then in force. By such a trust, the children of J., during her life, took vested equitable estates in remainder, subject to be defeated, wholly by their dying before her; or, in part, by the coming in esse of after-born children of J. The 250 CHANGES BY STATUTE IN THIS STATE. [OH. X. Revised Statutes, subsequently enacted, did not turn these equitable estates into legal ones during the life of J. Wood v. Mather, 38 Barb. 473. Title IL CnANaES by Statute in this State. The condition of the law in this State at the time of the revision of 1830, as to uses and trusts, was as above set forth. The English statute of uses had been enacted in 1787 here ; but no other change in our jurisprudence had been made on the subject. That act, passed on Feb. 20, 1787 (1 Web. 66 ; IE. L. p. 72), provides that the possession of lands shall follow the use, and transfers the possession, estate, and seizin to the extent of the use, and cestuis que use are to have all the rights and remedies of owners. It also provided that all grants and conveyances, etc., made to the extent of the use of a person, should be valid against him to that extent. This act was repealed by the general repealing Act of 1828, and the provisions of the Revised Statutes substi- tuted. By chap, i, art. 2, part 2, §§ 45, 46, the Revised Stat- utes of 1830 have declared that uses and trusts, except as authorized and modified in the " Article^'' are abolished ; and every estate and interest in lands is declared to be a legal right, cognizable as such in the courts of law, except when otherwise provided in the chapter ; and every estate held as a use executed under any former statute of this State is confirmed as a legal estate. Section 47 provides as follows: "Every person who, by virtue of any grant, assignment, or devise, now is or hereafter shall be entitled to the actual possession of lands and the receipts of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration and subject to the same conditions as his beneficial interest." 1 R. L. 73 ; 1 R. S. Ist ed. p. 737. TIT. II.] CHANGES BY STATUTE IN THIS STATE. 251 This provision would apply as well to trusts created before the Revised Statutes as to those created thereafter. Bellinger v. Shafer, 3 S. Oh. 293. It will be obseiTed that the word '' assignment" is used that there may be no doubt of the intention of the legislature to include the transfer of chattel interests; it having been theretofore decided that the assignment of a term of years was not reached by the Statute of Uses. Section 48 is as follows: "The last preceding section shall not divest the estate of any trustee in any existing trust, where the title of such trustees is not merely nom- inal, but is connected with some power of actual disposi- tion or management, in relation to the lands which are the subject of the trust." 1 R. S. p. 728, 1st ed. The Revised Statutes further provide as follows : § 49. " Every disposition of lands, whether by deed or devise, hereafter made, sJiall he directly to the person in whom, the right to the possession and profits shall he intended to he in- vested, and not to any other to the use of or in trust for such person ; and if made to one or more persons to the use of or in trust for another, no estate or interest, legal or equitahle, shall vest in the trusteed 1 R. L. 72. § 50. The above sections are not, however, to apply to trusts resulting by implication of law, nor to trusts there- after allowed, in the above chapter. A trust in a deed to convey the premises to such person as the wife of grantor shall appoint, is held void ; and where the trustee is not vested with the right to the possession, rents, or profits of the lands conveyed, for any purpose, either for himself or any other person, the deed or trust will be re- garded as void. Hotchkiss v. Elting, 36 Barb. 38. By the Revised Statutes, also, every express trust, valid as such in its creation, except as is therein otherwise pro- vided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The person for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. (1 Rev. Stat. 1st ed. p. "729, § 60.) The person creating the trust, however, 252 CHANGES BY STATUTE IN THIS STATE. [OH. X. may dispose of the lands subject to the execution of the trust, and the grantee or devisee takes them subject 'to the execution of the trust. (lb. § 61.) § 62. " Where an express trust is created, every estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in, or revert to, the person creat- ing the trust, or his heirs, as a' legal estate." For the trusts allowed by the Revised Statutes, vide post, Title IV. Where there is a valid trust for the sale of land, the party creatiag the trust and those holding derivative titles under him, have no rights, legal or equitable, until the purposes of the trust are satisfied. Their interests are subject to the execution of the trust absolutely ; so that a subsequent grantee, from the creator of a trust to sell for the payment of debts, acquires no right of redemption. Briggs v. Davis, 21 N. T. 574. § 67. "Where the purposes for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease." This provision applies to cases arising before the Revised Statutes, as well as to those arising subsequently. Bellinger v. Shafer, 2 S. Ch. R, 293. This provision was amended by L. 1875, c. 545, which enacted that trusts for the benefit of creditors should cease and the property revert, after twenty-five years, unless some other limitation were provided. In all cases of mere passive or naked trusts the Revised Statutes have, therefore, by the above provisions, vested the legal estate in the person or persons entitled to the actual possession, and to the whole beneficial interest in the lands under the trust. They have turned the bene- ficial estate into a fee, where the trust is merely nominal, that is, where the trustee has a raeve formal or nahed title j and the operation of the 47th section, supra, accomplished all that could have been effected by the most liberal interpretation of the " Statute of Uses." Cushney v. Henry, 4 Paige, 345 ; Johnson v. Fleet, 14 Wend. 176 ; Frazer V. Western, 1 Barb. Oh. 230; affirmed, 3 Den. 611 ; Lang v. Ropke, 5 Sand. S. C. 363; Verdin v. Slocum, 71 N. Y. 345. A devise or conveyance of land, therefore, to trustees for another, but without limitation, or directing them to execute and deliver to another a con- veyance for the uses and purposes, and with the restrictions set forth in a will, creates no valid trust in such trustees, and gives them no title or estate, but vests immediately and absolutely in the third person the land transferred. So, also, a devise to trustees to convey the legal estate to those who should be entitled in remainder, is a void direction ; and if that alone re- mains for them to do under a trust, their office as trustees ceases. Knight v. TIT. II.] CHANGES BY STATUTE IN THIS STATE. 253 AVeatherwax, 7 Paige, 182; Bogart v. Perry, 17 John. 351; Fellows v. Emperor, 13 Barb. 93 ; Adams v. Perry, 43 N. Y. 487 ; In re Livingston, 34 N. Y. 555 ; In re Craig, 1 Barb. 33 ; Rawson v. Lampman, 5 N. Y. (1 Seld.) 456 ; La Grange v. L'Amoureux, 1 Barb. Ch. 18. A direction to hold and control property, and then to pay over, creates no estate in the trustee. Burk v. Valentine, 53 Barb. 412. In the case of Adams v. Perry, 43 N. Y. 487, a devise of land to trustees to execute and deliver a deed to a corporation, for the uses and purposes in the ■will, was held to create no valid estate in such trustees, and to give them no title ; but vested immediately in the corporation the land devised. This case also holds, that a bequest to trustees of personal estate, to vest and reinvest, and pay the income to an incorporated academy forever, is void under the statute of perpetuities. The statute, § 47, however, is held to have applied not to implied or con- structive trusts, but to formal trusts; and would vest the legal title in the cestoi que trust last named. A devise to testator's wife, in trust for his children who should be under age at his death, was held void as to realty, though good as to personal- ty. Haggerty v. Haggerty, 9 Hun, 175. If a valid trust were devised to the trustee for a par- ticular purpose, the legal estate would be vested in him so long as the execution of the trust required it. It would thereafter, under the above provisions, vest in the person beneficially entitled to it. Nicoll v. Walworth, 4 Den. 385; McCosker v. Brady, 1 Barb. Ch. 329; affl'd, in ] N. Y. 214. See further as to the estate of the trustees, pp. 259, 363. Trusts executory or executed.— A trust is considered executory when it is to be perfected at a future period by a conveyance or settlement, as in the case of a conveyance to B., in trust to convey to C. It is executed, either when the legal estate passes, as in a conveyance to B. in trust, or for the use of C, or where only the equitable title passes, as in the case of a convey- ance to B. to the use of C, in trust for D. Active trusts. — Active or express trusts are those where the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised without his having the legal estate and actual possession. If the trusts are not passive but active, and not, in the language of § 48, supra, " merely nominal^ but are connected with a power of management, they do not fall within the pro- visions of § 47, and are not consequently piohibited by it. 254 CREATION OP TRUSTS. [CH. X. In such cases the estate, either by express words or by im- plication of law, vests in the trustee, and the cestuis que trust have merely the beneficial estate and interest therein. If the trust, however, by its provisions, ceases to be active, it becomes executed by virtue of the statute, and the legal estate vests in the beneficiary. McCosker t. Brady, supra; Johnson v. Fleet, 14 Wend. 176 ; Nicoll v. Walworth, supra; Welch v. Allen, 21 Wend. 147; 3 Hill, 491; Brewster V. Striker, 3 Corns. 19; Wood v. Bumbam, 6 Paige, 513; Wagstaff v. Low- erre, 33 Barb. 309 ; Heermans v. Bni-t, 78 N. Y. 259. The legal title to land conveyed to trustees of a religious corporation for the purposes of the corporation is in the corporation itself. Van Deuzen v. Trustees, &c., 4 Abb. Ap. Cas. 465. Title III. Creation of Trusts. (&■« also Title IX, Miscellaneous.) Three things are said to be necessary to the creation of a valid trust : first, sufiicient words to raise it ; secondly, a definite subject; and thirdly, a certain or ascertained ob- ject. The trust must appear in writing, with absolute certainty as to its nature, and the terms and conditions of it ; and the instrument creating the trust must be certain in itself, or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable precision. No special instrument or technical form of words is requisite to create or declare a trust, if the intention be clear ; and it may be gathered from dif- ferent instruments. Fisher v. Fields, 10 .Johns. 495; Story's Eq. § 964; The Farmers, &c., Co. V. Carrol, 5 Barb. 613; Gomez v. Tradesmen's Bank, 5 Sandf. 102. A statutory trust may be created by any words so that the purpose he clearly within the statute. Vernon v. Vernon, 53 N. Y. 351 ; Donovan V. Van De Mark, 78 N. Y. 344 ; Morse v. Morse, 85 N. Y. 53; Ward v. Ward, 105 N. Y. 68. The English Statute of Frauds (29 Car. II) required a trust to be manifested in writing, and it could only be so created or transferred under the signature of the party creating or transferring it. A trust before the Revised Statutes, need not have TIT. III.] CEEATION OP TRUSTS. 255 been created in writing, but it had to be manifested and proved by writing; and the nature of the trust, and its terms and conditions, had to suflSciently appear under the hand of the party creating it, Steere v. Steere, 5 John. Ch. 1 ; Wheelan v. Wheelan, 3 Cow. 538 ; Throop v. Hatch, 3 Abb. 33. The Eevised Statutes declare that no " estate or inter- est in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be cre- ated, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing^ subscribed by the party creating, granting, assign- ing, surrendering, or declaring the same, or by his lawful agent thereunto authorized hy writing^ The section is not to apply to wills or implied or resulting trusts, nor to declarations of trusts proved by any writing subscribed by any party declaring the same ; nor tc^ prevent, after a fine is levied, the execution of a deed or other instru- ment, declaring the uses of such fine. 3 Kev. Stat. p. 134, §§ 6 and 7, as amended by Laws of 1860, p. 574, ch. 331. The amendment was with reference to the declaration of trusts. But the prohibition of parol trusts cannot be invoked to protect clear fraud. Ball V. Erwin, 66 N. Y. 649. In this State, although the trust must be created by writing subscribed by the party creating it, the trust itself may he gathered from the instrument, even if it be a mere recital therein. If, therefore, a conveyance be received to the use of another, so that it appears that the cestui que trust is entitled to the actual possession of the lands, and the receipt of the rents and profits, its effect, under our statute, would be to vest the estate at law in the cestui ^ and it is not necessary that the trust clause should be expressed on the face of the conveyance, to bring the case within the statute. Neither is it necessary that specific directions in re- gard to the execution of the trust and the disposition of 256 CREATION OF TRUSTS. [OH. X. the trust property be given in the instrument creating the trust ; and if an intention to create a definite trust can be fairly collected upon the face of the instrument it will be enforced. If, however, neither the object nor the bene- ficiary of the trust appear the trust cannot be sustained, story Bq. Jur. 9S0 ; Bellasis v. Crampton, 3 Vern. 394; Throop v. Hatch, 3 Abt. 33; Wright v. Douglass, 3 Seld. (7 N. Y.) 564; rev'g 10 Barb. 97; Corse V. Legget, 35 Barb. 389 ; Dillaye v. Greenough, 45 N. T. 438. It is also necessary to the lawful creation of a trust, or a power in trust, that the authority to perform the re- quired act should be rightfully delegated to the trustee by the person having authority to dispose of the estate, or some interest therein, in the manner directed by the trust or power. The object or purpose of the trust also must be declared, in some manner, to some person that can legally execute it. Selden v. Vermilyea, 3 Corns. 435 ; Moore v. Moore, 47 Barb. 257. To raise a trust, at common law, there must also be a definite grantee, devisee or donee, capable of coming into court and claiming the benefit of the grant, devise, or bequest. At common law, where the trust is for an uncertain object, the property which is the subject of the trust is deemed to be undisposed of, and goes to those to whom the law gives the ownership, in default of disposition by the former owner. Where the instrument creating the trust does not dis- close the beneficiary, or give the means of definitely as- certaining him, it does not necessarily result that the creator of the trust is such beneficiary ; and if the instru- ment is silent as to the persons to be beneficially inter- ested in the trust, no trust whatever is created that the courts could execute. But any designation whereby they can be identified will be sufficient. Dillaye v. Greenough, 45 N. T. 438; Williams v. Williams, 4 Sel. (8 N. Y.) 525; Levy v. Levy, 33 N. Y. 97; FoUett v. Badeau, 26 Hun, 358; Holmes v. Mead, 53 N. Y. 332. TIT. in.j CREATION OF TRUSTS. 257 See also, in/ra, " Charitable Trusts, " Title VII, as to unknown benefici- ilries and indefinite dispositions. A trustee, however, is not absolutely necessary to the validity of a trust, for a use being well declared the law will find a trustee wherever it finds the legal estate. Levy V. Levy, 33 N. T. 97, and cases cited, and see post, Title VII. Precatory Words. — It is frequently a matter of discus- sion whether precatory words in a devise create a trust, or are mere requests ; and, as such, the performance of them optional with the donee. The words " desire," " request," " entreat," " confi- dence," " hoping," " recommending," are sometimes to be construed as imperative words, and, at other times, not. The following principles have been laid down as to the construction of precatory words. They are held to create a trust when — 1. They exclude all option in the party who is to act ; 2. The subject is certain ; 3. The objects are not too vague and indefinite. The words, "in the fullest confidence," are held im- perative, and to create a trust. Vide Briggs v. Penny, 8 Eng. L. & Eq. 281 ; Lawless v. Shaw, Lloyd & Goold, 154; Coate's Appeal, 2 Barr. (Penn, 129); Wright v. Atkyns, 1 Tur- ner & Russ. 148 ; and cases cited in Taylor on Wills, p. 296 ; Story's Eq. §1068; Tiffany & BuUard on Trusts, ch. iv; Field v. Mayor, &c. 38 Hun, 590. Parol Evidence.— Where there has been mistake or fraud, parol evidence may be given to establish a trust, although a conveyance may be absolute; but the evidence must be clear and positive and define the trusts ; and ex- cept in cases of mistake or fraud no trust in land can be established in this way. Harrison v. McMennomy, 2 Edw. 251 ; St. John v. Benedict, 6 Johns. Ch. Ill; Rathbun v. Rathbun, 6 Barb. 98; Bitter v. Jones, 28 Hun, 493; Cook V. Barr, 44 N. Y. 156 ; Sturtevant v. Sturtevant, 20 N. T. 89 ; Wood v. Rabe, 96 N. Y. 414. The law under this head comes under the special cognizance of courts of equity. 17 258 CREATION OF TEUSTS. [CH. X. But a trust cannot be engrafted on a deed absolute on its face, by parol evidence, through a direction given after its execution. Any trust, to be established by parol, must be with reference to facts or acts simultaneous with the deed, and a part of the same transaction. The acts constituting part performance, which will estop a party from insisting on the Statute of Frauds, which requires all trusts to be in writing, must be so clear, certain and definite in their object and design, as to refer exclusively to a complete and perfect agreement of which they are a part execution. The grantor of a deed containing covenants of warranty would be estopped from claiming a resulting trust in the premises conveyed, for his own benefit. So, also, where there is express declaration that a deed was made for the use of the grantee, for good and valuable consideration, there can be no resultiug trust to the grantor. Rathbun v. Rathbun, 6 Barb. 98. See further, as to parol evidence to create a trust, Title V, infra, " Implied and Resulting Trusts." Secret Trust.— The Revised Statutes also provide (§ 64), " When an express trust is created, but is not contained or declared in the conveyance to the trustees, such conveyance shall be deemed absolute as respects subsequent creditors or the trustees, not haying notice of the trust ; and as against purchasers from such trustees, without notice and for a valuable consideration." But such a trust may be valid, in se. Van Cott v. Prentice, 35 Hun, 317. Duration of the Trust Estate. — A trustee, or cestui qtte trust, would, before the Revised Statutes, take a fee with- out the word " heirs," when a less estate would not satisfy the object of the trust. The general rule is that a trust estate is not to con- tinue beyond the period required by the purposes of the trust ; and notwithstanding a devise to trustees and their heirs, they would take only a chattel interest, where the trust does not require an estate of higher quality; and the language used in creating the estate will be limited to the purpose of its creation. Selden v. Vermilyea, 3 Ooms. 535 ; 4 Kent, 233 ; Doe v. Considine, 6 Wall. 458; Fisher v. Fisher, 10 Johns. 505; Wright v. Miller, 4 Seld. 9. See also, p. 253, and pp. 260 to 363. TIT. III.] CREATION OF TRUSTS. 259 By the Revised Statutes, as seen above, p. 252, it is provided, that where the purposes for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease. As a general rule, where trustees are given power to take charge of and manage lands and pay over rents, a fee will he held conferred hy implication i also, generally, where it is necessary to carry out the intent of the creator of the trust, but only when so necessary. And by the Revised Statutes (§ 60, infra, Title IV), in the case of ex- press trusts, the whole estate is vested in the trustees, subject to the trust ; the beneficiaries are to have no other estate than the right to enforce the trust. Leggett V. Perkins, 2 Corns. 297 ; Manice v. Manice, 43 N. Y. 303 ; Vail V. Vail, 7 Barb. 226; a. 10 Barb. 69; Burke v. Valentine, 53 Barb. 412; Donovan v. Van De Mark, 78 N. T. 244. And see post, as to the nature of the estate given, Title IV. Trust Created without Knowledge of the Party. — A trust created for a person without his knowledge may be enforced by him ; the acceptance of the trust by the trus- tee creating a privity in law, provided, by the agreement, the party creating the trust transfer his entire interest in the fund, and transfer it for the entire benefit of the other. Weston V. Barker, 12 Johns. 276 ; Hosford v. Merwin, 5 Barb. 51 ; Sea- man V. Whitney, 24 Wend. 260 ; Martin v. Funk, 75 N. T. 134, 141. Vide post. Title V, "Resulting and Implied Trusts." Murdock v. Aikin, 29 Barb. 59. Declaration of trust by person in possession of property constitutes him, thenceforward, trustee of the same, if founded on a valuable or meritorious consideration. Neilly v. Neilly, 23 Hun, 651. Trust as to Realty in Another State.— Whether a trust created by a will, as to realty situated in another State, is valid or not, can only be determined by the courts of that State. As to the effect of the lex loci upon realty, see fully, ante, p. 96; and particularly as to trusts. Knox v. Jones, 47 N. T. 389. This case also holds that, although real and personal property be given by the same clause in a will, and upon the same trust, they are severable; and the validity of one ■will not depend upon that of the other. Therefore, if the testator were domiciled in this State at the time of his decease, the validity of the lequesti would be determined by the laws of this State, while the devises might be determined by those of another. 260 TRUSTS ALLOWED BY REVISED STATUTES. [CH. X. Title IV, Trusts allowed by the Revised Statutes. {See also Title IX, Miscellaneous.) The revision of the statutes of this State in 1830, made important changes in the law of trusts, and has enunciated the law applicable to them in a precise and definite code. Reference is made below to the sections of the statutes by their original numbers, as contained in part ii, ch. i, title ii, art. ii, of the said statutes. It has been seen above (ante, Title I), how, under the provisions of those statutes, beneficial interests through passive trusts in land, have been converted into legal estates, and passive or nominal trusts abolished. It now remains to be seen what other trusts are recognized by the statutes as valid. By the Revised Statutes, in the above article ii, it is provided as follows : " Uses and trusts, except as authorized and modified in this article, are abolished; and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this chapter." Section 55. "Express trusts may be created for any or either of the following purposes : Ist. To sell lands for the henefit of creditors. 2d. To sell, mortgage, or lease lands for the henefit of legatees, or for the pv/rpose of satisfying any cha/rge thereon.^'' The other two subdivisions of this section are consid- ered infra. A trust to sell lands to pay debts, ceases when the debts are, in any mode, paid or discharged or outlawed, and the whole legal and equitable title be- comes vested in the person entitled to the reversion or his assignees. Selden V. Vermilyea, 3 Corns. 535 ; Kip v. Hirsch, 18 Abb. N. C. 167. See ante, p. 253, Law of 1875, as to assignments to creditors. Where the trustees are not also empowered to receive the rents and profits, no estate vests in them. Boynton v. Hoyt, 1 Den. 53. If a trust is created for the payment of debts, and the assignees reconvey the real estate to the assignor before the debts are paid, such reconveyance is void as to all creditors whose debts are not paid ; and a recital that all TIT. IV.] TRUSTS ALLOWED BY REVISED STATUTES. 261 debts are paid, in the cooveyance, will not avail, even as to mortgagees with- out notice. Briggs v. Palmer, 20 Barb. 393. A trust to receive rents, etc., and apply them to the payment of debts, may be satisfied by a sale of the lands for a term of years, taking the whole rent in advance, and discharging the debts, and such a sale is not contrary to the statute. Rogers v. Tilley, 30 Barb. 630. A power to sell lands, and distribute the proceeds among those to whom the lands are derised, is not one of the purposes for which an express trust may be created. The sale, in that event, is for the benefit of devisees, not legatees. Lang v. Ropke, 5 Sandf. S. 0. 308. See further, as to the construction of the above (subdivision 1), Ch. XXXI, post, " Insolvent Assignments." The statute does not apply to an executory contract for the sale of land. Hazewell v. Couisen, 36 Super. 459. 3d. To receive the rents and profits of lomd, and apply them to the use of any person during the life of such per- son, or for any shorter term (subject to the rules pre- scribed in the article relative to the creation and division of estates). Instead of the word " use " in the above subd. 3, the subdivision origi- nally read, until changed by Law of April 20, 1830, ch. 330, p. 384, ^ Ho the education arid swpport or either.''^ A trust to apply rents to the use of a man's "family" would be valid. Rogers v. Tilley, 30 Barb. 639. A trust not authorizing the trustee to take possession or receive the profits, and not imposing any active duty on him, is void. Jarvis v. Bab- cock, 5 Barb. 139. Under this head an express trust may be created to receive rents and pay annuities. Mason v. Jones, 3 Barb. 329; Kane v. Gott, 34 Wend. 641. A trust to receive rents, and pay certain annuities for a prescribed term to two annuitants, if they should so long live, is a valid trust. McCosker v. Brady, 1 Barb. Ch. 339 ; affi'd, 1 N. Y. 314. A trust to manage and dispose of land and pay over the income thereof to a person for his support and maintenance, would be valid, within the above provision. Campbell v. Low, 9 Barb. 585. But see Heermans v. Rob- ertson, 64 N. Y. 333. A direction to hold and control property, and then to pay over, creates no estate in the trustees. Burke v. Valentine, 53 Barb. 412. A trust to apply rents during the lives of two persons, not the benefi- ciaries in the trust, held valid. Bailey v. Bailey, 97 N. Y. 460. A devise to apply rents and profits to beneficiaries for a term of years, the lands then to be sold, would be void, as unduly suspending alienation. Beekman v. Bonsor, 33 N. Y. 398. A devise to executors to apply moneys of an estate to the support of a family, until the widow's decease or to a certain day ; and thereafter that the executors should apply them to the support of testator's family, would be a valid trust until the appointed day, if the widow live so long. The further provision over would be void as tying up the estate beyond two lives in being. DeKay v. Irving, 5 Den. 646. And see fully as to trusts under the above subdivision unduly suspending alienation, ante, Ch IX, Title IV. A trust to purchase a farm " for the benefit " of nephews and nieces held good. Beekman v. Bonsor, 38 N. Y. 398. The rents, etc., may be directed to be "paid over" instead of " applied." 262 TEUSTS ALLOWED BY KEVISEB STATDTES. [CH. X. Such a trust . is held an active trust. Kane v. Gott, 7 Paige, 521 ; affirmed, 24 "Wend. 64] ; Leggett v. Perkins, 2 Corns. 296. When trustees are given power to take charge of, manage and improve lands, and pay over the rents, a fee will be held conferred by implication ; also generally, where it is necessary to carry out the intent of a testator, but not further than is necessary to carry out that intent. Leggett v. Perkins, 2 Corns. 297 ; Manice v. Manice, 43 N. T. 303 ; Vail v. Vail, 7 Barb. 226 ; 10 Barb. 69. See also Burke v. Valentine, 53 Barb. 413, and section 60 of the Revised Statutes, infra. A trust created by a husband for the support and maintenance of his wife is a valid trust. Calkins v. Long, 22 Barb. 97. The case of Coster v. Lorillard, in the court of errors (14 Wend. 265), holds that a devise to A and twelve nephews in trust, to pay over and divide profits among the twelve nephews during their natural lives, and to the sur- vivors, is a void trust. This case was decided on the principle that as the estate was inalienable, either by the trustees or the cestuis during the twelve lives, the trust was void. That the trust was also invalid as a power in trust, as it was to be executed by the grantee of the trust for his own benefit, mde title " Powers." Some of the court were of opinion that the trust was void as it directed a "paying over" instead of an " application" of the proceeds according to the strict words of the statute. By the Revised Statutes a devise to executors to sell or mortgage with- out power to collect the rents and profits is not a trust estate, but a power only. Vide 'post. In considering the above subdivision, the provisions of the Revised Stat- utes against perpetuities will have to be applied. Ante, Ch. IX, Title IV. And see, as to the estate of the trustees, infra, and ante, p. 354. Where land was conveyed to A. in trust for others, with power to sell, etc., Tidbendum "to the party of the second part, their heirs, etc., it was held no trust, but a power. Syracuse Sav. Bk. v. Porter, 36 Hun, 168. Another class of trusts allowed by the Revised Statutes is as follows : 4th. "To receive the rents and profits of lands., and to accumulate the same for the purposes and within the limits prescribed in the first article of this title." As to the validity of accumulations under this subdivision, vide ante, Ch. IX, Title V. Duration.— In all the above cases, the whole estate in law and equity is vested in the trustee, but no longer than the purposes of the trust require ; then it reverts or vests as provided. 1st. Rev. Stat. pp. 729, 730, let. ed. §§ 60, 62, 67. Trusts must be Active.— To render a trust as to the rents and profits of real estate valid, under the above sub- divisions, it is not only necessary that the trustee should be autborized to receive the rents and profits, but that he TIT. IV. 1 TRUSTS ALLOWED BY KEVISBD STATUTES. 263 should be also empowered to apply the same, and a power to receive will be implied from a power to apply. Vernon v. Vernon, 53 N. T. 351. Trusts also in a deed, permitting the grantors or others to remain in possession, and receive rents, etc., of real estate, are void, if the trustees are not authorized to re- ceive the rents and profits, notwithstanding they might be required to take care that the rents and profits are prop- erly applied. These rules are based upon the principle that as the trust imposes no active duty on the trustee, it is a mere formal trust, and no estate legal or equitable is vested in him. So, also, a devise of the rents and profits of lands, if there is nothing more in the will to show that the testa- tor meant to create a valid trust, would be but another mode of making a devise of the land itself, during the prescribed period ; and the legatee would take the legal estate, inasmuch, as has been seen above, mere passive trusts are no longer allowed; but beneficial interests in lands are converted into fees, where the trusts are merely nominal. Vide Craig v. Craig, 3 Barb. Ch. 76 ; Wood v. Wood, 5 Pai. 596 ; Jarvis v. Babcock, 5 Barb. 139 ; Vernon v. Vernon, 53 N. Y. 351 ; Syracuse Savings B'k V. Holden, 105 N. Y. 415; Helck v. Reinheimer, ■ibid. 470; and see ante, Ch. IX. The Estate of the Trustees.— The Eevised Statutes also provide as follows : — § 60. " Every express trust valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose bene- fit the trust is created, shall take no estate or interest in the land, but may enforce the performpnce of the trust in equity." The trustees are seized of such an estate as will authorize them to bring ejectment. McLean v. McDonald, 3 Barb. 534. Where the trustee has authority to receive the rents and profits, the cestui has no estate or interest in the lands, or in their future income upon which he 264 TKUSTS ALLOWED BY EEVISEU STATUTES. [CH. X. can create a lien or charge, for the purpose of protecting the estate or for any purpose. The trustee may have a lien upon it for charges incurred for its protection. Noyes v. Blakeman, 3 Seld. (6 N. Y.) 567; see also Leggett V. Perkins, 2 Corns. 297 ; Vail v. Vail, 7 Barb. 236 ; Burke v. Valentine, 63 Barb. 412. A general devise to executors in trust vests no estate in them, except for such of the declared purposes as require that the title be vested in them. Manice v. Manice, 43 N. Y. 803. And see anU, pp. 353, 359, 263. A trustee takes whatever estate is necessary for the execution of his trust. Bennet v. Garlock, 79 N. Y. 302. Transfer by Creator of the Trust, subject to the Trust. — § 61. "The preceding section shall not prevent any person creating a trust, from declaring to whom the lands to which the trust relates, shall belong in the event of the failure, or termination of the trust; nor shall it prevent him from granting or devising such lands subject to the execution of the trust. Every such grantee or devisee shall have a legal estate in the lands, as against all persons, except the trustees and those lawfully claiming under them." Reverter.— § 62, Where an express trust is created, every estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to the person creating the trust, or his heirs, as a legal estate. Certain devises in trust declared Powers.— § 56. By Re- vised Statutes, " a devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs or pass to the devisees of the testator, subject to the execu- tion of the power." See more fully as to " Powers, "^osi, Ch. XII. Trusts may take effect as Powers.— § 58. " Where an express trust shall be created for any purpose not enumer- ated in the preceding sections (of the article), no estate shall vest in the trustees ; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a TIT. IV.j TBUSTS ALLOWED BY KEVISBD STATDTBS. 265 power in trust, subject to the provisions in relation to such powers contained in the third article of this title." Heermans v. Robertson, 64 N. Y. 332. As to what are Powers in Trust, vide, post, Ch. xii Powers in Trust. — § 59. " In every case where the trust (not being an express trust) shall be valid as a power, the lands to which the trust relates shall remain or descend to the person otherwise entitled, subject to the execution of the trust as a power." An executor does not take by implication an estate in the lands of the testator, when all the duties enjoined upon him by the will in regard to the lands can be discharged under a power. Especially where by construing the will to give the executor an estate, the devise will be void, on account of its suspending for too long a period the power of alienation. Vide Tucker v. Tucker, 1 Seld. (5 N. Y.) 408. A power in trust is defined as a mere authority or right to limit a use, while a trust estate is an estate or interest in the subject-matter of the trust. A trustee is invested with the legal estate, but this is not necessary with respect to the donee of the power. The definition by the Revised Statutes of a power in trust, and the char- acteristics of such powers, are fully given in a subsequent chapter treating of them. (Chap. XII.) In the case of the Farmers' Loan & T. Co. v. Carroll, 5 Barb. 613, it is held that there can be no valid power in trust without an appointee or beneficiary designated other than the donee of the power. Nor can an invalid trust be sustained as a power if the legal estate is nec- essary. Bailey v. Bailey, 28 Hun, 603. The Superior Court of the city of New York, in 1852, when investigating the law of trusts in connection with statutory changes in the case of Lang v. Ropke (5 Sandf. S. C. 363), held that the Revised Statutes have imposed no limitation whatever upon the creation of trusts, and that a valid trust may be now created for any and every purpose for which it might have been cre- ated before the Revised Statutes were adopted. That the only changes operated by the Revised Statutes are the abolition of passive trusts, and the limitation of express trusts, i. e., of trusts which pass an estate as well as grant an authority, but that these changes have neither abridged the real power of the owner of lands in the creation of trusts nor the jurisdiction of equity in compelling their execution. Therefore, the court determined, that, where there is no illegal suspense of the power of alienation, the real intention of the party creating the trust will, in all cases, be carried into effect, and consequently, where the trust is active, the courts would construe it as a power in trust, if it could not take effect as an express trust. Where the trust is passive, however, the statute executes the intention of the party by giving to the cestui que trust a legal estate. The principles of this decision are based upon a view of the provisions of the Revised Statutes with relation to " Powers," in connection with those rel- 266 TKDSTS ALLOWED BY JREVISED STATUTES. [OH. X. ative to trusts. It will be observed, from a perusal of the succeeding chap- ter, that no restriction whatever is imposed on the creation of powers in trust, and that a trustee may be authorized to perform any act in relation to lands, or the creation of estates therein, which the owner granting the power might himself lawfully perform. Therefore, although the attempted trans- fer of an estate in trust might not, under statutory provisions, be effectual, and the grant or devise, as passing an estate, might be void, the trust, in its substance and reality, may be preserved, and its execution enforced, by the same means, and with the same certainty as if the title to the lands had been vested in the trustee, as well as a power of disposition. The intention of the testator or grantor is thereby carried out, by the court considering the trust to be valid as a power in trust. According to this principle of construction, the powers and duties of the trustee, and the rights and remedies of the cestui que trust (except the vesting of the estate), are considered the same as if the Revised Statutes relative to trusts had not been passed, and courts of equity have the same powers in com- pelliog the execution of trusts, when not against express statutory provisions, as before the passage of the above statutes. The views, in the case of Lang v. Ropke, were sustained in the subse- quent ease of Lang v. Wilbraham, 3 Duer, 171. In the subsequent case of Selden v. Vermilyea, also, the Court of Appeals holds that if an express trust is created for a purpose not enumerated in the statute, no estate vests in the trustees, but the power continues, and may be exercised in the performance of any act directed or authorized by the trust which may lawfully be performed under a power. 3 Coms. 535. See also, N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 174; Downing v. Marshall, 33 N. Y. 866 ; McGrath v. Stavoren, 8 Daly, 454. It has been observed by Judge Oomstock, on the subject of the virtual continuance of trusts under the name of powers beyond the restrictive classes of trusts enumerated by statute, that it would seem that the principal result of the statute restricting trusts is to withdraw from the trustee the legal estate, although expressly granted to him, in all cases except the specially permitted trusts, but leaving the limitation in full force as a power, if the purpose is lawful, and the laws of perpetuity ai-e not transcended. The intended trustee may do under the power whatever he might have done if the statute had suffered the legal estate to vest in him, subject, in many cases, however, to the inconveuience of having an estate to manage or pro- tect without the title, which remains in the author of the limitation, or de- scends to his heirs. In the case of Downing v. Marshall (38 N. Y. 866), the court also holds that while the provisions of the Revised Statutes wholly abrogated trust estates of a character purely passive, which might exist in various forms not- withstanding the statute of uses, and abolished all express trusts, i. e., legal estates impressed with trust duties and powers (except those enumerated), there was no attempt to limit or define the acts which might be done under a trust power, and, in that respect, that the law, as it stood before the Revised Statutes, was unchanged. Under the views expressed as above, therefore, trust limitations, if active, although not belonging to the class of permitted trust estates, if not other- wise unlawful, may be effectual and take effect as powers in trust, leaving the title in the donor or his heirs subject to the power. If of a passive character the use becomes executed by the title vesting in the beneficiary. Thus, the revision of the statutes in abrogating all active trusts, except the few particularly specified, has apparently re-animated them under the name of powers, which are left without restriction, provided the purpose of the limitation or power be in itself a lawful one. The statutes also enunciate a code on the subject of powers, but make no attempt to enumerate or define the lawful occasion for creating a power. TIT. IV.] TRUSTS ALLOWED BY REVISED STATUTES. 267 To illustrate the above distinctions the following case may be cited: A trust for the use of infant chihlren and their heirs and assigns forever, to be held for the benefit, and used and expended for the support, mainte- nance and education of such children, and every of them, was held void as an express trust, as not being within any of the permitted classes; but valid as a power in trust. It was determined that the legal title vested in the trustee only during the minority of the infants, and that the estate of trustee ceased as to each cestui que trust upon their arriving at age. Stenicker v. Dickinson, 9 Barb. 518. A trust also to sell lands and divide the proceeds among the cestuis que trust, as beneficiary owners, and not as creditors, is void as a trust but valid as a power might be. 3 Coms. 525 ; reversing Selden v. Vermilyea, 1 Barb. 58. In the case of Lang v. Ropke, supra (5 Sandf. S. C. 363), it was held that it was no objection to a power in trust that it is granted for the same purpose for which an express trust is authorized. In the case of Hawley v. James (16 Wend. 61), Judge Bronson, on the contrary, states that an express trust can be valid as a power in trust only when it is created for a purpose not enumerated as the proper subject of an express trust. See also, Selden v. Vermilyea, supra. Where a trust to executors to lease real estate of the testator, until it can be sold, would have tbe effect to suspend the power of alienation in such real estate beyond the time allowed by law, it is void. But the power in trust, in such a case, might still be valid. Haxtun v. Corse, 3 Barb. Ch. 506. Powers in Trust Assignable.— Where an express trust is attempted to be created for purposes other than those above enumerated (viz., § 55, suprob), the conveyance if valid at all is valid as a power in trust only. It gives the cestwi que trust no estate or interest in the land, but the land will be held and continued in whosoever hands, otherwise entitled, it may come, subject to the execution of the trust as a power. His right is considered a vested right to enforce the execution of the trust in his favor in a court of equity, and it is an assignable interest, and the assignee can enforce the execution of the trust power in equity as could the person for whose benefit the power was created. See Clark v. Orego, 47 Barb. 599 ; affi'd, 51 N. Y. 646. Law of Domicil as to Trusts.— The law of a testator's domicil governs the disposition of his personal property, and his real estate which is situate where he is domiciled. If, therefore, a testator were a resident of the State of New York at the time of his decease, and by his will directs his personal property and the proceeds of his real estate 268 TRUSTS ALLOWED BY BEVISED STATUTES. [CH. X. situate there, to be invested in real estate in the State of Ohio upon trusts which are invalid by the laws of New York, these devises in trust would be invalid, as incon- sistent with the law of domicil. As to estates in realty, instruments creating or transferring them are to be con- strued according to the " lex loci," as has been fully con- sidered in a preceding chapter. Vide ante, Oh. IV, Title I, as to the regulation of the disposition of realty according to the lex loci. Future or Contingent Interests in Trust.— Future and contingent or shifting limitations of real estate, even in favor of unascertained persons, may still be created under the Revised Statutes in certain cases. If the person primarily designated die during a trust term lawfully constituted, in respect to its duration, the use permits the trust to be shifted to some other benefi- ciaiy, and it is not necessary that such person should be in existence or known at the time of creating the trust. The law, for example, will allow a succession to an interest in rents and profits to be made in favor of the unborn issue of a child who may die before the time which the author of such a trust has lawfully prescribed for its ter- mination. Oilman v. Reddington, 34 N. Y. 9 ; Harrison v. Harrison, 36 N. Y. 543. Trusts as Affecting Mortgages. — ^The Revised Statutes regulating trusts in real property have no application to a security by mortgage. A mortgage in fee of lands, therefore, made to a person in trust for the payment of several bonds of the mortgagor, held by different indi- viduals, is not affected by these statutes, and is therefore valid. This view is based upon the fact that a mortgage is a lien upon, and not a title in or to lands, and the interest of the mortgagee is a mere chattel interest. King V. The Merchta. Ex. Ins. Co. 1 Seld. (5 N. Y.) 547. Trusts Upheld in Part.— Although void limitations are embraced in a trust it may be upheld as to others. TIT. IV.] TRUSTS ALTjOWED BY REVISED STATUTES. 269 The principle is now well settled that courts lean in favor of the preservation of all such valid parts of a trust, especially one created by will, as can be separated from those that are invalid, without defeating the general intent of the testator. By the more enlarged view recently taken of trusts, also by the courts of this State, and their desire to carry out the legal doctrine that instruments and con- tracts are to be so construed, ut res magia valeat qvmn- perea% the above principle of upholding valid provisions of a trust is carried out, even if those which are valid and invalid are embraced in a single trust ; and a single trust created for two purposes, one lawful and the other unlaw- ful, will be held good for the lawful purpose, although void for the other. In the case of Darling v. Rogers (33 Wend. 483), the trust was single, i.e., to sell or mortgage the assigned estate for the benefit of creditors, and it was held to be a good and valid trust to sell but void as a trust to mortgage. The trust, in Haxton v. Corse, was the case of a single trust for two purposes, viz., to lease and sell, one lawful and the other unlawful, and the trust to sell was declared to be valid while the other was held to be void. In Sav- age V. Burnham, the trust was a single trust embracing both lawful and un- lawful purposes, and it was sustained as to the lawful purpose, while, for the unlawful purpose, it was adjudged void. And the same rule was recognized and applied in Gilman v. Eeddington, Post v. Hover, and Everett v. Everett, infra. If, however, the valid trusts are so involved with and dependent upon the illegal and void ones, that it is im- possible to sustain the one without giving effect to the other ; in short, if the whole scheme of the creator of the trust is indivisible, so that it must wholly stand or wholly fail, then the whole trust will fall. Savage v. Burnham, 17 N. T. 561 : Buckley v. Depeyster, 36 Wend. 1 ; Gilman v. Reddington, 34 N. Y. 9; Post v. Hover, 33 N. Y. 593; 30 Barb. 313; Gott V. Cook, 7 Paige, 531 ; 24 Wend. 641 ; DePeyster v. Clendening. 8 Paige, 395 ; VanVechten v. VanVechten, 8 Paige, 130 ; Everett v. Everett, 39 N Y. 99 ; Amory v. Lord, 5 Seld. 403 ; Harrison v. Harrison, 36 N. Y. 543 ; Tucker v. Tucker, 5 Barb. 99 ; affi'd, 5 N. Y. 408 ; Harris v. Clark, 3 Sel. (7 N. Y.) 343; Coster v. Lorillard, 14 Wend. 36; Manice v. Manice, 43 N. Y. 303; Levy V. Levy, 33 N. Y. 97 ; Adams v. Perry, 43 N. Y. 587 ; Van Schruyver v. Mulford, 59 N. Y. 436. In certain cases bequests have been upheld where there is an illegal direc- tion connected with them, the direction only being held void. Williams v. Williams, 4 Seld. 525; Darling v. Rogers, 32 Wend. 488; overruling 7 Paige, 273; Goodhue v. Berrien, 3 Sandf. Ch. 630. In a deed if any of the trusts therein are valid, the deed is not void ; a 270 IMPLIED AND BESULTIKG TRUSTS. [OH. X. single good trust is sufficient to sustain it, and an estate is vested in the trustees to the extent of the valid trusts, leaving the residue of the estate in the grantor. Kogers v. Tilley, 20 Barb. 639; Woodgate v. Fleet, 44 N. Y. 1. "Where the trusts can be separated, a conveyance of real estate upon trusts, some of which are valid while others are inoperative, vests an interest in the trustees, to the extent of the valid trusts, leaving the residue of the estate in the grantor. Woodgate v. Fleet, 44 N. T. 1. In the case ol Knox v. Jones, 47 N. T. 389, it is held that a void trust ■which is separable from other valid trusts, and is not an essential part of the general scheme, may be cut off, but where the trust is an entirety it cannot be sustained in part and avoided in part. Knox v. Jones, 47 N. Y. 389; Clemens v. Clemens, 60 Barb. 366. The case of Manice v. Manice, 43 N. Y. 805, holds that a void trust ■which, is separable from other valid trusts, may be cut oflf where the trust thus defeated is independent and not an essential part of the general scheme. See also, Adams v. Perry, 43 N. Y. 487. But when its invalidity will affect the general scheme, none of the trusts will be carried out. Holmes v. Mead, 53 N. Y. 333. Suspension of the Power of Alienation through Trusts. — The subject of trusts is so intimately connected with that of expectant estates that the provisions of statute relative to the latter will have to be continually referred to and applied in connection with trusts. See fully as to expectant estates and suspension of alienation, ante, Ch. XI. Title V. Implied and REStrLTiNG Trusts. (See also. Title IX, Miscellaneous.) Apart from the trusts as above authorized, courts of equity will regard and enforce trusts arising and implied in law, in a variety of other cases, when substantial justice cannot be otherwise obtained, and the rights of third per- sons would be prejudiced or frauds would be perpetrated in cases where no suitable redress could be obtained without equitable interposition. Such trusts are pre- sumed and implied from the manifest intentions of the parties or the n,ature and justice of the case. These trusts arise, not by deed, but by construction of law; and are, as it were, creatures of equity, and are raised without the statute requiring trusts to be in writing. TIT. v.] IMPLIED AlilD EESULTING TRUSTS, 271 The establishment and enforcement of trusts of this description is one of the original and inherent powers of courts of equity. The number and character of such trusts are as varied and extensive as the phases of human dealing. Their consideration falls under the peculiar province of works treating of equity jurisprudence; and only those of a certain character, which are made the subject of statutory enactment, can be here reviewed. Previous to the revision of our statutes, when land was purchased in the name of one, with the money of another, save in a few exceptional cases, the law declared a trust in favor of the party paying the consideration, which was termed a resulting trust. The Kevised Stat- utes, however, provide (§51 of the Chapter on Trusts) that, on a grant to one, for valuable consideration, paid by another, no use or trust results in favor of the latter. § 52. "Every such conveyance shall be presumed fraudulent as against the creditors at that time of the per- son paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that shall be necessary to satisfy their just demands." § 53. "The provisions of the preceding 51st section shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance, in his own name, without the consent or knowledge of the person paying the consideration ; or where such alienee, in violation of some trust, shall have purchased the lands so conveyed with moneys belonging to another person." § 54. " No implied or resulting trust shall be alleged or established to defeat or prejudice the title of a pur- chaser for a valuable consideration and without notice of such trust." Although the purchase and conveyance were made with an actual intent to defraud, by the person paying the money, the trust in favor of his then creditors prevails over the title of one who takes a conveyance from the grantee unless he obtain It for a valuable consideration, and without notice ; 272 IMPLIED AND EESULTING TRUSTS. [OH. X. and would prevail over a subsequent creditor who had obtained a mortgage on the land. Lounsbury v. Purdy, 16 Barb. 376; 18 N. Y. 515; Wood v. Robinson, 23 N. Y. 564. Under the above provisions of the Revised Statutes all trusts in land paid for by one person, where the con- veyance is given to another, whether for the benefit of the party paying the money or for another, are abolished ; and the title is vested in the alienee absolutely, excepting where the conveyance is so taken without the knowledge or consent of the party whose money is used, and except- ing also the trusts in favor of creditors, which can only be enforced in equity. Gilbert v. Gilbert, 34 How. Pr. 142 (Court of Appeals) ; Garfield v. Hat- maker, 15 N. Y. 475 ; overruling 4 Den. 475 ; Wood v. Kobinson, 23 N. Y. 564; Norton v. Stone, 8 Paige, 223; Moore v. Livingston, 14 How. Pr. 1. Where a wife takes title to lands bought with joint funds of herself and husband, no trust to him results. Schmidt v. Schmidt, 48 Super. 530. The resulting trusts sought to be prohibited by the statute, it is held, have reference to trusts created by acts of parties claiming to establish the trust, and the statute is applicable when the conveyance, with the consent or knowledge of the person paying tbe consideration, is taken in the name of another person. The object of the legislature was to prevent the crea- tion of passive or formal trusts ; and hence, under the 53d section, the provisions of the 51st section are not to apply to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the consent or knowledge of the person paying the consideration. Such trusts arising or resulting by implication of law, have been left untouched by the legislature. They arise from the obvious intention of the parties though not ex- pressed in the instrument with which they are connected, or they are forced upon the conscience of the courts by the manifest justice of the case. Where the justice of the case demands it also in equity, parol evidence may be given to show the intention TIT. v.] IMPLIED AND EBSULTING TRUSTS. 273 of parties to a deed; and then effect may be given to such intention as an implied trust. And when the plaintiff's case rests upon fraud, such fraud may always be proved by parol ; even to avoid the Statute of Frauds. Hosford V. Mer-win, 5 Barb. 61 ; Reid v. Fitch, 11 Barb. 899; Botsford v. Burr, 2 Johns. Ch. 405 ; Voorhees v. Presbyterian Church, 8 Barb. 135 ; Wil- link V. Vanderveer, 1 Barb. 399 ; Buffalo, N. Y. & E. R. Co. v. Lansing, 47 Barb. 584 ; Saffbrd v. Hynds, 39 Barb. 625 ; Jackson v. Mills, 18 Johns. 483 ; Lounsbury v. Purdy, 18 N. T. 515 ; Boyd v. McLean, 1 Johns. Ch. 582 ; Foote V. Colvin, 3 Johns. 216 ; Ciperly v. Giperly, 4 N. T. S. C. R. 342; Bit- ter V. Jones, 28 Hun, 492 ; Bobbins v. Robbins, 89 N. T. 251. These cases also maintain the principles relative to resulting trusts, above set forth. Where a deed, however, has been executed pursuant to a written agree- ment between the parties, parol evidence is inadmissible to show a resulting trust. St. John v. Benedict, 6 Johns. Ch. 111. And see m-pva, p. 257, as to parol evidence. When there is a resulting trust under a conveyance it must arise, if at all, at the time of the execution of the deed. Bottsford v. Burr, 2 Jehns. Ch. 405; Jackson v. Seelye, 16 Johns. 197 ; Rogers v. Murray, 16 Johns. 390. Where a partner takes lands for the firm in his own name there is a re- sulting trust. Fairchild v. Fairohild, 5 Hun, 407 ; affirmed, 64 N. T. 471. It is also held by our courts that the statutory regu- lations do not, even in cases not expressly excepted by them, entirely govern ; but that, in many instances, based upon equitable and moral considerations, the common law rules as to resulting trusts in favor of him who pays the purchase-money on a conveyance being made to another, will regulate the rights of the parties. The language of the statute, accordingly, declaring that, where a grant for a valuable consideration shall be made to one person and the consider- ation therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, is not necessarily pro- hibitory of a resulting trust for the benefit of a third person in whose favor, for family or other lawful and sufficient reasons, it is deemed proper to make some provision ; nor where, for the benefit of a corporation, land has been taken in the name of a director thereof, vnthout the direction or knowledge of the corporation. Wait v. Day, 4 Denio, 439; Siemon v. Austin, 29 N.y. 598; affirming, 33 Barb. 9; The Buff'alo, N. Y. •& E. B. Co. v. Lampson, 47 Barb. 533 ; Morton v. Mallory, 63 N. Y. 434 ; Gilbert v. Gilbert, 2 Abb. App. Cas. 256. If a parent buy and pay for land, and has the deed thereof made to a child, the inference of law is that it is an advancement to the child, and not a resulting trust in favor of the father. It is always competent, however, t« meet and repel such inference by proof that the parent did not intend such advancement. Such a conveyance, if so intended, would be effectual and absolute as be- tween the parties, and could not be revoked by the grantor. If intended as a cover, in fraud of creditors, the conveyance would likewise bS absolute as between the child and the father, and those claiming under him. Welt ; 18 274 IMPLIED A2osJ. Disclaimer by Trustee.— Where one of two trustees disclaimed acting as trustee, by an answer in chancery 284 THE TRUSTEE. [CH. X. in another State ; it was held that his subsequent death without ever assuming the trust, or claiming a right to act, made valid that disclaimer, and vested all the estate in the surviving trustee. Clemens v. Clemens, 60 Barb. 366. Trustees as Joint Tenants.— The Revised Statutes pro- vide (vol. i, p. 727, § 44) that every estate vested in exec- utors or trustees, as such, shall be held by them in joint tmcmcy. The power and interest of co-trustees being equal and undivided, and their duties being more or less those of confidence and discretion, they must act jointly unless in acts of a mere ministerial nature, except the will authorizes a majority to act. 2 Leading Cases in Equity, pp. 11-306; Hill on Trustees, 2d Am. ed! 436; Lorillard v. Coster, 5 Paige, 172 ; 14 Wend. 267 ; Sinclair t. Jackson, 8 Cow. 543 ; Crane v. Decker, 22 Hun, 452. Their Joint Action. — They must join in receipts and conveyances, and re- leases (Bidgeley v. Johnson, 11 Barb. S27) ; and in releases or transfers of really (Van Rensselaer v. Akin, 22 Wend. 549; Hertell v. Bogert, 8 Edw. 20; 9 Paige, 52) ; reversed on the ground that the executors acted as executors and not as trustees. 4 Hill, 492. They must unite in bringing actions. Thatcher v. Candee, 4 Abb. App. Cas. 887. One may confirm and recognize the acts of the other however. Van Rensselaer v. Akin, 22 Wend. 549. See also, The Trustees, &c. v. Stewart, 27 Barb. 553. See also, " Satisfac- tion of Mortgages," i)M«, Ch. XXIII; also "Powers," Ch. XII ;" Powers of Executors, etc.," Ch. XVII. One trustee may discharge a mortgage where his co-trustee has long been absent abroad. People ex rel. Adams v. Sigel, 46 How. Pr. 151. Delegation of Powers and Transfer of Trust. — A trus- tee cannot delegate his powers or transfer his trust ; and the vested interest of a cestui que trust cannot be impaired or destroyed by the voluntary act of the trustee, but the t/rust will follow the Icmd in the hands of the p&rson to whom it has been conveyed, in the knowledge of the trust. Shepherd v. McBvers, 4 Johns. Ch. 136. Dealings with Trust Property.— -The trustee cannot pur- chase or deal in the trust property, in his own behalf, or for his own benefit directly or indirectly, even under a judicial sale under a title superior to that of the trust. Sternicker v. Dickinson, 9 Barb. 516 ; Abbott v. American H. R. Co. 83 TIT. VII.] THE TRUSTEE. 285 Barb. 579; Conger v. Ring, 11 id. 356; Ackerman v. Emott, 4 Barb. 636; Jewitt V. Miller, 6 Seld, 402; Dodge v. Stevens, 94 N. Y. 209; Hubbell V. Medbury, 53 N. T. 98 ; Hoyle v. P. & M. K. R. Co. 54 N. Y. 314 ; People v. ' Merchants' B'k, 35 Hun, 97 ; People v. Open Board, &c., 93 N. Y. 98; Mun- son V. S. G. & C. R. R. Co. 108 N. Y. 58. The purchase would not be absolutely void, ah origins, but would become so by action in equity, and the cestui que trust, if of age, might sanction the sale, and make it effectual. Harrington v. Erie Co. Svgs. Bk. 101 N. Y. 357 ; Bostwick v. Atkins, 3 Corns. 53 ; Boerum v. Schenck, 41 N. Y. 183. The ceslmi must move within a reasonable time to avoid it. 66 Barb. 215. Equity would set it aside even against a purchaser unless he could show he had no notice. Woodruff v. Cook, 2 Edw. 359. Neither can agents or trustees of a corporation, nor its officers, sell the property of the corporation to themselves. Abbott V. Am. Hard. Co., 33 Barb. 578. Such a sale and conveyance to a trustee is capable of confirmation by the express act of the cestui que trust, • by acquiescence, and by lapse of time ; and a title acquired by a subsequent purchaser, in good faith and without notice, will be valid. Such sales are not void but void- able only at the instance of the cesinii que trust alone. Johnson v. Bennett, 39 Barb. 337; Dodge v. Stevens, 94 N. Y. 209; Har- rington V. Erie Co. Sav. Bk. 101 N. Y. 257. A transfer of trust property without consideration would be void. The Wardens, &c. v. The Rector, &c., 45 Barb. 356. Sale by. — Where the trustee is directed by the court to give a certain notice on selling, a sale without the notice would be valid as to the purchaser, but the trustee would be liable for any deficiency. Minuse v. Cox, 5 Johns. Ch. 41. A trustee's deed would be good although made by him as an individual, Bradstreet v. Clark, 12 Wend. 603. Outstanding Title. — A trustee will not be allowed to purchase an outstanding title for his own benefit, Kellogg V. Wood, 4 Paige, 578. A trustee tmder a mortgage cannot take an assignment of a bid on fore- closure and a deed from the referee. Toole v. McKiernan, 48 Super, 163. 286 THE XETJSTEB. [CH. X. Trustees of a Power.— As to trustees of a power, vide post, Ch. XII. Those sentenced to Imprisonment.— Forfeiture of trusts by, vide ante, p. 95. Married Woman.— A married woman may act as trustee. The People v. Webster, 10 Wend. 554. Insane Trustees.— Their committee may be compelled to convey. Co. 'Civ. Proc. §§ 3345, 2351, superseding 2 B. S. 55, § 20, which was re- pealed by L. 1880, c. 245. Infant Trustees.— Vide post, Ch. XXV. Infants holding lands as trustees or mortgagees may be compelled by the Supreme Court to convey them as directed, and the conveyance shall be valid. Co. Civ. Proc. § 2345; 1 R. L. 148; 2 R. S. 1st ed. 194; 44 N. T. 279; 11 N. T. 561 ; 6 Barb. 499; 2 Ed. 416; 4 Johns. 378; 38 Barb. 480. Enforcement of the Performances of Trusts.— A gen- eral power in trusts, the execution or non-performance 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. Arnold v. Gilbert, 5 Barb. 190; and vide post, Ch. XII, " Powers." Change of Trustees and Execution of Trusts through Legislative Acts.— As to these vide fully, post, Title IX. It is held that it is competent for the legislature to dispose of the interests of infants, and of persons not in esse, and to declare that a deed executed by a portion of the trustees named in a will shall be suflBcient to convey the entire estate. Jn re Bull, 45 Barb. 334; iS. 31 How. 69. TIT.Vm.] TRUSTS FOB CHABITABLE USES. 287 Title VIII. Teusts fob Chaeitable Uses. (&« also Title IX, Miscellaneous.) The law with reference to uses and trusts created for purposes of a religious or charitable nature has been the subject of extended discussion in the legal tribunals of this State. The c'ourts have endeavored to uphold such trusts, even when opposed to statutory enactments ; and the long range of cases on the subject exhibits a curious instance of vary- ing opinion in the judicial mind ; and finally, of the entire reversal of the decisions of the highest court in the State on the subject, and the many cases that were sustained by or followed them, by 'subsequent decisions of the same tribunal. It was for a long time considered, by the courts of this State, that the law relative to such trusts was of a special character, under a peculiar equitable cognizance and juris- diction, and, as such, excepted frona the general provisions of statute abolishing uses and trusts, except as specially provided. It was also considered that, notwithstanding the stat- utory prohibition against devises of lands to corporations, a devise of a charity not directly to a corporation, but in trust for a charitable corporation, would be good. According to the English law, based upon certain pre- rogatives of the crown and the statute of 43 Elizabeth, ch. 4, the Court of Chancery, in England, exercised a cer- tain peculiar jurisdiction over charitable 'trusts, in deter- mining and applying gifts to charity, where the donor had failed to define them, and in framing schemes of approxi- mation near to or remote from the donor's true design. Where, therefore, there was a gift for a general and indefi- nite charitable purpose, either the king, under his sign manual, or the court representing him, disposed of the subject donated. The statute of Elizabeth was repealed by the State 288 TRUSTS FOR CHARITABLE USES. [OH. X. legislature, in 1788, and the prerogative of the Crown had, of course, no effect in this State; but the powers and jurisdiction of the English Court of Chancery, as they existed in England at the time of the Revolution, were supposed to have followed and remained with courts of equity in this State; and the law of charities, it was claimed, independent of the statute of Elizabeth, was in force prior to that statute, and contiaued' after its abolition. In the consideration of this subject by the courts of this country, it was, however, determined that the English doctrine with respect to charitable trusts, as it existed at the time of the Revolution, according to the common law, irrespective of statutory enactment, was only to be con- sidered in force here so far as it was applicable to our circumstances and conformable to our institutions, and not repugnant to them. Any abrogation or modification of the law relative to trusts growing out of our colonial jurisprudence or subse- quent statutory enactment, would, of course, produce a corresponding change in the doctrine relative to charita- ble trusts, unless such trusts were either expressly, or by legal implication, excluded from the operation of such changes. The principal earlier cases on the subject of charitable uses and trusts in this country, where the ancient abstruse learning on the subject will be found investigated and applied, are here noted for reference. Coggeshal v. Pelton, 7 Johns. Ch. 293 ; McCarty v. The Orphan Asylum, 9 Cow. 437 ; Kniskern v. The Lutheran Churches, 1 Sandf. Ch, 439; Shotwell V. Mott, 2 id. 46; Bogardus v. Trinity Church, 4 Paige, 198; Canal Commissioners v. The People, 5 Wend. 445; Ayres v. The Methodist Church, 3 Sandf. S. Ct. 868; Inglis v. Trustees of Sailors' Snug Harbor, 3 Pet. 99 ; The Baptist Assn. v Hart's Ex'rs, 14 Wheat. 1 ; Vidal v. Girard's Ex'rs, a How. TJ. S. 137 ; Owens v. The Missionary Society, 14 N. T. (4 Kern.) 480; Boehm v. Engle, 1 Dall. 15; Attorney-General v. Stewart, 8 Merivale, 162; Phila. Bap. Assn. v. Smith, 3 Peters, 484; Bap. Church v. Presb. Church, 18 B. Mon. 635 ; Portaine v. Ravenel, 17 How. U. S. 369. The above cases, as a general rule, sustain the doctrine TIT. VIII.] TRUSTS FOR CHARITABLE USES. 289 above referred to, virith relation to the peculiar jurisdiction and power inherent in courts of equity in this country, as successors of the English Court of Chancery, in acting upon trusts of the above character, by carrying out the intention of the creator of the trust as far as it was possi- ble ; or, where the purpose was indefinite or impossible, in executing the trust as nearly as possible, in accordance with his supposed intentions. It was subsequently determined, in this State, under the views expressed in our highest courts, that charitable gifts, so far definite, both in their subject and purpose, as to be capable of being executed by the authority of the court, and made to a definite trustee, who was to receive the fund and apply it in the manner specified, would be maintained, although they might be void by the general rules of law, because the particular objects of the gift or persons to be benefitted by it were not definitely de- signated. In other respects than as above specified, the rules of law regulating charitable uses and trusts were considered within those which appertained to trusts in general. But, it was also held, that the provisions of the Revised Statutes relative to restrictions on alienation generally, and to ac- cumulations of personal property and of expectant estates, did not affect property given in perpetuity to religious or charitable institutions. These views were entertained in the following leading cases on the subject. Williams v. Williams, 4 Seld. 53T ; Owens v. The Missionary Society, 14 N. y. 380; Beekman v. Bonsor, 33 N. Y. 398. In the above case of Williams v. Williams, it was con- sidered by the Court of Appeals that the law of charities was, at an early period in English judicial history, en- grafted upon the common law, and that its general max- ims were derived from the civil law, as modified by the ecclesiastical element introduced with Christianity, and that it existed irrespective of the declaratory statute of Elizabeth, which was afterwards repealed. The proceed- 19 290 TKUSTS FOE CHARITABtiB USES. [OH. X. ings under ttat statute were considered of an exceptional nature, applicable to existing gifts, and not to the exer- cise of the general jurisdiction of the courts over chari- table gifts ; which consequently remained unimpaired on the abolition of the statute. It was also held by the Court of Appeals, in the above case of Beekman v. Bonsor (23 N. Y. 298), with respect to a gift of proceeds of residuary real and personal prop- erty, that, as a general rule, charitable trusts are subject to the rules which appertain to trusts in general ; among others, that the trust must be capable of execution by a judicial decree, in aflSrmance of the gift as the donor made it ; and consequently, that a charitable gift of a sum which is left uncertain, or which is left to the discretion of execu- tors who have renounced the trust, especially where the objects to be benefitted are not especially designated, is void. The court further holds, that, under the peculiar sys- tem of government in this country, with its precise dis- tribution of the g(jvernmental powers, the English common law on the subject could only be considered as in force here so far as it is adapted to our political condition, and capable of administration in the exercise of strictly judicial power, inasmuch as our courts are clothed only with an expressed judicial authority, and do not act as exponents of or ministrants to the wishes or authority of the Crown or any other governing power representing it. Therefore, it was determined that, in this State, the courts cannot entertain a jurisdiction commensurate with that claimed for equitable tribunals in England, inasmuch as it would involve the exercise of functions rather politi- cal than judicial — functions which might well be exercised by the English Court of Chancery as being technically the keeper of the conscience of the king, and based upon the royal authority and prerogative, but not appurtenant to any tribunal in this State. The exercise of such jurisdiction and authority, there- TIT. VIII.] TRUSTS FOE OHAEITABLB USES. 291 fore, was considered as unsuited to, and inconsistent with, our institutions; and the "cypres^' power of the English Court of Chancery was definitely held not to have any existence in the jurisprudence of this State. The court, however, in the main, coincides with the views expressed in Williams v. Williams, in holding that trusts for charitable purposes formed an established ex- ception to the law against perpetuities, as it existed before the Revised Statutes ; and that it was not the intention of the legislature, in reversing the branch of the law relative to perpetuities, to abolish that feature of the law of charities which allowed the income of prop- erty to be perpetually devoted to charitable purposes. To the same effect were Knistern v. The Lutheran Church, 1 Sandf. Ch. 439 ; Shotwell v. Mott, 3 Sandf- R. 46 ; The Trustees, &c. v. KeUogg, 16 N. Y. 83; Voorhees v. The Presbyterian Church, 8 Barb. 135; Leonard v. Burr, 18 N. Y. 96; Tucker v. St. Clement's Church, 4 Seld. 558; Boyce v. City of St. Louis, 29 Barb. 650; and others above referred to. We shall now briefly review the series of decisions which are in opposition to the above cases sustaining the doctrine that trusts for charitable uses might be upheld, although contrary to the provisions of the revision of 1830, and although indefinite in their character; which decisions, persistently attacking the above doctrine, in time culminated in the important cases of Levy v. Levy and Bascom v. Albertson, below referred to, which, up to the time of their decision, determined all controversy in the matter, and set the former doctrine at complete rest. In the case of Ayres v. The Methodist E. Church (3 Sandf S. C. 357, 371), it was held that the restrictions of the Revised Statutes as to trusts applied as well to those for pious and charitable purposes as to others. The case of Yates v. Yates (9 Barb. 324), was to the same effect. To the same general effect also were The Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. 1 ; and Fontaine v. Eavenel, 17 How. U. S. 369. The above views were also maintained in the Supreme Court, in King v. Rundle(15 Barb. 139), where directions 292 TRUSTS rOE OHAKITABLE USES. [CH. X. for the accumulation of moneys contrary to the Revised Statutes, and trusts of real estate suspending the absolute power of alienation, and for purposes not authorized by the Revised Statutes, although for charitable designs, were held void. The case of Voorhees v. The Presbyterian Church (17 Barb. 103), is to the effect that the statute abolishing uses and trusts extends to every use and trust not therein excepted, and that there is no qualification or exception, express or implied, in favor of public trusts and charitable uses. This case also holds that no trust can arise in favor of a religious society, except in those cases where it could arise, be created or declared in favor of a private person ; and, except when otherwise provided, the same rule as regards Uses and Trusts, the Statute of Frauds, and the modes of acquiring real property applies to them as to others. The same views were expressed in the case of Mc- Caughal V. Ryan, 27 Barb. 376. This latter case, while yielding assent to former decisions of the Court of Ap- peals, so far as they went, dissents from the geTieral prin- ciple, and questions the soundness of authorities holding that donations to pious uses are not subject to the same restrictions as other trusts in the State, and claims that it was the intention of our legislature, as well as within the general policy of our laws and institutions, that the provisions of our statutes preventive of perpetuities should be applicable to donations for pious and charitable uses. To the same efiect is the decision in Rose v. Rose, 4 Abb. App. Oas. 108.' It is to be observed that even in the above case of Williams v. Williams, the provisions of the Revised Stat- utes were held applicable to the bequest in question so far as rendering the directions for accumulations beyond the statutory limit void. TIT. Vni.] TRUSTS EOR CHARITABLE USES. 293 The court, in McCaughal v. Ryan, further comments on supposed inconsistencies in the opinion pronounced in Williams v. "Williams, and holds that it will not extend the decisions of the Court of Appeals in that case beyond the exemption of donations for pious and charitable uses, from the laws to prevent perpetuities ; and that the devise under consideration being of real and personal estate, in trust for the Roman Catholic Church of the State, was null and void, as not being a trust within the classes allowed by the Revised Statutes. Judge Emott, in expressing his views on the case, takes the ground that the decision in Williams v, Wil- liams has relation merely to trusts of personal property, and that the courts of this State would not be justified in assuming that the restrictions of the Revised Statutes upon trusts would not be held to apply to trusts of realty, in view of the explicit statutes regulating them. He, therefore, does not accept the decision in the case of Williams v. Williams as an authority that effect may be given to a devise of lands to a pious or charitable use which is too vague and indefinite in its subject or its bene- ficiaries to vest any estate in the cestui que trust, and which is not within the exceptions to the express abolition of all uses and trusts contained in the Revised Statutes. The case of Owens v. The Missionary Society of the Methodist Epis. Church, 14 K Y, (4 Ker.) 380, arose upon a bequest of proceeds of real and personal estate to a corporation, not entitled to take, by law, for a pious purpose. It was held that the trust could not be sustained as a charitable or religious use, inasmuch as there was no trustee named competent to take by law ; and that, there- fore, the court had no power to uphold the bequest, and that the trust was in any case invalid, the object being too general and indefinite, i. e., " to diffuse the blessings of Christianity, etc., through the United States." It was also held that a subsequent act authorizing the corporation to take as provided, would not validate the bequest. 294 TEUSTS FOR CHARITABLE USES. [CH. X. The court, in reviewing prior cases on the subject, places its decision on the ground that the law of charita- ble uses, as it existed in England at the time of the American revolution, is not in force in this State ; and that the courts of this State have only such jurisdiction over trusts for charitable and religious purposes as was exer- cised by the Court of Chancery in England, independently of the prerogatives of the Crown, and of the Statute of Elizabeth. The case was held to be distinguished from that of Williams v. "Williams (4 Seld, s^y devise, for any purpose, a devise and trust founded upon it would be void. In that case, also, the court determined with respect to religious societies incorporated under the Act of 1813, that they are not expressly or impliedly authorized to take lands by devise for any purpose whatever ; such societies being within the restrictions of the Revised Statutes (3 R. S. 57), declaring " that no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or statute to take by devise. Such cor- porations, under the Law of 1813, it was therefore held, could only take by eonveyatice. See also, Theological Seminary v. Childs, 4 Paige, 419 ; Ayres V. The Methodist Episcopal Church, 3 Sandf. 351 ; King v. Rundle, 15 Barb. 139. Within the views taken by the courts in the cases of Levy V. Levy and Adams v. Perry, and subsequent cases referred to in the above pages, it is to be supposed that no trusts, even in favor of corporations created under the Law of 1813, for "pious purposes," whether created by grant or will, would be now held valid, if in conflict with the ex- press provisions of subsequent statutes restricting the creation of trusts or the suspension of alienation, or with any other general prohibitory or restrictive provisions of law. See O'Hara v. Dudley, 95 N. Y. 403 (rev'g 64 How. Pr. 840), and cases cited therein. See Oilman v. McArdle, 99 N. Y. 451, as to trusts for saying mass. But see, as to this, Harris v. Am. Bapt. Home Miss. Soc. 33 Hun, 411. Law of i860, as to Devises in Trust, etc., to Corpora- tions.— By Law of Ap. 13, 1860, ch. 360, no person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, TIT. VIII.] TRUSTS FOE OHAKITABLE USES. 301 charitable, literary, scientific, religious, or missionary soci- ety, association or incorporation, in trust or otherwise, more than one-half part of his or her estate, after the pay- ment of his or her debts; and such devise or bequest shall be valid to the extent of one-half and no more. All inconsistent acts, or parts of acts, are repealed. See post, Oh. XV, as to devises to such societies as above, under the Law of 1848, oh. 319, as amended by Law of 1853, ch. 487. The latter law allowed a devise of not more than a fourth of an estate, after payment of debts, by a wife, child or parent, provided the will were executed two months before decease of the testator. Stephenson v. Short, 93 N. Y. 483. Under the Statute of 1860, the widow's dower and debts are to be first de- ducted before the half is estimated; and the testator cannot give to two or more corporations, in the aggregate, more than he can give to a single object. Chamberlain v. Chamberlain, 43 N. Y. 424. Devises in Trust for Religious Purposes.— An act was passed April 9, 1855, relative to devises to religious cor- porations, in trust or otherwise, which was repealed by Law of 1862, ch. 147. Act of 1840. Trusts for colleges and literary institutions, and for cities, etc., for certain purposes, and for common schools.— By Act of May 14, 1840, ch. 318, real and per- sonal property may be conveyed to incorporated colleges and literary incorporated institutions in the State, to be held in trust for either of the following purposes : " 1. To establish and maintain an observatory. " 2. To found and maintain professorships and scholarships. " 3. To provide and keep in repair a place for the burial of the " dead," or "4. For any other specific purposes comprehended in the general objects authorized by their respective charters. "The said trusts maybe created subject to such conditions and visitations as may be prescribed by the grantor or donor, and agreed to by said trustees; and all property which shall hereafter be granted to any incorporated college or other literary incorporated institution in trust for either of the aforesaid purposes, maybe held by such college or institution upon such trusts, and sub- ject to such conditions and visitations as may be prescribed and agreed to as aforesaid. " § 2. Eeal and personal estate may be granted and conveyed to the corpora- tion of any city or village of this State, to be held in triist for any purpose of education, or the difEusion of knowledge, or for the relief of distress, or for parks, gardens, or other ornamental grounds, or grounds for the purposes of military parades and exercise, or health and recreation, within or near such incorporated city or village, upon such conditions as may be prescribed by the grantor or donor, and agreed to by such corporation ; and all real estate so granted or conveyed to such corporation may be held by the same, subject to such conditions as may be prescribed and agreed to as aforesaid. 302 TRUSTS FOR CHARITABLE USES. [OH. X. " § 3. Real and personal estate may be granted to commissioners of com- mon schools of any town, and to trustees of any scliool district, in trust for the benefit of the common schools of such town, or for the benefit of the schools of such district. " § 4. The trusts authorized by this act may continue for such time as may be necessary to accomplish the purposes for which they may have been cre- ated." By Law of May 26, 1841, ch. 261, devises and bequests of real and personal property in trust, for any of the pur- poses for which such trusts are authorized under the " act authorizing certain trusts, passed May 14, 1840," and to such trustees as are therein authorized, shall be valid in like manner as if such property had been granted and conveyed according to the provisions of the aforesaid act. As to the interpretations of the above trusts in a certain special case, vide Adams v. Perry, 43 N. Y. 487 ; see also, Yates v. Yates, 9 Barb. 334. By Law of April 21, 1846, ch. 74, " the income arising from any real or personal property granted or conveyed, devised or bequeathed in trust to any incorporated college or other incorporated literary institution, for any of the purposes specified in the " act authorizing certain trusts," passed May 14th, 1840, for the purpose of providing for the support of any teacher in a grammar school or institute, may be permitted to accumulate till the same shall amount to a sum suflScient, in the opinion of the regents of the univer- sity, to carry into effect either of the purposes aforesaid, designated in said trust. By Act of April 18, 1855, ch. 432, if any principal, as allowed by the above acts, becomes diminished, it may be made up by the accumulation ot the interest or income of principal of such trust fund, in accordance with the directions, if any, contained in the grant, etc., devise or bequest of said trust fund, and if there are no such directions, it may be made up in whole or in part by such accumulation, in the discretion of the trustees of such trust fund ; the accumulation is not to increase beyond the original trust fund, less liens, incumbrances, and expenses incurred in obtaining the same. See Betts V. Betts, 4 Abb. N. C. 817, 409. Trusts for common schools (Law of 1864). — By Law of May 2, 1864, ch. 555, title iii, art. 2, §§ 15 to 17, real and personal estate may be granted, conveyed, devised, bequeathed, and given in trust and in perpetuity and otherwise, to the State or to the superintendent of public instruction, for the support or benefit of common schools, as by the act provided. The trusts are not to be invalid for want of a trustee or donee. Various other school acts have been passed with respect to different por- tions of the State, which may have to be specially considered. Trusts for benefit of "Friends," see Laws of 1878, ch. 209, amending Laws 1839, ch. 184, § 3. Also Laws 1880, ch. 337: amdg. Laws 1839, ch. 184, § 2. TIT. IX.] PROVISIONS AS TO TRUSTS. 303 Title IX. MisoELLAiirEorrs Provisions as to Trusts. There are many complex principles of law and equity arising out of the peculiar nature of trust estates, the re- lation of trustees to the cestui que trust and the obligations of those parties to third persons, which cannot be inquired into in a treatise of this general nature. The establish- ment and enforcement of trusts arising from or through fraud, the intent of parties, fiduciary relations, equitable liens, voluntary dispositions, and other conditions and causes, offer a wide field for review. They fall, as a general rule, under the peculiar cogniz- ance of courts of equity, and few new conditions that will arise will allow of the precise re-application of equitable principles as controlling antecedent cases. Such trusts only as have been the peculiar subjects of statutory pro- visions have been considered in this chapter. As regards others of a more recondite character that arise under principles of equity jurisprudence, and call for relief from purely equitable tribunals, they have been subjects of learned and extensive research in works treat- ing particularly of trusts of such a nature. The terms " Real Estate " and " Lands,"— By the Re- vised Statutes, it is provided that the terms " real estate " and " lands," as applied in them to trusts, shall be con- strued as co-extensive in meaning with lands, tenements and hereditaments. 1 R. S. 750, 1st ed. Descent of Trusts.— By the Eevised Statutes, real es. tate held in trust for any other person, if not devised by the person for whose use it was held, descended to his heirs according to the provisions of the statute of descents. 1 R. L. 74; 1 R. S. 1st ed. 705. But by Laws of 1883, ch. 185, the trusts shall vest in the Supreme Court and shall be executed by some one appointed for that purpose under the direction of the court. 304 PROVISIOKS AS TO TRUSTS. [CH. X. Result of Failure of Object of the Trust.— In these cases a trust results to the original owner, if they are active trusts, but not if they are conveyances to uses, and a con- sideration has been paid. Vander Volgen v. Yates, 5 Seld. 319. Violation and Diversion of Trusts.— No violation or di- version of trusts upon which property was conveyed, works a forfeiture, and it cannot have the effect to revest either the legal or equitable title in the heirs of the origi- nal grantor. R. D. Church v. Mott, 7 Paige, 77. Misapplication of Moneys, etc., by Trustees.— § 66. No person who sball actually and in good faith pay a sum of money to a trustee, which the trustee as sucb is author- ized to receive, shall be responsible for the proper appli- cation of such money according to the trust ; nor shall any right or title derived by him from sucb trustee, in consideration of such payment, be impeached or called in question in consequence of any misapplication by the trustee of the moneys paid. Champlain v. Haight, 10 Paige, 274 ; Field v. ScLiefifelin, 7 Johns. 0. R. 150 ; see also, Wilson v. Lynt, 30 Barb. 124 ; Griswold v. Perry, 7 Lans. 98. TJnlesB the purchaser knew that the trustee intended to misapply the money, or had sufficient information thereof; in such case he would be liable. Knowledge of the Trust.— Where a party has knowl- edge of facts sufficient to put him upon inquiry as to the existence or conditions of a trust, he purchases subject to all legal and equitable rights under it, and must ascertain at his peril whether precedent conditions have been ful- filled. Voorhees v. The Presbyterian Church, 8 Barb. 1D5. See also, ante, p. 277. Mere recital of performance will not protect. Griswold v. Perry, 7 Lans. 98. Even the Court of Chancery cannot direct a disposition of the trust prop- erty contrary to the trust. Douglass v. Cruger, 80 N. Y. 15. Legislative Acts affecting Trust Estates.— It is held that the legislature (except in cases, of necessity arising TIT. IX.] ' PROVISIONS AS TO TRUSTS. 305 from the infancy, insanity or other incompetency of those in whose behalf it acts) has no power to authorize, by special act, the sale of private property held in trust, for other than public purposes, without the consent of all in- terested in the property. Powers V. Bergen, 6 N. T. (2 Seld.) 358. In the subsequent case of Leggett v. Hunter, it was held that a public or private act of the legislature would be valid which authorized, upon the petition of the cestuis que trust, a sale of the trust estate; so as to operate for the benefit of infants and others under disability, who had either vested or contingent interests; and that the power might be exercised as well in respect to the rights of persons in esse as to the contingent interests of persons yet to be born. 1 9 N. T. 445 ; Brevoort v. Grace, infra. An act of the legislature by which the legal title of a • mere naked trustee is declared to be transferred to and vested in the cestui que trust, who previously had the power to compel such transfer through the courts, is held constitutional and valid. The Reformed P. Church v. Mott, Y Paige, 77. It is also held that the legislature may provide for the disposal of the interests of infants and persons not in esse, but not of adults, and declare that a deed executed by a portion of the trustees named in a will shall be sufficient to convey the entire estate. Matter of Bull, 45 Barb. 334; Brevoort v. Grace, 53 N. Y. 245. In relation to the power of the legislature of the State to pass acts relative to changes of trustees and the disposi- tion of trust estates under a will conferring a trust estate, with power over the realty, the history of the adjudica- tions relative to the will of Mary Clark, in the various courts of this State and in the Federal Courts, is of interest. A review of the various decisions relative thereto is here given. By the Acts of 1882 and 1886, before adverted 20 306 PROVISIONS AS TO TRUSTS. [CH. X. to, many questions passed upon therein are now sought to be settled in this State. The will was made in 1803, devising lands in New York City to trustees, in trust to receive the rents, to pay the same to testatrix's grandson, Thomas B. Clarke, during life, and upon his decease to convey the lands to his lawful issue then living, in fee ; in default of which, remainder over. It appeared that the land was unproductive and comparatively useless for income. In 1814, T. B. Clarke, then being living, with two children (one other being bom subsequently), an act was passed by the legislature, on the re- quest of the then trustees, providing that the Court of Chancery, on Clarke's application, might appoint one or more trustees to perform the acts speci- fied in the will, in place of the testamentary trustees, who were by the act discharged from said trusts. The new trustees were directed to partition the lots into two portions, one moiety thereof to be held by them under the uses and trusts declared by the will, and the remaining moiety to be sold within a convenient time not exceeding six months, unless otherwise requested by Clarke, the proceeds to be invested, the interest to be paid, except a certain portion, to Clarke, and the principal to be reserved for the trusts of the will. On March 34, 1815, a supplemental act was passed authorizing Glarhe to execute and perform every act in relation to the real estate, with like effect that the trustees duly appointed under the will might have done, and to apply the whole of the interest and income of the said property to the main- tenance and support of his family, etc. The act further provided that no sale of any part should be made by Clarke until he obtained assent of the Chancellor as to the sale and as to the vesting of the principal of the pro- ceeds in the trustees ; the interest to be applied by Clarke for his use and the maintenance and education of his children. On July 3, 1815, the Chancellor made an order authorizing Clarke to sell the eastei'n moiety, to be divided by a line specified. On March 39, 1816, a third act was passed, authorizing Clarke, under said order, or any subsequent order, either to sell or mortgage premises which the Chancellor had permitted or might permit him to sell, and to apply the moneys as above. On March 15, 1817, the Chancellor authorized Clarke to sell the southern moiety, instead of the eastern moiety, or mortgage any part thereof; also, to convey any portion of the southern moiety, in satisfaction of any debts due by him, on a valuation agreed upon by him and his creditors; each sale or mortgage to be approved by a master; and power was given him to invest the surplus in such manner as was proper to yield an income as above. In 1818, lots in the south moiety, and also the west moiety, were con- veyed to creditors of Clarke, in consideration of his indebtedness and of cash paid. Other sales, also, were made under the above acts and orders, and questions arose as to the validity of the titles passed. Questions touching the validity of the before-mentioned acts of the legislature of the State were first considered judicially in the case of Sin- clair V. Jackson, 8 Cow. 579 ; but the decision turned upon another point, and the court avoided expressing any opinion as to their validity. The next case was Cochran v. Van Buriay, 15 Wend. 439, decided originally in the Supreme Court. Statement of the court in that case was that when the first act was passed all the parties interested in the trust estate, who were capable of acting for themselves, were before the legislature, and were ap- plicants for the law. Besides Clarke, the tenant for life, in his own right, and the natural guardian of his children, to whom the remainder was limited, there was Clement C. Moore, the contingent remainderman in fee, and the TIT. IX.] PKOVISIONS AS TO TRUSTS. 307 trustees named in the will, who had the whole legal estate, and represented the minors as fully as they could be represented in any form. The decision of the court was that the Court of Chancery, without an act of the legislature, could have discharged the trustees named in the will and might have ap- pointed others in their place, and that the act of the legislature was not an act beyond its constitutional power, as the mere substitution of a new trustee could neither defeat the trust nor divest the rights of those beneficially in- terested in the property. It was also determined that the several acts were valid and constitutional, although they did not extend to other cases of like character. Objections were also taken that the orders of the Chancellor were not made in pursuance of the acts of the legislature; but those objec- tions were overruled as unsupported in fact, or as entirely unavailing, unless presented in some direct proceeding, as by appeal, or by application to the Chancellor for new orders and directions in the premises. The conclusions of the court were, first, that the acts of the legislature authorizing the sale of the property for the support and maintenance of the tenant for life, and of his family, and the education of his children, were fully warranted by the State constitution, and that they did not in any manner conflict with the constitution of the United States ; second, that the orders of the Chancellor, in carrying those provisions into effect, were regular and proper, and that the deeds of conveyance were sufficient to convey the title to the estate to the grantees. The plaintiff sued out a writ of error, and removed the cause into the Court for the Correction of Errors, where the questions were again fully argued, but the judgment of the Supreme Court of the State was in all things affirmed. (Cochran v. Van Surlay, 30 Wend. 371.) Pending that litigation, certain suits were commenced in the Circuit Court of the United States for the Southern District of New York, and the Justices of that court being opposed in opinion in respect to the principal questions involved in the controversy, they were certified into the Supreme Court of the United States, and the majority of the court adopted in substance and effect the views of the minority of the Court for the Correction of Errors. (William- son V. Berry, 8 How. 495.) The same questions in respect to the same estate were subsequently presented to the Superior Court of the City of New York, and the court adopting the State decisions, held that those acts of the legisla- ture were not inhibited by the State constitution, nor by that clause of the constitution of the United States which declares that no State shall paSs any law impairing the obligation of contracts. (Towle v. Forney, 4 Duer, 164.) Judgment was for the plaintiff, and the defendant appealed to the Court of Appeals that the questions might be re-examined. The express decision of the Court of Appeals was, that the judgment of the Court of Errors in Cochran v. Van Surlay, was a final determination of the Court of last resort in the State, not only upon all questions of law in the case, but upon the identical title in controversy, and that they ought not to re-examine the grounds of that decision. They also held that, as between judgments of their own courts and those of the Federal Government, where there is a con- flict between them, they ought to follow their own decisions, except in cases arising under the constitution and laws of the Union. (Towle v. Forney, 14 N. Y. 428.) Subsequently, the case of Williamson v. Suydam, was decided in the Circuit Court of the United States S. District, in favor of the plaintiff, but the defendant removed the cause in the Supreme Court of the United States, by writ of error, where it was affirmed, because there was no bill of exceptions. (Suydam v. Williamson, 30 How. 439.) By consent a biU of exceptions was subsequently allowed, and the cause brought up on a second writ of error, and the court came to the unanimous conclusion that the decision of the Court of Errors, sanctioned by the subsequent decision of the Court of Appeals, established a rule of property in the State of New York, which it was the duty of the court to follow in questions of real property situated in that State. (Suydam v. Williamson, 34 How. 437.) 308 PEOVI8IOK8 AS TO TRUSTS. [OH. X. The same questions -were again brought before the United States Supreme Court on appeal ; and in the case of Williamson v. Suydam (6 Wall. 723), the court reaffirmed the decisions in the Court of Appeals, and of Suydam v. Williamson, 34 How. 437. Question also arose in the case of Williamson v. Suydam, touching the construction of the 3d section of the Act of Ap. 1, 1814, which authorized the trustees to divide the estate into two equal parts for the purposes above mentioned. Authority to partition was conceded, but the argument was, that when the estate was divided into an Eastern and Western partition, the power was exhausted. The court held that the Chan- cellor had power to make the order of 39th March, 1816, as construed in connection with the preceding acts to which it was supplemental, and that the Chancellor's orders were valid, as established in the cases of Towle v. Forney, 14 N. Y. 436, and Clarke v. Van Surlay, supra. Another question presented to the court in the last case, of Williamson v. Suydam, (6 Wall.), was whether the discharge of the trustees named in the will, by the legisla- ture, was in contravention of the constitution of the United States, which declares that no State shall pass any law impairing the obligation of con- tracts. The court held, that, inasmuch as all persons who were capable of acting for themselves, were applicants to the legislature for the passage of the acts, including the trustees, and inasmuch as the Chancellor had power to appoint new trustees, even without application to the legislature, and as the mere substitution of a new trustee could neither defeat the trust nor divert the rights of those interested, that the validity of the appointment of the new trustees or trustee was not to be questioned; and that no question of con- tract arose in the matter, the trustees having no beneficial interest. See also, Leggett'v. Hunter, 19 N. Y. 446; Brevoort v. Grace, 53 N. Y. 345. See further as to sale of infants' estates through special statutes, post, Ch. XXV, Title HI. Trusts liable to judgments, executions, etc.— By the Revised Statutes, lands, tenements, and real estate, holden by any one in trust, or for the use of another, shall be liable to debts, judgments, decrees, executions, and attach- ments, against the person to whose use they are holden, in the case and in the manner prescribed in ch. i, part ii, of the Revised Statutes, Vol. i, p. 737, 1st ed. The beneficial interest of a cestui que trust in lands, however, cannot be sold on a judgment and execution at law. Nor a resulting trust. Wright v. Douglas, 3 Barb. 355 ; Garfield v. Hatmaker, 15 N. Y. 475 ; overruling 4 Den. 439 ; see ante, p. 374. A conveyance to judgment-debtor's wife, he paying consideration, may be attacked even when judgment is more than ten years old. Scoville v. Halladay, 16 Abb. N. C. 43. Trusts in Escheated Lands.— All escheated lands, when held by the State or its grantees, are subject to the same trusts, incumbrances, etc., to which they would have been subject had they descended ; and the Supreme Court has the power to direct the attorney-general to convey TIT. IX.] PROVISIONS AS TO TRUSTS. 309 such lands to those equitably entitled thereto, according to their respective rights, or to such new trustee as may- be appointed by such court. 1 R. S. 1st ed. 718. Trustees of Insolvent Debtors.— As to these, vide post. Ch. XXXI. Trustees may Impeach Assignments, etc. — By Law of April 17, 1858, ch, 314, executors, administrators, re- ceivers, assignees, or other trustees may disaffirm and resist all acts, transfers and agreements made in fraud of the rights of creditors, including themselves and others, interested in any estate or property held by, or of right belonging to, any such trustee or the estate represented. They may have actions for property fraudulently taken, etc., and have their costs and expenses allowed them. Section 3, of this Act (relating to costs), was repealed by L. 1880, ch. 245, and is replaced by Co. Civ. Proc. § 1916. Trusts for Aliens.— Vide ante, p. 91. Responsibility of Trustees, Guardians, etc., as Stock- holders.— Vide Law of July 1, 1882, ch. 409, superseding Laws of April 5, 1849, ch. 226, which was repealed by L. 1882, ch. 402. Trustees of Academies.— Vide Law of April 20, 1835, ch, 123. Testamentary Trustees, Settlement of Accounts of.— Vide Code of Civil Procedure, ch. 18, title 6, supersed- ing part ii, ch. 6, title iii, art. iii^ 66th section of Revised Statutes, which was repealed by L. 1880, ch. 245, Vide also, 1 N. Y. 306; 3 Brad. 11, 391, 419. Trustees of Idiots, Lunatics, Drunkards, etc. — See Code of Civil Procedure, ch, 17, title 6, superseding § 25, title ii, ch, v, part ii, of Revised Statutes, as amended by L, 1865, ch, 724, and by Law of April 28, 1845, ch. 112, which contained the former law and were repealed by L. 1880, ch. 245 ; and see Lunatics, etc, ch. 25. 310 PEOVISIONS AS TO TKUSTS. [OH. X. Trusts Relative to Shaking Quakers.— Vide acts of April 15, 1839, cL 174 ; April 11, 1849, ch. 373. See also, Laws of 1852, p. 2*75, ch. 203; and subsequent amend- ments. Trusts Relative to " Friends," or " Quakers."— Vide Laws of April 17, 1839, ch. 184. Amended L. 1878, ch. 208. Trusts of Personal Estate.— It is considered by the courts that a trust of personalty is not within the statutes of uses and trusts, and may be created for any purpose not forbidden by law. No prohibition or restriction seems imposed on them by statute, except as to the limitation of future contingent interests therein. A trust of personal estate for the use or benefit of the grantor or donor is valid, and vests the legal title in the trustee, unless the purposes of the trust are unlawful. Brown v. Harris, 35 Barb. 134 ; Gott v. Cook, 7 Paige, 521 ; Foster v. Coe, 4 Lans. 53 ; Bucklin v. Bucklin, 1 Keyes, 141. Vide also, ante, Title "Vl, as to the transfer of trusts of personal property. See also. Holmes v. Mead, 52 N. Y. 832 ; Owens v. Missionary Soc. 14 N. Y. 380; Beekman v. Bonsor, 23 N. Y. 298; Trustees, &c. v. Kellogg, 6 N. Y. 83. Release of Sureties of Trustees.— See L. 1881, ch. 654. CHAPTER XL JOINT INTEEESTS IN LAND. Title I. — Joint Tenants. Title II. — Tenants in Common. Title III. — Partnership Lands. A joint interest may be had, either in the title or possession of land. As regards the title^ the tenancy may be as joint tenants (formerly, also, under the common law, as Gopa/rceners), or in the possession, as tenants i/n common. Tenancy as coparceners which existed in England between co-heirs who inherited equally by descent (e. g., females), is not recognized as such by our statutes ; the Revised Statutes providing that such estates are held " in common." The Revised Statutes divide^, estates as to ownership into those held in severalty, in joint tenancy and in coTnmon / and their nature and properties continue the same as theretofore established by law, except as modified by the Rev. Stat., ch. i, part ii. Title I. Joint Teistants, Joint tenants hold lands by a joint title, created ex- pressly by one and the same deed or will. As a general rule, the tenancy must be created at the same time, and must be of the same duration or nature and quantity of interest. The estate is never created by descent, but only through deed or by devise. Joint tenants are said to be seized per my et per tout, and each has the entire possession, as well of every parcel as of the whole; but alienation or forfeiture would only affect the individual interest. 3J2 JOINT TEUAKTS. [OH, XI. The doctrine oi survivorship, or jus accrescendi, is the distinguishing feature oi joint tenancy ; and on the death of any one of the joint tenants, his share, at common law, went to the survivors ; and such is still the rule. The last survivor took an estate of inheritance abso- lutely, free from any liens or charges created by the others on their interests. A joint tenant, therefore, could not devise his interest, and the widow had no dower therein. He could, how- ever, alienate his undivided interest by deed, and it was subject to forfeiture, and to any liens created by him in case he survived the others. Hubbard v. Gilbert, 25 Hun, 596. Changes by N. Y. Statutes.— As early as 1782 and 1786, estates by joint tenancy were abolished, except in the case of executors and other trustees, or unless the estate was expressly declared in the deed or will to pass in joint tenancy. And any estate (with the foUoMang exception as to executors, etc.,) passing by any grant, devise, or con- veyance, was to be deemed a tenancy in common, unless otherwise expressly declared. Law of July 13, 1782; Law of Feb. 23, 1786; 1 Rev. Laws, p. 54, §§ 6 and 7. The Revised Statutes provide that every estate vested in executors or trustees, as such, shall be held in joint ten- ancy. Every other estate granted or devised to two or more persons in their own right shall be a tena/ncy in com,- mxyn, unless expressly declared to be in joint tenancy. This provision is to apply to estates theretofore created, as well as to those to be thereafter granted or devised. 1 Rev. Stat. p. 726, § 43; Purdy v. Hayt, 92 N. T. 446. Construction of a devise " to two persons and the survivors," as a tenancy in common. Mott v. Ackerman, 92 N. Y. 589. A devise to several for life with remainder over, is held to constitute a tenancy in common. Gage v. Gage, 43 Hun, 501. Husband and Wife. — A conveyance to husband and wife, as seen above, however, p. 67, by reason of the legal TIT. II.] TENANTS IN COMMON. 313 unity of husband and wife, vests them both with the en- tirety. It creates not strictly a joint tenancy, but a con- veyance as to one person, and on the death of one, the whole title survives to the other. Neither can transfer the title without the other uniting. In such a case the wife has no separate estate ; but is seized with her husband of the whole. They hold thus not as joint tenants, nor as tenants in common ; and the same words of conveyance which will make other persons tenants in common, will make the husband and wife tenants of the entirety. Dickinson v. Codwise, 1 Sandf. Oh. 314 ; Rogers v. Benson, 15 Johns. Ch. 431 ; and see cases cited ante, p. 67. The above doctrine was at one time supposed not to be applicable since the acts in relation to married women, from a dictwm in Meeker v. Wright, 76 N. Y. 262 ; but has been since fully re-established in Bertles v. Nnnan, 92 N. Y. 152. Therefore the recent statutes of 1848-9, and 1860, relating to the lands of married women, have no effect upon real estate conveyed to husband and wife jointly. The Farmers' Bank, &c. v. Gregory, 49 Barb. 155 ; and see ante, p. 80. By the express words, however, it is supposed that the husband and wife may be made tenants in common. By L. 1880, c. 472, lands held in joint tenancy, tenancy in common, or by the entirety by husband and wife, may be divided by a sealed instrument of partition, inter esse. This does not authorize a conveyance by either to a third party. Zorntlein V. Bram, 100 N. Y. 12 ; Bram v. Bram, 34 Hun, 487. Effect of Alienation.— If a joint interest be conveyed by deed by one of the tenants, the alienee takes in com- mon, as the tenants would then hold through different sources. The tenancy may also be severed through par- tition. The proper conveyance between joint tenants is a release. Where two persons were joint tenants of a lake with right of piscary it has been held that either could alien his share so as to give the right over the whole lake. Menzies v. Macdonald, 36 Eng. L. and E. 20. Title II. Tenants in Common. These hold by unity of possession, and may hold by several and distinct titles or by one derived at the same time and from the same source. There need be neither unity of tenure nor unity of estate., Unity of right of possession is all that is required. In this State, it may be created by descent, as well as by deed or will, the 314 TENANTS IN COMMON. [OH. XI. statutes no longer recognizing tenancy in copa/rceny. Tenants in common are considered to have several and distinct freeholds. Each tenant is considered to be solely or severally seized of his share, and may convey Ms estate, but cannot convey any specific part oi thelajidLS. Tenants in common may convey to each other as if to a stranger; but by the common law could not convey to each other by release, as there was no privity of estate. And one ten- ant in common has no power to convey the land or interest of his co-tenant. As to the provision of the Revised Statutes relative to the presumption of a tenancy being in common, vide ante, p. 313 ; see also, Blood v. Goodrich, 9 Wend. 68. Nor can he convey a specific portion of the lands. But such a convey- ance regarded in a partition suit considered as conveying the equitable interest. Hunt v. Crowell, 2 Edm. Sel. Cas. 385. One tenant in common may sue to remove cloud upon title. O'Donnell V. Mclntyre, 37 Hun, 615. Possession.— The possession of one tenant in common is the possession of the others, though, if one is ousted by another, he may bring ejectment. A demand of a deed from one tenant in common is suflBcient, and binds the others. Blood v. Goodrich, 9 Wend. 68. A ■widow is not tenant in common with the heir. See " Adverse Possession," post, Oh. XXXIV. Shares in Crops.— Parties farming on shares are ten- ants in common of the crops, and even of the stubble or straw left, Fobes V, Shattuck, 23 Barb. 568; Tripp v. Riley, 15 Barb. 833. Improvements and Repairs.— One tenant cannot charge the others for improvements and buildings put upon the land, as a general rule. Bowen v. Kaughran, 1 N. T. State Rep. 121 ; Coakley v. Maher, 36 Hun, 157. On partition, however, it seems that any tenant in common who had made improvements would be entitled to that part on which the improvements were made, or to compensation on the general accounting. His grantee would have the same rights. Robinson v. McDonald, 11 Texas, 386; Green v. Putnam, 1 Barb. 500; Ford V. Knapp, 102 N. Y. 185. TIT. II.] TENANTS IN COMMON. 315 One tenant in common, also, might charge the others for necessary repairs, if he first requested his co-tenant to unite with him in making the repairs. He cannot make others liable, however, for expensive and valuable im- provements, not necessary to preserve the premises from dilapidation and ruin, without an express or implied agreement, or a promise to repay him. But, in general, he has no lien except by express agreement ; and if such lien were held to exist, it would not take effect as against creditors who had received the legal title without notice. Taylor v. Baldwin, 10 Barb. 583 ; also jj. p. 628; Wright v. Putnam, 2 N. Y. S. 0. 455 ; Grannis v. Cook, 3 9>. 390. Tenants in common are obliged to repair a mill and its appurtenances, used jointly. Denman v. Prince, 40 Barb. 313. As to repairs under a lease executed by both, see Prentice v. Janssen, 79 N. T. 478 ; affl'g, 14 Hun, 548. Waste. — ^Tenants in common are liable to each other for waste ; and they are bound to account to each other for due profits of the estate. Hall V. Fisher, 20 Barb. 441. Rents, etc. — A tenant in common, who denies his co- tenant's rights, and claims adversely is, if unsuccessful, bound to account for rents and profits within six years. Taggart y. Hurlburt, 66 Barb. 553. One of several co-tenants in possession is not chargeable with rent, but must pay taxes, interest and ordinary repairs. McAlear v. Delaney, 19 Week. Dig. 352; Zapp t. Miller, 33 Week. Dig. 378. But rents collected must be accounted for. Kingsland v. Ohetwood, 39 Hun, 603. A tenant in common may recover for use and occupation against a co-ten- ant who excludes him. Muldowney v. Morris & Es., &c. Co. 43 Hun, 444. Use and Occupation. — The mere occupation of the lands held in common, by one joint tenant or tenant in common, would not of itself, at common law, have entitled his co- tenant to call him to account for use and occupation. He must have stood in the light of bailiff or receiver in order to be rendered responsible. And such seems to be the law at the present day where there is no agreement. Co. Litt. 200 &.; 4 Kent, 406 ; Woolever v. Knapp, 18 Barb. 365 ; Hill & 316 TENANTS IN COMMON. [CH. XI. Denio, 181 ; Joslyn v. Joslyn, 9 Hun, 388 ; Roseboom v. Roseboom, 15 Hun, 309 ; affl'd 81 N. Y. 856. It has also been determined that if one tenant in com- mon takes a lease of his co-tenant's undivided portion, for a specified term, subject to a specified rent, and continue in possession of the premises after the expiration of his term, he. will not be considered as holding over under the lease, and thus liable to an action for use and occupation ; the presumption of law being that he is in possession under his own title. And such presumption will prevail, unless there be evidence that he holds as tenant to his co-tenant. Dresser v. Dresser, 40 Barb. 300. Trespass, etc. — One tenant in common cannot bring an action of trespass against another for entry upon and enjoy- ment of the common property ; nor sue him to recover the documents relative to the joint estate. If, however, one tenant occupies one part of the premises by agreement, and his co-tenant disturbs him in his occupation, the latter becomes a trespasser. Keay v. Goodwin, 16 Mass. 1; Wait v. Richardson, 33 Vermont, 190; Clowes V. Hawley, 13 Johns. 484; 4 Kent, 370 ; Decker v. Decker, 17 Hun, IB. Acts of One tenant as Affecting Others.— As a general rule, one tenant in common, or co-lessee, cannot purchase an outstanding title or get an extension of a lease for his exclusive benefit, and use it against his co-tenant. Thus, where two devisees hold in common, under an imperfect title, one cannot buy up an outstanding or an adverse title, to disseize or expel his co-tenant ; but such purchase will enure to their common benefit, subject to an equal contri- bution of the expense. Van Home v. Fonda, 5 Johns. Ch. 407; Burrell v. Bull, 3 Sand. Ch. 15; Phelan v. Kelly, 35 Wend. 389; Graham v. Ludington, 19 Hun, 346, 351, n. One is not liable for trespass of the other on adjoining lands. Bowman V. Travis, 54 N. Y. 640. They may join in a real action or bring several actions for their several shares or interests. Malcolm v. Rogers, 5 Cow. 188 ; Co. Civ. Proc. § 1500. They may unite in an action for use and occupation. Cobb v. Kidd, 19 Blatch. 560. The acts of one tenant in common cannot amount to the dedication of part of the common property, as a public highway, or create an easement TIT. III.] PARTNERSHIP LANDS. 317 against the other tenants. Scott v. State, 1 Sneed (Tenn.), 639; Crippen v. Morss, 49 N. Y. 63. ^. . i-i- Remedies of Joint Tenants and Tenants in Common Against each Other.— By the Code of Civil Procedure, a joint tenant or tenant in common, or Ms executor or ad- ministrator, may maintain an action to recover his just proportion against his co-tenant who has received more than his own just proportion; and the like action may be maintained by him against the executors or administrators of such co-tenant. §1666. 1 R. L. 90 ; 1 R. S. p. 750, § 9, 1st ed. ; Hall v. Fisher, 20 Barb. 441. Joint Mortgage. — On a joint mortgage by tenants in common, equitywill not decree, at the request of one tenant, a sale of the undivided moieties separately, for the respective halves of the debt. Foot v. Bavins, 3 Sand. Ch. 188. Ouster of Co-tenants.— Where one of several tenants in common conveys the entire premises held in common, and the grantee enters into possession under the conveyance, claiming title to the whole premises, such possession is an ouster of and adverse to the co-tenants of the grantor, and at the expiration of the period of limitation, their right will be barred. Bogardus v. Trinity Church, 4 Paige, 178; Town v. Needham, 8 Pai. 545; see also, Clark v. Crego, 47 Barb. 600. The possession, if not under express notice, must be hostile and notorious. Culver V. Rhodes, 87 N. T. 348. Adverse possession of twenty-one years held sufficient. Abrams v. Rhoner, 44 Hun, 507. Title III. Paetkeeship Lands. When real estate is held by partners for the purposes of the partnership, they do not hold it as partners, but as tenants in common, and the rules relative to partnership property do not apply in regard to it. Therefore one partner can only sell his individual interest in the land, and when both partners join in a sale and conveyance, and 318 PAETNEESHIP LANDS. [OH. XI. one only receives the purchase money, the other partner may maintain an action against him for his proportion. Coles V. Coles, 15 Johns. 159. It is also a principle as to partnership property, that where real estate is purchased with partnership funds on partnership account, and for partnership purposes, the property will be deemed, virtually, to be partnership property, no matter in whose name the purchase may have been made or the conveyance taken. Let the legal title be vested in whom it may, in equity it belongs to the partnership, and the partners are deemed cestuis que trust thereof, for partnership purposes. Tarbel v. Bradley, 7 Abb. N. C. 373 ; affl'd in effect, 86 N. Y. 380 ; Mar- tin V. Wagener, 1 Supm. Ct. 509; Sugd. on Vend. eh. 15, § 1, p. 607; *. ch. 15, p. 137 ; Story's Eq. § 1206 ; Lake v. Gibson, 1 Eq. abridg. 290 ; Rigden V. Vallier, 3 Ves. E. 258 ; Leary v. Boggs, 1 N. Y. State Rep. 571 ; Rank t. Grote, 50 Super. Ct. 375; Hiscock v. Phelps, 49 N. Y. 97,; Eairchild v. Fair- child, 64 N. Y. 471. Partnership creditors are entitled to prior payment out of it. Menagh v. Whitwell, 53 N. Y. 146. Therefore real estate acquired mlth. pm-tnersMp effects, although so conveyed as to make the partners tenants in common, at law, is, in equity, considered as converted into personalty, /or the purpose of subjecting it to the debts of the fwm in preference to those of the individual parPners. The partner's interest in the land descends to his heirs, however, where the real estate is bought with partnership funds, and there is no right of survivorship. Fairchild v. Fairchild, 64 N. Y. 471 ; Buckley v. Buckley, 11 Barb. 43; Parker v. Parker, 65 Barb. 306 ; Smith v. Jackson, 3 Edw. 38 ; Buchan v. Sumner, 3 Barb. Ch. 165 ; Collumb v. Read, 34 N. Y. 505 ; Haynes v. Brooks, 8 Civ. Pro. R. (Browne), 106 ; Tarbel v. Bradley, 7 Abb. N. C. 373 ; affi'd 86 N. Y. 380. If the partnership trade is merely ancillary to the land, as in the case of selling the produce ef the land, e. g., stone out bf a quarry, the land would still be considered as realty; otherwise, if the land is ancillary to the trade. This is the distinction drawn in the English courts, and would doubtless be deemed the law here. Stewart v. Blakeway, Eng. Eq. Cases, 1868, 33 Vic, 479. As to protection of lonafide purchasers from partner, see Tarbell v. West, 86 N. Y. 380-387. In equity the relation of partners is considered one of trust and confi- dence, and hence a lease by one partner of the partnership premises enures to the firm's benefit. See cases collected in Mitchell y. Read, 61 N. Y. 133. But it must appear that such lease was treated and intended as a partner- ship matter. Chamberlin v. Chamberlin, 44 Super. 116. TIT. III.] PARTNERSHIP LANDS. 319 Although at common law a conveyance to partners for the business of the firm might make them joint tenants, under the decisions of this State the several partners to whom such conveyance was made, would become tenants in common of the legal title; and upon the death of either, the undivided portion of the legal title, thus vested in the deceased partner, would descend to his heirs at law, without reference to the equitable rights of the several partners in the land as part of the property of the firm. Buchan v. Sumner, a Barb. Ch. 165. There are instances, however, of lands held for partnership purposes, which will be considered in equity as personalty, and be applied accordingly. Thus it may be agreed by the parties themselves to be so considered, and this agreement will work the change ; and the same will go as personalty on the death of one partner. But if a purchase be made and a conveyance be taken to partners as tenants in common, without any agreement to consider it as stock, although it be paid out of their joint funds, and to be used for part- nership purposes, it will be deemed real estate. Whether it is considered as realty or personalty, however, it is liable for the partnership debts. But it will not be considered as partnership property liable to copartnership debt (preferentially) by the mere taking a deed in the joint name of two persons who are partners. It must be done by some express act or understanding. Smith V. Jackson, 3 Bdw. 28. It is held that a conveyance by one partner, having legal title to an undi- vided half of real estate, the whole of which, in equity, is partnership prop- erty, to a creditor of the firm in payment of a partnership debt, vests good title in such undivided half to his grantee, notwithstanding it is executed without the knowledge or consent of the other partner. Its eflFect is to give a preference to the grantee. Van Brunt v. Applegate, 44 N. Y. 544. And a hona fide purchaser or mortgagee who obtains the legal title to partnership lands, or to an undivided portion thereof from the person who holds such legal title, and without notice of the equitable rights of others in the property, as a part of the funds of the copartnership, is entitled to pro- tection in courts of equitv, as well as in courts of law. Buchan v. Sumner, 2 Barb. Ch. 165 ; Tarbell v. West, 86 N. T. 280-287. For the purpose of paying debts, etc., and discharging the claims and equities of partners, real estate belonging to the firm is treated as personal property, although the title stands in the name of one of the partners only. Fairchild v. Fairchild, 64 N. T. 471 ; affi'g 5 Hun, 407. Compare Bennett v. Crain, 41 Hun, 183. A mortgage to a partner to secure debts due and to become due to a firm cannot, after a partner's death, enure to the benefit of succeeding firm. Taylor V. Post, 30 Hun, 446. But what then remains resumes its original character and descends to the heirs of the partners. J6. Real estate purchased by partners held first for payment of partnership debts, and secondarily subject to creditors of individual partners. Everett v. Schepmoes, 6 Hun, 479. One Partner cannot Bind the other by Deed.— Although one partner may, in general, bind his copartner by acts with- in the scope of their mutual business, it is considered that he cannot bind him by a deed, or so convey his interest in part- nership lands. But he may conl/ract for the sale thereof. Sage v. Sherman, 2 N. Y. 417. The Partnership Contract. — Under a parol contract to be partners in lands, one partner may make an executory contract to convey the joint inter- 320 PARTNERSHIP LANDS. [OH. XI. est, and partners in real estate are liable where other partners are. Chester v. Dickenson, 45 How. 326 ; affi'd 54 N. Y. 1. Dower in.— A widow of a deceased partner has been held entitled to dower in a moiety of partnership lands held by- two in common. Smith V. Jackson, 3 Ed. 33. This case has not been overruled in this State, but is disapproved in Story's ■' Partnership " and Kent's Commentaries, as well as by the courts of Missouri. The dower right would probably be held subject to the claims of creditors in certain cases. Vid. CoUumb v. Read, 24 N. Y. 505. CHAPTER XII. POWERS. Title I. — Or Powers Generally. Title II. — Powers under the Revised Statutes. Title III. — Creation of Powers. Title IV. — Special Provisions of Statute. Title V. — Br whom Executed. Title VI. — Valid Execution. Title VII. — Revocation of Powers. Title VIII. — Extinguishment of Powers. I. Powers Gekekallt. A power is defined by Sugden as " an authority ena- bling a person to dispose, through the medium of the Statute of Uses, of an interest vested either in himself or in another person." Powers were introduced in connection with uses and trusts so that appointments and dispositions in the settle- ment of landed estates might be made according to the intention of parties, thereby avoiding the effect, in many instances, of the strict rules of the common law. Through them there might be a revocation reserved on a feoffment, an entry reserved, on condition broken, to a sf/ranger, the disposal of a fee without words of inheritance, and other variations from strict common law principles. By means of powers the owner was enabled either to reserve to himself a qualified species of dominion, distinct from the legal estate, or to delegate that dominion to strangers, and withdraw the legal estate out of the trustee, or give it a new direction by limitation to new uses and revoking others. 81 322 POWBES GENERALLY. [CH. XII. Before the statutory changes in this State, Powers might be created to an apparently unlimited extent. They were made the instruments of great abuses, and enabled a person, through a power of revocation retained in a con- veyance, to place his lands beyond the reach of his own creditors or of those of his alienee, and to defraud pur- chasers. The English law respecting powers, as has been re- marked, is one of the most intricate labyrinths of juris- prudence. The Revised Statutes have brought them in harmony with the general system of our laws as modified from the English code, and they have emerged into the light and simplicity of prescribed and intelligible rules. In reviewing the subject of " Powers," the abstruse and obsolete learning of the common law, and the subtle dis- tinctions that have arisen in the application of its rules will not be more than referred to. In the chapter on " Powers " of the present Revised Statutes, have been digested and codified all such rules as are retained as part of . our legal system, and their exist- ence is made positive and distinct, freed from the uncer- tainty and various interpretation with which the common law and its many commentators had involved the subject. The doctrine of settlements, as Chancellor Kent re- marks, under the complicated machinery of uses and powers, became in England an abstruse science, which was in a great degree monopolized by a select body of conveyancers, who, by reason of their technical and ver- bose provisions, reaching to distant contingencies, rend- ered themselves almost inaccessible to the skill and curi- osity of the profession at large. Settlements, with their springing and shifting uses, obeying, at a remote period, the original impulse, and varying their phases with the change of persons and cir- cumstances, and with the magic wand of powers, proved to be complicated contrivances; and, as the Chancellor remarks, often, from the want of skill in the artist, became TIT. I.J POWERS GENERALLY. 323 potent engines of mischief planted in the heart of great landed estates, and operating to their destruction. The revisers of our statutes in 1830, also in their notes, speak of the law of Powers, as then existing, as pre- eminently abounding in useless distinctions and refine- ments, difficult to be understood and difficult to be ap- plied, by which the subject, in its own nature, free from embarrassment, was exceedingly perplexed and darkened. " Nor is it merely," they state, " because it is myste- rious and complex, that a reform in this part of the law is desirable. It is liable to still more serious objections, since it affords a ready means of evading the most salutary provisions of the statute law. It avoids all the formali- ties wisely required in the execution of deeds and wills, frustrates the protection meant to be given to creditors and purchasers, and eludes nearly all the checks by which secrecy and fraud in the alienation of lands are sought to be prevented." The revisers also express themselves as follows, in their review of the system of real estate law, as existing at the time of the revision of 1830: "It is not a uniform and consistent system, complex only from the multitude of its rules and the variety of its details; but it em- braces two sets of distinct and opposite maxims, dif- ferent in origin and hostile in principle. We have first, the rules of the common law, connected through- out with the doctrine of tenures, and meant and adapted to maintain tbe feudal system, in all its rigor; and we have, next, an elaborate system of expedients, very artificial and ingenious, devised, in the course of ages, by courts and lawyers, with some aid from the legislature, for the express purpose of evading the rules of the common law, both in respect to the qualities and the alienation of estates, and to introduce modifications of property before prohibited or unknown. It is the conflict continued through centuries, between these hostile systems, that has generated that infinity of subtleties and refinements with which this branch of our jurisprudence is overloaded." 324 POWERS GENEKAIiLY. fOH. XII. "It is this conflict which seems to have involved the law of real property in inextricable doubt, whilst, nearly in every case, as it arises, the uncertainty is, whether the strict rules of ancient law, or the doctrines of modern liberality, are to prevail ; whether effect is to be given to the intention, or a technical and arbitrary construction is to triumph over reason and common sense." The learned Chancellor, whose remarks relative to the obscurity of the law of real estate, prior to the revision, are above quoted, and whose understanding of the mischiefs of the older system was so keen and appreciative, else- where utters a lament, in his valued Commentaries, over the abolition of that mysterious and complex machinery that prevailed, under the common law, for the holding and movement of realty, through the medium of uses and powers, " They seem," he says, " to be inseparable, in opulent communities, to the convenient and safe distribution of large masses of property, and to the discreet discharge of the various duties flowing from the domestic ties ; and the evils are, after all, greatly exaggerated by the zeal and the philippics of the English political and legal reformers." Brought up in all the " learning of the Egyptians," and familiar with the profundities and labyrinths of the com- mon law, in the interpretation of which he had become eminent, it was natural that the great commentator should express a regret over the fall of that system venerable with age and sacred through historic association, which, in 1830, succumbed, in this State, under the sturdy blows of the revisers ; encouraged, as they were, by the awakening intelligence of a community that could not only throw off civil bonds, but emerge from the slavery of traditional error and cumbersome form. Former Classification of Powers.— The usual classifica- tion of powers, by the common law writers, was: 1st. Powers a/ppendomt or appurtenant ; which enabled a party TIT. II.] POWERS UNDER REVISED STATUTES. 325 to create an estate, which attached in whole or in part on his own interest ; as, for example, if a power were given to a tenant for life to make leases in possession, every lease which he executed tinder the power must take effect out of his life estate. 2. Powers collateral or in gross ; which enabled a party to create an estate independent of his own ; e. g., as a power to a life tenant to appoint the estate after his death, by disposing of the reversion. 3. Powers simply collateral, are those which are given to a stranger or a person who has no interest or estate in the land, as, for example, a power given to a stranger to re- voke a settlement, and appoint new uses to other persons designated in the deed, is a power simply collateral. Title II, Powers under the Revised Statutes. (See also Powers in Trust, Ohap. X, ante.) Powers, as they existed both by common law and under the Statute of Uses (except a simple delegated power to act as attorney), were abolished by the Revised Statutes in 1830, and their creation, construction, and execution are now governed by the provisions of those statutes, which relieve powers from many restrictions merely technical and oppressive. Article iii, title ii, chap, i, part ii (1 Rev. Stat. p. 732), will, therefore, have to be attentively perused, if the validity of the creation or exe- cution of a Power is in question ; as it is therein declared (§ 73) that powers as they then existed are abolished, and (§ 92) that no beneficial power, general or special, except as therein allowed, shall be valid. See Cutting v. Cutting, 86 N. Y. 533, partly afBrming and partly revers- ing, 30 Hun, 360. The Revised Statutes define a Power as " an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner 326 POWBES UNDBB EEVISED STATDTES. [CH. XII. granting or reserving such power might himself lawfully perform." Division.— They are classified into (§§ 76 to 79): Gen- eral or Special, and Beneficial or in Trust. 1. General, when an alienation is authorized in fee to a/ny person^ by means of a conveyance, will, or charge of the land. 2. Special, where the persons or class of persons to whom the disposition of the lands under the power is to be made are designated, or a lesser estate than a fee is authorized to be created, as above. A power is heneficial (whether general or special), when the grantee alone is interested in the execution, according to the terms of its creation. See Jennings v. Conboy, 73 N. T. 230 ; Syracuse Savgs. Bk. v. Porter, 36 Hun, 168. Powers in Trust. — A general power is in trust, when any person or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands according to the power (§ 94). A special power is in trust — 1. When the disposition which it authorizes is limited to be made to any person or class of persons other than the grantee of such power. 2. When any person or class of persons other than the grantee is designated as entitled to any benefit from the disposition or charge authorized by the power. (§ 95.) Laws of 1830, ch. 820, sec. 11. The distinction between trusts and powers in trust is at times difficult of determination. A power in trust is to be understood in contradistinction to an estate in trust. The former is a mere authority or right to limit a use, while the latter involves an estate or interest in the sub- ject of the trust. A trustee is invested with the legal TIT. III.] CREATION OF POWERS. 327 estate, but this is not necessary with respect to the donee of a power. In the case of a power in trust, there is al- ways a person other than the donee or grantee of the power, which person is called the appointee, answering to the cestui que trust in a simple trust. A beneficiary is considered as necessary an ingredient in the case of a power in trust as a cestui que trust is in the case of a con- Teyance or devise in trust. A power in trust involves the idea of a trust as much as a trust estate. In both cases a confidence is implied. The difference is in the mode of effecting the object. In one case it is done through the conveyance or devise of an estate in trust, by which the grantee or devisee becomes seized of the legal estate in the land ; in the other, by the creation or grant of a power by which the donee is invested with an au- thority with relation to the future use or disposition of the land. See also, as to the above distinctions, ante, p. 365. Parties to a Power. — In creating a power, the parties .concerned in it are the donor who confers the power, the donee or appointor who executes, and the appointee in whose favor it is executed. The Revised Statutes provide that the term " grantor of a power " is to be considered as used in the article as designating the person by whom a power is created, whether by grant or devise ; and the term " grantee of a power " is to be used as designating the person in wh'om a power is vested, whether by grant, devise or reserva- tion. Title III. Creation of Powers. {See also, Powers in Trust, Chap. X, ante.) How Powers to be Granted.— By the Revised Statutes (§ 106), a power may be granted : 1. By a suitable clause contained in a conveyance of some estate in the lands, to which the power relates ; 328 OEEATION OF POWERS. [OH. XU. 2. By a devise contained in a last will and testament. No formal set of words is necessary to create or reserve a Power. It may be created, as seen above, by a deed conveying some estate in tlie land, or by will ; "and the intention of tlie grantor mainly regulates the interpreta- tion and execution of the power, and the courts will often modify the direct language to suit the apparent in- tention. Vaie Dorland v. Borland, 3 Barb. 63 ; Hubbard v. Gilbert, 25 Hun, 596. They may be implied. Messenger y. Casey, 18 Week. Dig. 71. To be in Writing.— The Revised Statutes provide (§§ ^) '^) '^^^ '^'^ power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered, or declared, unless by act or opera- tion of law, or by deed in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent authorized by writing. Deda/rations of trust, implied trusts, and wills, are ex- cepted, as more fully set forth, ante, p. 265. Who may Create.— The Revised Statutes also provide that no person is capable in law of granting a power who is not at the same time capable of aliening some interest in the lands to which the power relates (§ 75), and that the grantor in any conveyance may reserve to himself any power beneficial or in trust, which he might lawfully grant to another; and every power thus reserved shall be subject to the provisions of the article in the same manner as if granted to another. (§ 105.) Grantee. — The Revised Statutes further provide that the power may be vested in any person capable in law of holding lands (§ 109), but cannot be exercised by any person not capable of aliening lands, except in the single case mentioned in section 110, relative to married women. It is indispensable to the creation of a trust or a power in trust that authority to perform the required act should be delegated to the trustee by the owner of the estate, or TIT. IV.] SPECIAL PKOVISIONS OP STATUTE. 329 one having authority to dispose of it, or of some interest therein. Selden v. Vermilyea, 3 Corns. 536. Title IV. Special Peovisioks op Statute. The following important provisions relative to powers are also to be noted. They will be found in the Revised Statutes, art. iii, ch. i, title ii, part ii. The old numbers of the sections are given, as in the first edition of the Eevised Statutes. Suspension of Alienation.— § 128. The period during which the absolute right of alienation may be suspended by any instrument in execution of a power, shall be com- puted not from the date of sucb instrument, but from the time of the creation of the power. The Estate Given. — § 129. " No estate or interest can be given or limited to any person by an instrument in execution of a power, which such person would not have been capable of taking under the instrument by which the power was granted." This provision carries out the common law principle that the appointee, under the power, derives his title not from the person exercising the power, but from the instrument by which the power of appointment was created. The uses declared in the execution of the power must be such as would have been good if limited in the original deed ; and if they would have been void, as being too remote or tending to a perpetuity, in the one case, they would be void in the other. A party who takes under the execution of a power, takes under the au- thority of, and under the grantor of the power, in like manner as if the power and the instrument executing the power had been incorporated in one instru- ment. Koach V. Wadham, 6 East, 389; Co. Litt. 113, a; Bradish v. Gribbs, 3 Johns. Ch. 533, 550 ; Doolittle v. Lewis, 7 iJ. 45 ; Jackson v. Davenport, 30 Johns. 537. Married Women.— A general and beneficial power may be given to a married woman, to dispose during her mar- riage, and without the concurrence of her husband, of lands conveyed or devised to her in fee. (§ 80). A married woman may have a special and heneficial power granted to her to dispose, during the marriage, and 330 SPECIAL PEOVISIONS OP STATUTE. [CH. XII. without the concurrence of her husband, of any estate less than a fee belonging to her in the lands to which the power relates. (§ 87.) This has been held aa enabling, and not a restrictive provision. It was designed to enable the grantor to give the fee to a married woman, with an absolute power of disposition during coverture. Wright v. Tallmadge, 15 N. Y. 308. A deed of appointment by a feme covert must be acknowledged in like manner as other conveyances executed \i^ femes covert. Jackson v. Edwards, 7 Paige, 386 ; affirmed, 32 Wend. 498. Where the power of appointment by the married woman is to be executed by a deed or will, a master's deed, in partition, will not cut off contingent interests dependent upon her non-execution of the power. Jackson v. Ed- wards, 22 Wend. 498; affirming, 7 Pai. 386. § 110. A married woman may execute a power during marriage, by grant or devise, as may be authorized by the power, without the concurrence of her husband, unless its execution is expressly or impliedly prohibited during coverture, by the terms of the power. The power to devise real and personal property given to married women by the Act of 1849 {ante, p. 74), is general, and not limited to property ac- quired subsequently to the passage of the act. Van Wert v. Benedict, 1 Brad. 114. A married woman may execute a mortgage of her own estate, under a power reserved by her in a marriage settlement executed previous to the marriage, and she may execute a mortgage to secure her husband's debt. Leavitt v. Pell, 37 Barb. 323; affl'd, 35 N. T. 474; see also, Wright v. Tall- madge, 15 N. Y. 308 ; and see ante, p. 80. § 180. When a married woman, entitled to an estate in fee, shall be authorized by a power to dispose of such estate during her marriage, she may, by virtue of such power, create any estate which she might create if un- married ; and if she execute by grant, the concurrence of her husband is not necessary, but to be valid it must be duly and separately acknowledged, as required to be by married women, But see as to acknowledgments by married women, ante, p. 73. A power, general or special, beneficial or in trust, may be reserved to a married woman by a marriage settlement, by which the entire legal estate is vested in trustees. Wright v. Tallmadge, 15 N. Y. 308. A power may be given to a, feme covert to convey a future as well as a pre- sent estate in lands for her own benefit and support during coverture. Jack- son V. Edwards, 7 Paige, 386 ; affirmed, 32 Wend. 498. As a married woman cannot convey her real estate directly to her hus- band, she cannot, by uniting with him in a deed of her real estate to a trustee, reserve a valid power to appoint it to his use, or one which she can by a last TIT. IT.] SPECIAL PROVISIONS OF STATUTE. 331 will and testament devise to him. A ■will by a married woman, in pursu- ance and in execution of a power so reserved, by which she devises her real estate to her husband, is inoperative and void. Such a power might be created by an antenuptial settlement, however. Dempsey v. Tylee, 3 Duer, 74. But see changes in the law, ante, p. 70. As to mortgages by a married woman under a power, see post, § 90. Power to Sell in a Mortgage.— § 133. Where a power to sell lands shall he given to the grantee in any mort- gage or other conveyance intended to secure the pm/ment of money, the power shall he deemed a part of the security, and shall vest in and may be executed by any person who, hy assignment or otherwise, shall become entitled to the money so secured to be paid. And see post, § 90, as to mortgages by life-tenants and married women. Rights of Creditors.— Special and beneficial powers are made liable in equity, to the claims of creditors, in the same manner as other interests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled. (§ 93.) It is also provided (§ 103) that the execution, in whole or in part, of any trust power, may be decreed in equity, for the benefit of the creditors or assignees of any person entitled, as one of the objects of the trust, to compel its execution, when the interest of the objects of such trust is assignable. Absolute Power of Disposition.— § 81. " Where an ab- solute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate, for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be executed, or the lands should not be "sold for the satisfaction of debts." The rule before the Revised Statutes, was that the devise of an estate generally, with power of disposition, carried a fee, but not if the estate were given for life merely. (4 Kent, 319, 327.) It will only carry a fee, however, when the grantee has the right of disposal for his own benefit of the whole 332 SPECIAL PR0VISI0K8 OP STATUTE. [OH. XII. estate, and not merely of a residue. Ladd v. Ladd, 18 How. U. S. 10; Waldron v. Chasteney, 3 Blatch. 0. C. 63 ; Scott v. Perkins, 38 Maine, 33 ; Denson v. Mitchell, 36 Ala. 360 ; Ward v. Amory, 1 Curtis' C. C. 419 ; Sugden on Powers, 96, 101 ; Germond v. Jones, 3 Hill, 69. As to the former rule, vide Jackson v. Bobbins, 16 Johns. 537. § 82. " Such a power also gives a fee to a person, to whom no particular estate is limited, subject to future es- tates, limited, if any, but absolute as to creditors and pur- chasers." Jennings v. Oonboy, 73 N. Y. 380. § 83. " Where such absolute power of disposition is given, and no remainder is limited on the estate of the grantee of the power, he takes a fee." § 84. " "Where a general and beneficial power to de- vise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an ab- solute power of disposition, within the meaning and sub- ject to the provisions of the three last preceding sections." Tallmadge v. Sill, 31 Barb. 34. § 85. " Every power of disposition is deemed aJso^wfe by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit." § 86. "An absolute power of revocation in a convey- ance, by a grantor for his own benefit, reserves a fee so far as the rights of creditors and purchasers are concerned, and he is still deemed the absolute owner." Tenants for Life.— § 8^. May have a special and ben- eficial power given them to make leases for not over- twenty-one years, to commence in possession during the tenant's life. Root V. Stuyvesant, 18 Wend. 357 ; partially overruled, 5 Sandf. 372 ; 20 Wend. 569; 33 ». 496. § 108. The power is not essignable separately, but passes with the estate, unless specially excepted, when it becomes extinguished. Mortgages by Life Tenants and Married Women.— § 90. Mortgages by a life tenant having a power to lease, or by a married woman, by virtue of a beneficial power, do TIT. IV.] SPECIAL PROVISIONS OF STATUTE. 333 not extiuguisli or suspend the power, but the power, and any estate created by it, is bound by the mortgage, in the same manner as the lands embraced therein. The effects of such a lien on the power are : 1. That the mortgagee is entitled, in equity, to an execution of the power, so far as the satisfaction of his debt may re- quire. 2. That any subsequent estate created by the owner, in execution of the power, becomes subject to the mortgage, in the same manner as if in terms embraced therein. (§91.) See also as to a power to sell in a mortgage, ante. Provisions Relative to Trusts to Apply. — § 102. The provisions of the statute relative to trusts, from section 66 to 71 inclusive, are to apply to powers in trust, and the grantees of such powers. Vide ante, pp. 253, 281, and 303. Assignment of Powers. — As a general rule, when a power coupled with an interest is given, it will pass by assignment. § 104. Beneficial powers, and the interest of every person entitled to compel the execution of trust powers, pass under assignments made under the provisions of the 5th chapter of the act (relative to absconding, etc., debtors and insolvent assignments mentioned in that chapter). § 88. The powers of a tenant for life to make leases is not assignable as a separate interest, but is annexed to his estate, and will pass, unless specially excepted, by any conveyance of such estate. If specially excepted in such conveyance, it is extinguished. (§ 108.) Vide ante, p. 333. § 89. Such power may be released by the tenant to any person entitled to an expectant estate in the lands, and shall thereupon be extinguished. All assignments must be by deed, subscribed by the 334 SPECIAL PBOVISIONS OF STATUTE. [OH. XII. party assigning, or his agent, unless it be by will, declara- tion of trust, or operation of law. 2 Rev. Stat. pp. 134, 135, §§ 6, 7. When a Lien or Charge.— § 107. Every power is a Uen or charge upon the lands which it embraces, as against creditors or purchasers in good faith and without notice of or from any person having an estate in such lands, only from the time the instrument containing such power shall he duly recorded. As against all other persons, the power shall be a lien from the time the instrument in which it is contained shall take effect. A naked power cannot lie dormant so as to prevail against the purchaser for value without notice. (Jackson v. Davenport, 20 Johns. 537.) Certain Estates to be Advancements.7-Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement to such de- scendant within the provisions of the second chapter of the act. (§ 127.) Powers of Attorney.— § 134. The provisions of the chapter relative to Powers do not extend to a simple power of attorney to convey lands in the name and for the benefit of the owner. A power of attorney made by one as executrix and sole legatee is good though the official character be not added to the signature. Myers v. Mut. Life Ins. Co. 99 N. T. 1. As to Powers of Attorney, vide post, Ch. XIII. Record of Powers.— Every instrument in execution of a power, except a will, including powers of revocation, is deemed a conveyance, so as to be subject to the pro- visions of ch. iii, R. S., relative to the record and proof of deeds. Jl. § 114. Alien Women.— As to power of alien women under marriage settlements, vide ante, " Aliens," p. 90. TIT. v.] BY WHOM EXECUTED. 335 Powers to Executors to Sell Real Estate.— As to these, vide post, Ch, XVII. Title V. Br whom Executed. A power may be executed hj femes coverts and infants also (when simply collateral), by the common law. By the common law a feme covert might execute any kind of power, whether simply collateral, appendant, or in gross ; and it was immaterial whether it was given to her while sole or married. The concurrence of the husband was in no case necessary. Sugden, 148, 155 ; 4 Kent, p. 394. See also, post, p. 341. As to who may execute under the Revised Statutes, it is provided as follows : By persons capable of Aliening Lands. — § 109. A power may be vested in any person capable in law of holding, but cannot be exercised in any person not capable of aliening lands, except in the case of a married woman, as specified in the succeeding section, 110 (which s&e post, p. 842). Personal Trust and Confidence.— When personal trust, discretion, and confidence are implied, the power cannot be executed by attorney, nor delegated ; nor does it descend to representatives, nor can it be renewed to others. Berger v. Duff, 4 Johns. Ch. 368; Beekman v. Bonsor, 33 N. Y. 398; Powell V. Tuttle, 3 Corns. 396 ; Newton v. Bronson, 3 Ker. 58r. When Powers Survive.— As a general rule, by the common law, a naked authority, without interest, given to several, as to executors, hy name, does not survive, unless by express words. But where it is given to several gen- erally as a class, as to my sons, or my executors, it sur- vives so long as the plural remains. The power survives also when there is any vested legal or equitable interest in the estate, or where the donees are charged with a 336 BY WHOM EXECUTED. [OH. xn. trust relative to the estate, and the execution of the power is necessary to carry out the trust. Fish V. Coster, 28 Hun, 64; affi'd, 93 N. T. 627. As a general rule, also, a naked authority expires with the life of the person who gave it; but a power coupled with an interest is not revoked by the death of the grantor ; such as an interest present or future in land, or a power to sell in a mortgage ; nor where there is a trust created. In a preceding chapter, the subjects of the resignation, renunciation, and substitution of trustees have been fully investigated (Chap. X, Title VII) ; in a succeeding chap- ter (XVII), the appointment, renunciation, removal, and survivorship of executors will also be considered; and reference is made to those chapters as to the survivorship of powers connected with trust estates or trusts. By the Revised Statutes, all persons vested with a power must unite in its execution, but in case of death, the survivors or survivor can act. (§ 112.) This is held to apply even to the case of discretionary powers. Taylor y. Morris, 1 Corns. 341; Leggett v. Hunter, 19 N. Y. 445. As to a special case where provisions were made in a vcill for substitutions, Dide Ogden v. Smith, 2 Paige, 197. As a general rule, where an authority is confided to several for a private purpose, all must unite and concur in its exercise, unless it is otherwise provided. Green v. Miller, 6 Johns. 39; Perry v. Tynen, 22 Barb. 137; Gildersleeve V. The Board of Education, 17 Abb. 701 ; The People v. Walker, 33 Barb. 804 ; Sinclair v. Jackson, 8 Cow. 543 ; Wilder v. Ranney, 95 N. Y. 7. ■ And the one not meeting cannot subsequently ratify the acts of others. When one executor fails to qualify, the other may execute. Taylor v. Morris, 1 N. Y. 341 ; House v. King, 3 Hun, 44 ; Kerr v. McAneny, 3 Daily Trans. May 17, 1883 ; Laws 1883, ch. 401, am'd'g Co. Civ. Proc. § 3643. A trustee of a testamentary power may execute although he may not be an executor. Green v. Green, 4 Redf. 357. Powers Conferred by Law.— By the Revised Statutes it is also provided that whenever any power, authority, or duty is confided by law to three or more persons, and whenever three or more officers are authorized or required by law to perform any act, such act may be done, and such TIT. v.] BY WHOM EXECUTED. 337 power, authority, or duty may be exercised and performed by a majority of such persons or otficers, upon a meeting of all the persons or officers so intrusted or empowered, unless special provision is otherwise made. Ib 1874 this was amended by inserting the words "persons or "before officers and providing for action by a majority of all in case of death, inca- pacity or refusal of any to act. 2 R. S. 555, § 27, 1st ed. ; L. 1874, cb. 331. The above rule would apply to cases of assessors of taxes; a majority may act upon a meeting of all. The People v. Supervisors Chenango Co, 11 N. T. 563. Also to jurors under the Law of 1847, ch. 31, for appraising damage. Cruger v. Hud. R. R. 2 Ker. 191. It would also apply to a board of town auditors. The People v. Su- pervisors, 1 Hill, 195. Also to commissioners to receive subscriptions for stock of a railroad com- pany. Crocker v. Crane, 21 Wend. 211. Also to commissioners of assessments of street extension in New York city, if all had notice. In re Church Street, 49 Barb. 455 ; Aster v. Mayor, 62 N. Y. 580. The legislature may provide that the act of any two shall be valid. Matter of Broadway, 63 Barb. 572. But all of them must be present and act, although the report may be signed by two. Doughty v. Hope, 3 Den. 594 ; affirmed, 1 Corns. 79. The amendment of 1874 {supra) appears to change this. And a ratification by the Common Council would not render the act valid. It. The act is also held applicable to trustees of common schools. Grilder- sleeve v. Board of Education, 17 Abb. 202; Horton v. Garrison, 23 Barb. 176. But not to two out of three trustees to apportion a school tax under a law (Law of 1847, ch. 480) requiring the trustees to do so. Lee v. Parry, 4 Den, 125 ; Keeler v. Frost, 22 Barb. 400. It is held not to apply to judicial officers. Hawes v. Walker, 23 Barb. 304; Coming v. Slosson, 16 N. Y. 294. It has been held that the above section applies as to the persons to select a commissioner for jurors in New York city. The People v. Walker, 23 Barb. 304. As to commissioners of highways, vide Stewart v. Wallis, 30 Barb. 344. It is held that although the above statute does not apply to judicial offi- cers, it does to quasi judicial and ministerial officers. Parrot v. Knicker- bocker Ice Co. 38 How. 508, and cases hereafter cited. Where a statute prescribes that acts are to be performed by "the com- missioners " — i. e., in partition— all must act. Schuyler v. Marsh, 37 Barb. 350. The rule of the Revised Statutes applies to all matters of public concern. People V. Washington, 53 N. Y. 478. Also to commissioners to assess damages on taking land for a public use. Astor V. Mayor, 63 N. Y. 580. As a general rule, where a public authority is conferred upon individuals not a court, as a continuous public trust or duty, and some die or become disqualified, the others may discharge the trust or perform the duty, pro- vided there be a sufficient number to confer together, deliberate, and in view of a possibility of division of opinion, to decide upon the course to be adopted. Downing v. Rugar, 31 Wend. 178; Gildersleeve v. The Board of Education, 17 Abb. 303; Perry v. Tynen, 33 Barb. 137; In re Church St. 49 Barb. 455 ; People ex rel. Kingsland v. Palmer, 52 N. Y. 83, 87. If a statute or charter require all or a certain number to be present, all 22 338 BY WHOM EXECUTED. [OH. XU. must be present, and if an act is required upon the joint consultation of all of a body, all must be present for the deliberation, and continue present. Johnson v. Dodd, 56 N. Y. 76. Where the authority is public, and the num- ber be such as to admit of a majority, such majority will bind the minority, after all have duly met and conferred. Where the authority is conferred upon two, nothing can be done without the assent of both, yet where the au- thority is public, to prevent a failure of justice, one may act, if the other be dead, interested, or absent. Jra r« Rogers, 8 Cow. 536; Downing v. Rugar, 31 Wend. 172; Woolsey v. Tompkins, 23 Wend. 324; The People v. Walker, 2 Abb. 431 ; Keeler v. Frost, 22 Barb. 400 ; Powell y. Tuttle, 3 Corns. 396 ; Doughty V. Hope, 3 Den. 594 ; affirmed, 1 Coms. 79. Where a public authority is conferred upon individuals not a court, nor acting judicially, all members should be notified to attend in some proper manner, either directly or through by-laws. If, thereupon, the majority of the whole number attends, the majority so attending may organize, and legally proceed to the transaction of business, and the majority of that quo- rum will bind the whole body. As respects those who neglect or refuse to attend, it is the same as if they had attended and assented to the act of those who were present. All, how.- ever, are entitled to reasonable notice of the time and place of the meeting. The members of a corporate or other body, interested with the management of a matter of public concern, are deemed to have notice of a general or stated meeting, held pursuant to the by-laws of the body. In re Church St. 49 Barb. 455; Stewart v. WalUs, 30 Barb. 344; The People v. McSpedon, 18 How. Pr. 152 ; Gildersleeve v. The Board of Education, 17 Abb. 301 ; Perry V. Pinehout, 33 Barb. 187 ; Horton v. Garrison, 33 Barb. 176 ; The People v. Walker, 23 Barb. 804; The People v.Loew, 28 Barb. 310; affirmed, 33 N. Y. 28 ; Wasliington v. Nichols, 52 N. Y. 478. Where nothing is shown to the contrary, it will be presumed that all per- sons necessary met and consulted in doing the act. Keeler v. Frost, 22 Barb. 400; McCoy v. Curtice, 9 Wend. 17; Downing v. Rugar, 21 id. 178; Doughty V. Hope, 3 Den. 253 and 594 ; affirmed, 1 N. Y. 79 ; The People v. Com. 0. of Rochester, 5 Lans. 11 ; People v. Bradley, 64 Barb. 228. If the act be of a nature to require the exercise of discretion and judg- ment — in other words, if it be a judicial act, or one of that nature — all the persons to whom the authority is delegated must meet and confer together, but a majority may decide. Harris v. The Commissioners, &c. 6 How. Pr. 175 ; Woolsey v. Tompkins, 23 Wend. 324 ; In re Rogers, 8 Cow. 536 ; The People V. Walker, 3 Abb. 431; Crocker v. Crane, 21 Wend. 211 ; Perry v. Tynen, 22 Barb. 137 ; The People v. Walker, 23 Barb. 304. If two only of three referees sign a report, it will be presumed that all met and consulted. Yates v. Russel, 17 Johns. 466. Private Corporations.— By the Revised Statutes (vol. i, p. 600, § 6), when the corporate powers of any cor- poration are directed by its charter to be exercised by any particular body or number of persons, a majority of such body or persons, if it be not otherwise provided in the charter, shall be a sufficient number to form a board for the transaction of business; and every decision of a majority of the persons duly assembled as a board shall be valid as a corporate act. Vide Story v. Furman, 25 N. Y. 314. TIT. VI.] VALID EXECUTION OE POWERS. 339 Where Persons not Designated.— Though the persons to execute a power are not specified, it may be valid, and its execution would devolve on the Court of Chancery. Crocheran v. Jaques, 3 Edw. 307. Trustee not Designated. — "And where no trustee of a power in trust is designated by a will creating it, its execution devolves upon the Supreme Court." But fre- quently, from the terms of the will, a power of sale in the executors will be implied. Meakings v. Cromwell, 2 Sandf. 513; affirmed, 5 N. Y. 136; Delaney v. McCormick, 35 Hun, 574; affi'd, 88 N. T. 174; and see post, Ch. XVII. Title VI. Valid Execution of Powers. A power cannot be exercised before or after the time prescribed for its exercise. When the mode in which a power is to be executed is not defined, it may be execu- ted by deed or will, or simply by writing. The Revised Statutes prescribe that the power must be executed by some instrument in writing which would be sufficient in law to pass the estate if the person executing the power were the actual owner. The general modes in which the power is to be exercised are given fully below. As a general rule, powers of revocation and appoint- ment and sale need not be executed to the full extent of them at once, but may be exercised at difierent times over different parts of the estate. Po-wer Exhausted by its Exercise. — A power conferred by statute is exhausted by once exercising it. People v. Woodruff, 33 N. T. 355. Dormant Powers. — A naked power cannot lie dormant so as to prevail against a iona fide purchaser for value without notice. Jackson v. Daven- port, 30 Johns. 537. Powers to Mortgage, to Sell, or to Lease, etc. — A power to mortgage implies a power to authorize a sale on default. Wilson V. Troup, 3 Cow. 195. Sales under a power in a mortgage must be according 340 VALID EXECUTION OP POWERS. [OH. XH. to the foreclosure statute in force at tlie time of default made, although the power may provide differently. Lawrence v. The Farmers' Loan and Trust Co. 3 Kern. 200; ih. 643; James v. Stall, 9 Barb. 483; Wilson v. Troup, 3 Cow. 196. As a general rule, a power to sell does not convey a power to mortgage. The rule, however, is subject to qualifications. Bloomer v. Waldron, 3 Hill, 361 ; Albany Insurance Co. v. Bay, 4 Corns. 9 ; Coutant V. Serross, 3 Barb. 138; Pitcher v. Carter, 4 Sand. Ch. 1. A power to sell authorizes a lease with a covenant to give a fee. Williams V. Woodward, 3 Wend. 487. A power to contract to sell means an absolute sale, and not one optional to the purchaser. Ives v. Davenport, 3 Hill, 373. A power to repavr and improve authorizes a mortgage. Wetmore v. Hols- man, S3 How. Pr. 302. A power to divide gives no power to sell. Craig v. Craig, 8 Barb. Ch, 76. As a general rule, a power to execute an instrument of known and definite signification in the law will not authorize the execution of one having a different effect. Trustees having the legal estate in lands, with a duty to perform with re- spect to the rents and profits, and without any restriction upon the right to lease, may lease vacant lots for 31 years, and give covenants for renewal for a similar term, and for appraisal; and such covenants may be enforced against a new trustee. Newcomb v. Kettletas, 19 Barb. 608 ; aMrmed, 17 N. T. 91. See also, Boot v. Stuyvesant, 18 Wend, 357. The latter case, however, is not considered now an authority. Vide 20 Wend. 569 ; 23 ib. 496 ; 5 Sandf. 373. Where a power in trust to executors to lease the real estate of the testator until it can be sold would have the effect to suspend the absolute power of alienation in such real estate beyond the time allowed by law, it is void. But the power to sell in such a case would still be valid ; and the real estate in equity will be considered as converted into personalty immediately, where such conversion is necessary to carry into effect the will of the testator. Hax- ton V. Corse, 3 Barb. Ch. 506 ; Hawley v. James, 16 Wend. 60. When the object of a power is illegal, the power is void ; and where it is void, or no appointment is made, the future estates limited take effect as if the power had not been given. The estates limited are held to be vested, subject to the execution of the power if valid. Execution by Devise. — Where a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be a will duly executed ac- cording to the provisions of the 6th chapter of the act. § 115, Rev. Stat. Vol. I, p. 736. TIX. VI.] VALID EXECUTION OP POWERS. 341 See as to rights of creditors of donee of power to devise. Cutting v. Cut- ting, 86 N. Y. 523. By § 126, lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless a contrary intent appear by the will, directly or by implication. The same rale applies to personalty. Hutton v. Benkard, 92 N. Y. 295. Wills made under a power must be executed with the same formalities, and must be proved in the same manner as proper wills. They must be proved in the Probate Court ; but that court has nothing to do with the question whether the power is well executed, or whether it author- izes the will, or in fact exists at all. The question of its being a due execution of a power is for the determination of a court of construction. A will in execution of a power is ambulatory, and revocable in the same manner as a proper will. The testamentary instrument, however, which a married woman might exe- cute under power of appointment is not strictly a will, nor does it operate as such in the proper legal sense of the term. It operates as an appointment, and the devisee or legatee takes the property by force of the power. This was the rule before the statutes of 1848-9. Prazer v. Western, 1 Barb. Ch. 240; Van Wert v. Benedict, 1 Bradf. 114; Strong V. Wilkin, t Barb. Ch. 13. A power executed by a will made in accordance with laws of another State, where the appointee resided, was held valid in Betts v. Betts, 4 Abb. N. 0. 317, 389. A will giving all testator's estate (after paying debts and funeral expenses), " both real and personal of every nature whatsoever and wheresoever," will pass lands embraced by a power in testator to designate the uses to which- trustees shall stand seized. Mott v. Ackerman, 92 N. Y. 539. Execution by Grant. — Where a power is confined to a disposition by grant, it cannot be executed by will, al- though the disposition is not intended to take effect until after the death of the party executing the power. Kev. Stat. § 116. Married Women.— When not prohibited by the terms of the power, a married woman may execute a power, 342 VALID EXECUTION OB" POWERS, [CH. XII. if SO authorized by it, by grant or devise, without the concurrence of her husband. Jackson v. Edwards, 7 Paige, 386 ; affii-med, 22 Wend. 498 ; Eev. Stat. § 110 ; and see ante, p. 330. But no power vested in her during infancy shall be exercised by her until of age (§ 111). A power to mortgage, reserved to married woman in respect to lands held in trust for her separate use, will support a mortgage to secure her husband's debt. Leavitt v. Pell, 25 N. T. 474; affirming 27 Barb. 322. If a married woman execute a power by grant, the concurrence of her hus- band as a party shall not be requisite, but it had to be acknowledged sepa- rate and apart from him to be valid. As to which, vide Ch. Ill, Title III. But see as to present law of acknowledgments by married women, po»t, Ch. XXVI, Title I. Method and Formalities of Execution.— When the grantor of a power shall have directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules theretofore prescribed in the article relative to powers. § 118, ib. When the grantor shall have directed any formalities to be observed in the execution of the power, in addition to those sufficient in law to pass the estate, the observ- ance of such additional formalities shall not be necessary to a valid execution of the power. (§ 119.) As a general rule, there must be a substantial com- pliance with every condition required to precede or ac- company the exercise of a power, and the power must not be exceeded. Nixon V. Hyserott, 5 Johns. 58 ; Allen v. Dewitt, 8 N. Y. 276 : Cleveland v. Boerum, 27 Barb. 252 ; affirmed, 24 N. T. 613 ; Ladd v. Ladd, 8 How. U. 8. 10 ; Griswold v. Perry, 7 Lans. 98. A provision that the grantor unite in the execution of the power is valid. Kissam v. Dierkes, 49 N. T. 602. Where there are several modes, however, of executing the power, the donee may select his mode. Where the conditions are merely nominal, and without apparent intent to benefit the party for whom or for whose benefit they are to be performed, they may be dis- regarded. 1 Rev. Stat. p. 736, § 120. TIT. VI.J VALIB EXECUTION OP POWERS. 343 A grantee under the power is bound to see to the performance of condi- tions precedent, and is not excused by a recital of performance in the convey- ance, but is protected as to conditions subsequent. Griswold v. Perrv, 7 Lans. 98. A power of sale cannot be executed after the time limited. Kichardson v. Sharpe, 29 Barb. 233. A power to sell on a credit of twelve months ia not exceeded on a sale at a six months' credit. Richardson v. Hayden, 18 B. Mon. 342. A power of sale may be executed by contract as well as by deed. Dem- arest v. Ray, 39 Barb. 563. Where the power is so hampered by restrictions as to be practically in- operative it may be wholly disregarded. Macy v. Sawyer, 66 How. Pr. 481. But the court will give effect to conditions, as far as practicable, while taking care that the object of the power be not defeated. Phillips v. Davies, 93 N. Y. 199. Intentions of Grantor.— With the above exceptions, the intentions of a grantor of a power as to the mode, time, and condition of its execution shall be observed, subject to the power of tbe Supreme Court to supply a defective execution in the cases thereinafter provided. (§ 121.) Where the direction is that the power must be exercised for a special purpose, any deviation (e. g. as if a transfer to pay a precedent debt were made under a power of sale to pay legacies) would make the execution void. Russell V. Russell, 36 N. Y. 081. Vide "Powers of Sale to Executors," fOSt. Consent of Third Person.— When the consent of a third person to the execution of a power is requisite, such con- sent shall be expressed in the inst/rument by which the power is executed, or shall be certified in writing thereon, in either case to be signed by the party whose consent is required, and lawfully proved or acknowledged if required to be recorded. (§ 122.) Even since the Revised Statutes, if the consent of a third person is re- quired, the power cannot be executed if he die before execution. Barber v. Gary, 11 N. Y. 397 ; Kissam v. Dierkes, 49 N. Y. 603. Consent of legatees whose legacies were charged on real estate, obtained without consideration, is not such a consent as is required before exercise of power of sale. Hoyt v. Hoyt, 17 Hun, 192; affl'd, 85 N. Y. 143. Unauthorized Exercise.— No disposition by virtue of a power shall be void in law or equity on the ground that it was more extensive than was authorized by the power, but every estate or interest so created, so far as embraced by the terms of the power, shall be valid. (§ 123.) Purchasers for Value. — Purchasers for value claiming 344 VALID EXECUTION OP POWERS. [CH. XII. under tte defective execution of a power are entitled to the same relief in equity as similar purchasers claiming under a defective conveyance from an actual ovrner. (§ 132.) Disposition among Several.— Where a disposition under a power is directed to be made to or among several per- sons, without any specification of the share or sum to be allotted to each, all the persons designated shall be en- titled to an equal proportion ; otherwise, if the trustee of the power has a selection, he may allot the whole estate to any one or more of such persons, in exclusion of the others (§§ 98, 99), but not to any one outside of the class designated. Shannon v. Pickell, 3 N. T. State. Rep. 160. It is a settled principle that where a discretion has been conferred by statute, its exercise cannot be reviewed, and is not subject to any appellate tribunal. See Extension of Church St. 49 Barb. 455. See post, p. 345, as to the imperative nature of such trust powers. Decease of Trustee having Right of Selection. — If such trustee with power of selection die, leaving the power unexecuted, its execution shall be decreed in equity, for the benefit equally of all the persons designated as ob- jects of the trust (§ 100). Power not Referred to in the Instrument.— Every in- strument executed by the grantee of a power conveying an estate or creating a cbarge which such grantee would have no right to convey or create unless by virtue of his power, shall be deemed a valid execution of the power, although the power be not referred to or recited therein. (§ 124.) This settled the former law on the subject, which in most cases required a reference to the power in the instrument, particularly where the donee had an interest separate from the power. A person may execute a will without reference to the power (White v. Hicks, 43 Barb. 64 ; affirmed, 83 N. T. 883), and this would be a valid execu- tion of the power, if it otherwise appear that the intention was to execute the power ; and the amount of a testator's property may be inquired into to show an intention to execute the power. Ih. ; Stuyvesant v. Neil, 67 How. Pr. 16; Mott V. Ackerman, 92 N. Y. 539; Cole v. Gourlay, 9 Hun, 493; aflSl'd, 79 N. T. 537 ; Onderdonk v. Ackerman, 62 How. Pr. 818. Powers in Trust.— It has been seen in a previous chap- ter (Ch. X), that where, in a devise to executors or other TIT. VI. J VAIID EXECUTION OP POWERS. 345 trustees, they are not entitled to receive the rents and profits, no estate vests in them. Another provision of statute has also been considered, to the effect that where an express trust shall be created for any purpose not authorized by statute, no estate shall vest in the trustee ; but the trust, if directing or authoriz- ing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions of article third, respecting powers ; and the lands vest in the persons entitled, subject to the execution of the trust as a power. The interpretation of these statutory provisions has been considered in a previous chapter relative to trusts. A general power, it has been seen {am,te, Title I), is in trust when persons other than the grantee of the power are entitled to all or a portion of the proceeds or benefits resulting from the alienation of the lands according to the power. A special power is in trust — 1. Where the disposition authorized is limited to per- sons other than the grantee of the power. 2. Where persons other than the grantee are designa- ted as entitled to benefit from the disposition or charge authorized by the power. The provisions of the Revised Statutes relative to the valid execution of such trust powers will now be con- sidered. By section 96 of the above chapter, it is provided that every trust power, unless it's execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the per- formance of which may be compelled in equity, for the benefit of the parties interested. Under the views of our courts, a power is always con- sidered imperative when its subject — that is, the property given — and its object — that is, the person to whom it is given — are certain. Such a power is not to be con- 346 VALID EXECUTION OF POWERS. [CH. XII. strued as discretionary because the terms used are simply those of authority, request, or recommendation, and not terms of direction ; nor because a right of selection is given to the donee of the power. A power is always con- sidered a trust when a disposition is made to a class, unless its execution is made, in terms, to depend upon the mere discretion of the grantee. It is considered, in equity, a gift to all who are the objects of the power, subject to be altered or restricted by its execution. A power is also considered imperative, if its execution is not made to depend upon the will of the grantee, and if it imposes on the grantee a duty the performance of which may be compelled in equity for the benefit of the parties interested. Selden v. Vermilyea, 1 Barb. 58 ; partially reversed, 3 Corns. 535. A general power in trust, the execution or non-execution of which does not depend on the mere volition of the trustee, is imperative in its nature, and imposes a duty the performance of which may be compelled in equity. Arnold v. Gilbert, 5 Barb. 190; Van Bosckerck v. Herrick, 65 Barb. 350. Under a general and beneficial power of appointment the person entitled to exercise it may appoint himself or any other person. Hubbard v. Gilbert, 25 Hun, 596. The Revised Statutes further expressly provide (§ 97) that a trust power does not cease to be imperative where the grantee has the right to select any, and exclude others of the persons designated as the objects of the trust. Where an express power in trust is given to executors to divide specified real estate in certain proportions among a class, it is a valid and imperative power in trust, and the executors must perform it by setting off the shares in severalty by a valid and legal instrument. Dominick v. Sayre, 3 Sandf. 555; Craig v. Craig, 3 Barb. Ch. 76. Where the execution of a power in trust shall be de- fective in whole or iu part, under the provisions of the article, its proper execution may be decreed in equity in favor of the persons designated as the objects of the trust, but not when its purpose has been otherwise accom- plished. ■ Prentice v. Janssen, 79 N. Y. 478. A defective execution of an appointment, made for a valuable considera- tion, is not wholly void. It amounts only to a defective execution, and equity will supply it. Schenck v. EUingwood, 8 Ed. 175. TIT. VII.] REVOCATION OP POWERS. 347 The court will also exercise a power of distribution given in trust to a party who has died. Hoey v. Kenney, 35 Barb. 896 ; Bolton v. De Peyster, 25 Barb. 540; De Laney v. McCormick, 35 Hun, 574; affi'd, 88 N. Y. 174. Fraud. — Instruments in execution of a power are af- fected by fraud, both in law and equity, in the same man- ner as conveyances by owners or trustees. (§ 125.) Powers Executed by Alien Women.— By Law of April 30, 1845, ch. 115, alien women, residents of the State, are authorized to take land by devise, and to execute every power relative to real estate devised to them, lawfully created, as if they were citizens. Vide ante, p. 90 as to Alien Women. Title VII. Revocation of Powers. Foiinerly there might be a power of revocation re- served even in the deed executing the power, though the deed creating the power did not authorize it. On every execution of the power, a new power of re- vocation had to be reserved, otherwise the appointment could not be revoked. 4 Kent, 336. On this head of appointment and revocation, mde Evans v. Sanders, 31 Eng. Law & Eq. 366 ; Gelb v. Tugwell, 35 i5. 439. The Revised Statutes provide, as to the revocation of powers, that every power beneficial or in trust is irrev- ocable, unless an authority to revoke it is granted or reserved in the instrument creating the power. (§ 108.) It is also provided that where a grantor, in any convey- ance, reserves for his own benefit an absolute power of re- vocation, he shall be deemed absolute owner of the estate, as regards creditors and purchasers. lb. § 86. A power coupled with an interest is not revoked by the death of the gran- tor, as a power to sell in a mortgage, but passes with the mortgage, and is not revoked by the death of the mortgagor. Nor is a power to sell for the benefit of the grantee revocable. A mere naked authority expires with the person who gave it. A power coupled with an interest, however, continues after the decease of 348 TERMINATION 01' POWERS. [OH. XII. the creator, and cannot be revoked until after the demand which it is given to satisfy, is fully paid up. Morgan v. Raynor, 5 Alb. Law J. 109. As to revocation of power to agent, on making compensation for services rendered, see Culver v. W. U. Tel. Co. 50 N. Y. 691. Statute of Frauds as to Power to Revoke. — By the Eevised Statutes also (vol. ii, p. 134, § 3), every conveyance or charge of or upon any estate, etc., in lands, containing any provisions for the revocation, determination or alteration of such estate or interest, or any part thereof, at the will of the grantor, shall be void as against subse- CLuent purchasers for value from the grantor of such estate, etc., although the same be not expressly revoked, deter- mined or altered by such grantor by virtue of the power reserved or expressed in such prior conveyance or charge. 1 R. L. 75, § 5. § 4. Where a power to revoke a conveyance of lands or of rents and profits and to reconvey the same shall be given to any person other than the grantor in such con- veyance, and such person shall thereafter convey the same lands, rents, etc., to a purchaser for value, such subsequent conveyance shall be valid as if the power of revocation were recited therein, and the intent to revoke the former conveyance expressly declared. (§ 5.) If a conveyance under the above two sections be made before the person making the same shall be entitled to execute his power of revocation, it shall nevertheless be valid from the time the power of revocation shall actually vest in such a person, in the same manner and to the same extent as if then made. Title VIII. Extikguishment and Termination of Powers. Powers may be suspended, merged or extinguished. As a general rule a party cannot defeat his own action where other rights have attached under it, by a subse- quent act extinguishing the power. A power is also con- TIT. Till.] TERMINATION OP P0"WBE8. 349 sidered extinguished where its execution becomes practi- cally impossible. It is a general rule that a purchaser under a power purchases at his peril, and is bound to inquire whether the power has not been extinguished. StaflEord v. Williams, 13 Barb. 240. An alienation of the estate formerly extinguished the power even in cases of mortgage ; also a release to the ten- ant of the freehold ; also a fine and recovery. By the Revised Statutes the power to sell passes by assignment of the mortgage, when given in a mortgage or other conveyance intended to secure the payment of money, and the power shall be deemed a part of the secur- ity, and shall vest in and may be executed by any person who, by assignment or otherwise, shall become entitled to the money so secured to be paid. 1 R. S. p. 733, § 133, 1st ed. A mortgage by the tenant for life having power to make leases, or by a married woman by virtue of a bene- ficial power, does not extinguish or suspend it. The power is bound by the mortgage in the same manner as the lands embraced therein. lb. § 90. See further as to this section, ante, Title IV. It was also a question if an estate were limited to uses, to he appointed by a person, and in default of appointment, to himself in fee, whether the power was not merged in the fee. The Revised Statutes provide that where there is no trust, and the absolute power of disposition is given, and no remainder limited on the estate of the grantee, he takes a fee absolute. (Ih. § 89.) See as to these provisions, ante. Title IV. Power of Life-Tenant to make Leases, when Extin- guished.— The Revised Statutes provide that the power of a tenant for life to make leases is not assignable as a sep- arate interest, but if specially excepted in any conveyance of the estate, it is extmgvisJied, and it is also extinguished if released to the person having an expectant estate. (§§ 88, 89.) Express Powers.— An express power to dispose of lands when not clothed with an estate or interest, is not 350 TBRMINATIOlif OF POWERS. [CH. XH. descendible or transmissible, but terminates with the lives, or according to the terms of its creation, with the life of the survivor of those in whom it is vested. Hence, when a power to sell lands, even for the payment of debts, is given to executors, if it pass to a surviving executor at all it ceases upon his death, and cannot be exercised by his executor when he makes a will, nor when he dies intestate, by an administrator with the original will annexed. Domi- nick V. Michael, 4 Sandf. 374. As to the survivorship of trust powers, however, and the substitution of executors and trustees for those removed, dying or discharged, see ante, Ch. X, Title VII, and post, Oh. XVII, and ante. Title V. Powers simply collateral can neither be barred nor extinguished by any act of the party in whom they are vested. Learned v. Tallmadge, 26 Barb. 443. Where an executor was removed for becoming a non-resident and subse- quently returning received letters of administration with the will annexed, it was held that he could still execute the power. Hetzell v. Easterly, 66 Barb. 443. When the Objects or Purposes of the Power cease.— The power is also considered no longer operative when its alleged purposes no longer exist — as to provide for a widow who dies, or when its objects are unattainable. Thereupon it ceases or becomes extinguished by opera- tion of law, and lands formerly affected by it are no longer subject to its exercise. Jackson v. Jansen, 6 Johns. 73; Slocum v. Slocum, 4 Edw. 618; Hutchins V. Jones, 7 Bos. 236; Hotchkiss v. Elting, 36 Barb. 38; Sharpsteen v. Tillou, 3 Cow. 651 ; McCarty v. Terry, 7 Lana. 386 ; Hetzel v. Barber, 69 N. Y. 1 ; affi'g in part and reversing in part, 6 Hun, 534 ; and see post, Ch. XVII. A power in the execution of which it is provided that grantor join is ex- tinguished by his death. Kissam v. Dierkes, 49 N. T. 602. See also as to persons for whose benefit powerof sale is to be exercised, taking the land itself and thus exhausting the power. (12 Barb. 117 ; 73 N. T. 556; 79 id. 479), Savage v. Sherman, 24 Hun, 307. CHAPTER XIII. POWEES OF ATTORNEY. Title I. — Conteacts and Conveyances by Attorney. Title II. — Revocation. Title III. — Record of Powers of Attorney. Title IV. — Powers by Married Women. Title I. Conteaots and Coktveyawoes by Attoenet. A person (including a married woman) may make a contract or conveyance by attorney " in faet^'' through a power of attorney, with the like effect as if made person- ally. If the subject-matter is real estate, the power should be in writing. 3 R. S., 1st ed., p. 134, § 6. See fully as to the law regulating powers in general, ante. Oh. XII. As to married women, see Laws 1878, ch. 300. Nash V. Mitchell, 71 N. Y. 199. An executor may make a valid power of attorney, though he do not attach his oflScial designation to his signature. Myers v. Mutual L. I. Co. 99 N. Y. 1. A sealed contract executed by an agent with only parol authority, is not the deed of the principal, and no act inpais.can make it his unless the rati- fication be written. Hanford v. McNair, 9 Wend. 54 ; Blood v. Goodrich, 12 ib. 535. As to the construction and effect of a general power of attorney between partners and others, vide Pereira v. De Pew, 17 How. Pr. 418. The authority given under a power of attorney and all special powers is strictly construed, and any act substan- tially varying from it would be void. The general words are to be construed with I'eference to the particular terms which form the subject-matter of the instrument, and in furtherance of, but in subordination to the general power conferred. Geiger v. Bolles, 1 N. Y. S. C. 128. Therefore, if a party were authorized as an attorney in fact, to sell and grant lands and execute conveyances, he would not be authorized to enter into covenants or do any other act than was actually necessary to transfer the 652 CONTRACTS BY ATTORHBY. [CH. XIII. property by deed sufficient for the purpose. Nixon v. Hyserott, 5 Johns. 58 ; Gibson v. Colt, 7 Johns. 390. See Sanford v. Handy, 33 Wend. 260, and Nelson V. Cowing, 6 Hill, 336, distinguishing and criticising these cases. As a general rule a power to sell, if general and unqualified, does not in- clude a power to mortgage. Coutant v. Servoss, 3 Barb. 138 ; The Albany Fire Ins. Co. v. Bay, 4 N. T. 9 ; Bloomer v. Waldron, 3 Hill, 361 ; and see ante, "Powers," Ch. XII. But a power to sell for the purpose of raising money might imply a power to mortgage, which is a conditional sale, and within the object of the power. 4 Kane, 147; 1 Powell on Mortgages, 61. A power to mortgage, lease, sell and convey does not give authority to employ counsel except in and about such instruments as the attorney may execute. Harnett v. Garvey, 36 Super. 336. A power to mortgage includes a power to execute a mortgage with a power of sale in it. Wilson v. Troup, 7 Johns. Ch. 23. A trust to raise money out of the profits of land will include a power to sell or mortgage. 4 Kent, 148. One dealing with the attorney is bound by the terms of the power. Bumstead v. Hoadly, 1 1 Hun, 487. A power to invest money and authorizing the use of the principal's signa- ture and seal whenever the same may be necessary or proper, gives power to assign a bond which accompanies a mortgage, the power to assign the latter being expressly conierred. Feldman v. Beier, 78 N. T. 393. A power of attorney to sue, recover and release judgments recovered, gives no power to release without payment. BeMets v. Dagron, 53 N. T. 635. Under a power of attorney to sell land the attorney cannot sell to himself through a third person. Bain v. Matteson, 54 N. T. 663. Instruments, how Executed by Attorney. — Instruments executed through an attorney in fact, duly authorized, are executed by the attorney in the principal's name, ;per the attorney's name, appended as such. A contract or deed, to be obligatory upon the princi- pal when made by the agent, must be made in the name of the principal. If the agent contract in his own name, although describing himself as agent or attorney for his principal, the contract is the contract of the attorney and not of the constituent. The principle or theory of the above rule is, that the interest in the estate, that is the subject of the power, is vested alone in the principal, and the power of attorney as such vests no interest in the representative, consequent- ly none can pass from him. A covenant for the sale of land, therefore, or a deed passing an interest in land where the contract or instrument is made by an attorney in fact, to be valid as against the principal, must be executed in the name of the principal hy his attorney. If the attorney TIT. 111.] RECORD OF POWERS OF ATTORNEY. 353 affix only his own name, the covenant is void, although in the body of the instrument it be stated that it is the agreement or deed of the principal by his attorney, and although the principal be individualized as making the covenants. This would be the case even if, in the testatum clause, it be alleged tbat the attorney, as the attorney of the principal, had signed and sealed the instrument. 4 Wash. C. 0. 280; Spencer v. Field, 10 Wend. 88; Taylor's Landlord and Tenant, §§ 139, 140, 141; Stone v. Wood, 7 Cow. 453; Townsend v. Corning, 23 Wend. 435 ; vide, as to mistake in name of the principal, 14 Wall. 1 78. See also Townsend v. Hubbard, 4 Hill, 351 ; Sherman v. N. T. C. R. E. Co. 22 Barb. 289. Title II. Revocation. It will be necessary to ascertain, before taking title under a deed executed tbrougli attorney, that the power has neither been revoked in fact nor by law, as, by the decease or civil disability of the grantor before the execu- tion of the deed, a power of attorney, not coupled with an interest, being revocable at will. The decease of the attorney revokes the appointment of any sub-attorney made by him. Watt v. Watt, 2 Barb. Oh. 871. As a general rule the rerocation takes efEect, as to the agent, from the time it was made known to him. As regards third persons, it depends upon the notice given. But the question as to what amounts to notice seems un- settled. If, with the exercise of ordinary caution, a party would be led to a knowledge of the revocation, it seems sufficient. Williams v. Birbeck, 1 HofE. 259. Lunacy of the Principal. — This does not, per se, revoke a power of at- torney nor invalidate the acts of the attorney until the fact of lunacy is judi- cially established. Wallis v. The President, &c., of the Manhattan Co., 2 Hall Supr. Ct. 395. Vide also as to records of revocation as notice, infra. Title III. Record of Powers of Attorney. To make a proper title to realty of record, the power should be properly acknowledged and recorded ; but by Revised Statutes, it is provided that a power of attorney need not be recorded; but, when legally proved and 23 354 POWERS BY MAKEIED WOMEN. [OH. XIII. acknowledged, it, or any contract for sale of lands, may be recorded in the clerk's office of any county in which any real estate to which such power or contract relates may be situated, and when so recorded its record or the transcript thereof may be read in evidence, etc. 1 R. S. 1st ed. p. 714, § 39. Power of attorney may be acknowledged and proved in the same manner as deeds. St. John v. Oroel, 5 Hill, .573. Books of powers of attorney are kept properly indexed, in the offices of the various registers or clerks of counties; also books of revocation of such powers. Record of Revocation.— It is also provided that no let- ter of attorney or other instrument, so recorded, shall be deemed to be revoked by any act of the party by whom it was executed, unless the instrument containing such revocation he also recorded in the same office in which the instrument containing the power was recorded. (§ 40.) It is a rule that no one is chargeable with constructive notice of an in- strument merely from its being recorded, unless the law makes it necessary to record it. If, however, a power to convey is recorded, an instrument of revocation also recorded in the same county appears to be sufficient notice. Williams v. Birbeck, 1 Hoff. 359. Title IV. Powers by Maeried "Wojceit. When any married woman, residing out of this State, shall have joined or shall join with her husband in executing a power of attorney for conveyance of land, in this State, the conveyance shall have the same force and effect as if executed by such married woman in her own proper per- son, provided that the execution of such power shall have been first duly proved or acknowledged, as required by law for conveyances of married women residing out of the State. Law of May 11, 1835, ch. 375. Even after the Acts of 1848 and 1849, it was considered doubtful if a married woman could execute a power of attorney to her husband. Hunt v. Johnson, 19 N. T. 279. By L. 1878, ch. 300, any married woman of full age, resident in this State, may make and acknowledge power of attorney as if sole. CHAPTER XIV. TITLE BY DESCENT. Title I. — Who Take by Dbsobitd. Title II. — What Descends as Land. Title III. — Successive Changes of the Law in this State, Title IV.— Common Law Rules of Descent. Title V.— The N. Y. Statute of 1786. Title VI. — Descent under the Revised Statutes. Title VII. — Liability of Land Descended and Devised to pay Debts. Descent^ or hereditary succession, is defined by Black- stone as the title whereby a man, on the death of bis ancestor, obtains his estate by right of representation, as his heir at law. Purchase^ in h,w, is used in contradis- tinction to descent, and is any other mode of acquiring real property, as by " devise," " deed," and the like. Descent of land is regulated by the law of the State where it is situated. The law on this point has beea fully reviewed in a preceding chapter. Title L Who Take by Descent. By Revised Statutes, every citizen of the United States is capable of taking lands by descent. 1 E. s. 1st. ed., p. 719. As to aliens and descent through them, vide Ch. Ill, Title IV, ante. Lunatics, etc.— In the case of the decease of idiots, lunatics or persons of unsound mind, or persons incapa- ble of conducting their affairs, the powers of their trus- tees are to cease, and their real estate shall descend as if 356 WHO TAKE BY DESCENT. [CH. XIV. they had been sane, except that the provision is not to affect any vaUd will made by them that shall be admitted to probate. 1 R. L. 148 ; 2 R. S. 55 ; Laws of 1865, p. 1446. Heirs as against Residuary Devisees.— As a general rule the heir takes, although excluded by name in a will, unless some valid disposition of the land is made. He also takes on an invalid or insufficient devise in preference to the residuary devisee, unless the contingency of the failure of the devise can be deemed to have been foreseen by the testator. To deprive an heir at law or a distributee of what comes to him by operation of law, as property not effectu- ally disposed of by will, it is not sufficient that the testa- tor in his will has signified his intention that such heir or distributee shall not inherit any part of the estate; but the testator must make a valid and effectual disposition thereof to some other person. Haxtun v. Corse, 2 Barb. Ch. 506 ; Roosevelt v. Fulton, 7 Cow. 71 ; Vail V. Vail, 4 Paige, 317; 7 Barb. 226; Tucker v. Tucker,! Seld. 408; Adams v. Perry, 43 N. T. 488 ; Manice v. Manice, 43 N. Y. 305. Probate of Heirship. — By L, 1873, c. 552, any heir at law of an intestate decedent might present an affidavit to the surrogate stating the facts with regard to the death and heirs, upon which the surrogate, after such inquiry as he deemed proper, should endorse his certificate of the fact, and the whole being recorded like a deed should be presumptive evidence of the facts stated. This act was amended, as to the proof required, by L. 1874, c. 127, and repealed by L. 1880, c. 245. This proceeding is now regulated by Co. Giv. Proc. ch. 18, title 3, art. 3, §§ 2654, 2659, providing for a petition, citation, taking of proof and decree, which is to be recorded like a deed, and to be presumptive evidence of the facts. But if there be any contest the surrogate must dismiss the pro- ceeding. Lapsed Devise.— Where a devisee is by law incapable of taking, as well, also, as in the case where a devise lapses by the death of the devisee in the lifetime of the testator, or from the not happening of the contingency upon which, as a condition precedent, the devise was made or was to take effect, the property descends to the heirs at law as property undisposed of by the will. This is the case par- ticularly where it is apparent, from the context of the TIT. I.] WHO TAKE BY DESCENT. 357 will, that the testator's intent was that the property was not to pass to the residuary devisee. Van Kleeck v. The Dutch Church, 30 Wend. 457 ; Waring v. Waring, 17 Barb. 552 ; Beekman v. Bonsor, 33 N. Y. 398. The above case of Van Kleeck v. The Dutch Church, was upon a devise to a corporation incapable of taking; and it was held that nothing could be claimed on the lapse of such a devise by the residuary devisee on the ground of a contingent interest given by the residuary clause, based upon the possi- bility of a reversion of the estate by the dissolution of the corporation, or by a forfeiture of its rights in consequence of the non-performance of con- ditions. Also that it appeared from the will that the testator presumed that he had, hy the will, disposed of the entire fee, leaving nothing remaining for further disposition, and therefore could not have intended to dispose of any interest in such land by the residuary clause. The opinions show that if the disposition made had been upon a contin- gency that might have left an interest undisposed of, such contingent interest would have passed under the residuary clause. The court in this case also holds that, at the common law, a residuary devisee of real estate takes only what was intended for him at the time of making the will. Not so as to a residuary legatee of personal estate. The latter takes not only what was undisposed of by the will, but also that which became undis- posed of at the death of the testator by the disappointment of his intention. It was supposed, however, that the distinction between them was abolished by the Revised Statutes. This case of Van Kleeck v. The Dutch Church was commented on in the case of Youngs v. Youngs, 45 N. Y. 354, below referred to, and the opinion therein expressed was approved by the Court of Appeals, to the effect that if the disposition made had been upon a contingency that might have left an Interest undisposed of, such contingent interest would have passed under the residuary clause. It is held, however, as an exception to the above rule, (that the heir takes, on a lapse or void devise,) that a re- siduary devise of real or personal estate carries with it not only the property of the testator in which no interest is devised or bequeathed by other parts of the will, but also all the reversionary and contingent interest in the prop- erty, which, in events contemplated hy the testator, are not otherwise disposed of. Brigham v. Shattuck, 10 Pick. 309 ; Hopewell v. Ackland, 10 Salk. 339 ; Doe V. Weatherby, 11 East, 333; Craig v. Craig, 3 Barb. Ch. 76. It is also held that where a codicil revokes a specific devise in a will without making any further disposition of the property, it will, in general, pass to the residuary devisee, the codicil being held to be a republication of the will. 358 WHO TAKE BY BESOENT. [OH. XIV. The intention of the testator is to govern, so far as it can be ascertained from both the will and codicil taken together. In cases of lapsed and void devises, the residu- ary clause in a will would not embrace property which the testator had designed to give to persons other than the resid/aary devisee. A distinction is drawn, therefore, between lapsed or void and revoked devises, and it is held that the reason of the rule in the case of lapsed and void devises for except- ing the property embraced therein from the residuary clause (viz., that the testator intended to give the property to others), altogether fails in cases of revocation. Kip V. Van Cortlandt, 7 Hill, 346; Hillis v. Hillis, 16 Hun, 78. In the case of Youngs v. Youngs (45 N. Y. 254), lands -were specifically devised to two nephews for life, and on their deaths respectively to their chil- dren. They both died, unmarried, before the testator. There was a resid- uary clause devising all his real and personal estate whatsoever to residuary devisees. The nephews having died in the lifetime of the testator, it was held that the lands in which a life estate was devised to them, passed under the will to the residuary devisees and not to the heirs. The decision in this case is put upon the ground that, since the Revised Statutes, the common law rule was changed, and the will operated upon all the real estate left by the testator at the time of his death, in default of other specification ; and the residuary clause was intended to cover all the testator's real estate not before specifically disposed of, especially as by the recitals in the will the intention appeared to be to dispose, in the residuary clause, of all that should be undisposed of. The court held that there was a remainder in the lands given to the nephews, contingent upon the death of either leaving no descendants, and this remainder was not disposed of by the will unless under the residuary clause. The residuary clause gave all the real estate not otherwise disposed of, and thus brought the contingent remainder directly within the language of that clause, and the presumption was that the testator so understood it. See also Bowers v. Smith, 10 Paige, 193; Eedfleld on Wills, Part IE, 444; 1 Jar- man. on Wills, 590, 591; Doe v. Weatherby, 11 Bast, 332, and^osS, p. 403. lif real estate has been converted into personalty for the purpose of carry- ing into effect the will of the testator, and a contingency happens by which an interest in the converted fund is undisposed of by the will, such interest belongs to the heirs at law of the testator, and not to the distributees of the personal estate. Wood v. Keyes, 8 Paige, 365 ; Vail v. Vail, 4 Paige, 317. Where land was devised specifically to a wife in lieu of dower, and she declined to accept it, but took her dower in the real estate, the land devised passed to the residuary devisee and not to the heirs. James v. James, 4 Paige, 115. Where, by reason of a legal incapacity, but one of the persons of a class can take, that one takes all the estate which a devise, by its terms, gives to the whole class, but where, by reason of their alienage, none of the class is competent to take, the estate does not pass to the residuary devisees, but de- scends to the heirs of the testator. Downing v. Marshall, 23 N. Y. 366. Where a will disposing of both real and personal estate is proven only as TIT. I.] WHO TAKE BY DESCENT. 359 to the personal, the heir at law only may sue a third person in relation to the realty. Dixon v. Rice, 16 Hun, 423; Quinn v. Hardenbrook, 54 N. Y. 86; Scott V. Guernsey, 48 id. 106. Descents.— Descents are of two sorts, lineal, as from father or grandfather; and collateral, as from brother to brother, and cousin to cousin, etc. With reference to the line of pedigree or consanguin- ity, a descent is considered immediate when the ancestor from whom the party derives his blood is such without any intervening link or degrees, and mediate when the kindred is derived from him, another ancestor intervening between them. A descent from father to son is considered immediate, but a descent from grandfather to grandson (the father being dead), or from uncle to nephew (the brother being dead), would be deemed mediate, the father and the brother being, in these latter cases, the medium deferens, as it was called, of the descent or consanguinity. In the leading case of Collingwood v. Pace, 1 Vent. 413; where the ques- tion of succession arose as between two brothers, the father being an alien, it was determined that the descent from brother to brother was to be considered immediate and not mediate through the father, and that the latter's alien blood could not prejudice the descent. The case of inheritance as between brothers, although they were collater- als, was, therefore, by this case held to be immediate. This case is fully re- viewed in Levy v. McCartee, 6 Peters, 103, where it was held, that the descent between an intestate and the children of his cousin being mediate through their grandfather, an alien, and the testator's maternal uncle, that they could not inherit. Vide, as to modification of these rules as to alienage, ante, pp. 86, 94 ; also Tit. VI. See also, Valentine v. Wetherell, 31 Barb. 655 ; Mc®or v. Comstock, 3 Corns. 408; Beebee v. Grifflng, 4 Kern. 335. Post-testamentary Children.— Where children are born after the execution of a will, no provision being made for them nor any mention of them, they take the same share of the estate of the testator as if he had died in- testate. Drischler v. Van Den Henden, 49 Super. Ct. 508 ; Smith v. Robertson, 89 N. Y. 555 ; 3 Rev. Stats. 65, § 49, amended by L. 1869, c. 23. Prior to L. 1869, c. 22, this provision did not apply to wills of married women. Cotheal v. Cotheal, 40 N. Y. 405 ; overruling Plummer v. Murray, 51 Barb. 301. 360 WHAT DESCENDS. [OH. XIV. Title II. What Descends. Everything comprised in the terms lomds and real estate descends to the heirs at law, according to the law exist- ing at the time the descent takes effect. The word real estate as used in the chapter on Descents in the Revised Statutes, it is provided, shall be construed to include &oery estate, interest and right, legal and equitable, in lands, tenements and hereditaments, except what may be deter- mined or extinguished by the death of the intestate, and except leases for years, and estates for the life of another person, and the word " inheritance " is to be understood to mean " real estate," as therein defined, descended ac- cording to the provisiqus of the chapter. Under the statute of distribution of personal assets, leases for years, lands held by the deceased from year to yea/r, estates held by him for the life of another, his interest in a term of yea/rs, after the expiration of any estate for years therein granted by him or any other person, things annexed to ths freehold or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential for its support ; crops growing on the lands of the deceased at the time of his death ; every kind oi produce raised annually by labor and culti- vation, excepting grass growing and fruit not gathered ; rent reserved to the deceased which had accrued at the time of his death ; stock in any company, whether incor- porated or not, and certain other effects of a personal character, are to be deemed assets, to go to the executor or administrator to be applied and distributed as personally. 2 R. S. 1st. ed. 83, § 6. But see, as to lent, post, p. 361. Fixtures.— It is also provided that things annexed to the freehold or to any building shall not go to the execu- tors, but shall descend with the freehold to the heirs or devisees, except such fixtures as are mentioned above. (§ ^0 Whether a thing be a substantial part of the freehold, or a mere annex- TIT. n.] WHAT DESCENDS. 3G1 ation thereto, for the purpose of trade and manufacture, determine its rela- tion to the inheritance. Murdock v. Q-ififord, 18 N. Y. 38 ; Potter v. Crom- ■well, 40 id. 287; Hovey v. Smith, 1 Barb. 372; Ford v. Cobb, 20 id. 344; Buckley V. Buckley, 11 Barb. 43. See more fiilly as to fixtures, ante, pp. 101 and 205. It is also provided that the right of an heir to any property not enumerated in the 6th section, which, by the common law, would descend to him, shall not be impaired by the general terms of that section. (§ 8.) Rent.— Where a lessor dies before the rent becomes due, rent payable after the death of the decedent goes to the heir or devisee as the case may be, and to the execu- tors, the executors or administrators taking what accrues from the date of last payment up to and including the day of decedent's decease. The heir formerly took it as an incident of the reversion, but an apportionment of rent is now allowed as between the executor of the lessor and a remainderman. A remainderman who succeeded to the reversion was formerly entitled to the entire rent due after lessor's death, as an entire sum due him. So also there is apportionment between tenant for life and re- mainderman. For former law as to rent becoming due after the termination of the life estate, on a lease executed hy the testator of the parties.! vide ante., p. 142. L. 1875, c. 542, completely reverses the old rule and allows apportionment in all cases. Wright v. Williams, 5 Cow. 501 ; Fay v. Holloran, 35 Barb. 295 ; Marshall v. Moseley, 21 N. Y. 380 ; Jones v. Felch, 3 Bos. 63. As to apportionment of rent on leases made by a tenant for life, vide ante, p. 204. Rent Reserved on a Grant in Pee. — Such rent is a hereditament, descendible and devisable. Van Rensselaer v. Hays, 19 N. Y. 68 ; Tyler v. Heidorn, 46 Barb. 439 ; vide ante, p. 142, also, as to the apportionment of a rent charge. Crops.— Grass, trees, and fruits growing upon lands be- longing to an intestate at the time of his decease are not assets belonging to the administrator, but descend with the land to the heir. Nor can the widow retain one third on account of her right of dower in the land, prior to any assignment thereof for dower, even in the case of annual crops. 362 WHAT DESCENDS. [CH. XIV. The annual produce of crops, however, as distinguished from the spontaneous produce as above, are chattels, and would go to the executor, but only for the purpose of paying debts and expenses of administration. That done they revert to the devisee, as chattels specifically be- queathed, being carried by the devise of the land. Kain v. Fisher, 3 Seld. 597 ; Evans v. Roberts, 5 Barn. & Cress. 829 ; Whipple T. Foote, 3 Johns. 418; Austin v. Sawyer, 9 Cow. 39; James v. Flint, 10 Adol. & El. 753; The Bank of Lansingburgh v. Crary, 1 Barb. 543 ; Warren v. Leland, 2 Barb. 613 ; Stall v. Wilbur, 77 N. T. 159. Equity of Redemption and Converted Property. — The equity of redemption in mortgaged lands also descends ; the mortgagor, before entry or foreclosure, being legally seized as to all persons except the mortgagee, and even as to him, according to the later views of the courts, the mortgagor is only supposed to give a lien, and not to dis- turb the legal estate of the mortgagor. Where, by a foreclosure and sale of mortgaged prem- ises, however, the interests of the owners of tlie equity of redemption are converted into personal estate ; if any of the owners die subsequent to the conversion, their interests in the surplus moneys must be distributed as personal estate among the legatees and next of kin. Roosevelt v. Fulton, &c. 7 Cow. 71 ; Bogert v. Furman, 10 Paige, 496 ; Wright T. Rose, 3 Simm. and Stw. 323 ; Cox v. McBurney, 2 Sandf. 561 ; Dunning v. Ocean Nat. Bk. 61 N. T. 496. So also of land sold under order of Court. Denham v. Cornell, 67 N. T. 556. The distinction drawn is, that if a sale takes place in the lifetime of the mortgagor, the surplus is personal estate, but if after his death, real estate, because in the latter case the equity of redemption descended to the heir. Where, at the time of the sale of mortgaged premises, however, under a decree, the equity of redemption is owned by a minor, and a surplus arises from the sale, his interest would be deemed real estate, and will be disposed of as such at his death, if he die under age. In converting tbe real estate of an infant for a partic- ular purpose, courts have no power to convert to all in- TIT. II.] WHAT DESCENDS. 363 tents and purposes any more than was required to answer such purpose, and if it incidentally happen that more was converted, courts will treat the excess as property of the same nature as that converted, and dispose of it accordingly. Lands appropriated by the State for canals do not pass until the amount of damage is fixed by appraisement (1 E. S. 236, § 52). If the owner die before that is done they descend, together with the claim against the State to his heirs: if after the award, it is a personal asset which passes to his per- sonal representative. Ballou v. Ballou, 78 N. Y. 325. Character of Converted Property. — The general prin- ciple asserted by the courts is, that where real estate is converted by operation of law, in the lifetime of an adult owner, the surplus, if any, will be treated as money, and at his decease will be distributed as such; also, where a court of equity is required to determine between per- sons claiming converted property by the right of succes- sion, it will treat it as property impressed by the will or act of the party who is the ultimate source of title, with a specific character different from that in which it is found, and will dispose of it as continuing to possess that charac- ter, until some one entitled to the whole beneficial interest has elected to take it in the form in which it is found, or has received it under the performance of the contract, or in execution of the provisions of a will by which the origi- nal right to it was created. A court of equity, therefore, would not divest prop- erty of the character which it finds impressed upon it, ex- cept at the instance of some party having the whole bene- ficial interest, and who has a right to convert it himself from one form to another, and who is of legal capacity to make an election. It is pursuant to and in the application of the above principles that surplus moneys arising after sales of real estate in which lunatics or infants are interested, or moneys arising from the sale of their lands, made in order to raise money for a particular purpose by order of a court, are considered to represent the land of which they were the 364 WHAT DESCENDS. [OH. XTV. proceeds, and are treated as realty until the party is capable of electing, and elects to take the amount as money. Craig V. Leslie, 3 Wheat. 663; 3 Story's Eq. 790, 798, § 1357"; Stagg V. Jackson, 1 Corns. 206; Lloyd v. Hart, 2 Barr, 473; 2 Yeates' R. 361 ; Deller V. Young, 5 Whart. 64 ; Scull v. Janegan, 3 Dev. and Bat. Eq. R. 144 ; March V. Berrler, 6 Iredell Eq. 524; Banks v. Soott, 5 Mad. 500; Dixon v. Dawson, 3 Sim. and Stew. 337 ; Sweezy v. Thayer, 1 Duer, 286 ; Moses v. Murgatroyd, 1 Johns. Ch. 119; Horton v. McCoy, 47 N. Y. 31 ;Denham v. Cornell, 67 N. Y. 556 ; Petition of Thomas, 4 N. Y. S. C. 369. Where on the decease of an intestate, lands were sold on the petition of infant heirs, and the proceeds brought into court, and the infants subsequently died, the infants, it was held, owned the fund as realty, not personalty, and it descended as such. Valentine v. Wetherell, 31 Barb. 655 ; Matter of Iggles- den, 8 Redf. 375. Where real estate, owned by tenants in common of whom an infant is one, is sold under and in pursuance of a judgment in a partition suit instituted by others of the tenants in common, the portion of the proceeds belonging to the infant remains impressed with the character of real estate, and as such does not pass under the infant's will. Horton v. McCoy, 47 N. Y. 31 ; Bow- man V. Tallman, 37 How. 213 ; affl'd, 40 How. Pr. 1. Title in another's name. — One who paid the consideration for land con- veyed to another and took his covenant to convey according to his appoint- ment, but died without appointing, held that his interest, whether a fee under 1 Rev. Stat. 733, §§ 81-5, or an equity to enforce performance, passed to his heirs and could be enforced by them. Hubbard v. Gilbert, 25 Hun, 596 ; Bowery Nat. Bk v. Duncan, 13 Hun, 405. See, as to power of sale to executors, post, Ch. XVII; Matter of Dodge, 40 Hun, 448. Equitable conversion will be implied only where absolutely necessary. Chamberlain v. Taylor, 105 N. Y. 185. Proceeds of sale of Estates of Infants or Incompetent Persons under Order of the Supreme Court. — By the Code of Civil Procedure, § 2359, the proceeds of lands of infants or incompetent persons, sold pursuant to title 7, of chapter 17 of the Code, shall be deemed property of the same nature as the estate or interest sold. As to the temporary disposition of such proceeds, see Rules of the Supreme Court. The above provisions of th.e statutes do not apply after the infant is of age, and the estate has come into his possession and under his control. So formerly by R. S. pt. iii, ch. i, title 3, art. 7, § 180, which was re- pealed by L. 1880, c. 345. Porman v. Marsh, 11 N. Y. (1 Ker.) 544; reversing 7 Barb. 216, ml nom. Foreman v. Foreman ; and see Stiles v. Stiles, 1 Lan. 90. See also, as to the further interpretation of this provision, post, Oh. XXV. TIT. II. J WHAT DESCENDS. 365 Effect of a Power of Sale.— Where, according to the terms of a will, its provisions do not work an equitable conversion of the real into personal estate, a power of sale to executors does not affect the descent of realty ; but it descends to heirs, subject to the exercise of the power. As to when the land is considered as converted into personalty under the terms of a will, further reference is made to a subsequent chapter relative to title by devise (j>ost, Ch. XV). See also, Reed v. TJnderhill, 12 Barb. 113; Dominick v. Michael, 4 Sand. 374; Germond v. Jones, 2 Hill, 469; Allen v. DeWitt, 8 Corns. 276. Where a conversion of real into personal estate is ordered in a will for a particular purpose which fails, the land retains its original character and de- scends to the heir. Gourley v. Campbell, 06 N. Y. 169 ; rev'g 6 Hun, 218. Where lands are directed to be sold, equitable conversion arises. Hood V. Hood, 85 N. Y. 561. Expectant Estates. — Expectant estates are descendible in like manner as those in possession ; and a limitation over, whether considered as a vested or contingent re- mainder or an executory devise, is descendible as an ex- pectant estate. 1 R. S. 725, 1st ed. § 35 ; Savage v. Pike, 45 Barb. 464. Determinable Fees.— These descend to the heir. Stilwell V. Mebose, 15 Hun, 878. Pews.— These, as usufructuary interests in land, would pass by descent as incorporeal hereditaments. McNabb v. Pond, 4 Bradf. 7. Vide ante, more fully as to pews, p. 100. Equitable Interest in a Contract to Purchase Lands. — As to this vide post, Ch. XIX, contracts to purchase, etc., real estate. Rights of Entry.— As to rights of re-entry by heirs on default of rent by lessees, vide cmte, pp. 136, 138. Lands in Trust.— By the Revised Statutes, real estate held in trust for any other person, if not devised by the person for whose use it is held, shall descend to his heirs, according to the provisions of the chapter on descents. IR. L. p. 74;1R. S. p. 754. 366 WHAT DESCENDS. [CH. XIV. Partnership Lands.— Vide ante, p. 318, as to the descent of such lands; and Buckley v. Buckley, 11 Barb. 43. Loss on an Insurance Policy on Buildings.— Upon the decease of a party who had insured buildings, the interest in the policy, if it contain no condition against a transfer of interest in the property, devolves upon his heirs at law, and, in case of loss, the damages accrue to them. The personal representatives alone can sustain an action for those beneficially interested as heirs, etc., and the proceeds are real estate in their hands. If the policy, however, has a condition against a transfer of interest in the property insured, no recovery can be had upon it for a loss occur- ring after death of the insured. Wyman v. Wyman, 36 N. Y. 253; Parry v. Ashley, 3 Simm. 97; Lappin v. The Charter Oak Insurance Co. 58 Barb. 335 ; Sherwood v. Agricultural Ins. Co. 73 N. T. 447. Lands conveyed as Security for Money lost at Play. — The Revised Statutes provide that instruments affecting realty executed by a person for money lost at play sfiall immediately inure to the benefit of the person who would be entitled thereto on the death of the grantor, and shall be taken and held to his use ; and all grants, covenants and conveyances to the contrary are to be deemed void. IK.L. p. 153;1R. S. p. 668. Advancements.— The Revised Statutes provide as fol- lows as to advancements, in the chapter relative to de- scents : § 23. If any child of an intestate shall have been ad- vanced by him, by settlement or portion of real or per- sonal estate pr of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, descendible to his heirs and to be distributed to his next of kin ac- cording to law; and if such advancement be equal or superior to the amount of the share which such child would be entitled to receive of the real and person-al estate of the TIT. II.] WHAT DESCENDS. 367 deceased as above reckoned, then such child and his de- scendants shall be excluded from any share in the real and personal estate of the intestate. 1. RL. p. 313; IR. 8. 754. § 24. But if such advancements be not equal to such share, such child and his descendants shall be entitled to receive so much only of the personal estate, and to inherit so much only of the real estate of the intestate as shall be sufficient to make all the shares of the children in such real and personal estate and advancement to be equal as near as can be estimated. § 25. The value of any real or personal estate so ad- vanced shall be deemed to be that if any, vrhich. vras acknowledged by the child by an instrument in writing ; otherwise, such value shall be estimated according to the worth of the property when given. § 26. The maintaining or educating, or the giving of money to a child, without a view to a portion or settle- ment in life, shall not be deemed an advancement. The Revised Statutes also provide, in eh, vi, title 3, art. iii of part ii, relative to the distribution of personal estates, that advancements of real or personal estate are to be charged against children of a deceased person in the distribution of the surplus of personalty. The provisions are not to apply where there shall be any real estate of an intestate to descend to his heirs. a R. S. 1st ed. p. 97. The general course of decisions is to the eSect that the maintenance and education of a child or the gift of money, without a view to a portion or settlement in life, is not deemed an advancement. A gift of money or prop- erty to a child \& prima fotde an advancement, though it may be shown it was intended as a gift and not an advancement. If originally intended as a gift, it cannot subsequently be treated as an advancement. Mitchell v. Mitchell, 8 Ala. 414 ; Browne v. Burke, 32 Ga. 574 ; Hodgson v. Macy, 8 Ired. 31 ; Grattan v. Q-rattan, 18 111. 167; Lawrence v. Mitchell, 3 Jones (N. C), 190; Sherwood v. Smith, 23 Conn. 516 ; Hook v. Hook, 33 B. Mon. 536 ; Vail v. Vail, 10 Barb. 69; Sanford v. Sanford. 5 Lans. 486. The provision in the statute regulating descents for bringing advance- ments made by an intestate into hatch pot, in the division of his real estate, does not apply where there is a will disposing of a part of the decedent's property either real or personal; it relates to a total intestacy only. Thomp- son V. Carmiohael, 3 Sandf. Ch. 120. 368 CHANGES OP LAW IN THIS STATE. [OH. XIV. As to hoiv the fact of an advancement is proved by evidence, and the modus by which a child is charged with advancements in the courts, vide Hicks V. Gildersleeve, 4 Abb. 1. As to what "Powers" are deemed '"Ad- vancements, " vide p. 334. The statutes of distribution and of descent on the subject of advance- ments are to be taken and construed together as the two statutes are in pari materia. Beebe v. Bstabrooke, 79 N. T. 346; affl'd, 11 Hun, 533. Title III. Successive Changes op the Law in this State. The law of descents in this State, until changed by statute, was the same as that of the common law of Eng- land, and had its foundation in principles of feudal policy not now in accord with the spirit or theory of the institu- tions of this country. The common law of descents was the law of the Colony and State of New York down to the 12th of July, 1T82 (6th Sess. ch. 2). The law was then altered by directing descent to be, in future, to law- ful issue of equal degree in equal parts ; and to those of unequal degree "by representation, and. in default of issue, to brothers and sisters or their descendants. But the act was repealed (as to subsequent descents) by the new act regulating title by descent, passed 23d February, 1786 (1 Greenl. 205; 1 Rev. Laws 1813, p. 52). The He- vised Statutes, as will be seen hereafter, have further changed the common law. Although the common law rules of descent were, in the main, abolished as early as 1782, as in the investiga- tion of titles in this State, the common law rules will have to be understood, and sometimes applied, a brief abstract of them is given, particularly as in some respects they are still expressly retained. The force and effect of the Eng- lish common law in this State generally has been con- sidered in a previous chapter. {Ante, p. 24.) By the common law must be understood the general unwritten principles and rules of the English common law, exclusive of any amendments or changes therein which had been made by British statutes anterior to the Revolution or otherwise. Levy v. McCartee, 6 Pet. 103. TIT. IV.] COMMON LAW EULES OF DESCENT. 369 Title IV. Common Law Rules op Descent. The prominent common law principles of descent are as follows : 1st. Descent to Issue of Person last Seized. — Inherit- ance descended lineally to the issue of the person who last died, actually seized, in infinitum, but it never ascended. It was the seizin and not the right to seizin that made the itirps or stock of descent. A construetive seisin indeed for all legal purposes was equiv- alent to actual seizin. (Green v. Liter, 8 Cranch, 344, 249.) And a con- structive seizin, resulting from proof of the legal title without actual seizin has been held sufficient to maintain a writ of right. Bradstreet v. Clarke, 13 Wend. 003. A seizin might be either by the ancestor's own entry, or by the possession of the ancestor's lessee for years, or by being in receipt of rent from the lessee of the freehold. By the common law a reversion or remainder in fee, expectant on a free- hold estate, would not, during the continuance of such freehold, pass by de- scent from a person in whom the title thereto had vested by descent, as anew stock of inheritance, unless some act of ownership which the law regarded as equivalent to an actual seizin of a present estate of inheritance had been ex- ercised by the owner over such expectant estate. The heir, to be entitled to take, had to be the nearest male heir of the whole blood to the person who was last actually seized of the freehold, the seizin making the stirps or stock from which future inheritance was derived. Therefore, if the presumptive heir died before he acquired the requisite seizin so as to make him the new utirps or stock, his ancestor and not himself was the person last actually seized of the inheritance, and to him those claim- ing had to establish themselves as heirs. The exceptions or qualifications to the above rule were, that if a person acquired land by purchase, he might transmit without having had actual seizin, or, if on an exchange of lands, he died before entry, or if a person were seized of an equitable interest, as in a contract to purchase, or if a tenant for years were possessed, it enured to the remainderman or reversioner ; but not if the estate were under a freehold lease, or life lease, unless the party entered in his lifetime, or received rent after the expira- tion of the life estate. If the heir had not become a stirps or stock of descent by reason of an intervening life estate, and the expectant estate had been purchased, then the claimant had to make himself heir to the first purchaser of the expectant estate, at the time when it came into possession. The heir of such purchaser would take the inheritance, though he were a stranger to all the mesne rever- sioners and remaindermen through whom the inheritance had devolved. Bates V. Shroeder, 13 Johns. 360; Vanderheyden v. Crandall, 3 Den. 9; affi'd, 1 N. Y. 491. 34 370 COMMON LAW EULBS OF DESCENT. ( OH. XIV. The rule has been held to apply where the seizin was not complete until actual entry, and would not apply where the estate came by purchase. Jack- son V. Johnson, 5 Cow. 74. Seizin of one Tenant in Common, Guardian, etc. — The seizin of one co- parcener or tenant in common, is considered the seizin of others. So also *he possession of a guardian in socage is the possession of his ward. Assignment of Dower, ESiect of. — Before assignment the widow has no estate in the lands of her husband. After assignment, the seizin of the heir is defeated ah initio^ and the doweress is in of the seizin of her husband, as of the time when that seizin was first acquired or held during the coverture, or to the time of marriage if he was seized before coverture. By assignment of dower the seizin of the heir is defeated ab initio. Lawrence v. Miller, 3 Corns. 345; Lawrence v. Brown, 1 Seld. (5 N. T.) 394. The Revised Statutes, however, have now altered the above rule, and include in the descent every legal and •equitable right and mterest to which the intestate was in any manner entitled at his decease, except leases for years, and estates for the life of any other person. 2d. Preference of Males. — ^The male was admitted be- fore the female; the eldest male taking in preference to ■others of equal degree, and the females equally. The lineal descendants in infinitum of any person deceased, represented their ancestor. Thus the child, grandchild, or great-grandchild, either male or female, of an oldest son, succeeded before the younger son of his represen- tatives, and so on in infinitum, per stirpes, a child or children taking, by rep- resentation, the ancestor's share. 3d. Descent to Collaterals. — On failure of lineal de- scendants, or issite of the person last seized, the inherit- ance descended, subject to the above rules, to his collateral relatives being of the blood of the first purchaser, i. e., he who first acquired the land by any means other than by descent. To be of the hhod of the first cmcestor was to be either immediately de- scended from him, or to be descended from the same couple of common ancestors. 4th. Nearest Collateral of Whole Blood.— The collat- eral heir of the person last seized had to be next collateral kinsman (either personally or Jure representafionis) of the whole blood. Therefore the brother, being in the first degree, he and his descendants ex- cluded the uncle and his issue who was only in the second, and in default of the uncle or his issue, the estate passed to the descendants of the great-grand- father, and so on ad infinitum. The degrees were reckoned by distahce &om TIT. IV.] COMMON LAW RULES OP DESCENT. 371 the common ancestor {the father of the propositug). On failure of the issue of the person last seized, therefore, the inheritance descended to the issue of his next immediate ancestor. The lineal ancestors, therefore, though themselves incapable of inheriting, became common stocks from which the next succes- sion sprang. In the mode of computing the degrees of consanguinity, the civil law be- gins with the intestate, and ascends from him to a common ancestor, and de- scends from that ancestor to the next heir, reckoning a degree for each person, as well in the ascending as descending lines. According to this rule, the ^ father of the intestate stands in the first degree, his brother in the second, and his brother's children in the third ; or, the grandfather stands in the sec- ond degree, the uncle in the third, the cousins in the fourth, and so on in a series of genealogical order. In the canon law, which is also the rule of the common law in tracing title by descent, the common ancestor is the terminus a quo. The several degrees of kindred are deduced from him. By this method of computation, the brother of A. is related to him in the first degree instead of being in the second, according to the civil law ; for he is but one degree removed from the common ancestor. The uncle is related to A. in the second degree ; for titough the uncle be but one degree from the common ancestor, yet A. is removed two degrees from the grandfather, who is the common ancestor. 2 Black. Comm. 306, 324, 504; 4 Kent, 413. The descent between brothers was held immediate, and therefore title might be made by one brother or his representatives to or through another vrithout mentioning their common ancestor. Vide ante, as to the descent of broth- ers, p. 359. 5th. Preference of Males to Females as to Collateral Stocks. — In collateral inheritances, the male stocks were preferred to the female (that is, kindred derived from the blood of the male ancestor, however remote, were ad- mitted before those from the blood of the female, however near), unless where the lands in fact descended from a female. Thus the relations on the father's side were admitted m infinitum, before those on the mother's side were admitted at all, and the relatives of the father's father before those of the father's mother, and so on. Whenever, however, the land descended from the mother's side, the rule was reversed ; and no relation by the father's side as such could be admitted to them, because he could not possibly be of the blood of the first purchaser. And so e conxerao, if the lands descended from the father's side, no relation of the mother as such could ever inherit. When the side from which the land descended was unknown, the right of inheritance first ran up the father's side with a preference of the male stocks in every instance, and if no heirs are found there it then only reverted to the mother's side. Posthumous Children.— By the principles of the com- mon law, also, a child in ventre sa mere, for all the bene- ficial purposes of heirship, is considered as absolutely born. They would take intermediate profits between the decease of the ancestor and their birth. Basset v. Basset, 8 Atk. 303 ; Doe v. Clarke, 2 H. Blacks. 399. 372 THE N. Y. STATUTE OP 1786. [CH. XIV. Title V. The N. Y. Statute op 1786. The English Gommon Law was the law of the land until statutes were passed modifying or repealing it. Keference has been made above (p. 368), to the Acts of July 12th, 1782, and February 23d, 1786. By the lat- ter act (1 Greenl. 205), repealing the former, the law still required the heir to be the heir of the person, dying seized («'. e., the ancestor had not only to have the title but the possession), and estates descended to the lawful descend- ants of the person seized^ in the direct line of lineal de- scent as tenants in common in equal parts, if of equal con- sanguinity. The rule of the common law, requiring the heir to deduce his title from the person last actiially seized, existed in New York under the statute of descents of 1786, down to the Revision of 1830. The effect of the rule under the Statute of 1786, as applied by the courts, was that where there was an adverse possession at the time of the disath of the ancestor, or where the right of the ancestor was contingent or executory, the inheritance, instead of descending according to the principles of the statute of 1786, to all the heirs equally, passed, by the rules of the common law, to the eldest male heir. Thus, if the ancestor, although his title was certain, had lost the possession by force or fraud, or was entitled to the lands under a contingent remainder or executory devise and died before the deter- mination of the preceding estate, his whole property might pass to his eldest son or the eldest male descendant of such son, in exclusion of all his other children. Jackson v. Hendricks, 3 Johns. Ca. 314; Bates v. Schroeder, 13 Johns. 360 ; Jackson v. Hilton, 16 Johns. 96 ; Reports of the Revisers, title "Descents." An estate of dower or curtesy or other life estate suspended the descent, and the heir was not seized to make a new stock of descent. Also if the heir to the reversion died during the existing life estate, he was not held seized so as to make a stock of descent. Jackson v. Hilton, 16 Johns. 96 ; Bates V. Schroeder, supra. One who had a vested remainder in fee simple, expectant on the determi- nation of a freehold estate, had such a seizin in law during the continuance of the freehold estate where the estate was acquired by purchase, as would constitute him a sUrps or stock of descent. Mot so, however, if the estate had vested by descent. Vanderheyden and Wendell v. Crandall, 2 Denio, 24; 1 N. Y. (1 Corns.) 491. A right of entry, it was held, would pass by descent under the statute of 1786. 1 R. L. 53. There was no disseizin in fact, except by the wrongful entry of a person claiming the freehold and an actual ouster or expulsion of the true owner, or by some act tantamount thereto, such as a common law conveyance with liv- ery of seizin by a person actually seized of an estate of freehold in the premises, or some one lawfully in possession representing the freeholder, or by a common recovery in which there is a judgment for the freehold and an ac- tual delivery of seizin by the execution or by levying a fine, which is an acknowledgment of a feoffment of record. Varick v. Jackson, 3 Wend. 166 ; affirming 7 Cow. 166. TIT. v.] THE S. Y. STATUTE OF 1786. 373 Where a woman died seized, leaving a husband and sons and daughters i and the husband continued seized in curtesy, and the eldest son died intestate without issue, the second son, on the death of the father, entered as heir of the mother. It was held that the descent was suspended during the tenancy by the curtesy, and that the wife being last seized, was the stock of descent, and as she died before the statute of descents (i. e., in 1795) the second son took the inheritance as sole heir to his mother. Jackson v. Gomez, 3 Johns. Ca. 214. Wild Lands. — Ownership of wild lands was sufficient without seizin in fact. Jackson v. Howe, 14 Johns. 105 ; Bradstreet v. Clarke, 13 Wend. 602. Bights of Reversions Alienable. — Although the owner in reversion might not be so seized as to make a stock of descent, be might alien his inter- est. Fowler v. Griffin, 3 Sand. 385 ; and see ante, Ch. IX, p. 218. Title of Officers and Soldiers in the Revolutionary War. — See Act of April 5th, 1808, re-enacted April 8th, 1813. 1 R. L. 308. As to the interpretation of this law, vide 3 Gaines' Rep. 62 ; 2 Johns. R. 80 ; Jackson v. Howe, 14 Johns. R. 405. By the above Law of 1786, also, the preference of males over females was removed, and parents could inherit from children. The inheritance descended — 1. To the lawful issue standing in equal degrees as to tenants in common in equal parts, however remote the common degree of consanguinity might be. 2. To the lawful issue in the direct line and their de- scendants in different degrees as tenants in common, ac- cording to the right of representation. 3. If there were no issue, to the father, unless the inheritance came from the mother. In case it came from the mother, then it descended as if the intestate had sur- vived the father. This would refer to inheritances that came by devise as well as by descent from a relative on the mother's side. Torrey v. Shaw, 8 Edw. 356. But would not apply to land bought witH money by the intestate, no mat- ter whence the money came. Champlin v. Baldwin, 5 Paige, 562. And those of the half blood would take equally with those of the whole blood. 4. If there were no father or lawful issue, then to the brothers and sisters of the whole or half blood in equal parts, excluding those not of the blood of the ancestor from whom the intestate derived the inheritance. 5. To the children of brothers and sisters, taking by representation. 374 UNDER THE REVISED STATUTES. [CH. XIV. In all cases of descent beyond those, the common law, it was enacted, should govern. The Eevised Statutes have made further changes of the common law, and in the general repealing act of 1828, repealed the law of 1786, except the second and seventh sections. These sections (2d and 7tli), turned estates tail into fees simple. Under the Law of 1786, nephews and nieces took per stirpes in all cases. Jackson v. Thurman, 6 Johns. 323. Under the statute of descents, in force before the Revised Statutes, there was no representation among collateral h6irs of a decedent beyond brothers' and sisters' children. Harman v. Osborn, 4 Paige, 336. A grand-nephew could not take at all under the statute. The said statute of descents extended to brothers and sisters equally of the half blood as those of the whole blood, but not to the grandchil- dren. Fuller V. Williams, 7 Cow. 53. The words "ea parte materna," at common law, apply to a descendible estate when it is a question of inheritance among collaterals on the father's or mother's side. If the point be as to property acquired by purchase, and the party last seized die without issue or lineal descendant, the heirs on the father's side are preferred, and those ex parte materna do not take until the father's side are extinct. But where the estate comes to the person last seized by descent and no act has changed it, the descent goes to the blood of the first purchaser, so that if the property came by descent from or through the mother, it will descend ex parte materna. Torrey v. Shaw, 3 Edw. Ch. 856. Title VI. Under the Revised Statutes. The main provisions of the Revised Statutes of 1830, which abrogate the previous statutes relative to the de- scent of land, are to the effect as follows: They are taken from ch, 2d, of part 2d of the Rev. Stat. vol. I, p. 751 of the 1st ed., and are made applicable after the Re- vised Statutes take effect. § I. General Rule of Descents.— The real estate of a person who shall die without devising the same, shall descend in manner following : 1. To his Lineal Descendants. 2. To his Father. 3. To his Mother ; and 4. To his GoUateral Relai/ives, subject to the rules thereafter prescribed. TIT. VI.] UNDER THE REVISED STATUTES. 375 § 2. Lineal Descendants in equal Degrees. — If he leave descendants in the direct line of lineal descent^ all of equal degree of consanguinity to him, they shall take the inheritance in equal parts, however remote from the intestate the common degree of consanguinity may be. 1 R. L. 52. § 3. Descendants in different Degrees. — If some of the intestate's children are living and some dead, the chil- dren take their share as if all the children were living, and the descendants of each deceased child take what would have been their respective parent's share. 1 R. L. 53, § 3. Adopted Children. — Adopted children do not inherit. L. 1873, c. 830, §10. § 4. Descendants of unequal Degrees.~The above last rule applies where the descendants are of unequal de- grees of consanguinity to the intestate. § 5. When Father to Inherit. — In case the intestate die without lawful descendants, leaving a father, then the father takes, unless the inheritance came to the in- testate on the part of the mother and the mother be liv- ing. But if such mother be dead, the inheritance, de- scending on her part, goes to the father for life, and the reversion to the brothers and sisters of the intestate, and to their descendants according to the law of inheritance provided for collateral relatives ; and if there be no such brothers or sisters or their descendants living, such inheritance descends to the father in fee. 1 R. L. 52: Laws of 1830, ch. 330, § 13. The words "But if such mother be dead," to the end of the section, were not in the section as originally passed, but were added by Law of April 20, 1830, cb. 330, p. 384. Vide § 30, infra, as to the meaning of the words " come to the intestate on the part of the father or mother.'' § 6. When Mother to Inherit for Life. — If the intestate die without descendants, and leaving no father, or leav- ing a father not entitled to take the inheritance under the last section, and leaving a mother and a brother or 376 UNDER THE BBVISBD STATUTES. [OH. XIV. sister, or the descendant of a brother or sister, then the inheritance descends to the mother during life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance herein- after provided. See Wheeler t. Clutterbuck, 52 N. Y. 67, illustrating this section. When to Mother in fee. — If the intestate in such case leave no brother or sister, nor any descendants of any brother or sister, the inheritance descends to the mother in fee. § 7. Collateral Relatives. — If there be no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter specified, to the collateral rela- tives of the intestate ; and if there be several such rela- tives, all of equal degree of consanguinity to the intes- tate, the inheritance shall descend to them in equal parts, however remote from the intestate the common degree of consanguinity may be. 1 K. L. 52. § 8.— Brothers and Sisters and their Descend^ts.— K all the brothers and sisters of the intestate be living the inheritance shall descend to them. If any of them be living, and any be dead, then to the brothers and sisters and every of them who are living, and to the descendants of such as shall have died ; the descendants to take the parent's share. The inheritance between brothers is immediate, and was never affected by the alienage of the father. Parish v. Ward, 28 Barb. 328: Luhrs v. Eimer, 80 N. Y. 171. (Under the Law of 1783, and before the Revised Statutes, it is supposed a grand-nephew could not take at all.) A brother is not a " descendant." Citing Van Buren v. Dash, 30 N. Y. 393; Howard v. Barnes, 65 How. Pr. 122. § 9. Lineal Descendants of Brother and Sister of un- equal Degrees.— The same law of inheritance prescribed in the last section, shall prevail as to the other direct lineal descendants of every brother and sister of the in- TIT. VI.] UNDER THE REVISED STATUTES. 377 testate, to the remotest degree, whenever such descend- ants are of unequal degrees. § 10. Brothers and Sisters of Father and their Descend- ants.— If there be no heir entitled to take under either of the preceding sections, the inheritance, if the same shall have come to the intestate on the part of his father, shall descend — 1. To the brothers and sisters of his father in equal shares, if all be living ; 2. If any be living, and any shall have died, leaving issue, then* to such brothers and sisters as shall be living, and to the descendants of such of the said brothers and sisters as shall have died ; 3. If all such brothers and sisters shall have died, then to their descendants. In all cases the inheritance shall descend in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. Under the above sub. 1, brothers and sisters of the half blood would take equally with those of the whole blood. Beebee v. GriflBng, 14 N. Y. 235. By the 8th, 9th, and 10th sections above, the descent to collateral relatives of the decedent is placed upon the same footing as the descent to lineal heirs. That is, if all the heirs are in the same degree of consanguinity to the intestate, they tate equally, however remote they may be from him ; but if some of the class of relatives nearest to the decedent are dead, and leave issue, the sur- vivors of the class take equally among themselves, and the representatives of those who are dead take the share which their ancestors of that class would be entitled to if living. Pond r. Bergh, 10 Paige, 140. § II. Brothers and Sisters of Mother and their Descend- ants.— If there be no brothers and sisters, or any of them, of the father of the intestate, and no descendants of such 378 UKDBR THE REVISED STATUTES. [CH. XIV. brothers and sisters, then the inheritance shall descend to the brothers and sisters of the mother of the intestate, and to the descendants of such of the said brothers and sisters as shall have died; or if all shall have died, then to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the father. § 12. Brothers and Sisters of Mother, when to be Pre- ferred. — When the inheritance shall have come through the mother, then the preceding sections are reversed, the mother's brothers and sisters and their descendants first taking. 1 R. L. 53, § 3. § 13. Brothers and Sisters of Father and Mother, when to Inherit Equally.— In cases vi^here the inheritance has not come to the intestate on the part of either the father or mother, the inheritance shall descend to the brothers and sisters, both of the father and mother of the intestate, in equal shares, and to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. Where the intestate inherits land from a brother, the brothers and sisters, or their descendants, both of the father and mother of the intestate, take equally, irrespective of the source from which the brother received it. Hyatt V. Pugsley, 33 Barb. 373. Lands Partitioned. — Lands allotted to an heir by voluntary partition and release, are deemed to come to him by inheritance from the ancestor, and not by purchase, and on his death such of his heirs as are not of the blood of the ancestor are excluded. Conkling v. Brown, 8 Abb. N. S. 345. § 14. Mother of Illegitimate.—" In case of the death, without descendants, of an intestate who shall have been illegitimate, the inheritance shall descend to his mother ; if she be dead, it shall descend to the relatives of the in- testate on the part of the mother, as if the intestate had been legitimate." This changes the principle of the common law, by which a person of illegitimate birth can neither inherit lands himself nor transmit them by descent to any others except his own legitimate oflfspring, or persons other- wise capable of inheriting, claiming by virtue of inheritance from or through them. TIT. VI.J UNDER THE REVISED STATUTES. 379 This applies only to the relatives in case the mother is dead at the death of the intestate. If she be living; and an alien, she could not take nor her rel- atives through her. The People v. Irvin, 21 Wend. 138 ; McLean v. Swan- ton, 13 N. Y. 535; St. John v. Northrup, 33 Barb. 26. As to widow and children of such decedent see 1 R. S. 751 ; 2 R. S. 96, § 75. They may take as if decedent was legitimate. § 15. Relatives of Half Blood.— Kelatives of the half blood shall inherit equally with those of the whole blood in the same degree ; and the descendants 'of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance came to the intestate immediately, and not mediately, by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance. See also, 3 R. S. 97, § 75, subdiv. 12. See, as to the application of this section in certain cases, Valentine v. Wetherell, 31 Barb. 655 ; Hyatt v. Pugsley, 33 Barb. 378 ; Vanderheyden v. Crandall, 2 Den. 9; affl'd, 1 N. T. 497 ; Torrey v. Shaw, 3 Edw. 856. The terms '' the blood of the ancestor " include his relations of the half blood. Beebee v. Grriffing, 4 Kern. 235. The meaning of this section is that the relatives of the half blood shall inherit precisely as if they were of the whole blood, in every case of descent provided for in the previous sections. In all cases of a newly purchased in- heritance that can arise under § 8, all brothers and sisters, and their descend- ants of the half blood, would take as if relatives of the whole blood. Brown V. Burlingham, 5 Sandf. 418 ; Champlin v. Baldwin, 1 Paige, 563 ; Hallett v. Hare, 5 Paige, 316 ; Conkling v. Brown, 8 Abb. Pr. N. S. 345 ; s. c, 57 Barb. 365. The above provision of the statutes excluding all not of the blood of the ancestor through whom the intestate derived title, refers to the immediate relatives, collateral as well as lineal, from whom the intestate received the in- heritance. Wheeler v. Clutterbnck, 53 N. T. 67 ; Emanuell v. Ennis, 48 Super. 430 ; Dargin v. Wells, N. Y. Daily Reg. Aug. 9, 1883; Leary v. Leary, 50 How. Pr. 133. It does not include purchases for value. Morris v. Ward, 86 N. Y. 587. § 16. Common Law, when to Prevail.— In all cases not provided for by the preceding rules, the inheritance shall descend according to the course of the common law. 1 R. L. 53. Under this provision, the old rule of the common law would seem to apply relative to the exclusion of the Iwlf blood, where the English common law still applies. Brown v. Burlingham, 5 Sandf 418. 380 UNDBK THE BEVISED STATUTES. [OH. XIV. § 17, Tenants in Common.— Whenever there shall be but one person entitled to inherit according to the pro- visions of the chapter, he shall take and hold the inher- itance solely ; and whenever an inheritance or a share of an inheritance shall descend to several persons, under the provisions of the chapter, they shall take as tenants in common, in proportion to their respective rights. § 18. Posthumous Children.— Posthumous descendants and relatives inherit the same £(s others. 1 E. L. 54; Mason v. Jones, 2 Barb. 329; 2 R. S. 65, § 49; 2 R. 8. 97, § 75, sub. 13. Amended by L. 1869, c. 23, vide infra ; Drischler v. Van Den Henden, 49 Super. 508. As to post testamentary children inheriting, vide ante, p. 359. § 19. Illegitimates.— Children and relatives who are ille- gitimate shall not be entitled to inherit under any of the provisions of the chapter. Presumptiou of Legitimacy. — The law presumes every one bom during wedlock legitimate, until the contrary is shown, even if born so short a time after wedlock as to have been necessarily begotten before. 2 R. S. 145, §§ 43, 44 ; Cross v. Cross, 3 Paige, 139 ; Montgomery v. Montgomery, 3 Barb. Ch. 132; CaujoUe v. Ferrie, 26 Barb. 177; affirmed, 23 N. Y. 90. Under the common law, illegitimate children cannot take by descent; for they have not, in contemplation of law, inheritable blood; nor could they transmit by descent, except to their own ofispring. By Law of April 18, 1855 (ch. 64V), illegitimate chil- dren, in default of lawful issue, may inherit real and per- sonal property from their mothers, as if legitimate ; but nothing in the act is to affect any right or title to property already vested in the lawful heirs of any person thereto- fore deceased. Ferrie v. The Pub. Admr. 3 Brad. 249. See anU, Title I. A child who has become legitimated in the domicile of the parents may take land in New York. Miller v. Miller, 91 N. Y. 315; rev'g 18 Hun, 507, and overruling BoUerman v. Blake, 24 Hun, 187. But an illegitimate child cannot inherit from a maternal grandfather, the mother being dead. Matter of Mericlo, 63 How. Pr. 62. § 20. Certain Estates not Affected.— The estates of ten- ants by the curtesy or dower, and limitations of an estate TIT. VI.] UNDER THE EBVISED STATUTES. 381 by deed or will, shall not be affected by any of the pro- visions of the chapter. 1 B. L. 54. § 21. Estates in Trust.— Eeal estate held in trust for any other person, if not devised by the person for whose use it was held, shall descend to his heirs, according to the provisions of this chapter. 1 R. L. 74. § 22. Alienism of Ancestor.— No person capable of in- heriting under the provisions of this chapter shall be pre- cluded from such inheritance by reason of the alienism of any ancestor of such person. At common law, no one could make title by descent through an alien ancestor (2 Hill, 67 ; 10 Wend. 9 ; 7 Id. 333) ; and if the heirs were alien, the land vested immediately in the State. 83 Barb. 360; id. 371. The above provision of the Eevised Statutes of 1830 is piirely prospective, and does not affect inheritances through persons dying before that time. 3 Sandf. 79 ; 7 Wend. 333. It applies only to the case of a deceased, not a living ancestor. 31 Wend. 128; 23 Barb. 25; 13 N. T. 535. The word " ancestor " held to embrace collaterals. 1 Seld. 263. See the whole subject of title of and through aliens, ante, pp. 81 to 95. §§ 23 to 26. Advancements.— These sections provide that advancements, by way of settlement or portion, to a child, shall be charged against his descendible portion, as of the" value at the time of the advancement. They are based upon Laws of 1787, and 1 R. L. of 1813, 313. They are given in full, ante, p. 366. An advancement will cut off the heirs of the party advanced from their share in the other real estate, if the advancement would equal the party's distributive share. Parkes v. McClure, 36 How. Pr. 301. See also " Powers," ante, p. 334. § 28. The words " Living," etc., Construed.— Whenever in the preceding sections any person is described as Iming, it shall be understood that he was living at the time of the death of the intestate from whom the descent came ; and whenever any person is described as having died, it shall be understood that he died before such intestate. § 29, Other Expressions.—" The expressions used in the chapter, ' where the estate shall have come to the in- testate on the part of the father,' or ' mother,' as the case 382 UNBEB THE REVISED STATUTES. [CH. XIV. may be, shall be construed to include every case where the inheritance shall have come to the intestate by devise, gift, or descent, from the parent referred to, or from any relative of the blood of such parent." This was different from tlie common law which traced back the title to the purchaser, in order to decide from which side the estate was derived. 33 Barb. 373. It is held that the insertion of a small pecuniary nominal con- sideration in a deed of gift as " one dollar," does not change the nature of the gift into a purchase. Morris v. Ward, 36 N. Y. 587. Law of 1860. — By Law of 1860, ch. 90 (repealed), the following provis- ions were enacted : § 10. At the decease of husband or wife, leaving no minor child or children, the survivor shall hold, possess, and enjoy a life estate in one-third of all the real estate of which the husband or wife died seized. § 11. At the decease of the husband or wife intestate, leaving minor child or children, the survivor shall hold forever and enjoy all the real estate of which the husband or wife died seized, and all the rents, issues, and profits thereof, during the minority of the youngest child, and one-tliird thereof during his or her natural life. These sections were repealed by Law of 1863, ch. 173, but they are given here as they may affect interests vesting when they were in force. See cases cited ante, § 15. Descent of Lands Mortgaged.— It is further provided (contrary to the general principle), that whenever any real estate, subject to a mortgage executed by the ancestor or testator, shall descend to the heirs, or pass to a devisee, the mortgage shall be satisfied out of such estate, without resorting to the executor or administrator, unless there be an express direction in the will to the contrary. This provision would apply as well to a mortgage that had been assumed, although not executed by the testator. Halsey v. Reid, 9 Paige, 446 ; ap- proved, 12 N. Y. 74. An equitable lien for the purchase money is not a mortgage within this statute. Wright V. Holbrook, 33 N. Y. 587; affirming Supreme Court, IS Abb. Pr. 3Q2. And the heir or devisee has the right to have the same paid out of the personal estate of the decedent. Ih. See further, as to the above provision charging the payment of a mort- gage on the land descended, Johnson v. Corbett, 11 Paige, 265. But a mortgagee may proceed either against the personal or the real estate, though a court of equity would compel him first to exhaust the latter. Rice V. Harbeson, 63 N. Y. 493 ; Roosevelt v. Caipenter, 28 Barb. 436. Descent of Lands subject to a Power. — As to this, vide ante, p. 265, and Ch. XII, Title VIII. Descent Cast. — By the Revised Statutes it is provided as follows : " The right of a person to the possession of any real property shall not be impaired or affected by a TIT. VII.] LATJID DESCENDED TO PAY DEBTS. 383 descent being cast in consequence of the death of a person in possession of such property." 2 R. S. 1st ed. p. 295, also Code of Procedure, § 87; now Co. Civ. Proc. § 374. Descent where a Child is Born after a Will made.— By Law of Feb. 19, 1869, ch. 22, section 49, of title 1 of ch. vi, of part 2 of the Eevised Statutes, is amended so as to read as follows : " § 49. Whenever a testator shall have a child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after born, unprovided for by any settlement, and neither provided for nor in any way mentioned in such will, every such child shall succeed to the same por- tion of such parent's real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in pro- portion to and out of the parts devised and bequeathed to them by such will." See further as to this section, post, p. 412; also ante, Title I. Heir or Devisee.— The heir takes as heir rather than as devisee. 11 Barb. 43; Smith v. Robertson, 89 N. Y. 555. Sales by Heirs.— See ^o«i, Ch. XV; 1 R. S. 749, § 3, and Co. Civ. Proc. § 2628; also Cole v. Gourlay, 79 N. Y. 527; affi'g 9 Hun, 498. It seems that the burden of proof, however, is on the purchaser to show that there is a will existing, even within four years. 12 Daly, 292. Title VII. Liability of Land Descended to Pay Debts. The general rule of the English and American law is, that the personal estate is the primary fund for the dis- charge of the debts, and is to be first exhausted. The order of marshalling assets in equity towards pay- ment of debts is to apply them as follows : 384 LAND DESCENDED TO PAX DEBTS. [OH. XIV. 1. The genera] personal estate. 2. Estates specially devised for the payment of debts. 3. Estates descended. 4. Estates devised, though generally charged with the payment of debts. It requires express words, or the manifest intent of the testator, to disturb this order, or express statute. The mere charge by will of a secondary fund with the payment of debts, does not exempt the primary fund, unless it plainly appears to have been the testator's intention to exonerate it for the benefit of some legatee. Lowndes on Legacies, 329, and vide 4 Kent, 447, and cases cited. Liability of Land to Contract Debts.— By the common law, land descended or devised was not liable to simple contract debts of the ancestor or testator, nor was the heir bound even by a specialty, unless he were expressly named. 4 Kent, p. 446. But by the Law of 1786 (1 Rev. Laws, 316, § 1), and vol. ii, p. 453, §§ 32, 33, of the Revised Statutes, 1st ed., as now by the Code of Civil Procedure, the heirs of intes- tates and the heirs and devisees of a testator are ren- dered liable for the debt of the ancestor arising by simple contract, as well as by specialty, to the extent of the estate interest and right in the real estate effectually devised or descended on condition that the personal estate of the decedent, if any, within the State, is insufficient, and that tbe plaintiff has been unable or will be un- able witb due diligence to collect his debt through pro- ceedings before the Surrogate's Court and at law, both against the representatives^ surviving husband or wife, legatees, and next of kin. Co. Civ. Proc. §§ 1843, 1848; R. S. amended by Laws of 1859, ch. 110. Earlier acts were substantially similar in their provisions to the Code. The Revised Statutes and Act of 1859 were repealed by L. 1880, ch. 245. When lands are exonerated after surrogate's sales, vide post, Ch. XVIIL This provision does not affect the liability of an heir or devisee when the debt is, by the will of the ancestor, charged esspresuly and eaxilugively upon the real property descended or devised or made expressly payable by the heir or devisee or directed to be paid out of the real property descended or devised before resorting to the personal estate or other real property. Co. Civ. Proc. §1859. So formerly; R. S. §35. Youngs v. Youngs, 45 N. Y. 254. TIT. VII.] LAND DESCENDED TO PAT DEBTS. 385 Debts as above, due by the heirs or devisees, have to be paid in a certain order of preference. Co. Civ. Proc, § 1855. The statutes also provide for proceedings against said heirs and devisees, and the defenses that may be set up. 1 Rev. Stat. p. 453, with the amending statutes. The debts are not a lien ; the heir takes an absolute title, subject to be charged with the debts, on proper steps being taken. Wilson v. Wilson, 13 Barb. R. 253. See Van Sycle v. Richardson, 3 111. 171. Where the personality is grossly inadequate, very slight words will charge legacies upon the realty. So held where the devisee was executor and was ordered by the will to pay the legacies. Monson v. Monson, 8 Abb. N. C. 123. Lien of Judgment on Lands Descended. — A judgment rendered against the heirs or devisees in such an action has preference as a lien on the real estate descended, over any judgment, etc., obtained against such heir or devisee pei'sonally, for his individual debt or demand. Co. Civ. Proc. § 1853; R. S. § 48; Morris v. Mowatt, 2 Paige, 586. Alienation of Land.— If the defendant has aliened the descended land before suit or after suit, but before notice of lis pendens filed, he is personally liable, at the election of the plaintiff, for the value of the estate so aliened ; but no such judgment binds, nor does execution thereon affect the title of a purchaser in good faith and 'for value acquired before notice of lis pendens or judgment roll on final judgment filed. Co. Civ. Proc. §§ 1853, 1854; R. S. §§ 49, 51 ; 1 R. L. 317. In suits brought against joint heirs or devisees, the amount recovered is to be apportioned among them respectively according to their respective interests. Co. Civ. Proc. § 1847 ; R. S. § 53 ; Wambaugh v. Gates, 1 How. App. Ca. 247. Liability of Devisees.— To render devisees liable to the extent of the lands devised to them respectively, it must appear, in addition to the facts required to be shown in an action against heirs, that the real estate descended to the heirs was insufEicient. Where, however, the debt was charged expressly and exclusively upon the real estate de- vised, or made exclusively payable by the devisee of the land devised, the devisee is liable before resorting to the personal estate or any other real property. Co. Civ. Proc. §§ 1849, 1859; R. S. §§ 56 to 58. 25 386 LAND DESCENDED TO PAT DEBTS. [OH. XIV. Where one of several devisees of two lots mortgaged his interest in one lot and the mortgage was foreclosed, it was ordered on a proceeding to sell lands to pay testator's debts that the other lot should first be sold, so that no nnjust burden should fall on the mortgagee. Matter of Clark, 3 Redf. 225. Alienation by Devisee. — Devisees are made liable to the same extent as heirs and with like provisions as to alienation. Co. Civ. Proc. §§ 1853, 1854, supra; IK. L. 317; R. S. § 61. The above provisions are made applicable to the case of children born after the making of a will, and entitled to take as heirs under statutory pro- visions, and also to witnesses to a will entitled to recover against portions of real or personal estate from legatees or devisees. § 1868 ; R. S. §§ 62 to 66. Heirs to be Prosecuted Jointly.— By Co. Civ. Proc. § 1846, following Law of May 16, 1837, c. 460, which was repealed by L. 1880, c. 245, an action against heirs or devisees of any person who may be liable to any creditor of such person in consequence of lands having descended to them, must be brought jointly against all the heirs or devisees, as the case may be. Where land is devised to the children and heirs at law of the testator, after the payment of debts, if it does not appear that the devisees have taken possession of the real estate, or have accepted the devise to them, or prom- ised to pay, or have paid, any portion of the debt owing by the testator, or sold the land, or any part of it, as heirs at law of the testator, they are not personally liable to pay the debt. An action brought to reach real estate which a testator devised to the de- fendants, and to have the same sold for the purpose of satisfying a debt which the testator owed to the plaintiff, is an action in rem for equitable re- lief, of which the Supreme Court had not jurisdiction previous to the Code, and may be commenced at any time within ten years after the cause of action accrued. Wood v. Wood, 26 Barb. 356. A final decree in a suit against heirs and devisees, to obtain satisfaction of the debts due from the estate of the testator or intestate, has a preference as a lien on the estate descended or devised, over any judgment or decree ob- tained against the heir or devisee for his personal debt. Co. Civ. Proc. § 1852. And a sale under an execution, issued on such decree, will overreach not only all judgments and decrees which have been recovered against such heir or devisee, but also all mortgages and alienations of the estate subsequent to the commencement of the suit. Whether a sale under execution issued on the decree is necessary to give the purchaser a legal title, sufiBcient to pro- tect him at law against a sale under a previous judgment against the heir or devisee ? Qumre. Morris v. Mowatt, 2 Pai. 586. Land conveyed to an administratrix under a contract held by intestate as security for a debt was held personalty. Matter of Potter, 33 Hun, 599. To entitle a creditor of a deceased debtor to a legal preference over a judgment creditor of the heir at law of the debtor, he must himself proceed to a judgment against the heir at law, for the debt due from the latter in respect to the lands descended from the deceased debtor; or he must apply to the surrogate for a sale of the land, to satisfy the debts of the decedent which the personal estate is insuflScient to pay. Pierce v. Alsop, 3 Barb. Ch. Actions cannot be brought against heirs or devisees to charge them with the debts of the testator or intestate, until the expiration of three years from the time of granting letters testamentary or of administration on his estate. Co. Civ. Proc. § 1844, following 2 R. S. 1st ed. p. 109. A decree for deficiency cannot be obtained against them in a foreclosure suit. Leonard v. Morris, 9 Paige, 90; Roe v. Swezey, 10 Barb. 247. Infancy of the defendants is no bar to the action, but execution cannot issue against infants until one year after judgment. Co. Civ. Proc. § 1858; so formerly by 2 R. S. 1st ed. pi 109, §§ 48, 54. TIT. VII.l LAND DESCENDED TO PAY DEBTS. 387 A suit at law against the prior parties was formerly an essential prelimi- nary to a right to sue the devisee's heirs. The heirs were to be sued jointly in equity. Stuart v. Kissam, 11 Barb. 371. But now an action need not be &st brought against the personal representatives. Co. Civ. Proc. § 1848. An heir takes an absolute title to the land descended, subject only to be defeated or charged with the debts of the testator or intestate, either by the representatives or the creditors taking the steps authorized by statute ; but the debts due by a decedent, or advances made for the estate, are not a lien or charge upon the land in tlie possession of the heir, in law or equity. Wil- son V. Wilson, 13 Barb. 253. Under the provisions of the Revised Statutes, heirs or devisees who had not aliened any part of the property descended or devised to them, could not be charged personally for the debts of the testator or intestate ; nor were they personally liable for contribution for the payment of such debts. The judg- ment or decree could only direct a satisfaction of their portion of the debt out of the estate so descended or devised. Schermerhom v. Barhydt, 9 Paige, 38. This rule seems to be enacted in Co. Civ. Proc. § 1853. This case fully reviews all the old proceedings agaiust heirs and devisees, and the provisions of the Revised Statutes, and the laws prior to them, affect- ing heirs and devisees. See also Johnson v. Corbett, 11 Paige, 365 ; Wilkes V. Harper, 1 Corns. 586; Mersereau v. Ryers, 3 N. T. (3 Corns.) 361; Roe v. Swezey, 10 Barb. 347 ; Stewart v. Kissam, 11 Barb. 371 ; Sandford v. Granger, 13 Barb. 393; Loomis v. Tifts, 16 Barb. 541 ; Roosevelt v. Carpenter, 38 Barb. 436 ; Morris v. Mowatt, 3 Pa. 586 ; Wood v. Wood, 36 Barb. 356 ; Kellogg v. Olmstead, 10 How. Pr. 487; Herkimer v. Rice, 37 N. Y. 163; Hyde v. Tanner, 1 Barb. 75 ; Lane v. Doty, 4 Barb. 539 ; Waring v. Waring, 3 Abb. 346 ; Fer- guson V. Broome, 1 Brad. 10 ; Traud v. Magnes, 49 Super. 309. These cases give the manner of procedure in obtaining judgments against heirs and devisees, and the effect and lien of such judgments. See also, ^osi, Ch. XVin, as to suits against heirs and devisees, to charge thenj with debts, when to be brought and when stayed, when lands are sold by order of surro- gate to pay debts. • Notice of Charge on Land. — Persons taking title through an instrument creating a charge or raising an equity are charged with notice thereof and take the land cum onere. Salisbury v. Morss, 7 Lans. 359 ; affi'd, 55 N. Y. 675 ; Cambridge Valley B'k v. Delano, 48 N. Y. 336. CHAPTER XV. TITLE BY DEVISE. Title I. — Those Capable of Making a Will. Title If. — Devises, to Whom Made. Title III. — Nature of the Estate Devised. Title IV. — Extent of the Estate Devised. Title V. — As to Lands Acquired after Will Made. Title VI. — Execution of Wills. Title VII. — Revocation and Cancellation of Wills. Title VIII.^Lapbe of Devises. Title IX. — General Rules of Construction. Title X. — Devises to Corpokationb. A Will is defined as a disposition of real or personal property, to take effect after the death of the testator. Under the earlier periods of the English common law, lands held in tenure were not devisable, except through a devise of the use; subsequent statutes, however, in time, gave the right to dispose of every estate in real property, by will. The form, construction, and efficacy of devises of real estate involve numerous and important principles; and so intricate and extensive is the law on the subject, as to render impossible, in this volume, more than a gen- eral reference to it. The English law of devises was incorporated into our colonial jurisprudence; and the statutory regula- tions on the subject, in this State, are framed upon the English statutes of 32 Hen. VHI, and 29 Charles H. TIT. 1.] THOSE CAPABLE OF MAKING A WILL. 389 Title I. Those Capable of Making a Will. By the earlier statutes of New York (see an act to reduce the laws concerning wills into one, Statute 3d March, 1787, 1 Greenl. 386; the Act of 20th Feb. 1801, 1 Webster, 178 ; 1 K. L. of 1813, p. 364), substantially re-enacted in the Kevised Statutes (2 E. S. 57), all persons except idiots, persons of unsound mind, {married women) and infants, may devise their real estate by a last will and testament, duly executed according to the statutes. Art. i, title i, ch. vi, part 2d ; 1 R. L. 364. By Act of Ap. 25, 1867, ch. 782, § 3, the words "married women" are stricken out of the excepting clause, and also the words " not being a married woman," out of § 21, as to wills of personal property; and such women may become executrices, administratrices, and guardians, and give bonds thereon, as if sole. The Statute of New York of 1787 (1 Greenl. 385), gave the power of devise to persons having sole estate or interest in fee, or any estate of inheritance, or to persons seized as tenants in common or coparceners of estates of inheritance in lands, rents, and other hereditaments in possession, remainder, or reversion, etc., also estates, ^wr autre vie, etc. The subsequent provisions of the statute law (1 Web. 178; 1 R. L. p. 304) dropped the word seized, and gave the power of devising to all persons Tiaeing estates of inheritance either in severalty or common (except bodies politic or corporate). The above statutes were incorporated in the Rev. Laws of 1813, and were superseded by the provisions of the Rev. Stat, of 1830. See R. L. (1813), p. 364. Under the above statutes, a devise of a right of entry was good, not- withstanding an actual disseizin or adverse possession. Such right would also pass by descent, or be bound by a judgment. Varick v. Bacon, 7 Cow. 238;'affi'd, 2 Wend. 166. Married Women. — A married woman, by the common law, was considered to be incapable of making a valid will of lands, even with the consent of the husband, and without any statutory prohibition to that effect. Notwithstanding, however, the prohibition against the making of wills of real estate by married women, by the common law, and as contained in the English statutes, which were re-enacted in this State, a married woman was competent to appoint, by a will, the uses of land, where a power for that purpose had been reserved by or given to her by some conveyance competent to raise and to direct the execution of such uses ; or where land had been conveyed in trust for her benefit, with a like power of appointment. 390 THOSE CAPABLE OF MAKIN& A WILL. [CH. XV. Her devise by way of appointment was held as not an infringement of the law or the statutes, because her action was supposed to be through a delegation of a power, and she was a mere donee of a use, acting, in other words, as the instrument or attorney of another. When the power was executed, the person in whose favor the appointment was made became invested with the use, and instantly gained the legal estate by force of the Statute of Uses. A married woman in this country could not, until the passage of the act respecting married women in 1849 (ante, p. 74), make a will of her real estate, ex- cept by virtue of such a power, or by way of appointing a use ; but where she was clothed with such power, her coverture formed no impediment to the transaction. It was also a principle of the law, that a formal convey- ance to uses or to trustees upon trusts to be executed by virtue of a power, was unnecessary; and marriage articles, and ante-nuptial contracts, in which the hus- band gave his intended wife power to dispose of her real estate, might be enforced in the same manner as if there was a formal conveyance. The Revised Statutes, it will be remembered, specially exclude the exer- cise of power by a married woman during infancy. Ante, Ch. Xn, Title VI. If the appointment authorized was not made, then the estate given passed to the parties otherwise entitled to it by law. As to the above principles, ««ide King v. Brown, 2 Hill, 485. An agreement to take back land sold at a certain price, under certain circumstances. Bur- rell V. Root, 40 N. Y. 496. Form of the Contract.— A contract required by the statute of frauds to be in writing cannot be partly in TIT. I.] THE CONTRACT, HOW MADE. 475 writing and partly by parol ; and it must be definite in its character. Dow V. Way, 64 Barb. 355 ; Odell v. Montross, 68 N. T. 500 ; Parkhurst V. Van Oortlandt, 1 Johns. Ch. 373 ; Wright v. Weeks, 35 N. Y. 153 ; affirm- ing 3 Bos. 373; Rollins v. Pickett, 3 Hill, 553. It is held, however, that although the memorandum must contain what is necessary to show what the contract between the parties is, the property may be ascertained by extrinsic evidence, especially if the memorandum refer to it. Pinckney v. Hagadorn, 1 Duer, 89 : Tallman v. Franklin, 14 N. T. 584 ; also, 48 N. T. 344. The memorandum signed may properly refer to another writing not itself signed. Newton v. Bronson, 3 Ker. (13 N. Y.) 587; also, 48 N. Y. 637. But the memorandum must contain the entire and full terms agreed on, and it must leave no part uncertain of the details of the contract, as to con- sideration, credits, etc. Davis v. Shields, 36 Wend. 341 ; Foot v. Webb, 59 Barb. 38; Wright v. Mischo, 53 Super. Ct. 341; affi'd, id. 351. It must definitely show the parties and which is the seller. Calkins v. Palk, 1 Abb. Ct. of App. Cas. 291. Subscription. — The agreement must be subscribed at the end thereof. Davis V. Shields, 36 Wend. 341 ; Champlin v. Parish, 11 Pai. 406 ; Worthing- ton, &c., Co. V. Bull, 44 Hun, 463. A printed subscription of a name is not sufficient. Vielie v. Osgood, 8 Barb. 180. The 'writing. — The contract may be in lead pencil. 13 Johns. 103 ; 14 id,. 484. Seal. — There need be no seal, either to the contract or to any assignment thereof. Worrall v. Munn, 5 N. Y. 339; Stoddart v. Whiting, 46 N. Y. 637. By whom Subscribed.— The contract properly should be subscribed by both parties, and necessarily by the vendor. Chajnplain v. Harris, 10 Paige, 386 ; Worrall v. Munn, 1 Seld. 339 ; The Nat. Fire Ins. Co. v. Loomis, 11 Pai. 431; Cammeyer v. German Churches, 3 Sandf. Ch. 188. All the vendors should .subscribe. St. Paul's Church v. Ford, 34 Barb. 16. It is supposed, however, that others might ratify and adopt the act of one, for their benefit. Vide Silliman v. Tuttle, 45 Barb. 171. If signed by the vendor, it may be enforced against him, whether the vendee sign or not. Worrall v. Munn, 5 N. Y. 339 ; to the contrary was Cam- meyer V. German Ch. 3 Sandf. Ch. 187; vide also. Codding v. Walmsley, 4 N. Y. 8. C. 49; affl'd, 60 N. Y. 644. If signed by the vendee alone, the contract is void, and it cannot be en- forced against him. Debeerske v. Paige, 47 Barb. 172 ; 36 N. Y. 537 ; Miller v. Pelletier, 4 Edw. 103; Cowles v. Bowne, 10 Pai. 536; McWhorter v. Mc- Mahan, 10 Pai. 386; Champlin v. Parish, 11 Pai. 405. It had to be signed by the party who was to be charged thereby before the Rev. Stat. Since then it is to be signed only by the party making the sale. Davis v. Shields, 36 Wend. 341 ; First Bap. Ch. v. Bigelow, 16 Wend. 38; McCrea v. Purmort, 16 Wend. 460. It seems a contract executed by the vendor only, but delivered to and accepted by the purchaser, and acted upon by him, can be enforced against such purchaser. Worrall v. Munn, 1 Seld. 339. 476 THE OONTEAOT, HOW MABE. [OH. XIX. Delivery and Acceptance.— Althougt the vendor may have signed the contract, it will not bind h.im, unless de- livered by him or by his authority, and accepted by the vendee. And, until acceptance, the vendor may vpithdraw or rescind it. Stevens v. Buflfalo, &c. R. R. Co. 20 Barb. 332. Parol evidence of conditions qualifying the delivery is not admissible. n. Where title papers were to be examined and contracts were left with at- torney, until approval of question of title, by him ; held, that the contract was not consummated, the attorney not approving the title papers submitted. Dietz V. Farish, 79 N. Y. 520. Married Women.— As to contracts by, vide ante, pp. 75, 76. Contract made by an Agent.— The Kevised Statutes further provide as follows : " § 9. Every instrument required to be subscribed by any party under the last preceding section (§ 8), may be subscribed by the agent of such party lawfully author- ized." Earl V. Collins, 19 Week. Dig. 807. The contract, however, must be executed in the name of the principal to be binding on him. Townsend v. Orcutt, 4 Hill, 351 ; and see ante, p. 352; Sherman v. Hill, 22 Barb. 239 ; Briggs v. Partridge, 64 N. T. 356. It has been held, however, that where there has been a performance on the part of the principal, accepted by the other contracting party, the prin- cipal will be entitled, in equity, to a specific performance, notwithstanding that the agent contracted in his own name. St. John v. Griffith, 2 Abb. 198; vide, also, Squier v. Norris, 1 Lans. 282 ; Briggs t. Partridge, 64 N. T. 356. See further as to triple relation of vendor, purchaser and his agent as respects fulfillment of covenants in contract by agent in his own name. Tuthill V. Wilson, 90 N. T. 423. The agent must be appointed by all the vendors. Appointment by Parol. — Although in the execution of deeds and leases, by which an interest in presenti passes, the agent's authority must be in writing, in agreements to convey, the agent's authority may be conferred by parol, and there may be a parol ratification of an unauthorized agent's written contract. Champlain v. Parish, 11 Pai. 406 ; Worrall v. Munn, 5 N. T. 229 ; Lawrence v. Taylor, 5 Hill, 107 ; McWhorter v. McMahan, 10 Pai. 386 ; Pringle v. Spaulding, 53 Barb. 17 ; Blood v. Goodrich, 12 Wend. 525; Newton v. Bronson, 13 N. T. (3 Ker.) 587; also, 36 Barb. 655; Weed, &c. Co. V. Kaulback, 3 N. Y. S. C. 304; Moody v. Smith, 70 N. Y. 598. An agent may bind his principal if he is recognized subsequently by his principal as such, and the sale confirmed. A parol ratification of an agent's sealed contract, where the agent had no authority to make such contract, is insufilcient. Blood v. Goodrich, 12 Wend. 525. But it might be valid as a simple contract if a seal were not requisite. Lawrence v. Taylor, 5 Hill, 107. And even where such agent had no power TIT. II.] EEPEOT OF THE CONTRACT. 477 to bind the principal — viz., the agent of a trustee — but then the ratification must be in writing, as required by the terms of the statute. More v. Smed- bergh, 8 Pai. 600; affi'd, 26 Wend. 288; also 3 Ker. 587, mpra. A written instrument subscribed by the owner of land, authorizing a real estate broker to sell it upon certain terms therein specifically stated, and an agreement to purchase the property upon those terms, subscribed by a pur- chaser, subsequently written across the face of the paper while unrevoked in the hands of the broker, do not, taken either separately or together, form a contract for the sale of the land binding upon the owner ; nor does his sub- sequent parol assent to the terms of sale give validity to the transaction. Haydock v. Stow, 40 N. Y. 363. A broker's authority to "sell," has been held to authorize him to sign the vendor's name to a contract. Pringle v. Spaulding, 53 Barb. 21. To the contrary, are intimations in Coleman v. Garrigues, 18 Barb. 68; Glent- worth V. Luther, 21 Barb. 145; Barnard v. Monnot, 33 How. Pr. 440 (Court of Appeals). Partners. — One partner cannot by contract bind another as to sales of real estate of the partnership. A verbal authority from his copartner would, however, enable him so to do. Or the contract might be ratified and so made valid. Lawrence v. Taylor, 5 Hill, 107. An Auctioneer as Agent. — At an auction the contract of sale is not completed until the auctioneer knocks the article down to the purchaser, un- til which time the bid may be withdrawn. Then the sale must be reduced to writing by the auctioneer as the agent of the vendor. Champlain v. Parish, 11 Paige, 405 ; Tallman v. Franklin, 14 N. Y. 584 ; reversing 3 Duer, 395. See this case as to the auctioneer's memorandum. Also, Pinckney v. Hagadom, 1 Duer, 89. The clerk's signature is supposed suffi- cient. 12 N. Y. Leg. Ob. 250; Trustees, &c. v. Bigelow, 16 Wend. 28. In Coles V. Browne, 10 Pai. 526, the mere memorandum of the sale, with- out the signature of the vendor or his agent subscribed, is held insufficient. The auctioneer's memorandum in his sales-book, in a brief form, is suf- ficient as a memorandum. 1 Duer, 89, supra. As to the auctioneer's signature before the Revised Statutes, vide, supra, 1 Duer, 89 ; Pinckney v. Hagadom, 1 Duer, 89 ; The Trustees, &c. v. Bigelow, 16 Wend. 28. The auctioneer must subscribe the memorandum of sale. Champlin v. Parish, 11 Pai. 406. He need not sign it specially as agent for the vendor; that is implied. Pinckney v. Hagadom, 1 Duer, 89. A referee's report of sale made by him, or any written memorandum of sale containing the requisites of the statute, is sufficient. The Nat. Fire Ins. Co. V. Loomis, 11 Pai. 431. Part Performance.— As to part performance of a parol contract, taking it out of the statute of frauds, vide post^ Title V. Title II. Effect of the Cowteaot. (See also Miscellaneous Provisions, Title Vl.) From the time of entering into a valid contract for the conveyance of land, the estate vests, in equity, in the 478 EPPBOT OF THE OONTKACT, [OH. XIX. vendee, and the vendor retains the legal title, as a mere lien or security for the unpaid purchase-money. The vendor remains a mere trustee, and his interest is in the proceeds and not in the land; and the vendee becomes trustee of the vendor for the purchase-money. Upon the decease of the vendor, his interest in the contract is personal property, and goes to his personal representatives who can enforce it. It will pass by as- signment, with or without seal, like a bond and mortgage, and it may be sold as personal property by his executor or administrator. And upon the sal^ of such a contract by the adminis- trator of the vendor, the purchaser thereof will have the right to receive the moneys remaining due on the same, at the death of the vendor. An assignment by the vendee of such a contract, will convey to the assignee all his interests tberein, and en- title the assignee to demand an-d receive a conveyance from the vendor or his heirs, upon payment of the pur- chase-money due thereon. The contract as owned by the vendee or his assignee is the subject of devise by them, and descent to their heirs respectively, as of the realty, and in them is vested the equity of redemption. And the administrator, etc., of the vendee has no right in the contract or interest in the rents of the land. The heirs of the vendor will take the title by descent, as a mere security, in equity, for the payment of the debt. The debt is due to the administrators or executors of the vendor ; and as the lien is considered to be held by the heirs in trust, and simply as a pledge or security for its payment, on payment of the debt, the heirs are compel- lable in equity to execute the trust by the conveyance of the title, and the purchase-money must be paid to the personal representatives of the vendor, and not to his heirs. Thomson v. Smith, 63 N. Y. 101; Hill v. Ressegien, 17 Barb. 163; Swartout v. Burr, 1 Barb. 495 ; Johnson t. Corbett, 11 Pai. 265 ; Lowry v. TIT. U.] EFFECT OF THE OONTEACT. 479 Tew, 3 Barb. Ch. 407 ; Moore v. Burrows, 34 Barb. 173 ; GriffitL v. Beecher, 10 Barb. 433 ; Kidd v. Dennison, 6 Barb. 9. The executors of a deceased vendee must pay for the land, if it has not been paid for, for the benefit of the heirs. Johnson v. Corbett, 11 Pai. 265; Cogswell V. Cogswell, 3 Edw. 331. As to effect of judgment after contract, see following pages and also Title VI. As to Taxes imposed after contract, see following pages and also Title VI. As to Damages for non-performance of contract, see following pages and also Title VI. As to effect of contract on Insurance, see 38 Moak, Eng. 163 n. It has been held that the purchaser might surrender his interest in a con- tract to purchase land, by parol, he having no estate or right in the land, but simply an equitable right. Hart v. Britton, 17 Weekly Dig. 553; Proctor v. Thompson, 13 Abb. N. C. 340. Apportionment of Rents. — Since Laws 1875, ch. 543, the vendor and purchaser of premises demised are each entitled to the rent earned during their respective ownership. Matter of Eddy, 10 Abb. N. C. 396. The purchaser cannot terminate a lease of the premises until he has re- ceived the deed. Eeeder v. Sayre, 70 N. Y. 180. If the contract vendee fail to perform, the devisee of the vendor becomes the absolute owner of the fee. McCarty y. Myers, 5 Hun, 83. A vendee in possession may sue for injuries to the land. Hays v. Miller, 6 Hun, 330; affl'd, 70 N. T. 113. See also post, Title VI, as to all above. Improvements to the Land or Destruction of Building. — The destruction of a building on land contracted to be sold has been held no defense to an action for the pur- chase-money, the purchaser being considered as owner. The general rule is that the vendee, in a contract for the sale of land, is entitled to any benefits or improvements happening to the land after the date of the contract, and must bear any losses by fire or otherwise which occur without the fault of the vendor. McKeehvie v. Sterling, 48 Barb. 330; Mott v. Coddington, 1 Rob. 367; Paine v. Miller, 6 Ves. 349; Clinton v. The Hope Ins. Co. 45 N. T. 454; Kidd V. Dennison, 6 Barb. 9. The case of Smith v. McOluskey, 45 Barb. 610, seems to take a view somewhat different from the above ; that case holding that if a building, which is the main object of the contract, be destroyed, the vendees having quitted under notice so to do, are not liable for future payments on the con- tract, and may recover back those paid, even under a judgment therefor. The contract was considered rescinded under a failure of consideration. See also. Title VI, infra, as to deterioration. See also Clinton v. The Hope Ins. Co. 45 N. Y. 454 ; Pelton v. Westches- ter Fire Ins. Co. 77 N. Y. 605. See the latter cases as to insurance moneys, on a loss occurring. The distinction drawn appears to be, that where the personal property on the land is contemplated specially as a main feature in the contract, its des- truction will prevent the consideration from being given as contemplated. Wicks V. Bowman, 5 Daly, 335 ; Aspinwall v. Balch, 7 Daly, 300 ; s. c, more fully, 4 Abb. N. C. 193. 480 EFFECT OF THE OONTEAOT. [CH. XIX. But compensation may be ofEered for partial destruction. It. Liens and Taxes.— See Lathers v. Keogh, 39 Hun, 576; English v. Ripley, 1 N. Y. State Rep. 763. A stipulation in the contract that the vendee shall pay mortgages and taxes, may be enforced, although the deed contains no provision on the sub- ject. Sage V. Truslow, 88 N. T. 240. Repairs. — A party agreeing to sell and convey does not, in absence of stipulation to that effect, owe the purchaser any duty to keep the premises in good repair or to guard against ordinary decay. Hellreigel v. Manning, 97 N. T. 56. Deterioration of the Estate between Contract and Completion. — The rule established by the courts in England appears to be, that if there is a palpable deterioration after the vendee takes possession, or after he might have taken possession under the contract, there can be no allowance for such deterioration; but otherwise he would be entitled to a deduction, especially if through defects in title there was a delay before possession could be given, and even if there was a mutual mistake as to such defects. When in pos- session the vendee is to prevent waste, and would be allowed reasonable re- pairs. The cutting of valuable timber vsrould be a deterioration. Timber blown down would belong to the purchaser. Binks v. Bokely, 2 Swanst. 222 ; Phillips V. Silvester, 20 W. R. 406 ; s. c, 21 id. 179; 17 S. J. 364; Poole v. Shergold, 1 Cox, 273; Magennis v. Fallon, 2 Moll. 584; Foster v. Deacon, 3 Madd. 394; Ferguson v. Todman, 1 Simm. 530 ; Lord v. Stevens, 1 Younge & C. 222 ; Minchin v. Nance, 4 Beav. 332 ; Corrodus v. Sharp, 20 Beav. 56 ; The Regent's Canal Co. v. Ware, 28 Beav. 515. See also, Sngden on Ven- dors, Am. ed. p. 747 ; Taylor v. Porter, 1 Dana, 423 ; Williams v. Rogers, 2 id. 375 ; also changes in the building, removal of fixtures, etc. See Smyth v. Sturges, 13 Abb. N. C. 75. Possession.— Possession under a parol agreement con- stitutes the vendee the owner, with a right of redemption, etc., except as against hona fide purchaser without notice. Lowry v. Tew, 3 Barb. Ch. 407; also, 18 Barb. 80; 22 N. T. 209. A mere agreement to sell does not, of itself, import a license to enter into possession ; but where the vendee has fully performed, such a license will be implied. Eggleston v. N. Y. & H. B. R. 35 Barb. 162; Spencer v. Tobey, 22 Barb. 260; Fagan v. Scott, 14 Hun, 162; Miller v. Ball, 64 N. Y. 286 ; distinguish- ing Spencer v. Tobey. Where a party occupies under an agreement to purchase, he is not a ten- ant, but a vendee, and "use and occupation " will not lie. Mott v. Codding- ton, 1 Robtn. 267 ; Thompson v. Bower, 60 Barb. 463. But after rescission by mutual consent it will lie. Thrasher v. Bently, 3 N. Y. S. C. 309 ; afl'd, 1 Abb. N. C. 39; mem. s. c. 59 N. Y. 649. A sale of lands on execution against the grantee (by quitclaim deed), of one who was in possession under a contract to purchase, does not give to the purchaser any interest in the lands, such sale being prohibited by statute. 1 R. 8. 744, § 4; Sage v. Oartwright, 5 Seld. 49. A vendee in possession is bound to pay interest. Stevenson v. Maxwell, 1 Coms. 408; Parker v. Parker, 65 Barb. 206; Worral v. Munn, 53 N. Y. 185. A vendee in possession has not any permanent interest or estate in the land, nor is he tenant, but a licensee, subject to re-entry and revocation without de- TIT. II.] EFFECT OF THE OONTKAOT. 481 mand or tender of a deed, on default of payment. Hotaling v. Hotaling, 47 N. T. 163; Doolittle v. Eddy, 7 Barb. 74. Where the contract names no time for fulfillment a request is necessary to put him in default. Carr v. Oarr, 53 N. Y, 351. After the purchaser has remained in possession for a year and upwards, use and occupation, it is held, will Ue under certain circumstances. Pierce v. Pierce, 35 Barb. 343. His possession is not adverse. Matter of Grinnell, 18 Alb. L. J. 75. A party in possession is entitled to emblements, i. e., crops sown by him, as if he were a t^ant at will, unless he is guilty of some wrongful act; and this even if the contract were invalid. Harris v. Frink, 49 N. Y. 34. He may also maintain an action for damages. Hays' Admr. v. Miller, 6 Hun, 320 ; affl'd, 70 N. Y. 113. But may not cut timber. Cook v. Doolittle, 5 Hun, 343. In the case of Burnett against Caldwell (.1873), the Supreme Court of the United States decides, that if a contract for the sale of property is silent as to the possession of the vendee, he is not entitled to it. If the contract stipulates for possession by the vendee, or the vendor puts him in possession, he holds as a licensee. The relation of landlord and tenant does not subsist between the parties. Upon default in payment of any instalment of the pur- chase-money, the possession becomes tortious, and the vendor may at once bring ejectment. See also Powers v. Ingraham, 3 Barb. 576, holding that no notice to quit is necessary. See, "also, Tibbs v. Morris, 44 Barb. 138 ; Stone v. Sprague, 34 N. Y. 509. The Vendor's Lien.— The vendor has a lien on the land for the purchase-money, unless other security be taken, or the lien is otherwise waived. The lien exists against a subsequent purchaser or incumbrancer, with notice or without consideration. A mere note or bond of the ven- dee or of a third person taken, will not be a waiver of the lien. A consideration which is really for support, though nominally money, raises no lien. Camp v. Q-ifibrd, 67 Barb. 434. As to taking, what description of security will remove the lien, vide San- ders V. Aldrich, 35 Barb. 63; Lewis v. Smith, 9 N. Y. (5 Seld.), 503; Hallock v. Smith, 3 Barb. 367; Warren v. Fenn, 28 Barb. 333. The vendor's equitable lien on the land for the purchase-money is lost, where the partieshave waived it ; or where it is obvioifs they contemplated a different security for the purchase-money. As for example, if a deed for other property is taken in payment. Hare v. Van Deusen, 33 Barb. 93 ; Coit V. Fougara, 36 Barb. 195 ; Hazeltine v. Moore, 31 Hun, 855 ; Gaylord v, Knapp, 15 Hun, 87. But if the vendor was induced to take such other secu- rity by fraud of the vendee, the lien remains. Bradley v. Bosley, 1 Barb. Ch. 135; Mills v. Bliss, 55 N. Y. 139; distinguishing Hare v. Van Deusen, supra. It is superior to the lien of a judgment obtained against the vendee. Ar- nold V. Patrick, 6 Pai. 310 ; see, also, 33 Barb. 9. It will pass by a subsequent deed, made by the vendor, and this equitable lien will be bound by a mortgage made by the subsequent grantee. And this mortgage will, to the extent of the unpaid purchase-money, be a prior lien to judgments against the original vendee. Lamberton v. Van Voorhis, 15 Hun, 336. 81 482 EFFECT OP THE CONTRACT. [CH. XIX. For collection of New York cases on vendor's lien, see 35 Am. L. Reg. N. S. 391, 396 ; also Mears v. Kearny, 1 Abb. N. 0. 303. Vendee's Lien.— The vendee, in possession, who has made improvements, has a lien on the land therefor, where the vendor cannot, for defect of title, complete the sale. Gibert v. Peteler, 88 N. T. 165. Warranty of Title in Contracts. — In every contract for the sale of land, there is always an implied warranty by the vendor that he has good title, unless such warranty be expressly excluded by the terms of the contract. The implied warranty exists so long as the contract remains executory, *. e., until the deed is given ; when the party must rely on covenants in the deed, unless there have been fraud, in which case relief may be afforded in equity. When the deed is accepted, therefore, the original contract becomes null, unless it be otherwise intended; or the con- tract has collateral covenants. Particularly would it not be extinguished, if it stipulated for acts to be done by the vendee, after the conveyance. Nor would it be extin- guished in respect to provisions for a rebate or increase of the purchase-money, dependent upon the quantity of land ; or other provisions of a similar character; nor where there is to be an exchange of lands. Woodruff V. Bunce, 9 Paige, 443 ; Carr v. Roach, 3 Duer, 30 ; Marvin v. Bennett, 26 Wend. 169 ; Tallman v. Green, 8 Sandf. 437 ; Davis v. Lottish, 46 N. Y. 393; Delavan v. Duncan, 49 N. Y. 485; Burvirell v. Jackson, 5 Seld. (9 N. Y.) 535; Bull v. Willard, 9 Barb. 641; Bogart y. Burkhalter, 1 Den. 135; Whitbeck v. Waine, 16 N. Y. 533; Morris v. Whitcher, 20 N. Y. 41; Ben- nett V. Abrams, 41 N. Y. 619; Inness v. Willis, 48 Super. 188; Bostwick v. Beach, 81 Hun, 343; Albany City Savings Inst. v. Burdick, 87 N. Y. 40; 01- cott V. Heermans, 3 Hun, 431 ; Canaday v. Stiger, 35 Super. 428 ; affi'd, 55 N. Y. 452 ; Remington v. Palmer, 62 N. Y. 31 ; Musgrave v. Sherwood, 23 Hun, 669. This rule of warranty does not apply to a sale of a tax lease. Boyd V. Schlesinger, 59 N. Y. 801. There Is no implied warranty except as to title'. Canaday v. Stiger, 35 Super. Ct. 423 ; affl'd, 55 N. Y. 452. Effect of Acceptance of Deed. — In the absence of fraud or mistake the terms of the deed will be deemed controlling upon the parties and all pre- vious propositions and stipulations merged therein. Bennett v. Bates, 94 N. Y. 354. And even where there was fraud, if title was taken with knowledge. Vemol V. Vernol, 63 N. Y. 45. A purchaser who accepts a deed subject to all liens is estopped from con- TIT. n.] EFFECT OF THE OONTEAOT. 483 testing them. He even becomes liable for deficiency on mortgage. {Semble.) Styles v. Price, 64 How. Pr. 237. The rule caveat emptor is applicable. Canaday v. Stiger, 55 N. Y. 453. When a deed was accepted without covenants, a subsequently discovered incumbrance has been held to fall on the grantee, neither party having knowledge of it at time of performance. Whittemore v. Farnngton, 76 N. T. 453. Fraud on the part of the vendor is waived by acceptance of title and con- tinued possession by purchaser, and giving a note for the balance of purchase- money, collectible by vendor. Lindsley v. Ferguson, 49 N. Y. 633. Purchase-money mortgage will not be set aside even where there is a de- fect of title, there being no fraud alleged and no eviction of the purchaser. His (purchaser's) remedy is by action on the covenants in the deed. Ryerson V. Willis, 81 N. Y. 377. Record of the Agreement.— These agreements may be recorded when acknowledged, etc. 1 Rev. Stat. p. 762, 1st ed. They are not strictly notice, however, when so record- ed, nor considered as included in the term " conveyance " used in the recording statutes. Gillig V. Maas, 38 N. Y. 191 ; Boyd v. Schlesinger, 59 N. Y. 301. The record cannot be canceled as a cloud on title. Boyd v. Schlesinger, 59 N. Y. 301 ; Washbume v. Bumham, 63 N. Y. 133. But by L. 1880, c. 530, an action may be maintained to remove the contract from the record. If the agreement is recorded, and there is possession, the rights of subsequent grantees or incumbrancers are subject to it, for such possession is notice of an interest. Laverty v. Moore, 33 Barb. 347 ; affi'd, 33 N. Y. 658 ; Trustees v. Wheeler, 5 Lans. 160 ; affl'd, as to this, in 61 N. Y. 88 ; Merrithew v. Andrews, 44 Barb. 301. If it is to operate by way of security or mortgage, it must be recorded with mortgages. Gillig v. Maas, 38 N. Y. 191. Possession by a third party of land contracted to be sold, is notice to the purchaser of his rights. Umfreville v. Keeler, 1 Supm. Ct. 486. And see post, Ch. XXVI, as to record of instruments. Assignment of the Contract.— An assignee of the con- tract takes it subject to all equities against his assignor. And with all the rights' of the assignor, e. g., to a contract of insurance ; and it might be enforced, although the insur- ers did not consent to the assignment. Tompkins v. Seely, 39 Barb. 313 ; Stoddard v. Whiting, 46 N. Y. 627 ; Cromwell v. The Brooklyn Fire Ins. Co. 44 N. Y. 42 ; Reeves v. Kimball, 40 N. Y. 399; Wood v. Perry, 1 Barb. 115; Cythe v. Lafontain, 51 Barb. 186. So the assignee of a vendee's interest in an informal contract which stated that a more formal one was to be drawn, was held to take, subject to all 484 SUFFICIBNOY OP THE TITLE. [CH. XIX. agreements in contemplation of the parties which may be inserted in the new contract, including a covenant against assignment unless inserted with fraudu- lent intent. Cranston v. Wheeler, 37 Hun, 63. There is no covenant implied, on the part of the assignor, of title in the vendor. Thomas v. Barstow, 48 N. Y. 193. The assignee of the purchaser's interest in a contract for the purchase of land is not personally liable to pay the moneys thereafter becoming due on the contract, with- out an agreement to pay them express or implied. Adams v. Williams, 40 Barb. 325. Title III. Stipficiency of the Deed and Title. As seen above, there is always an implied warranty by the vendor that he has a good marketable title, unless such warranty is excluded by the terms of the contract. And this is the rule even when the contract is general, without specification of what title is to be given. A covenant to give a deed, it has been held, is satisfied by giving a deed without warranty or covenants, and without the vendor's wife joining in the deed. Ketchum v. Evertson, 18 Johns. 359. This would not be the case if the contract were to give a ma/na/nVy deed, in which case the wife must be a party. Pomeroy v. Dniry, 14 Barb. 418; denying 16 Johns. 267, and 20 Johns. 130, which had been overruled by 9 N. Y. 535. And it is doubtful whether the above case in 13 Johns, now would be sustained under later decisions as to the wife's non-joinder. A contract to give ^ deed in fee sitryple, is not satisfied by giving a title subject to incumbrances. Penfield v. Clark, 63 Barb. 684. To the contrary were 13 Johns. 359 ; 6 Cow. 13. A covenant for quAet enjoyment, is sufficient to satisfy an agreement to convey by a " wa/rranty deed." That term does not include a covenant against incumbrances. Wilsey v. Dennis, 44 Barb. 354. The title will be considered good, if there is only a trifling incumbrance or slight discrepancy of description, e. jr., a bare possibility of some fact vitiating it. Schermerhom v. Niblo, 2 Bos. 161. But not where it requires proof aJmnde to sustain it. Coray v. Matthewson, 7 Lans. 80. A covenant to give a vxwranty deed, implies a conveyance passing a perfect and complete title, in which the wife shall join. Even though the contract provide that there shall be no covenants in the deed, the pur- chaser is still entitled to a good title to the land. Atkins v. Barrett, 19 Barb. 639; Pomeroy v. Drury, 14 Barb. 418; Penfield v. Clark, 62 Barb. 384. Any objection to the form of the deed not made at once is waved. Bigler V. Morgan, 77 N. Y. 313; Timpson v. Goodchild, 11 Reporter, 585. In equity, under a general contract " to sell," a party is entitled to a good and unincumbered title. Q-uynet v. Mantel, 4 Duer, 86 ; Delavan v. Duncan, 49 N. Y. 485; Bostwick v. Beach, 103 N. Y. 414. Incumbrances must be removed before specific] performance can be com- pelled. Hinckley v. Smith, 51 N. Y. 31 ; Reader v. Schneider, 3 N. Y. S. 0. 104. TIT. m.J SUFf lOIENOY OE THE TITLE. 485 The deed must be not only sufficient in form, but an operative conveyance transferring a sufficient legal title, without necessity for resort to evidence almnde to make it good. 2 Johns. 295; 11 U. 525; 4 Paige, 628; 14 Barb. 418; 4 Corns. 396; 62 Barb. 585 ; Ooray v. Matthewgon, 7 Lans. 80. The assignment of a comptroller's certificate for sale of lands for taxes is not sufllcient. Burrowes v. Peck, 19 Weekly Dig. 15 ; Bensel v. G-ray, 80 N. Y. 517. As to right to have a will proved before taking land passing under it, vide ante, p. 424. A purchaser at a judicial sale is entitled to a marketable title. Fleming V. Burnham, 100 N. Y. 1. Under the words " good and sufficient deed^'' the vendor is bound to convey a good title, and not merely to execute it sufficient inform. Burwell v. Jackson, 5 Seld. 535 ; Story v. Conger, 3(5 N. Y. 673. He is also bound to give a legal title as well as to execute the covenants. Fletcher v. Button, 4 Corns. 396, questioning 16 Johns. 267, and 20 Johns. 130; Wiune v. Reynolds, 6 Pai. 407; Ooray v. Matthewson, 7 Lans. 80. A contract to give a good and sufficient deed, implies a warranty against incumbrances. Supra, 5 Seld. 535. The general rule is that specific performance will not be decreed unless the vendor can give good title. Bensel v. Gray, 80 N. Y. 517. Title in part Defective. — If the title to a part of the land is defective, the purchaser is not obliged to take the rest, even though compensation be tendered. Gibert v. Peteler, 38 N. Y. 165. A party wall standing partly on the land is neither a defect nor an incum- brance. Mohr v. Parmelee, 43 Super. 320. Various objections to the Title. — An old lis pendens, or invalid mort- gage, is not an objection to the title. Wilsey v. Dennis, 44 Barb. 354. But old assessment and tax sales are, it seems. Wood v. Squires, 1 Hun, 481 (this case was reversed on other grounds, in 60 N. Y. 191). A covenant to give a sufficient deed to vest the title, or to give the title, means the legal estate in fee, free from all other claims, liens, or in- cumbrances whatever. Jones v. Gardner, 10 Johns. 266 ; 15 Barb. 16 ; 17 Wend. 246 ; 23 Wend. 66. It is not satisfied by a dsed not acknowledged by the wife. Stevens v. Hunt, 15 Barb. 17. The words " title to be satisfactory," imply only that the title shall be good and marketable. Bigney v. Coles, 6 Bos. 479. A title held not mar- ketable where there is a conflict of opinion among experts as to boundaries. Dietz V. Farrish, 44 Super. Ot. 190. Where the contract prescribes that the title should be made satisfac- tory, and the vendor has no title, the vendee may recover damages, etc., without showing offer to comply with certain conditions precedent. Law- rence V. Taylor, 5 Hill, 107. The burden of proof is on the purchaser to show that the title is defective. The mere fact that sufficient time has not elapsed under the statute to pro- tect a purchaser from an heir, against discovery of a will or debts of the an- cestor, is held insufficient to justify rejection of title by purchaser. Moser v. Cochrane, 12 Daly, 292. 486 SUFFICIENCY OF THE TITLE. [CH. XIX. Validity.— To justify rejection of title by purchaser he must show some- thing more than doubt as to the vendor's title ; at least there must be reason- able doubt, such as aflfects its value and would interfere with its sale to a reasonable purchaser. A defect in the record title may under certain cir- cumstances furnish a defense to the purchaser, but there is no inflexible rule that a vendor must furnish a perfect record or paper title. It has frequently been held that defects in the record or paper title may be cured or removed by parol evidence. Hillreigel v. Manning, 97 N. Y. 56 ; Murray v. Harway, 56 N. Y. 337. Strong indications of fraud will relieve. People v. Globe, &c. Co., 33 Hun, 393. A wrong course in a deed in the chain of title is not ground for rejection of title where, from a reading of the entire description, an intent to convey the premises in question is apparent. Brookman v. Kurzman, 94 N. Y. 273. An objection to title through a trustee who took a conveyance apparently to himself must be obviated by some action of the persons who could set aside such a conveyance or by lapse of time. Farrar v. McCue, 89 N. Y. 139 ; People v. Open Bd. Stock Brokers Bldg. Co., 93 N. Y. 98. Variance of names in chain of title. — ^May be obviated by proof that both referred to same person. Hillreigel v. Manning, 97 N. Y. 56. Adverse possession. — Title resting on adverse possession alone has been held bad, and tender and offer to perform unnecessary on part of purchaser. Hartley v. James, 50 N. Y. 38; Schultz v. Rose, 65 How. Pr. 75, but see id. p. 245; Kip V. Hirsh, 53 Super. 1. Sixty years undisputed possession held sufficient. Ottinger v. Strasburger, 33 Hun, 466. Twenty-one years held sufficient. Abrams v. Rhoner, 44 Hun, 507 ; also see Bohm v. Pay, 18 Abb. N. C. 175. Incumbrances. — A lease not expressed in contract was held not to be an incumbrance, where the contract provided for receipt of rents thereunder, by the purchaser from the date of the contract. Page v. McDonnell, 55 N. Y. 399. A purchaser at foreclosure will be relieved where the sale is made simply "subject to a lease," etc., and he subsequently discovers that the lessee is entitled to remove a substantial building. Beckenbaugh v. Nally, 33 Hun, 160. A covenant against use for cemetery purposes held no objection to title of a city lot. Floyd v. Clark, 7 Abb. N. C. 136. Nor a general covenant against nuisances. iS., but see Gibert v. Peteler, 38 N. Y. 165; Roberts v. Levy, 3 Abb. N. S. 311; iSe Whitlock, 10 Abb. 316. Grantee's agreement to " pay and discharge'' incumbrances held not to require him to discharge them of record. Jackson v. Smidt, 7 Weekly Dig. 516. Party wall held not to be an incumbrance. Hendricks v. Stark, 37 N. Y. 106. To the contrary where situated all on one lot. Mohr v. Parmelee, 43 Super. Ct. 330. Restrictions against buildings of a certain character have been held an incumbrance. So also as to buildings beyond a certain line. Robert v. Levy, 8 Abb. U. S. 318; Perkins v. Ooddington, 5 Robt. 647; Post v. Bemheimer, 31 Hun, 247 (following 41 N. Y. 443). For a collection of cases on restraint of use. see 13 Abb. N. C. 105. It is enough to justify a vendee in refusing to complete that the land is subject to easements not before disclosed. Wheeler v. Tracy, 49 Super. 208. A judgment against one only having instantaneous seizin is no lien. O'Donnell v. Kerr, 50 How. Pr. 334. Readiness to discharge incumbrances. — It is enough if the vendor at time and place of performance has the incumbrancers present, ready to dis- charge the incumbrances held by them, upon performance by the purchaser. TIT. III.] SUrFICIEKCY OP THE TITLE. 487 Actual discharge previous to and independent of performance is not necessary. (51 N. Y. 21) Rinaldo v. Housman, 1 Abb. N. 0. 312. The existence of a lien which the vendor offers to pay or deduct from the purchase-money, held not objectionable. Pangbum v. Miles, 10 Abb. N. C. 42. A former contract which has been avoided by laches of the vendee, is held not to justify a rejection of title by a subsequent purchaser. The record of assignment of a previous contract, also is held not to be constructive no- tice. Johnson v. Duncan, 2 How. Pr. N. S. 366. Form of Deed. — As to covenants and conditions in deed tendered, with respect to wording of contract, etc., see Congregation Shaaer Hash Moin V. Halladay, 50 N. T. 664. Alterations in a deed after execution, avoid the deed offered and the purchaser need not accept it. Stone v. Lord, 80 N. Y. 60. Assumption of mortgage by vendee is not necessary where he contracts merely to take title subject to a mortgage. Kohner v. Higgins, 42 Super. Ct. 4. Nor where he agrees to assume payment of the Interest on the mortgage. Manhattan Life Ins. Co. v. Crawford, 9 Abb. N. 0. 865. Deed from Third Person. — It has been held that the purchaser cannot be required to take title from! another than the person contracting as vendor (Henretty v. McGuire, 6 Week. Dig. 393 ; contra, Bigler v. Morgan, 77 N. Y. 313), but holding that the party contracting must join in the covenants of the deed. It is no objection to title that the vendor did not have good title on executing contract, provided he is able to procure a conveyance of the fee by the legal owners to his vendee. Friedman v. Dewes, 83 Super. Ot. 450. Judicial Proceedings. — A purchaser in foreclosure cannot object to the title because of outstanding interests where the sale was made subject to such interests. Cromwell v. Hull, 97 N. Y. 209. He cannot reject part and take part. Thompson v. Schneider, 38 Hun, 504. As to what irregularities in service by publication will not excuse pur- chaser, see Loring v. Binney, 88 Hun, 152. As to order for publication mads by court instead of judge, being fatal, see Crosby v. Thedford, 13 Daly, 150. Failure to make general assignee party in foreclosure held cured after twenty-five years. Eip v. Hirsh, 103 N. Y. 565; Cahill v. Hamilton, 20 Hun, 388, distgd. and questioned. That some of the parties in partition were of unsound mind will not re- lieve the purchaser at partition sale where there has been no judicial declara- tion of the mental unsoundness. Prentiss v. Cornell, 31 Hun, 167. Construction of a Will. — As to purchaser not being bound by judgment in an action to construe a will, see Monarque v. Monarque, 80 ST. Y. 320. Burden of proof on vendor, to show that statute of limitations has cut off claims. Schriver v. Schriver, 86 N. Y. 575. False representations, though not made with fraudulent intent, have been held sufficient to avoid contract. Philips v. Conklin, 58 N. Y. 682. Distinguished in regard to contracts for exchange of lands. Wilkin v. Barnan, 61 N. Y. 28. As to right to demand affidavits, see Wormser v. Garvey, 4 Hun, 476. Interest on Purchase-money can, in the absence of express stipulation in the contract, be demanded only from the time the vendor is ready to give good title subsequent to time fixed for performance. Merchants' Bk. v. Thomson, 55 N. Y. 7. The Land, Quantity and Boundaries.— -Where a specified tract is sold in gross, the boundaries of the land control 488 TIME OF PEEFOKMANOB. [OH. XIX. the description of the quantity it is said to contain ; and neither party can have a remedy against the other for ex- cess or deficiency of quantity, unless such excess or de- ficiency is so great as to furnish evidence of fraud or mis- representation. The rule would not apply where there was a mistake in the " boundaries^' nor where land was sold by the quantity. Voorhees v. De Meyer, 3 Barb. 37 ; Belknap v. Sealey, 14 N. T. 143. (See also " Description," Title IV, Chap. XX.) The description may be made certain — e. g. "a farm" — by extrinsic evidence. Brinckerhoff v. Olf, 35 Barb. 37. When land is sold on a map filed showing streets, the purchaser is entitled to have such streets opened. Tibbitts v. Oumberson, 89 Hnn, 456 ; Phillips V. Higgins, 7 Lans. 814; affl'd, 58 K T. 663. In sales of agricultural lands quantity is presumed to enter into the trans- action, unless expressly eliminated ; the words " more or less " alone, vnll not change the presumption. Paine v. Upton, 87 N. Y. 337 ; Murdock v. Gil- christ, 52 N. T. 342. Encroachments. — Suppression by vendor of the fact that the adjoining building encroached is held to avoid the sale, even though words " more or less" were contained in the terms of sale. King v. Euapp, 59 N. Y. 463; affl'g 66 Barb. 335. Description. — The description in the deed must be in accordance with the terms of the contract. Phillips v. Higgins, 7 Lans. 814; affi'd, 55 N. Y. 663. When an entire piece of land was contracted to be sold by a definite description, and for a fixed price, and the number of acres followed the de- scription, with the words " more or less'' added, it was held that the quantity was not of the essence of the contract. Wilson v. Randall, 67 N. Y. 338. The test of the materiality of a deficiency in quantity is, — had the falsity been known would the contract have been entered into ? Stokes v. John- son, 57 N. Y. 673. Mistake. — Delivering of deed held not to bar recovery for deficiency in quantity, both parties having been under a mistake as to quantity, subse- quently discovered. Paine v. Upton, 31 Hun, 306; afli'd, 87 N. Y. 337. Word "lots" construed to mean full sized lots. Crowe v. Lewin, N. Y. Daily Reg. Feb. 14, 1881. See more fully as to this, post, Ch. XX, Tit. IV, and 5 Lans. 393. Title IV. Tender and Time of Performance. Time is not generally, in equity, deemed to be of the essence of the contract, unless the parties make it so, or it necessarily follows from the nature and circumstances of the contract ; but time is of the essence, and a condition of the contract, if the parties choose to so agree, originally. TIT. IV.J TIME OF PEEPOEMANOE. 489 or if it be made so by subsequent notice, and the courts will not enforce performance after , the time specified. This rule is subject to modifications such as are below re- ferred to. The subsequent notice must be express and unequivocal. Myers v. De Mier, 4 Daly, 343; affl'd, 52 N. T. 647; Hubbell v. Von Schoening, 49 N. Y. 326;rev'g58Barb, 498. Time will be considered essential, though not made so by the terms of the contract, where a change of value or other material circumstances has occurred. Merchants' Bk. v. Thompson, 55 N. Y. 7 ; Van Oampen v. Knight, 63 Barb. 205; afB'd, 65 N. Y. 580; Voorhees v. De Meyer, 3 Barb. 37; Dom- inickv. Michael, 4 Sandf. 374; Wells v. Smith, 7 Pai. 22; affirming 2 Ed. 78; Bennett v. Abrams, 41 Barb. 619. A contract to convey free of incumbrance by a certain day, requires that the land be free by that day. If a legal title cannot be given at the time agreed on, the purchaser may rescind. Morange v. Morris, 34 Barb. 311; Bostwick V. Frankfeld, 74 N. Y. 207. But it is enough if the incumbrancers are present ready to release. Rinaldo v. Houseman, 1 Abb. N. 0. 312. Where a reasonable delay (three weeks) was asked for further examina- tion of title and refused, it was held in an action for specific performance brought by the purchaser, that he was entitled to a conveyance and the loss of time could be made good to vendor by allowance of interest. Willis V. Dawson, 34 Hun, 492. To the contrary, see Babcock v. Bmrich, 64 How. Pr. 435. As to delay not avoiding the contract, see also Hubbell v. Von Schoening, 49 N. Y. 326. A short delay, where time is not a distinct condition of the contract — a delay fairly accounted for, so as to repel presumption of a waiver or abandon- ment of the contract — will not ordinarily deprive a party of his right to a specific performance. 7 Pai. 22 ; 2 Ed. 78, swpra ; Merchants' Bank v. Thom- son, 55 N. Y. 7 ; see, however, also Page v. McDonnell, id. p. 229. Where no time is fixed, a reasonable time is intended. Equity may extend the time, on cause shown, when the time is not essential. The time may be extended by parol. Wiswall v. McGown, 2 Barb. 270 ; affi'd, 10 N. Y. 465 ; Stone V. Sprague, 20 Barb. 509 ; Beebe v. Dowd, 22 Barb. 255. Time may be limited by notice. Myers v. DeMier, 4 Daly, 343 ; affl'd, 52 N. Y. 647. The time fixed may also be waived by act of the parties. Gregg v. Van Phul, 1 Wallace, 274; Duflfy v. O'Donovan, 46 N. Y. 223. When the purchase-money ia to be paid "on or before '' a specified date and conveyance thereupon given, the purchaser may tender performance pre- vious to that date, and on a refusal to perform, may commence an action at once. Freer v. Denton, 61 N. Yi 492. Where the time of payment has been extended generally the vendee is en- titled to a reasonable time after notice to make his payment. Cythe v. La Fontain, 51 Barb. 186. See this case as to forfeiture generally. Continued possession would preclude a party from rescinding the con- tract on the ground that the other did not perform on the precise dav. Ben- son V. Tilton, 24 How. Pr. 494; affirmed, 41 N. Y. 619; Coray v. Matthewson, 7 Lans. 80. The party who caused any delay, or is unable to give a clear title, cannot raise the objection as to time, nor take advantage of a delay to complete the purchase on the part of the other. 7 Robt. 115 ; Morange v. Morris, 34 Barb. 311 1 Stone v. Sprague, 20 Barb. 509. Purchaser cannot take advantage of his own laches or a delay arising from an untenable objection to title made by him. Merchants' Bank v. Thorn- 490 TIME OP PEEFOKMAKCE. [CH. XIX son, 55 N. Y. 7. Same rule applied to vendor. Delavan v. Duncan, 4 Hun, 29. , . Where time is not of the essence of the contract, notice given to make it so must be clear and specific. Selleck v. Tallman, 10 Weekly Dig. 188; affi'd, 87 N. y. 106. Tender of Performance.— If the vendor wishes to re- scind the contract, or hold the purchaser, the deed must be prepared by the vendor on the day specified, ready for delivery, and tendered to the purchaser if within the ven- dor's reach and if on demand and tender he is in default, the vendor may rescind. 20 Johns. 15; 6 Covy. 13; 6 Barb. 147; 5 Denio, 161 ; Mc Williams v. Long, 33 Barb. 194; Leaird v. Smith, 44 N. T. 618; Davison v. Associates, &c., 6 Hun, 470 ; affi'd, 71 N. T. 333; Hoag v. Parr, 13 Hun, 95. The vendor need not make tender if performance has been waived or pre- vented. Lawrence v. Miller, 86 N. Y. 131. Nor need he make any tender to entitle him to specific performance. McOotter v. Lawrence, 4 Hun, 107. To enforce a right to purchase, contained in a lease, against the heirs of the vendor, a tender is held necessary, notwithstanding the existence of in- cumbrances. Kerr v. Purdy, 51 N. Y. 639. It is no defense to an action to enforce an equitable lien for balance of pur- chase-money that plaintiff had not tendered the deed. Freeson v. Bissell, 63 N. Y. 168. This case is distinguished in Thompson v. Smith, 63 N. Y. 301. Where there is a mutual obligation to pay the money and to convey, an offer, tender, and readiness on the part of the purchaser is sufficient, and he is not obliged to pre- pare and tender the deed to the vendor for execution, especially where the vendor refuses to convey at all ; but he may do so to expedite the matter. Fuller V. Hubbard, 6 Cow. 13 ; Tompkins v. Hyatt, 38 N. Y. 347 ; Stone v. Sprague, 30 Barb. 509 ; Foote v. West, 1 Den. 544. Where a conveyance and payment are to be made simultaneously on a fixed day, and neither party tenders, neither party can recover in an action at law on the contract, but relief may be had in equity. Stevenson v. Max- well, 3 Corns. 408. As to mutual covenants. 1 Seld, 347 ; 48 N. Y. 247 ; 82 N. Y. 108 ; Eohner v. Higgins, 42 Super. Ct. 4. Where time, however, is not an essential ingredient of the contract, the tender may be made within a reasonable time after the day named. McWil- , liams V. Long, 32 Barb. 194 ; Goodwin v. Nelin, 35 How. Pr. 403. Taking possession by the vendee waives default of the vendor in not de- livering the deed at the requisite time. It also waives claim to relief for de- fective title, if vendee knew it. Tompkins v. Hyatt, 28 N. Y. 347 ; Bennett V. Abrams, 41 Barb. 619 ; also, 24 How. Pr. 494. But see Coray v. Matthew- son, 7 Lans. 80. Delay in making payments by a vendee will not work a forfeiture of ven- dee's rights, where the delay has been waived by acts, or otherwise not claimed. Richmond v. Foote, 3 Lans. 244. TIT. IV.] TIME OE' PEEFOEMAKCE. 491 A vendor -who is to con-vey by a day certain is not in default until the ven- dee haB demanded a deed, and after waiting a sufficient time to have it drawn, has demanded it again. Or the purchaser may prepare and tender the deed for execution, which dispenses with a second demand. Connelly v. Pierce, 7 Wend. 139 ; Stevenson v. Maxwell, 3 Corns. 409 ; Wells v. Smith, 3 Ed. 78 ; affi'd, 7 Pai. 33. See also Stone v. Lord, 80 N. Y. 60 ; holding that there is no necessity for tender by vendee of a deed for execution. If on the first demand the vendor refuse to convey, a second demand is unnecessary. Lutweller v. Litnell, 13 Barb. 513. If the vendor die leaving infant heirs, the course of the vendee is to apply to the court, asking it to compel performance. Tompkins v. Hyatt, 38 N. T. 347. See this case, as to the effect of a decree in such matter, and how far it waives a defective title so known to the vendee. If the purchaser die, a tender to his executor is sufficient. Brinckerhoff v. Olf, 35 Barb. 37. When the last instalment is due on the contract, the payment and the giv- ing of the deed are dependent acts, and the vendor cannot recover the bal- ance due without showing performance or offer to perform, under a valid title. Smith v. McCluskey, 45 Barb. 610 ; see 1 Seld. 347 ; 48 N. Y. 347 ; 83 N. Y. 108; Hoag v. Parr, 13 Hun, 95. A certified check will be a good tender by the vendee, unless it is refused as not being money. Duffy v. O'Donovan, 46 N. Y. 333. To excuse personal tender it must be shown that the defendant was out of the State, beyond plaintiff's reach, or that he intentionally avoided plaintiff. Hoag V. Parr, 13 Hun, 95. Notice by purchaser that he will not complete does not obviate necessity of clearing up objections to title, by vendor, if he seeks specific performance. Hinckley v. Smith, 51 N. Y. 21. Where title is defective a vendee may recover back payments made with- out further tender. Hartley v. James, 50 N. Y. 38. Where the contract provides that all payments shall be made previous to giving the deed, the vendor may sue, without conveyance or offer to convey. Adams v. Wadhams, 40 Barb. 335. A tender may be waived by refusal to receive the money or to do the act required. Stone v. Sprague, 30 Barb. 509. Where there is to be part cash payment on a fixed day, and a bond and mortgage to be given for the balance, on the delivery of the deed, if the money is paid, there must be a tender of the deed to put the vendee in de- fault. If neither party tenders the deed or mortgage, neither is in default. Morange v. Morris, 33 How. 178 ; Leaird v. Smith, 44 JST. Y. 618. And if both fail to perform mutual and dependent parts of the agreement on the contract day, as specified, each impliedly waives strict performance as to time, and the agreement remains in full force and effect otherwise ; and either can have specific performance, on compliance with the terms of the agreement. Van Campen v. Knight, 63 Barb. 306 ; affi'd, 65 N. Y. 580 ; also, 23 Barb. 355. A demand of a deed from one tenant in common is sufficient. 9 Wend. 68. A tender need not be made after refusal to perform, or to receive the money. 33 Wend. 66 ; 20 Barb. 509 ; 48 N. Y. 225. Nor after an inability to perform or to give an unincumbered title. Kar- ker v. Haverly, 50 Barb. 79 ; Holmes v. Holmes, 9 N. Y. 535 ; Delavan v. Duncan, 49 N, Y. 485; Hartley v. James, 50 N. Y. 38; Smith v. Rogers, 42 Hun, 110. Place. — The tender, where no place is fixed, must be personal, if the time is fixed, unless, on application at the residence of the party, he is not found. If no time be fixed, the tender should be personal, if the party is in the State. Smith V. Smith, 35 Wend. 405; see, also, 2 Hill, 351; Hoag v. Parr, 13 Hun, 95. 492 TIME OF PERFORMANCE. [OH. XLX. Purchaser held excused from tender where the vendor's acts amounted to a refusal to perform, except on payment of interest on purchase-money. Sel- leck V. Tallman, 87 N. T. 106 ; or where informed by the vendor that he could not give good title. Mut. Life Ins. Co. of N. Y. v. Leonard, 2 Supm. Ct. 425. Effect of Non-performance by the Vendor. — If the ven- dor rescind, or cannot make title, or is guilty of laches or refuses to give a deed, or if the premises are incumbered, the purchaser has a right to treat the contract as rescinded, without demanding a conveyance, and may recover all payments made. Burwell v. Jackson, 5 Seld. (9 N. Y.) 535 ; EUis v. Hoskins, 14 Johns. 363; Ketchum v. Evertson, IB id. 359; Foote v. West, 1 Den. 544; Utter v. Stuart, 30 Barb. 20; Myers v. DeMier, 4 Daly, 343; affl'd, 52 N. Y. 647; Mutual Life Ins. Co. V. Leonard, 2 K. Y. S. C. 425. When purchase was made at an auc- tion sale recovery may be had either from the vendor or the auctioneer, or both, with interest. Cockroft v. MuUer, 71 N. Y. 367. But an assignee of the vendor's interest in the contract is not liable in an action if the vendor cannot make title, even though he has received the pur- chase price. Only the vendor is liable. Youmans v. Bdgerton, 91 N. Y. 403. If the premises are incumbered, a tender of the money is not necessary in order to save the vendee's rights under the contract. Delavan v. Dunran, 49 N. Y. 485 ; Karker v. Haverly, 50 Barb. 79 ; Morange v. Morris, 32 How. 178. And the vendor cannot afterward have specified performance. Hinckley V. Smith, 51 N. Y. 21 ; Reeder v. Schneider, 3 Supm. Ct. 104. Upon rescission by vendor the vendee is entitled to crops planted by him. Harris v. Frink, 49 N. Y. 24. Effect of Non-Performance by the Vendee. — If the ven- dee refuses to complete the purchase, he forfeits all pay- ments on account. Q-arlock v. Lane, 15 Barb. 359; Green v. Q-reen, 9 Cow. 46; Ellis v. Hos- kins, 14 Johns. 363; Ketchum v, Evertson, 13 Johns. 359 ; Simon v. Kaliske, 6 Abb. N. S. 224 ; Paige v. McDonnell, 55 N. Y. 299 ; Lawrence v. Miller, 86 N. Y. 131. See, as to rights of vendee to recover purchase-money, Bigler v. Morgan, 77 N. Y. 312. He may rescind the contract for misrepresentation as to rentals. Phillips V. Conklin, 58 N. Y. 682. If the purchaser take possession, he cannot rescind the contract without restoring possession, nor refuse to pay the purchase-money if title be made good before action brought. Tompkins v. Hyatt, 28 N. Y. 347 ; Coray v. Matthewson, 44 How. Pr. 80 ; 8. c. 7 Lans. 80. Implied Rescission. — A rescission of the contract may be presumed from lapse of time. 8 Johns. 257; 3 Johns. Cas. 60; 2 Abb. Pr. 261 ; 7 Paige, 386. And by re-entry when so provided. Hart v. Britton, 17 Weekly Dig. 552. Mutual Eescission. — As to rescission and recovery of amount paid down on contract by purchaser, see Meth. Epis. Ch. Home v. Thompson, 58 Super. Ct. 321 ; Bayliss v. Stimpson, 53 Super. Ct. 225 ; Shriver v. Shriver, 86 N. Y. 584. Under such circumstances the vendor is entitled to be paid for use and oc- cupation (if possession was had by purchaser) and the purchaser is entitled TIT. v.] SPECIFIC PEBFOKMANCE. 493 to receive back the purchase-money paid. Thrasher v. Bentley, 3 Supm. Ct. 309; affi'd, 1 Abb. N. C. 39; mem. s. c. 59 N. T. 649. But a vendee releasing all rights cannot recover money paid. Tice v. Zinsser, 76 N. Y. 549. Action to Rescind. — In case of fraud or mistake the court will rescind the contract. Crowe v. Lewin, 95 N. Y. 433 ; Hammond v. Pennock, 61 N. Y. 145. A vendee who has been misled by false representations may rescind and recover money paid, or may retain the land and sue for damages. Krumm V. Beach, 96 N. Y. 398. As to the rights of the parties and third persons in such case, vide Ham- mond V. Pennock, supra. Brokers' Commissions . — When earned. Vide Turner v. Stymers, 9 Week. Dig. 316; 31 N. Y. 463 ; 41 ib, 477; 1 Abb, Ap. Gas. 108. As to recovery of brokers' commissions paid by purchaser, upon rescission, videEmeison v. Roof, 13 Abb. N. C. 358. Title Y. Speoifio Pebfoemance. The specific performance of such contract may be en- forced, either in favor of the vendor or vendee, in equity ; and even a pO/rol agreement may be enforced in equity, after a part performance. To entitle a party to a specific performance the contract must be certain in its terms and mutual in its character. Courts, however, will not enforce a specific perform- ance, if there lias been fraud or mistake, surprise or unreasonable delay, or excusable inadvertence ; nor where the agreement is not mutual, so that both parties are bound by it ; nor where it has been abandoned ; nor where it would produce injustice or is against the interest of persons under protection of the court ; nor where it is out of the power of a party to perform. In the last case the only remedy is an action at law for damages. Gillett V. Borden, 6 Lans. 319; Worrall v. Munn, 3 Seld. 339 ; German v. Machin, 6 Pai. 288 ; Copes v. Bowen, 10 P'ai. 536 ; Matthews v. Terwilliger, 3 Barb. 50 ; Benedict v. Lynch, 1 Johns. Ch. 370 ; Cuflf v. Dorland, 50 Barb. 438 ; Sherman v. Wright, 49 N. Y. 237 ; Wood v. Perry, 1 Barb. 115 ; Tibbs v. Morris, 44 Barb. 138 ; Dodge v. McBurney, 43 How. 437 ; Wilson v. Van Pelt, 3 N. Y. 8. C. 414 ; affi'd, 71 N. Y. 611 ; Paige v. McDonnell, 55 N. Y. 399 ; Margraf v. Muir, 57 N. Y. 155. The contract must be clear and certain. Shakespeare v. Markham, 73 N. Y. 400. Where resort must be had to much extrinsic evidence it has been doubted if specific performance could be had. Sharkey v. Larkin, 53 N. Y. 633 ; Crouse v. Frothingham, 97 N. Y. 105. It is not a valid defense that title comes through a will difficult of con- struction. Kelso V. Lorillard, 85 N. Y. 177. Any evidence tending to show that it would be inequitable to grant the relief sought is admissible. War- ren V. Hall, 41 Hun, 466. 494 SPBOIFIO PEKf OBMANOE. [OH. XIX. Performance will not be enforced if the vendor cannot make good title, except in cases where the vendee assumes to take the title as it is. 11 Johns. 535 ; Bates v. Delavan, 5 Pai. 399 ; Stevenson v. Buxton, 15 Abb. Pr. 352 ; Bensel v. Gray, 80 N. Y. 517; and see cases, ante, p. 493 ; and 1 Lans. 169. Where the vendor, before making the contract, had parted with title to part of the property and concealed the fact, he was refused specific perform- ance. Jones v. Babbitt, 66 Barb. 611. Burden of proof in specific performance asked by vendor is on him to show that he can give such a title as purchaser had contracted to take. Hinckley v. Smith, 51 N. Y. 21. See also Bensel v. Gray, swpra, as to posses- sion, by vendee not waiving defects of title in action for specific performance by vendor; aftd also that vendee's purchase of outstanding title does not enure to benefit of vendor, but is hostile. Performance will not be enforced where there has been misrepresentation. Phillips V. Conklin, 3 N. Y. B. 0. 319. Nor where there are incumbrances or liens. Keeder v. Schneider, 3 N. Y. S. C. 104. Unless known and assumed. Paige v. McBonnell, 55 N. Y. 399. Neither will courts always enforce these contracts strictly ; but the interference of the court will be exer- cised so as to defer to existing equities ; and performance of the contract may be decreed or not decreed, on condi- tions that will prevent undue exaction or hardship. Although, also, it is considered a matter of discretion whether specific performance will be decreed, yet the dis- cretion must be exercised according to certain well estab- lished rules, and does not rest in. the mere caprice of the court. Mechanics' Bank v. Lynn, 1 Pet. 376 ; also, 18 Barb. 350 ; Losee v. Morey, 57 Barb. 561 ; Seymour v. Delancey, 3 Cow. 445 ; Viele v. Troy & B. R. R. 30 N. Y. 184; Slocum v. Closson, 1 How. App. Cas. 758; Willard v. Taylor, 8 Wall. 557 ; King v. Hamilton, 4 Peters, 311 ; Morey v. Farmers' L. & T. Co. 4 Ker. 303 ; Foot v. Webb, 59 Barb. 38 ; Parkhurst v. Van Cortlandt, 14 Johns. 15; reversing 1 Johns. Ch. 373; St. John v. Benedict, 6 Johns. Ch. Ill ; Peters v. Delaplaine, 49 N. Y. 365. A vendee after refusing to perform cannot himself have specific perform- ance. Emrich v. White, 103 N. Y. 657. An objection to the form of deed, capable of being remedied if suggested, is waived by failing to mention it when the deed is offered. Bigler v. Mor- gan, 77 N. Y. 313 ; Timpson v. Goodchild, 11 Reporter, 585. Executors having power of sale, equity will decree specific performance. Bostwick V. Beach, 103 N. Y. 414. When contract provides for delivery of a warrantee deed, specific per- formance may be had and payment of taxes, etc., may be required. Stone v. Lord, 80 N. Y. 60. Specific performance may be counterclaimed by vendor when vendee sues for his deposit. Moser v. Cochrane, 1 3 Daly, 159. Parol Agreements. — Agreement to purchase for benefit of debtor or to waive a purchase in his favor, by purchaser at judicial sale, enforceable, if debtor, relying on the agreement loses some remedy he might have had. Merrill v. Cooper, 65 Barb. 513. Delay. — Unless the parties have consented to the delay, these contracts TIT. v.] SPECIFIC PERFORMAlfOB. 495 ■will not be enforced after a long, unnecessary delay; and particularly if a serious injury has resulted therefrom, by defect of title, unless equitable circumstances explain the delay. McWilliams v. Long, 33 Barb. 1 94; Jack- son V. Edwards, 22 Wend. 498 ; Voorhees v. De Meyer, 2 Barb. 37 ; 4 Sandf. 374 ; Leaird v. Smith, 44 N. Y. 618 ; 8 Pet. 420 ; Delavan v. Duncan, 49 N. T. 485 ; Lawrence v. Ball, 4 Ker. 477 ; Tompkins v. Seely, 29 Barb. 212 ; Peters V. Delaplaine, 49 K. T. 363; Pinch v. Parker, id. p. 13; Merchants' Bk. v. Thompson, 55 K. Y. 7. They will be enforced where the remedy at law is insufficient. Morrill r. Cooper, 65 Barb. 512. Where there has been a waiver (which may be done verbally, even if the contract is written), courts will not enforce the contract. Wood v. Perrv, 1 Barb. 115. Readiness to Perform. — When the vendor does not show that he was ready and willing to perform, and where the purchaser shows that he was ready and offered to perform, the vendor cannot have judgment of specific performance. Haight v. Childs, 34 Barb. 186 ; Coggeshall v. Steele, 33 Weekly Dig. 537 ; Eddy v. Davis, 33 Weekly Dig. 468. Defective title is no defense if it be good at the time of the decree. Jenkins v. Fahey, 73 N. Y. 355. Infants, Lunatics. — When specific performance may be decreed against such persons, vide post, Ch. XXV. See Co. Civ. Proc. §§ 2345-2347 ; am'd, as to lunatics, L. 1882, c. 399. It is held that specific performance of the contract of a guardian will not be enforced unless it be for the interest of the infant. Sherman v. Wright, 49 N. Y. 227. Voluntary Agreements withont Consideration. — These will not be en- forced. Acker v. Phenix, 4 Paige, 305 ; Mintum v. Seymour, 4 Johns. Ch. 497 ; Hayes v. Kershow, 1 Sandf. 358. But see Ferry v. Stevens, 66 N. Y. 331 ; affi'g 5 Hun, 109. Fraud. — If fraud is shown in making the contract, the purchaser may be relieved in equity. Denston v. Morris, 3 Edw. 37. And the contract may be reformed if there is a fraudulent omission. Matthews v. Terwilliger, 3 Barb. 50. Demand not Necessary for the Action. — A party entitled to a convey- ance, upon request, may bring an action for specific performance, without previous request. The previous demand only affects the question of costs. Bruce v. Tilson, 25 N. Y. 194. Married Women. — The contract, prior, at least to the Laws of 1848-9, and 1860 {ante, p. 73), would not be binding upon a married woman, if signed by her, until also acknowledged by her. Knowles v. McCamley, 10 Paige, 343. Where the wife refuses to join, the remedy is for damages, if the hushand contracted that she should sign. Matter of Hunter, 1 Edw. 1. Nor can vendee enforce specific performance by offering to withhold a sum of money to meet the dower where such right is doubtful. Dixon v. Kice, 16 Hun, 433. Formerly, to enforce a contract against a feme covert of her heirs, she must have executed the contract with the husband, and duly acknowledged the same apart from him. Knowles v. McCamley, 10 Pai. 343. Parol Rescission. — ^Equity will not compel specific performance where the parties have, upon default of one party, agreed, by parol, to rescind the con- tract. Arnoux v. Homans, 25 How. Pr. 437. Agreements to Lease. — As to these, vide ante, p. 169. Where there are Incumbrances. — Specific performance may be decreed, 496 SPECIFIC PERFOBMANOE. [OH. XTX. when there are liens, etc., if the vendee took, knowing of them, or where they may be compensated for ; or the purchaser was to take the risk of title. Guynet v. Mantel, 4 Duer, 86 ; Winne v. Reynolds, 6 Paige, 407. Specific Performance for Part. — Where the title fails for part, specific performance may be decreed in favor of the vendee for the balance, and damages awarded for what cannot be conveyed, or the consideration money rebated. Harsha v. Eeid, 45 N. T. 415. The vendee, however, cannot be compelled to take a part. Faure v. Martin, 7 N. Y. (3 Seld.) 310; see, also. King v. Bardeau, 6 Johns. Ch. 38 ; Woodruflf v. Bunce, 9 Paige, 443 ; Voorhees v. DeMeyer, S Barb. 637; Gibert v. Peteler, 38 N. Y. 165 ; Roy v. Willink, 4 Sandf. 535 ; Talbot v. Adams, 13 Week. Dig. 410. Jurisdiction once being obtained in equity, it may be retained since the Code, for the purpose of awarding damages if specific performance cannot be granted. Stemberger v. McGovem, 56 N. Y. 13. The vendor may, as a general rule, make title at any time before decree. Sheflfer v. Dietz, 83 N. Y. 300 ; Jenkins v. Fahey, 73 N. Y. 355. Interest. — ^In decreeing specific performance against a vendor he must pay interest on incumbrances during the delay. Selleck v. Tallman, 11 Daly, 141. As to interest and mesne profits in case of delay, vide Bostwick v. Beach, 103 N. Y. 414, and 105 N. Y. 661. Effect of Judgment for Vendor.— By § 1323, of the Code of Civil Pro- cedure, when judgment is rendered for the owner in an action for specific performance he may sell the property as if no contract had been made, not- withstanding an appeal by the vendee, unless the latter gives an undertaking. This undertaking may be filed at any time ; but will not aflfect the rights of a vendee under a contract made after judgment and before the filing of the undertaking. Lands Situated out of the State. — Specific performance relative to such lands may be enforced here, if the defendant were duly served here and sub- jected to the jurisdiction. Sutphen v. Fowler, 9 Paige, 380; Cleaveland V. Bnrril, 35 Barb. 533 ; Newton v. Bronson, 13 K Y. 587; Bates v. Delavan, 5 Pai. 399; Myres v. DeMier, 4 Daly, 343 ; affi'd, 53 N. Y. 647. Specific Performance in Favor of Deceased Persons. — Wheeler v. Crosby, 30 Hun, 140. Specific Performance Against Heirs, &c., of Deceased Persons. — Brown v. Brown, 39 Hun, 498; Co. Civ. Proc. §§ 3346, 3347. Part Performance.— A partial performance of a parol contract to convey lands will frequently take the case out of the statutes which require a written contract, and the contract will be enforced in equity, if its performance be consistent with the rules of equity, and required by the justice of the case. The theory of the interference of the court, in dispensing with the statutory requirement is, that unless the agreement were carried into complete exe- cution, a mere partial performance would work a fraud against the party applying. Generally, as to the above principles, vide Davis v. Townsend, 10 Barb. 333 ; Wolfe v. Frost, 4 Sandf. Ch. 73 ; Murray v. Jayne, 8 Barb. 613; 3 Sandf. Ch. 379 ; Thomas v. Dickinson, 13 N. Y. 364 ; reversing 14 Barb. 90 ; Coles v. TIT. v.] 8PBCIP10 PJBKPOEMANOE. 497 Bowne, 10 Pai. 526 ; McClasky v. Mayor, &c., 64 Barb. 310 ; Beardsley V. Duntley, 69 N. Y. 577 ; Winchell v. Winchell, 100 N. Y. 159. § 10. — By the Revised Statutes, it is also provided, that nothing in title i, ch. 7, part ii, relative to fraudulent conveyances and contracts, shall be con- strued to abridge the powers of courts of equity, to compel the specific per- formance of agreements in cases of part performance of such agreements. The part performance claimed must be substantial and by acts founded upon and referable solely to the agreement. Phillips v. Thompson, 1 Barb. Ch. 131 ; Wolfe V. Frost, 4 Sandf . Ch. 72 ; Wheeler v. Reynolds, 66 N. Y. 228. As to what will suffice, vide Favill v. Roberts, 50 N. Y. 232 ; Mclneres v. Hogan, 61 How. Pr. 446. As to part performance of a void contract and the rescission thereof, vide Thomas v. Dickinson, 13 N. Y. 364 ; reversing 14 Barb. 90. If the vendor admits the contract, and does not set up the statute of frauds in his pleading, specific performance vrill be decreed; and if the prop- erty has been transferred to another, with notice, the court will decree a con- veyance by him. Duffy v. O'Donovan, 46 N. Y. 333. , A party who has voluntarily performed part of a void contract cannot therefore be compelled to perform the residue. Baldwin v. Palmer, ION. Y. (6 Seld.) 232. Part Payment. — It was formerly held that payment of the purchase- money was part performance, but the more modern doctrine is, that payment of part or even of the whole of the purchase-money is not in itself, and without something more, a performance that will take the case out of the statute; for the money may be repaid. This would not be the case where the consideration was not money and could not be easily estimated. Rhodes v. Rhodes, 3 Sandf. Oh. 379; 4 Kent, 451 ; Haight v. Child, 34 Barb. 186. But in Morrill v. Cooper, 65 Barb. 512, it is held that, in equity, payment of the whole purchase-money will take the case out of the statute. Where a party has paid money upon a contract, and a recovery of the money will not restore him to his former condition, he is entitled to specific performance. Malins v. Brown, 4 N. Y. (4 Corns.) 403 ; Richmond v. Foote, 3 Lans. 244 ; Benedict v. Phelps, 2 Weekly Dig. 150. Delivery of Possession. — Delivery of possession, even in part, will take the case out of the statute of frauds. Lowry v. Tew, 3 Barb. Ch. 413 ; Har- ris v. Knickerbacker, 5 Wend. 638 ; Lord v. TJnderdunck, 1 Sand. Ch. 46 ; Miller v. Ball, 64 N. Y. 286. So, also, part payment and occupation through a lease made to a third person. Merithew v. Andrews, 44 Barb. 200. And where there has been a parol agreement to straighten boundaries and exchange portions of adjoining lands, and parties have occupied. Davis v. Townsend, 10 Barb. 333. Who can maintain the Action for Specific Performance. — ^Besides the purchaser the action may be maintained by the following persons : A trustee. Monro v. Allaire, 2 Cain. Oa. 183. A sub-purchaser of part of the contracted land. Lord v. TJnderdunck, 1 Sandf. Oh. 46 ; Wood v. Perry, 1 Barb. 114. Personal representatives. Buck v. Buck, 11 Paige, 170. Creditors. — The Revised Statutes provided that such contract might be enforced also by a judgment-creditor of the purchaser, but that the interest of a party therein shall not be bound by a judgment or sold under execution. Vol. 1, p. 745 ; vide ■post, Chaps. XXXVII, XXXVIH, " Judgments and Sales by Execution ; " also Tit. VI. Limitation.— Actions for specific performance, whether 33 498 MISCELLANEOUS PKOCEEDINGS. [OH. XIX. the contract were under sale or not, must be brought within ten years after the cause of action accrued. Code of Civil Procedure, §§ 380 to 388. So under the old Code, |§ 91, 97; Peters v. Delaplaine, 49 N. Y. 363, and vide McCotter y. Lawrence, 4 Hun, 107. Title VI. Miscellajs'eotjs Provisions. Interests of Purchasers liable to be Sold by order of Sur- rogates.— The proceedings with reference to the sale of lands of deceased persons by the order of surrogates, when t^ere is not sufficient personal assets for the pay- ment of the debts of the estate, have been fully given in a previous chapter. The statutes of this State also provide for the sale of the interest of the deceased in land held under a contract of purchase, either as original party or as assignee, on applications similar to those set forth in the above chapter, in the same cases and in the same manner as if he had died seized of the land. The former provisions with reference to such iaterests will be found in the Laws of 1 837, ch. 460 ; the present provisions in the Code of Civil Procedure. The details of these proceedings can not be here given. Vide Richmond v. Foote, 2 Lans. 344, ante, 459 ; Co. Civ. Proc. § 2749. Lien of Judgments on the Interest of those holding Con- tracts.— By the Revised Statutes, the interest of any per- son holding a contract for the purchase of lands, was not to be bound by the docketing of any judgment or decree, nor to be sold by execution upon any such judg- ment or decree. So also by Co. Civ. Proc. § 1353. The manner in which the interest of the defendant may be reached or sold under the judgment of the court, and applied to the payment of what is due by him under the judgment, is considered hereafter. Ch. XXXVIII. Effect of a Judgment against Vendor. — A judgment against the vendor after contract would not bind the land, the vendee being treated as the TIT. VI.] MISOBIiLANEOUS PE00EEDING8. 499 owner of the estate. Swartout v. Burr, 1 Barb. 495; Smith v. Gage, 41 Barb. 60. And the vendee in possession would be protected. Moyer v. Hinman, 13 N. Y. 180; modifying 17 Barb. 189. Nor would a judgment against his assignee or devisee. See as to the effect of such a judgment, Smith V. Gage, 41 Barb. 60; see also 10 Pai. 560; 46 N. T. 12; and see post, Chap. XXXVII, "Judgments;" and " Execution," Chap. XXXVIII. Subsequent mortgage made by the vendor after execution of the con- tract for no consideration other than an old debt would not bind the land. Young V, Guy, 87 N. Y. 457. If the subsequent mortgagee, even for a valu- able consideration, has notice of the contract, he must give the vendee notice, in order to enforce his claims against the balance of the purchase-money. Trustees of Union College v. Wheeler, 61 N. Y. 88, 107. Subsequent Deed. — One who buys only an equitable right is charge- able with notice that there may be other equities superior to his. Crippen v. Baumes, 15 Hun, 136. A grant without consideration of a right of way over land contracted to be sold, to one who knew of the contract, is held to be subject to the equities between vendor and purchaser. Townsend v. Bissell, 4 Hun, 397. Such an act would release the purchaser from the contract. James v. Burchell, 82 N. Y. 108. Taxes.— As to taxes payable under a contract to pur- chase, Vide Kern v. Towsley, 45 Barb. 150 ; also Title II. An assessment is not a lien until confirmed. Lounsbury v. Potter, 37 Super. 57. Damages on Non-performance by Vendor. — Where the title fails, the remedy of the purchaser, at law, is an action for damages. The proper rule for damages on a breach of contract for sale of land is, the amount paid by the purchaser on executing the contract, together with the difference be- tween the contract price and the actual value of the premises at the time the contract was to be performed. Pringle v. Spaulding, 53 Barb. 17; Pumpelly v. Phelps, 40 N. Y. 60, allowing recovery only when vendor knew he had no title. It is held that courts of equity will not decree damages instead of a specific performance of a contract, when they have obtained jurisdiction on other grounds. Wiswall v. McGowan, 3 Barb. 370, affl'd, 10 N. Y. 465. The purchaser to whom the deed is due may, on a failure of title, re- cover the purchase-money paid by him, and interest, whether the pur- chaser has been in occupation or not. Fletcher v. Button, 4 Coms. 396. As to when the sum specified will be considered a penalty and when liquidated damages, vide Pearson v. Williams, 36 Wend. 630 ; Brinckerhoff T. Olf, 85 Barb. 27. Expenses of examining title may be recovered. Bigler v. Morgan, 77 N. Y. 813. But a purchaser who entered into possession and made improvements before examining the title cannot recover therefor where the vendor had not good title though supposing in good faith that he had. But it seems 500 MISCELLANEOUS PEOCBEDINGS. fCH. XIX. he may ofiset taxes paid while in possession against charge for rental value of possession. McMulkin v. Bates, 46 How. Pr. 405. Where vendor could not obtain release of her dower by his wife, the dam- ages were assessed at the difference between the contract price, and the value of the property at the time of the breach, besides the purchase-money already paid, and the expenses. (40 N. Y. 59 ; 38 id. 261) Heimburg v. Ismay, 35 Super. Ct. 35. The same rule was applied in a case where a joint tenant would not join in deed. Timby v. Kinsey, 18 Hun, 255. See McMulkin v. Bates, 46 How. Pr. 405, holding that vendor who con- tracted in good faith, does not refuse to perform, but only has not the power to perform, is not liable in damages. Subsequent performance. — As a general rule the vendor may perform at any time before decree. Schiflfer v. Dietz, 83 N. Y. 300. Damages on Non-performance by Yendee. — Where the purchaser fails to complete his contract, it seems that the vendor may recover damages. Herring v. Punnett, 4 Daly 548 (4 Den. 54). Fraudulent Conveyances. — The provision of title ii (2 E. S, 134), in reference to fraudulent conveyances and contracts, etc., have no reference to contracts concerning lands. Young V. Dake, 5 N. Y. (1 Seld.) 463 ; reversing 7 Barb. 191. Heirs of the Vendor.— These are bound to convey. Vide ante, Title II, and post, Ch. XXV, as to " Infant Heirs;'' and Hill v. Kessegieu, 17 Barb. 162; Hyatt v. Seely, 11 N. Y. (1 Ker.) 52. Even when the contract was parol, if it' has been performed by the pur- chaser. Enapp V. Hungerford, 7 Hun, 588. Defects remediable after Performance. — An honest mistake as to quantity on both sides, discovered subsequent to delivery of deed, may be rectified. Paine v. Upton, 21 Hun, 306 (see also Chap. XX, Title lY). The same rule applies where false representatives as to description were made by vendor in verbal negotiations for purchase of a farm. Beardsley v. Duntley, 69 N. Y. 577. OHAPTEE XX. TITLE BY DEED. Title I. — Deeds, how Made. Title II. — Parties to Deeds. Title III. — The Consideration. Title IV. — Description of Land CoNVErED. Title V. — The Estate Conveyed. Title VI — The Covenants. Title VII. — The Date, Sealing, Signing, and Attestation. Title VIII. — Delivery and Acceptance. Title IX. — Avoidance and Cancellation. Title X. — Deeds given under Adverse Possession. Title XI. — Different Forms of Conveyance. Title XII. — Feoffment. Title XIII. — Gifts and Grants. Title XIV. — Leases. Title XV. — Exchange and Partition. Title XVI. — Release. Title XVII. — Confirmation, Surrender, Assignment, and Defeas- ance. Title XVIII. — Conveyances by Virtue of the Statute of Uses. Title XIX. — Fines and Recovbeies. A Deed is defined as a writing in proper and efficient words, upon paper or parchment, sealed and delivered by the parties ; its object being to pass some estate or interest in land. Under the early principles of the common law, based upon the feudal system, the tenant of lands by livery from the feudal owner had no right to alien the lands without the consent of the latter, in whom and his heirs continued the right of reversion on forfeiture, or on fail- ,ure of heirs of the feudatory. Various changes in the law were made from time to time, as the oppressions of the system were gradually 502 TITLE BY DEED. [OH. XX. removed, and through the means of subinfeudations, the provisions of the Magna Charta, and the passage of vari- ous acts in the times of Henry I and Edward I, the right of free alienation by the subvassal, without the consent of the lord of whom he held, was finally established. The principles of the statutes "i?6 donis'"' and " Quia emptoresP passed in the time of Edward I, which relate to the right to transfer real estate, have been adverted to in preceding chapters. Subsequent statutes allowed the involuntary aliena- tion of land through proceedings to enforce debts, and finally, the penalty of forfeiture on the alienation of lands by tenants in capite, holding immediately from the king, which had not been theretofore removed, was avoided through the substitution of a fine, by virtue of a statute passed in the reign of Edward III. Under what are called " The Duke's Laws," promulgated at a convention held at Hempstead, Long Island, in 1665, by virtue of a commission from the Duke of York, Col. Nicolls being his Deputy Governor of the province, it was provided that no sale of realty should be valid unless it were done by deed in writing under seal delivered, and by possession given, upon part, in the name of the whole, by the seller or his attorney appointed under hand and seal, unless the said deed be acknowledged and recorded according to law. As regards the right of alienation in this State, and in what persons and to what extent the right exists, reference is made to the antecedent Chapters III, IV, V, where these subjects are treated of in detail, and the principles of the common law, in connection with statutory changes in the State, are reviewed. It has been seen that it is established as a principle of constitutional right and law in this State, that every owner of land therein has the jus disponend/i as a right appurtenant to its ownership ; and that, on parting with such ownership in fee, there is no reverter or possibility of reverter to him remaining, and that he can annex no conditions or restraints to the alien- ation which would prevent the alienee from disposing of the land so granted. Whether the old English statute, called " Quia envpto- TITLE I.] TITLE BT DEED. 503 res" (18 Edw. 1), allowing every freeman to sell his lands at pleasure, became part of the law of the colony and State of New York or not, the Act of Oct. 22, 1779 (1 Jones & Varick, 44), and the Act of Feb. 20, 1787 (1 Rev. Laws, 70) entirely removed the foundation on which the right of the grantor to clog and restrain the alienation of land had formerly rested, as an incident of the feudal tenure of real property. Consequently, all reservations in a conveyance or lease in fee, restricting the alienation, would be repugnant to the estate granted, and void Van Rensselaer v. Hays, 19 N. T. 68 ; De Peyster v. Michael, 6 N. Y. 468; and anU, pp. 132 to 139. Prior to the Revised Statutes, the forms of conveyance hereafter referred to were employed in this State, and are to a certain extent still in use ; the only ones expressly abolished hQing feoff ments and Jlnes and recoveries. The Revised Statutes, however, have simplified alien- ation by deed, and recognize any deed clearly intended to transfer the ownership of real estate as sufficient for the purpose, within the restrictions and provisions referred to in this chapter. They particularly provide, that in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into efi^ect the intent of the parties, so far as such intent shall be collected from the whole instrument, and is con- sistent with the rules of law. Vide, as to the intent in deeds, Jackson v. Blodget, 16 Johns. 173 ; Jack- son V. Myers, 3 Johns. 888; Jackson v. Beach, 1 Johns. Ca. 403; Fish v. Hubbard, 31 Wend. 654. The Revised Statutes apply the general term " grant " (which formerly was applicable to the conveyance of in- corporeal hereditaments only) to indicate the instrument by which a freehold estate is transferred, and provide that 504 DEEDS, HOW MADE. [OH. XX. deeds of largain and sale and of lease and release may continue to be used, and shall be deemed " grants.^'' The Eevised Laws of 1813. — The Revised Laws of 1813, vol. i, p. 369, c. 97, contain embodied all the laws concerning deeds then in force, and how they are to be acknowledged and recorded. This act, with the excep- tion of §§ 7, 10 and 11, was repealed by the general repealing Act of 1828, and also an Act of March 8, 1817, as to records and acknowledgments. Title I. Deeds, how Made. Formerly conveyances were chiefly made by pa/rol, and by " livery of seizin^'' through certain overt acts, without any writing, until by the Statute of Frauds (29 Charles 11) they were required to be in writing, and to be signed by the grantor, in order to transfer interests in lands other than estates for three years or less. This statute has been re-enacted in our State, as follows : Kev. Stat, part 3, ch. 7, title 1, § 6, taken from Rev. Laws of 1818, p. 78. § 6. " No estate or interest in lands other than for a term not exceeding one yea/r, nor any trust or power over or concerning lands, or in any manner relating thereto shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, auhscrihed hy the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing^ •Exception is made in favor of wills, implied trusts, declarations of trusts, and fines; for which exceptions vide ante, p. 355. As to contracts for the sale of lands, mde Ch. XIX, ante. As to haaea, vide Ch. VTII, Title IF, ante. Parol acts and declarations and gifts, may also effect by estoppel a trans- fer, in equity, of the title to real estate, notwithstanding the statutes above cited, particularly if possession is taken and improvements made, and inno- cent parties are misled by acts or declarations of the owner. People v. ftoodwin, 5 N. T. 568 ; Moore v. Bk. 55 N. Y. 41 ; Bassen v. Brennan, 6 Hill, 47; Emburv v. Conner, 8 Corns. 516; Sherman v. McKeon, 38 N. Y. 266; Reeves V. Kimball, 68 Barb. 130; afB'd, 40 N. Y. 399; Levick v. Sears, 1 Hill, 17 ; Freeman v. Freeman, 43 N. Y. 34 ; 1 Johns. Ch. 344 ; 3 Pai. 545 ; 6 Johns. Ch. 166 ; Mattoon v. Young, 5 K. Y. S. C. 109. But a parol agreement between opposite owners on a highway to change the way will not affect sub- sequent deeds bounding on the highway. DeWitt v. Van Schoyk, 35 Hun, 103. Transfer by Statute. — A statute or proceedings under a statute author- izing the taking of land, would also vest title, without a deed, providing the transfer were made pursuant to constitutional provisions. But any trans. TIT. II.] THE PARTIES. 505 fer made by which land is transferred in iniiitum, even though compensation were made, would be void, if not made for a pub'.ic purpose under the Con- stitution. Embury v. Conner, 3 Corns. 511. Vide ante, "Eminent Domain," Ch. II. Incorporeal hereditaments. — These, including easements, water privi- leges, and other interests in land, have to be in writing. Thompson v. Gre- gory, 4 Johns. 81; Wolfe v. Frost, 4 Sand. Ch. 73; Brown v. Woodworth, 6 Barb. 550, and post, Oh. XXII. Sale of a Pew. — This requires a deed. First Baptist Church v. Bigelow, 16 Wend. 38, and vide ante, p. 100, and Ch. XIX. Contract. — A contract under seal, executed and delivered, may be suffi- cient to constitute a grant. Hunt v. Johnson, 44 N. Y. 37. Presumption. — After long possession and claim under a deed the exist- ence of a deed may be presumed. Deery v. Cray, 5 Wall. 795 ; De Meyer v. Legg, 18 Barb. 14 ; Vrooman v. Shepherd, 14 iJ. 441. The Manner of the Writing. — The English rule is that the writing must be (printed or written) on paper or parchment and not on other substance. It may be either in ink or pencil. Merritt v. Classon, 13 Johns. 103 ; affi'd, 14 id. 484; Davis v. Shield, 36 Wend. 354. Word '' grant " not necessary to create a conveyance of a right if such ap- pears to have been the intention of the parties. Langdon v. Mayor, &c. of JS". Y., 98 N. V. 139. Execution of Deed. — " , Atty. by ," held sufficient. Rob- bins V. Austin, 43 Hun, 469. Authentication. — A grant will not pass real estate unless either acknowl- edged or attested by subscribing witness, at least as against a purchaser or incumbrancer. Roggen v. Avery, 63 Barb. 65; affl'd. 65 N. Y. 593. It is good against the grantor. 3 Kern. 509 ; Chamberlain v. Spargur, 86 N. Y. 603. Corporations, Infants, etc. — As to deeds by corporations, infants, etc., see Chapters XXXIV and XXXV, post. Title II. The Paeties. A deed must have a competent grantor, grantee, and thing granted. The parties must be truly and suffi- ciently described or designated so as to be ascertained. If they are left uncertain the deed is void. Cruise Dig. tit. 32, ch. 30. Still, a deed with a blank for grantee's name has been held not wholly void. Vanderbilt v. Vanderbilt, 54 How. Pr. 350. A grant to the inhabitants of a town not incorporated, or to the people of a county, would be void. 8 Johns. 385 ; 9 Johns. 73. Vide post, as to towns, villages and counties, Ch. XXIV. The grantee, however, need not be named if sufficiently designated. Webb v. Weatherhead, 17 How. (U. S. Rep.) 576. The parties must be of sound mind and of full age, or the deed may be disaffirmed. Vide ante, p. 49, as to those capable of aliening lands. The parties may be bodily infirm, e. g., blind, deaf and dumb, if of sound mind ; and made cognizant of their acts. Vide Lansing v. Russell, 13 Barb. 510; «. 3 Barb. Ch. 335; Jackson v. Corey, 13 Johns. 437. A deed 506 THE PAETIBS. [CH. XX. madeby one who is non compos mentis is absolutely void. Van Deusen v. Sweet', 51 N. Y. 378. Deed by Public Officers. — A deed by a public officer in behalf of a State, is the deed of the State, although the offiger is the nominal party. Sheets v. Selden, 3 Wall. 177. See, as to sheriff's deed being the deed of the debtor, Hetzel v. Barber, 69 N. T. 1. Deed to one and others. — Under a deed to A. B. and associates, the legal estate vests only in A. B. Jackson v. Sisson, 3 Johns. Ca. 331. To a deceased person. — Such a deed would pass no title to his heirs. Doughty V. Edmiston, 1 Cooke (Tenn.), 164. To one's self another.— The whole estate vests in the other. Martin v. Van Wagener, 1 Supm. Ct. 509. Fictitious name. — If one conveys to a fictitious person and then reconvey, assuming the fictitious name, he is bound by it. David v. Williamsb'g City Fire Ins. Co. 83 N. Y. 365. To heirs. — A deed to the heirs of a living person would be void unless it appear by the deed that a certain class, e. g. children or grandchildren, were intended. Huss v. Stephens, 51 Pa. St. 383; Washburn's Real Prop. bk. 3, 340; Umfreville v. Keeler, 1 N. Y. S. C. 486. Deed to officer of a corporation. — Construed to be an equitable title in corporation in certain cases. Seventh Wd. Nat. Bk. v. Elevated R. R. Co., 53 Super. Ct. 413. (See also "Interpretation of Deeds, "^os*, Title IV.) Deed Poll. — Although a deed in form begins as an indenture, if it purports to be and in fact is only the deed of the grantor, it is a deed poll, and does not estop the grantee from denying the grantor's title. 1 Corns. 243; 4 Barb. 180; 3 Hill, 518; Champlain Co. v. Valentine, 19 Barb. 484. Conveyances are good in many cases when made to a grantee by a cer- tain designation, without the mention of either the christian or surname, as to the wife of I. S., or to his eldest son; for, id est eertum, quod potest reddi cerium. Co. Litt. 3 a; 4 Kent, 539; Friedman v. Goodwin, 1 Mc- Al. C. C. Cal. 1 ; Griffing v. Gibb, ib. 213. A grant of land to a class of persons is good, if the class is sufficiently described, and if the individuals of the class are ascertainable. It has been seen above, Ch. X, that since the Rev. Stat., where it is appa- rent, from a deed, that the property embraced in it was intended to be con- veyed to the grantee merely as trustee, he will take no beneficial interest or legal estate therein. See also LaGrange v. L'Amoureux, 1 Barb. Ch. 18. Under the practice of the English law, deeds were executed by both parties; and although now but generally executed by the grantor, unless there are mutual covenants, they still retain, even in this State, the lan- guage and form of a mutual contract executed by both parties, and each of them is, under the theory of the paper being an indenture (or a single piece of parchment cut into two), supposed to retain a copy. Tenants by the Entirety. — A deed by a wife of her interest in property held with her husband in entirety passes no title. Bram v. Bram, 34 Hun, 487. Trustee's Deed. — Good though made by him as an individual. Brad- street V. Clark, 13 Wend. 603. Towns, Villages, Counties, States, etc.— Vide post, Ch. XXIV, and ante, Ch. I. TIT. III.] THE CONSIDBEATION. 507 Corporations.— As to them, vide post, Ch, XXIV. Married Women.— ^nife, Ch. III. Infants, Lunatics, etc.— Pos^, Ch. XXV. Partners.— One may make a deed in the firm name, if by the direction or with the assent of the others. Gibson t. Warden, 14 Wall. 244; and ante, p. 319. Agents.— As an execution by agent, see Ch. XIX, Title 1. Title III. The Considekation, The deed should be founded upon sufficient consid- eration, which may be either good or valuable, and must, to be valid, not partake of anything immoral, illegal, or fraudulent. A good consideration is such as that of Mood or of natural love and affection between near relations by blood. A valuable consideration is such as money, marriage, goods, services, or whatever else may be esteemed in law an equivalent for the grant. A consideration was not required in conveyances under the common law, by reason of the fealty and hom- age incident to such conveyances, which were deemed sufficient consideration therefor. A consideration became necessary, however, to con- veyances operating under the Statute of Uses, such as are hereafter enumerated ; and it became settled that a con- sideration, expressed or proved, was necessary to con- veyances so operating. The consideration need not be expressed in the deed, but it had to exist. The general expression of a consid- eration was not sufficient, but a monetary or valuable consideration had to be expressed to raise the use, or be proved as existing. Since the Revised Statutes, a con- sideration is not essential, as between the parties. 3 Johns. 330; 3 Hill, 659; 3 Johns. 491; 5 Barb. 455; Cunningham v. 508 THE CONSIDERATION. [CH. XX. Freeborn, 11 Wend. 248; Barnum v. Childs, 1 Sandf. 58; affi'd, 11 Barb. 14; Meriain v. Harsen, 3 Barb. Ch. 333 ; Ring v. Steele, 3 Keyes, 450 ; s. c. 4 Abb. Ap. Ca. 68. Keither the grantor nor his assignee can attack a deed made by him for illegality of consideration. Marpass v. Newman, 31 Week. Dig. 86. The relation of uncle and nephew held suflBcient consideration of blood. Eysaman v. Eysaman, 34 Hun, 480. The relation of husband and wife, and his duty to support her, is held a good consideration, except as against creditors. Hunt v. Johnson, 44 N. Y. 37. Seal. — A seal is presumptive evidence of consideration, which may be rebutted if the defense is pleaded. 3 R. S. p. 406; Co. Civ. Proc. § 840; 4 Johns. 416; Hunt v. Johnson, 19 N. Y. 379. Natural love and affection is held in this State a good consideration be- tween those of the same blood, and the insertion of a small nominal pecun- iary consideration in addition is not sufficient to indicate that the estate is passed as a purchase, and not a gift. Morris v. Ward, 36 N. Y. 587 ; Loeschegk v. Hatfield, 51 N. Y. 660; Cushman v. Addison, 53 N. Y. 638. Natural love or aflEection will not render valid a covenant, promise, or executory agreement. DuvoU v. Wilson, 9 Barb. 487. An agreement to support a party is a valuable consideration. Spald- ing V. Hollenback, 80 Barb. 393. Prospective Marriage. — This is a valudbh consideration, and a voluntary deed ceases to be so, if a marriage were induced by its provisions. Whelan V. Whelan, 3 Cow. 57; Verplanck v. Sterry, 13 Johns. 536. An heir cannot set up want of consideration in the deed of his ancestor. Jackson v. King, 4 Cow. 307. Non-payment of the nominal consideration in a sealed instrument does not render it void. Barnum v. Childs, 1 Sandf. Ch. 58; affi'd, 11 Barb. 14; Ring V. Steele, 4 Abb. Ap. Ca. 68. Execution of a Trust Power. — A nominal consideration of one dollar, executed in pursuance of a trust power, is sueScient to pass the legal estate. Meakings v.- Cromwell, 1 Seld. 136. See, post, as to considerations under deeds of " Bargain and Sale." Failure of Consideration. — Where a conveyance was made in considera- tion of the assignment to the grantor of a biSnd and mortgage which both parties supposed valuable, but which were not so, the conveyance was set aside for mistake. Knapp v. Fowler, 30 Hun, 613. Expression of the Consideration.— As the expressed con- sideration may be always inquired into, the only effect of the clause acknowledging a consideration paid, is to estop the grantor from denying that tliere was any con- sideration. For every other purpose it may be explained, varied, or contradicted by parol. It is not necessary that it be shown to have been paid, if the deed recite that it was paid. Its extent or amount may be questioned, and another or different one be proved, and fraud or ille- gality may be shown TIT. IV.] DESCRIPTION OP LAND CONVEYED. 509 Neither the grantee nor the grantor is estopped from proving that there were other considerations than the one expressed, or from showing how it was to be paid. Wooden t. Shotwell, 3 Zabr. (N. J.) 465; Goodspeed v. Butler, 46 Maine, 141; Emmons v. Litchfield, 13 Maine, 333; Meakinga v. Cromwell, 3 Sandf. 513; affi'd, 5 N. Y. 136; Spalding v. Hallenbeck, 30 Barb. 393; Stackpole v. Bobbins, 47 Barb. 313; affi'd, 48 N. Y. 644; Seaman v. Hasbrouck, 35 Barb. 151; Delamater v. Bush, 68 Barb. 168; Winans v. Peebles, 31 Barb. 371; re- versed, 33 N. Y. 433, on other grounds; Webster v. Van Steenbergh, 46 Barb. 311 ; Wheeler v. Billings, 38 N. Y. 363 ; Meriam v. Harseo, 3 Barb. Ch. 333; see, also, 5 Barb. 455; 14 Johns. 310; 20 id. 338; 16 Wend. 460; Hib- bard v. Haughian, 70 N. Y. 54. If a nominal valuable consideration be expressed no other expressed re- citals of inducement or consideration in the same instrument need be proven. Rockwell V. Brown, 54 N. Y. 310. Voluntary Conveyances.— Deeds upon good consider- ations only are considered as merely voluntary, and in certain cases are set aside in favor of creditors and bona fide purchasers. A voluntary conveyance is one without valuable consideration. A gift or voluntary conveyance would be effectual, as between the parties, without consideration, and is only liable to be questioned when the rights of creditors and subsequent purchasers are concerned. By the Kevised Statutes no conveyance or charge shall be considered fraudulent as against creditors or purchasers solely on the ground that it was not founded on a valuable con- sideration. 3 Bev. Stat. p. 137. This provision of statute was in opposition to the Statute of Elizabeth (37, ch. 4), under which a voluntary conveyance, even for a meritorious pur- pose, was deemed to have been made with fraudulent views, and was set aside in favor of a subsequent purchaser for a valuable consideration, even, as sometimes held, though he had notice of the prior deed. The question of fraudulent conveyances is reviewed in a subsequent chapter {post, Ch. XXI), to which reference is made for the laws regulating the validity of voluntary conveyances, made with the intent to defraud cred- itors or purchasers, or otherwise. A conveyance in expectation of death may be revoked upon recovery. Houghton V. Houghton, 34 Hun, 313. Title IV. DEsoRiPTioif op the Land Conveyed. In order to pass title to land, the word " Larid,'^ or something equivalent, should be used. The word ^^ Land^'' 510 DESCRIPTION OF LAND CONVEYED. [CH. XX. includes, in legal signification, any ground or soil what- ever, and all structures and things that are attached to or growing thereon. The word also includes " water,^' whichj if the subject of conveyance as realty, must be described as land covered by water. Land has also legally an indefinite extent upward as well as downward. The general principles to be observed in the matter of description are illustrated by the following cases : Insufficient description. — If the description is not sufficiently specific, the deed will be void, or if it is so ambiguous that it cannot be determined ■which of several tracts is intended to be conveyed. Rollins v. Pickett, 2 Hill, 553; Jackson v. Ransom, 18 Johns. 107; Mason v. White, 11 Barb. 173; Dygert v. Pletts, 25 Wend. 402. The name of the State, county or town, has been held unnecessary where other means of identification existed. Slater v. Breese, 36 Mich. 77; Robin- son V. Brennan, 115 Mass. 583; Stockwell v. The State, 101 Ind. 1. As to descriptions in tax deeds, vide post, Ch. XL VI. Peck v. Mallams, 10 N. Y. 509. A conveyance of " all my estate " is sufficiently certain. Jackson v. De- lancy, 4 Cow. 437; The Chautauque Bank v. White, 3 Seld. 237. "AH other lands not heretofore conveyed being a part," etc., will carry lots within its terms not expressly described. Sanders v. Townshend, 89 N. T. 623. A general description in a railroad mortgage of all its lands in a certain county adjoining its road and designed to be used in its business is suffi- cient to protect mortgagees against subsequent judgment-creditors. Durant V. Kenyon, 82 Hun, 634. See also, Coleman v. Manhattan Beach Imp't Co., 94 N. Y. 229; Scully v. Sanders, 44 Super. Ct. 89. A grant of a stream or pond would not carry the land thereunder, but only water privileges. Nostrand v. Durland, 21 Barb. 478. The words, " being the same premises," etc., have been held in certain cases to enlarge the description. Thayer v. Fenton, 22 Weekly Dig. 85; see, however, Dardonville v. Lewis, 7 Weekly Dig. 188. Later wor£ may restrict the estate granted. Green v. Cummings, 23 Weekly Dig. 382. Ref- erence to a prior deed is held to cure misdescription. Grandin v. Hernandez, 29 Hun, 399. The boundaries given must inclose the land. Wheeler v. Spinola, 54 N. Y. 378. Under the grant of a house or messuage the garden or curtilage passes, but not a close adjoining it. Ogden v. Jennings, 63 N. Y. 526 ; People v. Gedney, 10 Hun, 151. If there are certain particulars stated sufficient to designate the thing to be conveyed, the addition of circumstances, false or mistaken, will not frus- trate the deed ; and they will be rejected as surplusage. The description, however, must agree with necessary particulars, and if they are all necessary and the description cannot be made certain by them no title passes. Raynor v. Jimerson, 46 Barb. 518; Hathaway v. Power, 6 Hill, 453; Jackson v. Clark, 7 Johns. 317 ; Finlay v. Cook, 54 Barb. 9 ; Jackson v. Marsh, 6 Cow. 381. See also, as to certainty of description, Jackson v. Roosevelt, 13 Johns. 97; Same v. Delancey, id. 537; Same v. Ransom, 18 id. 107; Dygert v. Plitts, 25 Wend. 402 ; Jackson v. Parkhurst, 9 id. 309 ; Corbin v. Jackson, 14 id. 619; Jackson v. Livingston, 7 id. 136; Coleman v. Man. Beach Imp. Co., 94 N. Y. 229. TIT. IV. J DESCRIPTION OF LAND CONVEYED. 511 A description by metes and bounds will control that by a street number and the giving of a right street num- ber to a wrong description by metes and bounds will not impose a duty of inquiry. Thomson t. Wilcox, 7 Lans. 371. If there be two phrases which cannot be reconciled, one of which will defeat, and the other sustain the instrument, the former will be rejected. People ex rel. Myers v. Storms, 97 N. T. 364. A particular description appearing as if made upon survey is held to con- trol a general description. Burnett v. Wadsworth, 57 N. Y. 684. Intention must govern if possible. Hasten v. Olcott, 101 N. Y. 153; Norton v. Hughes, 17 Abb. N. C. 387 n. The intention of the parties may, at times, be supplied (Beed v. Propre- tors, &c., 8 How. 274; Mason v. White, 11 Barb. 173), but not to overrule cer- tain and material description. Jones v. Smith, 73 N. Y. 205. A deed conveying a half interest in a certain lot, among other things con- taining also a general conveyance of all lands upon a certain stream in a cer- tain town, will only convey one-half the lot though it be within the general description. Gowdy v. Cords, 40 Hun, 469. Party Wall Line. — The use of the words " through the centre of a party wall '' is held not to control simple fixed courses and distances. Smyth v. McCool, 22 Hun, 595 (72 N. Y. 94). As to easement in use of the wall to the centre, see Popper v. Peck, 14 Week. Dig. 235. Acquiescence. — A mutual acquiescence for many years, in a dividing line well defined and known, estops all parties, and declarations and acts may be proved to show acquiescence. 10 Wend. 104 ; 13 id. 536 ; 7 Cow. 761 ; Pierson v. Mosher, 30 Barb. 81 ; Baldwin v. Brown, 16 N. Y. 359 ; Vosburgh v. Teator, 32 N. Y. 561 ; Jackson v. Van Corlear, 11 Johns. 123 ; Dibble v. Rogers, 13 Wend. 536; Jackson v. McConnell, 19 Wend. 175. This case requires 20 years acquiescence. Hunt v. Johnson, 19 N. Y. 279 ; Laverty v. Moore, 33 N. Y. 658; Hubbell v. McCuUoch, 47 Barb. 287. Twenty years necessary. Corning v. The Troy, &c. Factorv, 44 N. Y. 577. See also, 3 Johns. 369 ; 10 id. 377 ; Adams v. Rockwell, 16 Wend. 285 ; 7 Cow. 761 ; Van Wyck v. Wright, 18 Wend. 157 ; Townsend v. Haight, 51 N. Y. 656; Robiuson v. Philips, 65 Barb. 418; affl'd, 56 N. Y. 634. Actual Iiocation. — An actual location, on the strength of which improve- ments have been made, concludes parties and privies. So also an actual location where the description is vague. Coming v. The Troy Co. 44 N. Y. 577 ; Laverty v. Moore, 33 N. Y. 658; Jackson v. Wood, 13 Johns. 346. An actual location may be maintained even contrary to the boundaries in the deeds, where there have been acts sufficient to make an estoppel, or adverse possession, or mutual acquiescence, or obscurity of description. Adams v. Rockwell, 16 Wend. 285 ; Clark v. Wethey, 19 Wend. 320; Hub- bell V. McCulloch, 47 Barb. 287; Van Wyck v. Wright, 18 Wend. 157; Rouse V. Cline, 1 N. Y. S. C. 2; Ratclifiev. Cary, 4 Abb. Ap. Ca. 4; Jones v. Smith, 04 N. Y. 180. Wliere a description in a deed does not apply to land intended to be con- veyed, but does apply to other land, the description in the deed will prevail, and parol evidence of intention will not be admitted. McAfferty v. Con- nover, 7 Ohio (N. S.), 99. Closing clauses in a description summing up the inten- 5J2 DESCRIPTION OF LAND CONVEYED. [CH. XX. tion of the parties as to the premises conveyed have a controlling effect upon all prior parts of the description. Ousby V. Jones, 73 N. T. 631. Fraud and Mistake. — In case of misrepresentation or fraud as to the description, also in case of mutual mistake, equity will relieve. Wiswall v. Hall, 3 Paige, 313; Johnson v. Taber, 6 Seld. 319; Voorhees v. De Meyer, 3 Barb. 87. A. vendor is guilty of fraud, if, knowing that he has no title he willfully suppresses the facts from the purchaser, and an action on the case will lie. Clark V. Baird, 5 Seld. 183. A true and certain description in a grant of land is not invalidated by the insertion of a falsity in the description, when, by rejecting the erroneous part, the conveyance can be supported according to the intention of the parties. Abbott v. Pike, 33 Maine, 304; Dodge v. Potter, 18 Barb. 193; Hanrey v. Mitchell, 11 Foster, 575; Bell v. Sawyer, 33 N. Y. 72. The mistake of a scrivener in preparing a writing may be shown by parol evidence, and the instrument reformed accordingly. Such reformation is an exercise of the equity powers of aU our courts. This would be especially so when the correction is made to render valid and effectual what would other- wise be void for informality. Mistakes may be so apparent on the face of an instrument that courts will construe it as it ought to have been drawn. The liberality of courts has been particularly exercised as to the statement of the consideration, both in correcting what is wrong and inserting what has been omitted. Use of the words " more or less " does not affect the right to relief from mis- representations of grantor. Paine v. Upton, 31 Hun, 806. The rule caveat emptor applies to representations as to quality where an examination wiU show the fact, e. g. a representation that a farm had no daisies on It. Vandewalker v. Osmer, 1 N. Y. S. 0. 50 ; s. c. 65 Barb. 556. Parol Evidence.— Parol evidence may be given to ex- plain and identify the description. A parol understand- ing, however, cannot control the express terms of the deed. Extrinsic evidence of a documentary character may also explain what is ambiguous. But as a general rule parol evidence will not be received to engraft on a deed any condition, limitation, or restriction inconsistent with its terms. 18 Johns. 346 ; Clark v. Baird, 5 Seld. 183 ; Rathbun v. Rathbun, 6 Barb- 98; Dygert v. Pletts, 35 Wend. 403; Hunt v. Johnson, 19 N. Y. 379; Clark V. Wethey, 19 Wend. 330; Mason v. White, 11 Barb. 173; Nightengale v. Walker, 3 Iowa, 96 ; see also, 5 Wheat. 359 ; 4 Wend. 369 ; Ratclifle v. Gary, 4 Abb. Ap. Ca. 4; Putzel v. Van Brunt, 40 Super. 501 ; Pangburn v. Miles, 10 Abb. N. C. 42. iris Latent ambiguities may be explained. Seaman v. Hogeboom, 3 Barb. 215. Parol agreements between adjoining owners may be upheld, by way of estoppel, when to settle boundaries, if they are indefinite or uncertain- otherwise they would be void by the statute of fraudi Clark v. Baird, 9 N. Y. 83 ; Vosburgh v. Teator, 33 K. Y. 561 ; Terry v. Chandler, 16 N. Y. 354; Clark V. Wethey, 19 Wend. 330; Ambler v. Cox, 13 Hun, 395; Wil- liams V. Montgomery, 16 Hun, 50. TIT. IV.] DESCKIPTION OF LAND CONVEYED. 513 Where the words of an ancient deed are equivocal, the usage of parties under the deed may be given to explain it. An ambiguity apparent on the face of the instrument cannot be explained extrinsically, but a latent ambi- guity may. See, on this head, Pish v. Hubbard, 31 Wend. 651 ; French v. Carhart, 1 Corns. 96 ; Swick y. Sears, 1 Hill, 17 ; Livingston v. Ten Broeck, 16 Johns. 14; Parsons v. Miller, 15 Wend. 561. A grantee may take any uncertainty in his favor. Jackson v. Hudson, 3 Johns. 375 ; Same v. Gardner, 8 id. 394. As to a suit in equity to fix boundary lines see Boyd v. Dowie, 65 Barb. 237. Monuments and Boundaries.— Visible, known and fixed boundaries, monuments or nattiral objects, as existing at the time, as a river, a spring, a marked tree, etc., referred to in a deed, control quantity, courses and distances, where they conflict. The least certain and material parts of a description must yield to those that are most certain and material. The above rules are subject to the modification that the entire description must be read so as to determine its fair import. Damziger v. Boyd, 53 Super, 398; West V. Hamilton, 13 Weekly Dig. 335; Hasten v. Olcott, 1.01 N. T. 152 ; Eobinson v. Kime, 70 N. Y. 147; Yates v. Van De Bogert, 56 N. Y. 536 ; Raynor v. Timerson, 46 B. 518 ; Schoonmaker v. Davis, 44 Barb. 463 People V. Wendell, 8 Wend. 183 ; affirming 5 id. 143; 7 Johns. 733; 1 Cow 605; 5 id. 371; id. 346; 9 id. 661; Van Wyck v. Johnson, 18 Wend. 157 Seaman v. Hogeboom, 3 Barb. 315; Clark v. Baird, 5 Seld. (9 N. Y.) 183 ; Northrop v. Sumney, 37 Barb. 196 ; Jones v. Holstein, 47 Barb. 311 ; Oronk V. Wilson, 40 Hun, 269 ; White v. Nichols, 64 N. Y. 65 ; White v. Luning, 3 Otto, 514. A line described as beginning at a tree may be construed to begin at the side of the tree most in conformity with possession of grantor. Stewart v. Patrick, 68 N. Y. 450. In cases of ambiguity courts hold parties to the actual location. 1 Johns. 5. See also, Sherman v. Kane, 86 N. Y. 57. As an exception to the above general rule it has been held that where the courses and distances are right in themselves, they will prevail against monuments, so as to carry out the intent of the parties. Higginbotham v. Stoddard, 73 N. Y. 94. See also, Townsend v. Hayt, 51 N. Y. 656. Natural boundaries are more to be regarded than artificial ones, or those not permanent. 9 Johns. 100 ; Baldwin v. Brown, 16 N. Y, 359. A distinct boundary, as by a stream, referring to a map where the bound- ary is different, will control the map. Jamison v. Cornell, 5 N. Y. S. C. 639. But where the courses and distances are to form a fixed line, or to inclose a fixed quantity, they will control natural boundaries. The Buffalo, &c. Co. V. Stigler, 61 N. Y. 348; Higginbotham v. Stoddard, 9 Hun, 1 ; affi'd, 73 N. Y. 94. Also as to natural boundaries controlling, vide 70 N. Y. 147. A fixed line will control general words of occupation. Jones v. Smith, 73 N. Y. 305. A general clause of intention controls special clauses. Ousby v. Jones, 73 N. Y. 631. If the boundaries are definite and distinct, no extrinsic facts or parol evidence can be restored to. 17 Johns. 39 ; Drew v. Swift, 46 N. Y. 304 ; Van Wyck v. Wright, 18 Wend. 157. 33 614 DBSCEIPXION OF LAND COlJfVETED. [CH. XX. An erroneous boundary, though continued for twenty years, may be altered. Smith v. McNamara, 4 Lans. 169. As to agreement to settle boundaries, mde Wood v. Lafayette, 46 N. T. 484. A grant from one terminus to another meane a direct line ; but if the line is to run along a river or creek from one terminus to another, it must follow the river or creek, however sinuous it may be; and if that description will not reach the terminus, it must be pursued so far as it conducts towards the terminus, and then relinquished for a direct line to it. Lessee of Wyckoff v. Stephenson, 14 Ohio, 13; Shultz v. Toung, 3 Ired. (N. C.) 385; Jackson v. Carey, 2 Johns. Ca. 350 ; Kingsland v. Chittenden, 6 Lans. 15 ; afiB'd, 61 N. T. 618. If there be nothing to control the course and distance, the line is run by the needle. So also the line of another tract referred to in the deed as matter of des- cription, controls " courses and distances." Corn V. McCrary, 8 Jones (N. C), 496. As to verbal declarations as to boundaries, vide Smith v. McNamara, 4 Lans. 169. A known and well ascertained place of beginning cannot be varied by the incidental mention of it in a subsequent patent. 17 Wend. 146 ; 5 Wend. 142 ; aifi'd, 8 id. 183. Where a lot and " building " is contracted for, the grantors must convey the building and lot on which it is, although it may not be within the bound- aries as specified. White v. Williams, 48 N. T. 844. Order of Description. — The lines of the survey must be run from the place of beginning in the deed. Elliot v. Lewis, 10 Hun, 486. Apparent Mistake may be corrected by other parts of the description and by natural monuments. Donahue v. Case, 61 N. Y. 631. A misdescription cured by reference to another deed. Grandin v. Her- nandez, 29 Hun, 399. Courses and Distances.— The words of a course or dis- tance have been frequently construed to mean the reverse of the natural sense in order to rectiiy a mistake, where the intent was plain. Word "southeast" construed to mean "southwest." Brookman v. Kurzman, 94 N. Y. 272. Quantity.— In the absence of fraud th.e selling land in hulk, e. ff., as a faim, or representations by the vendor, as to the quantity of a tract, where the sale is for a gross sum ; or the mere mention of a quantity of acres, after descriptions by boundaries, is but matter of description, and does not amount to a covenant of warranty of quan- tity, or bind the vendor to make compensation for any deficiency. Boat V. Pufl, 3 Barb. 358 ; 2 Johns. 37; 19 Wend. 175; 1 Cai. 493; 3 Johns. 37; Johnson v. Taber, 6 Seld. (10 N. Y.) 319; Moore v. Jackson, 4 Wend. 59; reversing 6 Cow. 706; Northrop v. Sumney, 27 Barb. 96. TIT. IV.] DESOEIPTION OF LAND CONVEYED. 515 Nor do the words '■ more or less " extend the grantee's boundary or descrip- tion as given. A sale of land at a fixed price, stating the number of acres, is a sale in bulk. Butterfleld v. Cooper, 6 Cow. 481 ; Brady v. Hennion, 8 Bos. 528 ; Marvin v. Bennett, 26 Wend. 169 ; Faure v. Martin, 3 Seld. 210. A conveyance of "lot 14," "it being 160 acres,'' would convey the whole, though it contained 185 acres. Hathaway v. Power, 6 HiU, 453. A grantee may claim all the lands embraced by monviments, boundaries, etc., although the tract is stated to contain less than the actual number of acres. Boat v. Puff, 8 Barb. 353 ; Jackson v. McConnell, 19 Wend. 175; The Morris Canal Co. v. Emmet, 9 Pai. 168. A very great difference, however, between the actual and the estimated quantity of acres of land sold in the gross, would entitle a party to relief in chancery on the ground of gross mistake. Quesnel v. Woodlief, 2 Hen. & Munf. 173, note; Nelson v. Matthews, 3 ib. 164 ; Harrison v. Talbot, 2 Dana (Ken.), 258; Voorhees v. DeMeyer, 3 Barb. 37; Belknap v. Sealy, 14 N. Y. 143 ; Paine v. Upton, 31 Hun, 306 ; affi'd, 87 N. Y. 327. As to a mutual mistake of contents, where land was sold at a certain price per acre, vide George v. Tallman, 5 Lans. 393 ; Wilson v. Randall, 7 Hun, 15 ; affi'd, 67 N. Y. 338. Equity will not relieve against a mhtake in the conveyance of lands, in respect to the quantity conveyed, where a deed is executed and delivered by the vendor, and a mortgage given in return to secure the purchase-money, unless the proof be clear, direct, and positive. Also to entitle the purchaser to relief in equity, where land was conveyed and a mortgage taken back, the quantity must have constituted a condition of the sale, as agreed upon between the parties ; it is not enough that it may have operated as an inducement to the purchase in respect to which the pur- chaser, in the absence of fraud, will be deemed to have assumed the risk. Nor will relief be granted, if the purchaser, with ordinary vigilance before the completion of the contract, by viewing the premises or properly settling the terms of the description, might have guarded against the alleged mistake. It is also held that equity will only interfere where the sale had been made by the acre or foot, unless there has been fraud or wiUful misrepresentation. The Morris Canal Co. v. Emmet, 9 Pai. 169 ; Marvin v. Bennet, 36 Wend. 169 ; Wilson V. Van Pelt, 5 Hun, 414. The words " more or less '' do not affect the right to relief for mistakes in quantity caused by the vendor's misrepresentation. Paine v. Upton, 87 N. Y. 327. If parties contract to sell by the acre the passing of the deed does not prevent the vendee from showing a deficiency and recovering surplus paid if such right be reserved. Murdock v. Gilchrist, 52 N. Y. 242. Equity may reform a deed for mutual mistake, and the mistake may be shown by parol. Bush v. Hicks, 3 N. Y. S. C. 356; affi'd, 60 N. Y. 398; Paine v. Upton, 87 N. Y. 337. The intent, as gathered from the context, is to be considered. Mott v. Mott, 68 N. Y. 246 ; rev'g 8 Hun. An error in description, whereby one of two grantees gets less, and the other more than he should, is a defense to ejectment for the erroneous portion by the latter. Reformation of the deed is unnecessary. Glacken v. Brown, 39 Hun, 294. Streams.— Land bounded, in general terms, by a small lake, pond or stream, above tide-water, and not " navi- gable," as so generally understood, is not bounded by the bank, but by the middle of the stream, unless otherwise specified (subject to its use by the public as a highway). 516 DESCRIPTION OP liAND CONVEYED. [CH. XX. and the grantee has a right to use the land and water in any way not inconsistent with the public easement. 17 Wend. 571 ; 26 Wend. 404; 4 Hill, 369; The Seneca Nation v. Knight, 23 N. Y. 498 ; 24 Wend. 451 ; 6 Cow. 579 ; 15 Johns. 447 ; 12 i d. 253 ; 5 Cow. 216 I Wetmore v. Law, 34 Barb. 515; Demeyer v. Legg, 18 Barb. 14; Case v. Haight, 3 Wend. 632 ; Kingaland v. Chittenden, 6 Lans. 15 ; Morgan v. King, 35 N. Y. 454. Boundaries by or up a creek would also take through the center, or along the meanders thereof, running from a post on the bank. Seneca Nation V. Knight, 33 N. Y. 498; Jackson v. Louw, 13 Johns. 353. So held where bounded only on the margin of a creek. Mxpwrte Jennings, 6 Cow. 518. The above principle applies to small inland lakes, but does not apply to the great lakes ; when such small lakes are filled in, the adjoining owner has title to the land made. Nor does it seem to apply in the case of canals. Hoff v. Tobey, 66 Barb. 347. And extraneous circumstances may change the general rule. Hall v. Whitehall, &c. Co. 103 N. Y. 139. In large natural ponds a boundary carries only to low water and the open- ing of a channel letting in salt water will not affect prior tights. Aliter of artificial ponds. Wheeler v. Spinola, 54 N. Y. 377. Beach. — A boundary on a beach gives to high-water mark in default of the expression of a different intent. Trustees v. Kirk, 68 N. Y. 459. The owner on large lakes, unless it is otherwise expressed^ owns to low water, or the flats. Champlain, &c. Co. v. Valentine, 19 Barb. 484 ; Howard V. IngersoU, 13 How. U. 8. 318; Ledyard v. Teneyck, 36 Barb. 103; Banks v. Ogden, 2 Wall. 57 ; Kingman v. Sparrow, 13 Barb. 301 ; 30 Barb. 9, sup. The rule does not apply to a national boundary where it is a river. 19 Barb. 484, mipra; Kingman v. Sparrow, 13 Barb. 301 ; 30 Barb. 9, «wpra. To the north bounds of a river would carry to the centre. Walton v. Tiff, 14 Barb. 216. The rule has been held to apply to the Mississippi river. Jones v. Soulard, 24 How. II. 8. 41. Actual possession of the upland under a deed purporting to convey to low- water mark is not adverse possession of the land between high and low water as against the true owner. Roberts v. Baumgarten, 51 Super. 483. Descriptions " by the river," or " along the river " or " upon the margin," or " to the bank " of a river, or along the waters of an " outlet," also " to the river, and thence al/mg the shore,'"'' etc., restrict the grant to the margm. 6 Mass. 435 ; 17 id. 298 ; 4 Hill, 369. So a boundary by the tank of a river ex- cludes the river. Kingman v. Sparrow, 13 Barb. 301 ; Starr v. Child, 5 Den. 599 ; Babcock v. Utter, 1 Ct. Ap. Ca. 37. But would take to the margin at ZoM-water mark where the stream was not navigable. Walton v. Tift, 14 Barb. 316; Halsey v. McCormick, 18 N. Y. 396. So would a boundary by the shore. 4 Hill, 309 ; reversing 30 Wend. 149. So of ' acreek though the boundary be by courses and distances along the bank. Ylfes v. Van de Bogert, 56 N. Y. 536. One whose land is bounded by the bank gets no interest in the water- power. Hall V. Whitehall, &c. Co. 103 N. Y. 129. The rule as to grants bounded on the shore or bank of the sea or naviga- ble rivers is not applicable to streams not navigable. Halsey v. McCormick, 3 Kern. 296. Alluvial Increment and Attrition. — As to these subjects, «4«," might not in devises prevent the estate vesting in fee, if the intent were manifest, the word was india- penaable in a deed to pass the fee. In conveyances to corporations sole, the word successors carried the fee. A corporation is supposed to be always in life. So also, deeds to a sovereign or a State. 7 Cow. 353; 10 Paige, 140; Mcoll v. N. Y. & E. R. R. 3 Kem. 31. It was the rule also that if those words were omitted in the prior part of the deed, a life estate could not be enlarged into a fee by the use of those words in the covenant of warranty, on the principle that a warranty cannot enlarge the estate. By the Revised Statutes, however (taking effect in 1830), it is provided that the term " hei/rs^'' or other words 526 THE ESTATE CONVEYED. [OH. XX. of inheritance, shall not be requisite to create or convey an estate in fee, and every grant or devise of real estate, or any interest therein, thereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant. Vol. I, p. 748, 1st ed. A deed by a life-tenant without warranty will be construed as passing only the life interest of the grantor. Culver v. Rhodes, 87 N. T. 348. In examining title to land by conveyance, before the Revised Statutes, therefore, it is very necessa/ry to see that words of inheritance are used, if a fee is to be passed. Rule in Shelley's Case. — As regards the "Rule in Shelley's Case," and its abolition, vide ante, p. 319, Implication of Estate Conveyed. — By the Revised Statutes, also, "no greater estate or interest shall be construed to pass by any grant or convey- ance thereafter executed than the grantor himself possessed at the time of the delivery of the deed, or could then, lawfully convey ; except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent." The "Tenendum " clause was formerly used particularly to signify the TBNUBB by which the estate was to be held, as "^er seroitium militare," " in burgagio,''^ etc. It is now usually coupled with the habendum, as "to have _ and to hold." Reddendum, etc. — ^Next in the old deeds follows the terms of stipulation, if any, upon which the grant was made, as upon the rendition of a service, produce, or sum certain, etc., to the grantor. Next also were inserted the conditions, if any, defeating or terminating the estate. Growing Trees or Timber, etc. — These must be conveyed by writing, under seal. Vide ante, pp. 100, 474; Warren v. Leland, 12 Barb. 613; 57 Barb. 243 ; Mclntyre v. Barnard, 1 Sandf . Ch. 52. A parol license to cut tim- ber may be given. Pierrepont v. Barnard, 6 N. Y. 379. Growing grass might be transferred by a chattel mortgage. Jencks v. Smith, 1 Coms. 90. And see ante, pp. 100, 361, as to crops and growing timber, and 'what agreements and transfers of land have to be in writing. The words " Land,s " and " Real Estate."— These words, as used in ch. i, part ii, of the Revised Statutes, relative to the conveyance of land, etc., are to be construed as co- extensive with lands, tenements, and hereditaments. 1 R. 8. p. 750, 1st ed. As to definition of " land » and " estate in land " generally, vide ante, p. 99; see also as to the estate granted, "Covenants," Title VI, infra. Conditional Deeds.— See ^o«< " Mortgages." Husband and Wife.— Deeds to; see " Joint Tenants," Chap. XI. TIT. VI.] THE COVENANTS. 527 To one and her Heirs. — A deed to "E, wife of A, and her heirs, the children of A," gives an estate to the children, as tenants in common with E. Umfreville v. Keeler, 1 Supm. Ct. 486. Title VI. The Covenants. A conveyance in fee, by the common law, as modified and understood in this State, does not of itself imply a covenant of title, and in order that there may be re- course to the grantor or his privies, on failure of title, ex- press covenants of wa/rranty are used. Without them a simple deed, made in good faith, and without fraudulent representations, does not make the grantor responsible for defects of title. A deed without covenants of war- ranty purports to convey no more than the grantor's estate at the time, and would not operate to pass or bind an interest not then in existence. Sherman v. Johnson, 56 Barb. 59; Gouverneur v. Elmendorf , 5 Johns. Ch. 79 ; Tallman v. Green, 3 Sandf. 437 ; Thorp v. Keokuk Co. 48 N. Y. 353; see also 5 Pai. 300 ; 25 Wend. 107 ; 2 Johns. Ch. 538. The rule has not been held to apply to purchases from trustees. Adams v. Humes, 9 Watts, 305. The ancient warranty bound the grantor and his heirs to warrant the title, and to yield other lands to the value of those from which there might be eviction, by paramount title. This is now obsolete. By the old English law, the heir of the warrantor was bound only on con- dition that he has, as assets, other lands of equal value by descent, which he was bound to apply in case of eviction of the warrantee. Lineal and Collateral Warranties. — Lineal warranty was where the heir derived title to the land warranted, either from or through the ancestor who made the warranty ; in which case, he was bound to give land of equal value, on eviction of the alienee, if he had real assets by descent. Collateral Warranty was where the heir's title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor. Gollateral warranties were abolished in 1788. Vide 1 Rev. Laws, 525. See also, as to the abolition of warranties by tenants for life, and collateral warranties by ancestors not actually seized, Colonial Act of 1773, 2 Van S. p. 767. By the Revised Statutes, both lineal and collateral warranties, and all their incidents, are abolished, and heirs and devisees of every person who shall have made any covenant or agreement are " made answerable to the ex- tent of the lands descended or devised to them in the cases and in the manner prescribed by law." Vol. I, p. 739. 528 THE COVENANTS. [OH. XX. By Eevised Statutes, also, no greater estate or interest shall be construed to pass by any grant or conveyance thereafter executed than the grantor himself possessed at the delivery of the deed, or could then lawfully convey; except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent. Vol. I, p. 739. Every grant shall also be conclusive as against subse- quent purchasers from such grantor, or from his heirs claiming as such, except a subsequent purchaser in good faith and for a valuable consideration, who shall acquire a superior title by a conveyance first duly recorded. lb. By the covenants in a deed the parties stipulate as to the validity of the title, or other facts, or bind themselves to the performance of certain conditions. Words Necessary. — No particular words are necessary to make a coye- nant, but such as import an agreement between the parties. Bull v. Follett, 5 Cow. 170. As to when words will be construed as a covenant and when as a condi- tion, vide Aiken v. The Albany, &c. R. R. 36 Barb. 289 ; and ante, p. 120. Divisibility of Covenants. — It may be remarked that covenants are divisible, and a discharge of part is not a release of the whole, although the rule is otherwise as to conditions subsequent aflfecting title to real property, where, if the condition is partially dispensed with, it is wholly extinguished. Williams v. Dakin, 23 Wend. 201. Covenants by Married Women. — As to these, vide ante, p. 78. Covenants bind one falsely personating the owner of land sought to be conveyed. Preiss v. LePoidevin, 19 Abb. N. 0. 123. Implied Covenants. — As seen in the previous chapter, there is an implied covenant of title in every executory contract for the conveyance of land (unless the terms of the instrument exclude it), and it is continued down to the execution of the conveyance, and is then extingvdshed by it. The settled common law rule is that an eoc^ress covenant will restrain or destroy a general implied cov- enant (7 Johns. ?,58), but the Revised Statutes have further declared that no covenant shall be implied in any TIT. VI.] THE COVENANTS. 529 oonveycmce of real estate, whether such conveyance con- tain special covenants or not. Vol. i, p. 738 ; Kinney v. Watts, 14 "Wend. 40 ; Hone v. Fisher, 3 Barb. Oh. 509; Pierce v. Puller, 36 Hun, 179. The word "(demise" or grant, however, in a leaie for yewn, implies a covenant for warranty and quiet enioyment, and a power to let. See 4 Wend. 502; 8 Pai. 597; 15 N. T. 337; 13 N. Y. 151; 7 Wend. 310; 11 Paige, 566; Frost v. Raymond, 3 Cai. 188; Granniss v. Clark, 8 Cow. 36; Lynch v. Onondaga Salt Co., 64 Barb. 558; Stott v. Rutherford, 3 Otto, 108. But such covenant does not extend beyond the leased premises nor over- ride the necessary implications of the lease. Gallup v. Albany, R. W. 65 N. Y. 1; affi'g 7 Lans. 471; explaining Mack v. Patchen, 43 N. Y. 171. There is no implied covenant that a road on which property is bounded shall remain open. King v. Mayor, 103 N. Y. 171. The case of The Mayor v. Mabie holds that a demise implies a cov- enant for quiet enjoyment. 13 N. Y. 153 ; questioning 14 Wend. 38 (Kin- ney V. Watts). The subsequent case of Edgerton v. Paige, 30 N. Y. 81, seems to limit such implied covenants to leases not exceeding three years, although the point was not directly involved. So also Boreel v. Lawton, 90 N. Y. 393. The case of Mack v. Patchen holds that, on a breach of this implied covenant in a lease, the damages are the value of the unexpired term, less the rent reserved. If there is a special covenant as to enjoyment, the other will not be implied. 43 N. Y. 167 ; Burr v. Stenton, 48 N. Y. 463. No covenants are implied in a lease in a fee. Carter v. Burr, 39 Barb. 59. Bat they may be implied in agreements relative to land. Sandford v. Travers, 40 N. Y. 140. Leases for three years and under are not within the above statutes. Moffat V. Strong, 9 Bos. 57. A covenant of a good right to sell and convey does not imply a war- ranty of absolute title, but only of actual seizin and possession. Raymond V. Raymond, 10 Cush. 134. Before the Revised Statutes, it was held that the word "gift," in a conveyance, im^Ziec? a warranty for the life of the grantor, 7 Johns. 358; 3 Caines, 188 ; Bunnel v. Jackson, 5 Seld. 535. In New Hampshire it has been held (semile) that any words showing the intent of the parties to do or not do a certain thing will make an ex- press covenant. Levering v. Lovering, 13 N. H. 513. Actions lie, however, for fraud or misrepresentation, even if there are no covenants. 'Haight v. Hayt, 19 N. Y. 464; Sherman v. Johnson, 56 Barb. 59. See, also, 5 Abb. N. S. 331. But where there are no covenants a vendee who has taken a deed has no remedy at law or in equity, in the absence of fraud or misrepresentation, if incumbrances be subsequently discovered. Whittemore v. Farrington 76 N. Y. 453. But see Sage v. Truslow, 88 N. Y. 340, holding that covenants in a contract to assume and pay taxes and mortgages may be en- forced, though a deed without covenants has passed ; and that there is no merger. Implied Covenants by Grantee.— The acceptance by the grantee of a conveyance containing a covenant by him, his heirs and assigns, is equivalent, without his signing the deed, to an express agreement on his part to perform 34 530 THE COVENANTS. [CH. XX. the covenant ; and the obligation affects the title of his grantees. Atlantic Dock v. L'feavitt, 50 Barb. 135 ; affi'd, 54 N. Y. 35 : Spaulding v. Hallenbeck, 30 Barb. 392 ; Plumb v. Tubbs, 41 N. Y. 442 ; Fairchild v. Lynch, 43 Super. 265. ^ •, ^ Wbere the conveyance, under which a party holds, refers to a deed of the same premises, -which contains a restrictive clause, and which is on record, it will be presumed that he has notice of the restrictive covenant. Gibert v. Peteler, 38 N. Y. 165. A covenant not to put up an obstruction binds the land. 75. A covenant of assumption of a mortgage will not be implied by reason of its deduction from the purchase price alone. Bennett v. Bates, 94 N. Y. 354. See also post, Chap. XXIII, Title III, as to obligations of a vendee with regard to mortgage on premises. Covenants Running with the Land.— Generally the cov- enants in a deed do not run with the land, but affect only the covenantor and the assets in the hands of his repre- sentatives after his death, by an action to recover a com- pensation in damages for the land lost upon eviction for failure of title. As a general rule, also, all covenants concerning title run witli the land, with the exception of those that are broken before the land passes ; as, for ex- ample, the covenant of seizin being broken the instant it is made, if at all, becomes a chose in action, and therefore does not run with the land. The right of action, on breach of such a covenant, descends to the per- sonal representatives, and not the heirs. 5 Cow. 137. See, also, 21 Wend. 120, et infra. As a general rule, also, no covenant runs with the land, unless it touch or relate to the land itself. Another general rule is that though the ImejU of a covenant pass with the land, the burden is confined to the original cove- nantor unless there be privity of estate between him and the covenantee. Cole v. Hughes, 54 N. Y. 44, and cases cited. If the covenantor covenants for himself and }m heirt, it is then a cove- nant real, and descends upon the heirs, who are bound to perform it if they have assets by descent, but not otherwise. If he covenant also for his executors and administrators, his personal assets are likewise pledged tor the performance of the covenant. Covenants running with the land have relation to the land only, and the assignee is not bound as to things col- lateral. Dolph V. White, 2 Keman, 301 ; Spencer's Case, 5 Co. 16. A covenant to keep up a, partition fence, or to make and repair fences, is a covenant running with the land, and when it imposes a liability other than that imposed by the statute as to division fences, it is an " incumbrance" under the covenant against incumbrances. Vide 19 Abb. 228; 1 Bradf. 41. Covenants not to build, etc., run with the land; also those against nuisances. 4 Paige, 610; 1 Paige, 412; 6 Johns. Ch. 215; 5 Cow. 143; 21 Wend. 120; 8 Pai. 351. Also a covenant to keep a street open. Story v. N. Y. E. E. R. 90N. Y. 122. TIT. VI.] THE COVENANTS. 531 Covenants to Repair. — OovenanU hy a lessor to repair also run with the land. 3 Denio, 285 ; 33 Barb. 401. See also on this head, ante, p. 173. As to who can sue on these covenants, iMe Eane v. Sanger, 14 Johns. 89. Compare Withy v. Mumford, 5 Cow. 137, holding that an assignee, with or without warranty, can maintain an action for breach happening after assignment. Gulock v. Oloss, 5 Cow. 14 ; see also Beddoe v. Wads- worth, 21 Wend. 120. , All the covenantees must sue for a breach. Smith v. Kerr, 3 Corns. 144. A purchaser in possession under a contract cannot maintain an action for breach to which the owners are not parties. Haynes v. Buffalo, &c. R. R. Co., 38 Hun, 17. If one covenantor die the action is against survivor. 6 Hill, 350. No covenant relating to things not in esse will bind the assignee of a lease unless named. Tallman v. Coffin, 4 Coms. 134. A covenant by the owner of land not to allow a mill, etc., to be erected thereon, does not run with the land or bind an unnamed assignee. Harsha v. Reid, 45 N. Y. 415. It has been held that such a covenant would bind assigns if named. Norman v. Wells, 17 Wend. 148. A covenant to pay ground rent runs with the land. Hurst v. Rodney, 1 Wash. C. C. 375. Covenant to pay rent charges. Vide ante, p. 185. A covenant of the surety of the lessee passes to the grantee of the reversion. Allen v. Culver, 3 Den". 384. Covenant to pay Taxes. — A covenant to pay taxes and assessments is broken when a lessee neglects to pay them. A lessor may therefore recover the amount immediately against the lessee. The covenant runs with the land, and binds the assignee of the term ; but not under tenants, nor their assignees. Trinity Church v. Higgins, 48 N. Y. 582 ; Post v. Kearney, 2 Coms. 394; Martin v. O'Connor, 43 Barb. 514. Such a covenant includes taxes and assessments that may be imposed, though not legal at the time. Post v. Kearney, 2 Coms. 894; Oswald v. GiflFert, 11 Johns. 443; Corporation v. Cushman, 10 id. 96; Bleecker v. Ballon, 3 Wend. 363; Astor v. Hoyt, 5 Wend. 603. Party Wall. — A party wall agreement runs with the land and may be enforced against a remote grantee of the covenantor though not mentioned in intervening deeds. Bedell v. Kennedy, 88 Hun, 510. Covenants against Nuisances, as to Buildings, etc. — These also run with the land, and may be enforced by injunction ; also covenants relative to buildings, repairs, renewals of leases, to pay rent, to make no claim, etc. 1 Pai. 412; 6 Johns. Ch. 215; 17 Wend. 148; 50 Barb. 135; 3 Abb. N. S. 311; 32 Barb. 48; 6 Johns. Ch. 215 ; 4 Paige, 510; Allen v. Culver, 3 Den. 284. See that case as to covenants running with the land generally ; and also, post, p. 533. A covenant against nuisances may be enforced even by those not parties to the deed. 8 Pai. 351 ; 3a Barb. 153. The Usual Covenants.— The usual covenants in deeds of "full warranty" in this State are, as below specified : 1. That the grantor is lawfully seized. 2. That he has good right to convey. 3. That the land is free from incumbranGes. These covenants are personal ' covenants, not running 532 THE COVENANTS. [CK. XX. with the land or passing to the assignee, because if broken the breach occurs on the execution of the deed, and they become choses in action, which are not techni- cally assignable. These covenants, however, create an estoppel against the grantor and all his privies in blood , estate, or law. 2 Johns. 1; 4 Johns. 72; 14 id. 348; 10 Wend. 142; 2 Hill, 105; 31 Wend. 130 ; Webb v. Alexander, 7 Wend. 381 ; Beddoe v. Wadsworth, 31 id. 120. See cases cited in note. Mitchell v. Warner, 5 Coins. 497 ; Bing- ham Y. Weiderwax, 1 Corns. 509 ; TefEt v. Munson, 57 N. Y. 97 ; Crane v. Turner, 67 N. Y. 437. If the purchase-money has not been all paid, courts will offset damages arising from a breach of these covenants. Woodruff v. Bunce, 9 Paige, 443. Covenant of Seizin. — The purchaser, on the breach of this covenant, re- covers back the consideration money and interest, and nothing more (4 Johns. 11 ; see also 3 Caines, 111 ; 13 Johns. 50 ; 1 Corns. 509 ; 3 Caines, 334), unless there has been /raui. Wilson v. Spencer, 11 Leigh's E. 361. It is broken even if the grantor has no title to the (vppwrtenancm. Mott V. Palmer, 1 Corns. 564. The right of action is immediate, and a subse-- quently acquired title is no bar. 3 Hill, 134; 1 N. Y. 509; 14 Johns. 248; 17 Johns. 161. The covenant is broken if the grantor was not seized of the entire estate. Sedgwick v. HoUenbeck, 7 Johns. 37 6. The covenant that the grantor " Aas ^oo(i rijrAi to eomsey''' is synonymous with the cove- nant of seizin. Rickert v. Snyder, 9 Wend. 421. See, as to recovery of costs and interest, 3 Cai. Ill ; 4 Johns. 1 ; 13 id. 50;3Cai. 334. It is no defense that the grantee was dispossessed under a mortgage which he had assumed. 1 Corns. 509, awpra. This covenant is not broken by a wrong estimate in the description. Mann v. Pearson, 3 Johns. 37 ; Stannard v. Eldridge, 1 6 Johns. 354. Nor by the fact of part of the land being a highway, Whitbeck v. Cook, 15 Johns. 483. The action may be maintained on this covenant even where there has been no eviction. Pollard v. Dwight, 4 Cranch, 431 ; Le Roy v. Beard, 8 How. 451 ; 17 Johns. 161. A covenant of " a good right to sell and convey" does not imply a warranty of absolute title, but only of actual seizin and possession. Ray- mond V. Raymond, 10 Cush. 134. See the case of TefEt v. Munson, 57 N. Y. 97 ; for an instance of the ex- traordinary manner in which the covenants of " seizin" and "right to con- vey" were held to convey by estoppel, a mortgage interest, although the mortgalgor was not owner at the time the mortgage was made, and the title of an intermediate hmaflde purchaser, without notice, was defeated. See, also, Crane v. Turner, 67 N. Y. 437. See, as to purchase-money mortgages, Dusenbury v. Hurlburt, 59 N. Y. 541. Covenant against Incumbrances. — On breach of this covenant, the rule of damages is the amount paid to extinguish the incumbrances, provided the same does not exceed the consideration money and interest. 13 Johns. 105; Foote v. Burnett, 10 Ohio, 317. Where the deed recites an incum- brance, subsequent covenants are understood as subject to that exception. 9 Cow. 374 The effect of the covenant against incumbrances is to release any claim which the covenantor may have on the land. Holcomb v. Holcomb, 2 Barb. 30. TIT. VI. J THE COVENANTS. 533 If a party contract to give a good and sufBoient deed, it implies a war- ranty against incumbrances. Burwell v. Jackson, 5 Seld. 535; overruling Giles V. Dugro, 1 Duer, 331, and ante p. 485. A public highway over the land is an incumbrance. 4 Mass. 637 ; 2 id. 97 ; Rutler v. Gale, 37 Vermont, 739. The grantee may recover on breach of this covenant, where there is a judgment or other incumbrance, by paying the same. Eviebion is not necessary. Hall v. Dean, 13 Johns. 105. An assignee may recover when the covenant is with the grantee, " his heirs or assigns." Colby v. Osgood, 89 Barb. 339. The covenant does not apply to a tax on the premises not confirmed at the execution and delivery of the deed. Lathers v. Keogh, 39 Hun, 576. Under this covenant, grantee may pay a judgment lien and recover the amount. The grantee is subrogated to the rights of the judgment-creditor. Barnes v. Mott, 64 K Y. 397. The covenant is fulfilled if the grantee retain the amount of incumbrances out of the consideration. Reading v. Gray, 37 Super. 79. A merely meritorious consideration will not sustain it. Matter of Wilbor V. Warren, 104 N. Y. 193. Party Wall. — A party wall is not an incumbrance. Hendricks v. Stark, 37 N. Y. 106 ; Mohr v. Parmelee, 43 Super. 320. Restriction against Buildings of a specified character. — Such restric- tions are held incumbrances. So also against building beyond a certain line. Roberts v. Levy, 3 Abb. U. S. 318; Perkins v. Coddington, 5 Robtn. 647; Anonymous, 3 Abb. N. 0. 56. Or against the use of a building for certain purposes, commonly called nuisances. Gibert v. Peteler, 38 N. Y. 165 ; Roberts v. Levy, 8 Abb. N. S. 311 ; i» re Whitlock, 10 Abb. 316. The existence of a lease assigned, with assent of parties, held not a breach of this covenant. Pease v. Christ, 31 N. Y. 141. The other usual covenants are : 4. Of quiet enjoyment. 5. That the grantor will warrant a/nd defend the title against all la/wful claims. These covenants' are prospective, and actual ouster or disturbance of the possession, or eviction by lawful title, is necessary to constitute a breach of them, and such title must have existed at the time of conveyance to the covenantee. They are therefore in the nature of real covenants, and run with the land conveyed, as being annexed to the estate, and descend to heirs, and vest in assignees of the purchaser as being privies in estate. 5 Cow. 137 ; 4 Hill, 345 ; Kelly v. The Dutch Church, 2 Hill, 111 ; Fowler V. Poling, 6 Barb. 165; Wood v. Fomcrook, 3 N. Y. S. C. 303. But an actual eviction is not necessary to a breach of the covenant of quiet enjoyment where there is an actual holding under a paramount title Shattuck V. Lamb, 65 N. Y. 499. The law also is that the assignee ov purchaser of a cov- 534 THE COVENANTS. [CH. XX. enant of warranty running with the land, who is evicted, may sue any one or more of the covenantors, whether immediate or remote; but he must show a damage to himself from the breach alleged, by first making satisfac- tion upon his own covenant to the person evicted. Miller v. Watson, 5 Cow. R. 137 ; Norman v. Wells, 17 Wend. 136; Hunt V. Amidon, 4 Hill, 345 ; Baxter v. Byers, 13 Barb. 267. The damages on these two covenants belong to the pe^'sonal repreaentaUves, and not to the heirs. Beddoe v. Wadsworth, 21 Wend. 120. See, as to the measure of damages, 18 Barb, supra. Covenant of Quiet Enjoyment. — This covenant goes to the possession only, and not to the title, and is broken only by actual entry and ouster or expulsion from or disturbance in the possession. There can be no breach while the grantee is in possession. Mead v. Stackpole, 40 Hun, 473. A party is not liable for mere defect of title under this covenant. Whit- ney vj Lewis, 21 Wend. 131. It was formerly held that a mere recovery in ejectment against the cove- nantee would not be suflBcient. 3 Johns. 471 ; 5 id. 120 ; 13 id. 236 ; 15 id. 483. But in Shattuck v. Lamb, 65 N. Y. 499, the case in 5 Johns. 120, was overruled, and 3 Johns. 471, distinguished, the court holding that actual possession against the covenantee under a paramount title was enough. A covenant for quiet enjoyment is not broken by the interruption of an apparent easement to which grantor had no right, and which is not specif- ically mentioned in the deed. Green v. Collins, 86 N. T. 246. But it is broken by an outstanding title to an easement in another which materially impairs the value of the premises. Scriver v. Smith, 100 N. T. 471 ; affl'g 30 Hun, 129. Nor is an entry by a trespasser, or one having no lawful claim at the time of conveyance, a breach of this covenant. The eviction or disturbance must be by title paramount. 2 Hill, 105 ; 3 Duer, 464 ; 5 Hill, 52 ; 1 E. D. Smith, 169; 3 Kernan, 151 ; 21 Wend. 120; 7 Wend. 281; 21 Wend. 124; 58 Barb. 186. Damages lie for loss both of possession and title. lb. The tortious entry by the covenantor, however, is held a breach. Sedg- wick V. HoUenbeck, 7 Johns. 376. The mere commencement of a suit is not a breach of this covenant ; the possession must be disturbed. 3 Johns. 471 ; IS id. 236 ; 4 Hill, 345 ; 6 Barb. 165 ; 15 Johns. 483. Semble, if possession is surrendered on demand of the true owner, it would be eviction. Ih.; Greenvault v. Davis, 4 Hill, 643. Also under a decree and sale under foreclosure. Hunt v. Amidon, 4 Hill, 345; Cowdrey v. Cort, 44 N. T. 382; Van Slyck v. Kimball, 8 Johns. 198. The damages under this covenant are the consideration money paid, with six years interest. 2 Hill, 106. See Sedgwick on Dam. ch. vi, p. 166. As to part of the land being a highway, vide Whitbeck v. Cook, 15 Johns. 483. The remaindermen of a life-tenant are not liable for a breach of this covenant, by reason of his decease before the termination of the lease. Coakley v. Chamberlain, 8 Abb. N. S. 37. The Covenant of Warranty. — Under this covenant, the plaintiff to re- cover must show an eviction, or an actual dispossession under a lawful claim, by a paramount title. 7 Johns. 258 ; Fowler v. Poling, 6 Barb. 165 ; Miller V. Watson, 5 Cow. 195 ; Talliard v. Wallace, 2 Johns. 395. There is a breach though the grantees buy in the property at a sale under TIT. VI.] THE COVENANTS. 535 title paramount, and so are never actually out of possession. Tucker v. Coony, 34 Hun, 227. A trespass is not an eviction. 3 Kernan, 151. Nor the mere commence- ment of a suit. 3 Johns. 471. If an entire failure of the title is shown, sernble the purchaser may recover back the price paid, without eviction. Lamans V. Garnier, 10 Rob. (La.) 425. The eviction need not be by process of law, but may be by surrender to the true owner. Fowler v. Poling, 6 Barb. 165. But it must be by title paramount. 7 Wend. 281; 31 Wend. 120, and cases cited, swpra. The eviction may be for a mere right of possession. Riokert v. Snyder, 9 Wend. 416. The covenant of warranty extends to the possession as well as to the title ; and whenever there is a disturbance of either under title paramount the covenant is broken. Rea v. Milner, 5 Lans. 196 ; Bridger v. Pierson, 1 Lans. 481 ; rev'd, on another ground, in 45 N. Y. 601. An easement existing by prior grant is a breach regardless of notice. Mohr V. Parmelee, 43 Super. 320. Action for breach will lie against the executors, etc. of the warrantor. Townsend v. Morris, 6 Cow. 123. A mere easement of the public in a highway covering part of the land is no breach. Hymes v. Esty, 36 Hun, 147. As to contradicting the consideration clause in the deed, under an action for breach, vide Greenvault v. Davis, 4 Hill, 643. See, as to joinder of wife, and proceedings in the action, Griffin v. Rey- nolds, 17 How. 609. Eviction. — As to eviction under a lease, vide ante, p. 185. Estoppel by Warranty. — By a covenant of warranty, a subsequently ac- quired title of the grantor will pass ly estoppel, binding also heirs and as- signs. 1 Johns. Ca. 81 ; 16 Johns. 110; 13 Johns. 301 ; 6 Barb. 98; 1 Pai. 473; 3 Barb. Ch. 538; 68 Barb. 31. But no title not in esse will pass by deed by way of estoppel, unless the deed contain a.wam'anty. 14 Johns. 193; 4 Wend. 619; Doyle v. Peerless Pet. Co. 44 Barb. 239; Irvine v. Irvine, 9 Wall. 617 ; Van Rensselaer v. Kearney, 11 How. 397 ; House v. McCormick, 57 N. T. 310. In case of a mortgage by one without title it is held that subsequently acquired title will enure to the benefit of his mortgagee, and the record of the mortgage is notice to a bona fide purchaser for value from the mortgagor. TeflEt V. Munson, 57 N. Y. 97. A married woman's covenant of warranty, however, did not estop her. 6 Wend. 11; 4 Sandf. 374; compare 20 Barb. 128. All covenants made by her, except as trustee or for lands held as her separate estate, were void (6 Wend. 11) until the Law of 1862, ch. 172, enabling her to make covenants in a deed. Before that act, however, she would be est-opped where her action would be otherwise a fraud. 20 Barb. 133. Her covenants now (under the Acts of 1860, 1863, ante, p. 78) bind her separate estate. Sigel v. Johns, 58 Barb. 630 ; KoUs v. DeLeyer, 41 Barb. 311. Release. — A release of this covenant for valuable con- 536 THE COVENANTS. [OH. XX. sideration does not affect grantee's rights in an action of ejectment. Dowley v. Rugg, 35 Hun, 143. The Action on this Covenant. — An assignee of the grantee may recover of the original -warrantor. Whitby v. Mumford, 5 Co-w. 137. The warrantor is concluded by a verdict in ejectment of which he had notice. Cooper v. Watson, 10 Wend. 303. A verbal agreement cannot be set up in an action for breach of this cove- nant. Miles V. Avery, 3 Barb. Ch. 583. Before one can recover, under a breach of warranty, he must ofifer to re- convey to the grantor. Meyer v. Shoemaker, 5 Barb. 319. The covenant of warranty does not cover an obvious defect in quality. Vandewalker v. Osmer, 65 Barb. 556. A covenant for further asswrance is also geneially in- serted in warranty deeds. By it, the grantor binds him- self and his heirs, and all persons deriving title through them, at the request of the grantee, his heirs and assigns, to execute such further and other conveyances and assur- ances as may at any time be necessary further to vest and confirm the title to the grantee, his heirs or assigns. This covenant runs with the land. Spencer v. Noyes, 4 Vesey, 370; Colby V. Osgood, 29 Barb. 339 ; Campbell v. Lewis, 3 Barn. & Aid. 892. A release of a mortgage is a further assurance. 29 Barb. 339. This covenant is broken, after demand and refusal or neglect. Miller v. Parson, 9 Johns. 336. Covenant and Stipulations by Grantee. — (See also " Im- plied Covenants by Grantee," cmte ; also Chap. XXIII, Tit. Ill, " Obligations of a Vendee," ^osi!.) Assumption of Mortgage. — The rule that a mortgagor who has con- veyed the mortgaged premises to one who assumes payment of the mortgage debt thereafter stands as a surety (71 N. Y. 9), and is discharged by an un- authorized change of the terms of the obligation by his grantee and the holder of the mortgage, does not apply where the holder of the mortgage was not aware of the terms of the assumption at the time of the acts claimed to eflEect the discharge. Star Fire Ins. Co. v. Waddington, 18 Weekly Dig. Such a release operates only to the extent of the value of the land at the time of the extension. Murray v. Marshall, 94 N. Y. 611 . Acceptance of a deed containing covenants on his part by the grantee will bind him, though he has not executed it. Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 ; Bowen v. Beck, 94 N. Y. 86. So, too, if the purchase were by an authorized agent, though the grantee never knew of the covenant. Sikley v. Fryer, 100 N. Y. 71. Record of the deed is prima facie ev'dence of acceptance, and so is de- livery. Laurence v. Farley, 9 Abb. N. C. 371. TIT. TI.] THE COVENANTS. 537 But where the deed was made to the grantee by her husband without her knowledge, and after his death she joined in a conveyance of it, she was held not bound by a covenant of assumption contained in it. Kelly t. Geer, 101 N. Y. 664, Such a covenant inserted by mistake is not binding, Eeal Est. Trust Co. V. Balch, 43 Super. 538. Neither delivery nor record is conclusive evidence of acceptance. GiflFord V. Corrigan, 105 N. T. 333. A covenant to assume a mortgage by grantee of a portion of the premises from the mortgagor enures to the benefit of the grantee of the remaining portion. Wilcox v. Campbell, 106 N. Y. 335. One who assumes payment of a mortgage by a conveyance to him cannot deny the personal liability of his grantor tor the payment of the mortgage, and thus escape the obligation, Thayer v. Marsh, 11 Hun, 501 ; affi'd, 75 N. Y. 340. The words creating the assumption should be clear; words "subjectto the payment of " a mortgage do not alone create such assumption, Collins V, Kowe, 1 Abb. N. C. 97 ; Equitable L. A, Soc. v, Bostwick, 100 N, Y. 638, But words " hereby assnmes and agrees to pay, the same forming part of the consideration," do create an assumption, Wales v. Sherwood, 1 Abb. N. C, 101. See also, as to other words creating such assumption, Douglass v. Cross, 56 How. Pr, 330. A grantee who has covenanted to assume a mortgage is not liable on his covenant after eviction by title paramount. Dunning v, Leavitt, 85 N, Y, 30. But a release by his grantor will not affect his liability. Murray v. Eox, 39 Hun, 108. Party Wall. — Grantee coyenanting to assume obligations of a party wall agreement is bound like one assuming payment of a mortgage, Stewart v. Aldrich, 8 Hun, 341. Restriction of Building. — Covenant not to build within a certain dis- tance of the street is not violated by a balcony projecting over the line put up in good faith, AUler of a bay window built on the ground. Dubois v. Darling, 44 Super, 436, Vide ante, p, 531. Release, — A common grantor cannot by release impair the rights of a grantee imder such covenant, /&. Use of Streets, etc, — Fi(7e Duryea v. Mayor, 63 N. Y. 693; Patten v, N, Y. El. R, R. Co., 3 Abb. N. C. 306. Remedies of Heirs and Grantees of Lessor.— As to' their remedy on covenants by lessees, vide ante, pp. 180 to 185. Remedies of Lessees, Assignees, and their Representa- tives for the Breach of Covenants.— As to these, vide ante, pp. 181 to 183. Dependence and mutuality of Covenants. — The general rule is that where mutual covenants go to the whole con- sideration, on both sides, they are mutual conditions, the one precedent to the other, but where the covenants go only to a part of the consideration, then a remedy lies on the covenant to recover damages for a breach of it, and it 538 THE COVENANTS. [CH. XX. is not a condition precedent. The dependence or inde- pendence of covenants is determined by the time in which their performance is required. The subject of the mutuality of corenants is discussed in the following cases: McCuIIough v. Cox, 6 Barb. 386; Pepper v. Haight, 20 Barb. 431; Evans v. Harris, 19 Barb. 416 ; Grant v. Johnson, 1 Seld. 347 ; The Meriden, &c. Co. V. Zingsen, 48 N. Y. 247 ; Morris v. Sliter, 1 Den. 59 ; and see ante, p. 120, as to covenants operating as conditions. Breach before Assignment.— A covenant broken before assignment or transfer, does not bind the assignee ; as a covenant to pay a mortgage if the mortgage becomes due before the sale. Tillotson V. Boyd, 4 Sandf. 516. Covenant in a void Deed. — A covenant of title, etc., in a void deed is void. Lewis V. Baird, 3 McLean, 56. But in an action against the grantee upon his covenant the invalidity of the deed forms no defense while he retains possession. G-iflFord v. Father Matthew, &c. Soc. 104 N. Y. 139. Transfer and descent of Covenants. — A release or quit- claim deed passes covenants as w^U as a deed with cove- nants. Beddoe v. Wadsworth, 21 Wend.il20; Hunt v. Amidon, 4 Hill, 345; Fowler v. Poling, 6 Barb. 165. On a sale by foreclosure the purchaser acquires the covenant. Andrews v. Walcott, 16 Barb. 21; Preiss v. De Poidevin, 19 Abb. N. C. 123 ; Slattery v. Schwannecke, 44 Hun, 75 ; Mygatt v. Ooe, A. 31. See also "Foreclosure." Discharge of Covenants.— Covenants under seal must be discharged by acts of as high a nature as those which create them. Therefore a covenant under seal cannot be discharged by a parol agreement before breach. Kay V. Waghorn, 1 Taunt. 427 ; Wall v. Munn, 1 Seld. 239 ; Blake's Case, 6 Co 43 ; Suydam v. Jones, 10 Wend. 180. Recitals.— As a general rule, all parties to a deed are bound by the recitals therein ; and they operate as an estoppel, working on the interests in the land, and binding all parties and their privies, in blood, in estate, and in TIT. VII.] TBE DATE, SEALING, SIGNING, ETC. 539 law, and tfiem only. They do not bind - strangers or parties claiming by title paramount. Deery v. Cray, 5 Wall. 795; 9 "Wend. 309; 4 Denio, 480; 1 Barb. 610 ; 10 Barb. 454; 18 Barb. 14; 3 Duer, 73; 9 Johns. 92; Reed v. McCourt, 41 N. Y. 435; Demeyer v. Legg, 18 Barb. 14; Hardenburgh v. Lakin, 47 N. Y, 109; Teflft v. Munson, 63 Barb. 31 ; affl'd, 57 N. Y. 97 ; Scott v. Rutherford, 2 Otto, 108. A recital, however, cannot control the plain words of the body of the deed. 5 Johns. Ch. 33. Nor if it be general, and not of a particular fact. Ih. A recital also works no estoppel in a deed poll, nor when the allegations in the deed are immaterial to the contract therein contained, nor when an action is not founded on the deed, but it is wholly collateral to it. 5 Johns. Ch. 33; Champlain, &c. v. Valentine, 19 Barb. 484. Nor is it evidence against strangers, nor against one claiming under the party executing the reciting deed by prior title or adverselv to him. 10 Barb. 454; see also, 9 Paige, 659; 17 Barb. 109 ; Carver v. Aator, 4 Pet. 1 ; Crane v. Morris, 6 Pet. 598. A recital not true in fact or founded in mistake will not be a bar. Btoughton V. Lynch, 2 Johns. Ch. 309. To operate as an estoppel, a recital must be a direct and precise allega- tion. Dempsey v. Tylee, 3 Duer, 73. As ITotice. — A recital of facts forming a link in the title is constructive notice of any defect, incumbrance, etc., but it must be unambiguous. Acer T. Wescott, 46 N. Y. 384; Gibert v. Peteler, 38 N. Y. 165. Vide Titles, " Lease and Release," post, and " SherifPs Deeds," as to re- citals therein, post, Ch. XXXVIII. A person entering into possession under a party bound by a recital is a privy in law of such party, and bound by the recitals. Jackson v. Park- hurst, 9 Wend. 309. An infant is bound by recitals in the deed of his special guardian. Ester- brook V. Savage, 31 Hun, 145. An error in the recitals of a sheriff's deed in naming the day of sale was disregarded where the certificate described the same judgment and sale, and stated the date correctly, and there was no other judgment or sale had. Holman v. Holman, 66 Barb. 316. Title VII. The Date, Sealing, Signing, and At- testation. The Date. — The date of a deed is immaterial to its validity, the date of its delivery controlling and giving it eflfect. (19 How. U. S. 73; 4 Johns. 230.) The date, however, is presv/mptmely the true time of the execution and delivery of a deed. 5 Wend. 533; 35 N. Y. 260; and see post, Title VIII, "Delivery." A deed executed by several grantors is considered as dated when the last grantor executed it. 4 Cranch, 180. A deed executed in pursuance of a previous contract is good by relation from the time of making the contract, so as to render valid every interme- diate sale or disposition by the grantee (Jackson v. Bull, 1 Johns. Ca. 81) but not so as to do wrong to strangers. 4 Johns. 330 ; 5 Wall. 81. ' 540 THE DATE, SEALING, SIGNING, ETC. [CH. XX. But it will take effect from that date as regards purchasto with notice. Demarest v. Ray, 19 How. Pr. 574. Signing and Sealing.— The grantor must seal and sign the deed. A written instrument not under seal is, in gen- eral, held inoperative and ineffectual to pass the legal title to land, though it may pass an equitahle interest. The seal has always, by the common law as well as by statute, been neces- sary for the conveyance of a freehold. The signature does not appear to have been essential until the Statute of Frauds (29 Car. II), re-enacted in this country Feb. 36, 1787. Vide 1 Rev. Laws, p. 78. A deed, however, cannot bind a party sealing or signing it, without words expressive of an intention to be bound. There must be words of grant or release. Catlin v. Ware, 9 Mass. 378; Lufkin v. Curtis, 13 iJ. 333. The Revised Statutes require that every grant in fee, or of a freehold estate, must be subscribed and sealed by the person from whom the estate or interest is intended to pass, or his lawful agent, and either duly achnowl- edged previous to its delivery, ov its execution and delivery be attested by at least one witness / or if ^not so attested, it shall not take effect as against a purchaser or incum- brancer until so acknowledged. 1 Rev. Stat. p. 788; see, also, Morse v. Salisbury, 48 N. T. 636; Jackson V. Wood, 13 Johns. 73; Commissioners, &c. v. Chase, 6 Barb. 37: Mann v. Pentz, 3 S. Ch. 630. It may be recorded and is then notice. Grandin v. Hernandez, 39 Hun, 399. But it is good as against the grantor and between the parties, whether acknowledged and attested or not. Voorhees v.' Presbyterian Ch. 17 Barb. 103; Wood V. Chapin, 3 Kern. 509; Genter v. Morrison, 31 Barb. 155. Title IV, " Interpretation and Validity." The statute refers to subsequent incumbrancers. 3 Kern, supra. The place of signing in the instrument is immaterial, and even a printed instead of a written name has been said to be sufficient. Vide 3 Bos. & Pull. 339. As to execution by agent, see further, ante, Ch. XIX, Title I. The common law required for a seal an impression upon wax or wafer or other tenacious substance, and such is the law of this State. Bank of Rochester v. Gray, 3 Hill, 237. A bit of paper secured with mucilage is sufficient (Gillespie v. Brooks, 2 Redf. 349), or an internal revenue stamp (Van Bokkeleu v. Tavlor, 63 N. Y. 105). A scrawl is not a seal. Warren v. Lynch, 5 Johns. R. 339; 4 Cow. 568; 17 Barb. 309; Farmers' & Manufacturers' Bank v. Haight, 3 Hill, 493; 17 N. Y. 531. One seal will answer for two or more persons, if intended for the seal of all. Van Alstyne v. Shuyck, 10 Barb. 883; Mackay v. Bloodgood, TIT. Vll.] THE DATE, SEALING, SIGNlUa, ETC. 541 9 Johns. R. 285; 4 Hill, 851; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Christie v. Gage, 3 Supm. Ct. 344. In the case of courts and public officers, and also of corporations (Laws of 1848, ch. 197), an impression on paper, without the use of wafer or wax, is valid. Rev. Stat. vol. 2, p. 404 ; repealed, L. 1877, ch. 417, and now re- placed by Co. Civ. Proc. § 29 and § 960; 3 Hill, 493 ; 15 N. Y. 325 ; 2 Hill, 328. Paper sufficiently tenamm would satisfy the rule of law. Ross v. Bedell, 5 Duer, 463. A stranger tearing off the seals will not vitiate the deed. 6 Cow. 746. See Warren v. Lynch, 5 Johns. Rep. 239, and Jackson v. Wood, 12 Johns. 73, as to the origin, nature, and use of seals. Seals of Corporations. — See^osi, Ch. XXIV, "Corporations." Seals of Courts. — A stamp on paper is sufficient. Laws of 1815, p. 38; Laws of 1848, ch. 197; 3 R. S. p. 276; repealed by L. 1880, ch. 345 and now covered by Co. Civ. Proc. § 39 ; Smith v. Tiffany, 16 Hun, 563. Seal Omitted by Mistake. — If the deed is passed, and the seal is casual- ly omitted, the lafld is. considered equitably in the grantee, and while the deed is not good as a conveyance, the grantor, his heirs, or a subsequent pur- chaser with notice may be compelled to convey. Wadsworth v. Wendell, 30 Wend. 639; reversing 5 Johns. Ch. 234; Grandin v. Hernandez, 39 Hun, 399. See also, as to necessity of seal, 18 Am. Law Review, 988, 1004. Legislative Act? — A seal is tmnecessary to a grant by legislative act. Wetmore v. Story, 22 Barb. 414, 485. Evidence of Consideration. — A seal is presumptive evidence of consid- eration (11 Wend. 106; 13 it. 529; 23 Barb. 99; 10 Barb. 106; 4 Johns. 416; 5 Duer, 294; 21 Wend. 637; 15 ib. 359, 519; 14 ib. 199; 3 R. S. pp. 406, 155, ch. 61 ; repealed by L. 1880, ch. 245; vide Co. Civ. Proc. § 840; 10 Barb. 313 ; 6 Barb. 35 ; 5 How. Pr. 66 ; 35 Wend. 113 ; Hunt v. Johnson, 19 N. Y. 379), but not conclusive, except as to releases since 2 R. S. 406, § 77. Gray v. Barton, 55 TST. Y. 68 ; Torry v. Black, 58 N. Y. 185. Estates less than freehold may be conveyed without a seal — e. ff., grow- ing trees. Warren v. Leland, 2. Barb. 613. Adding a seal after execution, held, surplusage and an immaterial altera- tion. Green v. Elwell, 13 Weekly Dig. 236. Attestation.— The Revised Statutes provide that if not duly acknowledged previous to its delivery, every grant in •fee, or of dt, freehold estate, shall be attested by at least one witness^ or, if not so attested, it shall not take effect as against a purchaser or incumbrancer until so acknowl- edged. 1 Rev. Stat. p. 748. See cases, supra, p. 540. In the case of Roggen v. Avery, 68 Barb. 65, affirmed in 65 N. Y. 593, it is held that an instrument under hand and seal, but without subscribing witness or acknowledgment, is insufficient to convey real estate, as against a purchaser holding through a devise by the former grantor. To the same effect, Goodyear v. Vosburgh, 57 Barb. 343. Kor is such an instrument good even as against a subsequent grantee with notice and without consid- eration from the same grantor. Chamberlain v. Spargur, 86 N. Y. 603. The witness should subscribe at the time or be called in and requested to 542 THE DELIVERY AND ACCEPTANCE. [CH. XX. witness the deed by the parties immediately on execution. 9 Cow. 113 ; Henry v. Bishop, 3 Wend. 575 ; HoUenbach v. Fleming, 6 Hill, 305 ; Voor- hees V. Presbyterian Ch. 17 Barb. 103. See the above cases as to the proof of execution by the witness, on a trial. Title VIII. The Delivery and AccEPTAiiroE. It is also requisite that the deed be delivered to give it vitality. The deed takes effect so as to vest the estate or interest conveyed only from its delivery. The date is no part of the substance of a deed ; the real date is the time of delivery. The delivery need not be by formal words or acts. Those showing an intention are sufficient. But there must be an intention to deliver. • 4 Johns. 230; 3 U. 230; 12 Wend. 105; 4 Pet. 1 ; 1 Johns. Ca. 250: Fisher v. Hall, 41 K. T. 416; Roosevelt v. Carow, 6 Barb. 190; Bracket v. Barney, 28 N. Y. 333 ; United States v. Le Barron, 19 How. U. S. 78 ; Mitchell v. Bartlett, 51 N. Y. 447; Best v. Brown, 25 Hun, 333j^ The deed is generally presumed to have been delivered at the time of its date. Harris v. Norton, 16 Barb. 364 ; vide ante. Title VII, p. 539 ; and Peo- ple V. Snyder, 41 N. Y. 397. And, as a general rule, the delivery is complete where the grantor has put it beyond his power to reclaim the deed. Brown v. Austen, 35 Barb. 341. ITie presumption that it was executed at the time of the date, does not hold in respect to deeds in fee, unattested and unacknowledged. Blsey v. Metcalf, 1 Den. 333; 16 Barb. 364, mpra; Genter v. Morrison, 31 -Barb. 155. Nor where the contrary is proved.' Costigan v. Gould, 5 Den. 290. The presumption that a deed was delivered at its date is not affected by the statute (1 R. S. 738, § 137) as to attestation, etc. Robinson v. Wheeler, 25 N. Y. 252. Where a revenue stamp is cancelled of a certain date, that wiU control the presumption of the delivery as of the date. Van Rensselaer v. Vickery, 3 Lans. 57. Or where it was shown to have been, subsequent to its date, in the hands of grantor. Elsey v. Metcalf, 1 Den. 823. , Or where the certificate of acknowledgment shows that it was acknowledged after the day of date. Mclntyre v. Strong, 48 Super. 127. Delivery to an agent is delivery to the party. Worrall v. Munn, 1 Seld. 229. And, if unconditional, it will take effect immediatelv. Brown v. Austen, 35 Barb. 341 ; Ernst v. Reed, 49 ib. 367. If the delivery is void, all subsequent titles under the deed are void. Ford V. James, 4 Keyes, 800. Parol evidence of conditions qualifying the delivery, if contrary to the terms of the instrument, is inadmissible. Worrall v. Munn, 5 N. Y. (1 Seld.) 239. Possession is presumptive evidence of signing, sealing and delivery. Chandler v. Temple, 4 Cush. 385 ; Rhine v. Robinson, 37 Penn. State R. 30 ; 14 Peters, 337. But may be rebutted. Roberts v. Jackson, 1 Wend. 478. A delivery to a stranger as agent to deliver, passes the title (49 Barb. 367 ; 15 Wend. 656) if the grantee assent. Also, a registration of it by the grantor, if accepted by the grantee. Young v. Guilbeau, 3 Wallace, 686 ; Parmelee v. Simpson, ib. 81. TIT. VIII.] THE DELIVERY AND ACCEPTANCE, 543 A delivery to an attorney-at-law or agent who holds it for the considera- tion of his client, is not a delivery if the latter decline to accept. Carnes v. Piatt, 7 Abb. N. S. 43 [rev'd on other grounds. 3 Abb. Ct. App. Ca. 159, note]; Ford v. James, 3 Abb. Ct. App. Ca. 159. A delivery on Sunday is held good. Shuman v. Shuman, 37 Penn. St. 90. Unless disclaimed, a delivery to a third person is a good delivery, if done for the grantee's use. Church v. Gillman, 15 Wend. 656. And the accept- ance of the grantee will be presumed. Sayres v. Townsend, 15 Wend. 647 ; Shrader v. Banker, 65 Barb. 608. Where a deed delivered in escrow, is to be delivered on the death of a grantor, the title by relation passes at the time the deed was left for delivery. 34 N. Y. 93. Leaving for record is presumptive evidence of delivery (5 Mc- Lean, 457; 1 Den. 333; Fryer v. Bockefeller, 68 N. Y. 268; Knolls v. Barn- hard, 71 N. Y. 474), if left for grantee's use; but may be repelled. Law- rence V. Farley, 9 Abb. N. C. 371 ; 3 Wallace, 636 ; Van Valen v. Schemer- horn, 23 How. Pr. 416; Rathbun v. Rathbun, 6 Barb. 98; Wilsey v. Dennis, 44 Barb. 354; Day v. Mooney, 6 N. Y. S. C. 383. Even if the grantor re- corded it himself. lb.; Ford v. James, 4 Keyes, 300 ; Parmelee v. Simpson, 5 Wall. 81 ; Best v. Brown, 25 Hun, 233. The return of a deed to the grantor and the destruction thereof, after it has been executed and delivered, will not re-invest the grantor with the title. Parshall v. Shirts, 54 Barb. 99; and^og*, pp. 544, 545. Redelivery. — A redelivery, after an alteration by grantor, is, in legal effect, also a re-execution. 1 Wall. 385; 23 How. Pr. 416. A deed may be delivered or tendered to one of several grantees. Carman V. Pultz, 31 N. Y. 547. Ratification. — A ratification may be made of grantor's unauthorized de- livery ; but not so as to cut off an intervening incumbrancer for value. Parm- elee V. Simpson, 5 Wall. 81 ; The Lady, &c. v. McNamara, 8 Barb, Ch. 375; Church V. Gilman, 15 Wend. 656; Souverbye v. Arden, 1 Johns. Ch. 240; Games v. Piatt, 7 Abb. N. 8. 43. Decease of Grantor. — A delivery after the death of the grantor is no de- livery. 13 Wend. 105 ; 30 Wend. 44 ; 4 Pai. 9. But see " Conditional Deliv- ery," post. Deeds will be presumed to have been delivered on the day of acknowl- edgment. Loomis V. Pingree, 43 Maine, 399. ,The Revised Statutes provide that all rules of law in force when they were enacted, in respect to the delivery of deeds, should apply to grants thereafter to" be executed. Vol. i, § 137, p. 689, Ist ed. Also, that the de- livery of a grant, where an expectant estate is created, by grant, is to be deemed the time of the creation of the estate. It. p. 726. If a deed be duly delivered, in the first instance, it will operate, though the grantee suffer it to remain in the custody of the grantor. Fisher v. Hail, 41 N. Y. 417 ; 19 Barb. 343 ; 16 Barb. 364 ; 15 Wend. 545 ; 17 Wend. 686 ; 1 Johns. Ch. 240. See also, as to when delivery and acceptance are to be implied from the fact of execution, etc., Doe v. Knight, 5 Bam. & Cress. 671 ; Scrugham v. Wood, 15 Wend. 545; 28 N. Y. 338; 41 K. Y. 416; 35 Hun, 233; Wallace V. Berdell, 97 N. Y. 18. Delivery may be inferred from subsequent circumstances. Gould v. Day - 4 Otto, 405.' Fraud. — Delivery obtained by fraud will not vest title in the grantee. Bitter v. Worth, 58 N. Y. 637 ; Lawrence v. Conklin, 17 Hun, 238. Innocent Purchaser. — Delivery of a deed held in escrow before the proper 544 THE DELIVERY AND ACCEPTANCE. [CH. XX. time, is held valid as to a purchaser in good faith for a valuable considera- tion. Simpson v. Bank of Commerce, 43 Hun, 156. Conditional Delivery.— The delivery may be either absolute, to the grantee himself, or to any other by his assent or direction; or to a third person for or on ac- count of the grantee, to hold until some conditions be performed on his part, in which last case it is said to be delivered in '■^ escrow P The delivery, also, may be con- tingent and provisional. Where a deed absolute on its face is delivered to the grantee, its eflfect cannot be changed by parol. 6 Paige, 310 ; 11 Barb. 349. Until the con- dition is performed and the deed delivered, the estate does not pass, but remains in the grantor. 1 Barb. 500; 1 Cranch, 193; 20 Barb. 382; 6 Wend. 606 ; 1 Johns. Ch. 388 ; 18 Johns. 544 ; Hunter v. Hunter, 17 Barb. 35, 83. The delivery in escrow must be to a stranger, and not to one of the parties or his agent. 11 Barb. 349; 1 Seld. 239; 38 Barb. 9; 6 Paige, 310; 5 N. Y. 339 ; 36 iS. 483. A deed may be delivered in escrow, and such delivery may be made effective on the performance of the condition, even if the grantor has died. Hunter v. Hunter, 17 Barb. 35, 83. A delivery in escrow to be delivered to grantee on grantor's death has been held to take effect from such death. Nottbeck v. Wilks, 4 Abb. 315. In the case of Hathaway v. Payne, however (34 N. Y. 93), the title in such case is held to pass at the time the deed was left for delivery ; and a dis- tinction is drawn between deeds left in escrow, or on condition, or those the delivery of which depends on a contingency or a mere lapse of time. To the same eflfect was Tooley v. Dibble, 3 Hill, 641. See also, Goodell v. Pierce, 2 Hill, 659; Hunter v. Hunter, 17 Barb. 35, 83. The presumption is that a deed was not delivered in escrow. Chouteau v. Suydam, 21 N. Y. 179. A deed in escrow does not take effect until performance of the stipulated condition, although the instrument has gone into the grantee's possession. Smith V. Smith Royalty B'k, 33 Verm. 341 ; Hinman v. Booth, 2 Wend, 267 ; Pendleton v. Hughes, 65 Barb. 136. Generally, a deed given in escrow would take eflfect and the title pass from its actual or second delivery, after performance of the condition, but the delivery would take effect by relation back to the first delivery, in cases of necessity, to prevent injury to the operation of the deed from what might have occurred intermediately, as in case of the marriage of a woman who was sole when the deed was first delivered; or where either of the parties die before condition performed. The delivery to a tturd person to be delivered to the grantee by him would take effect also from the time of delivery to such third person. Jackson v. Catlin, 3 Johns. 348;aflB'd, 8 Johns. 130; Ruggles v. Lawson, 13 Johns. 385; Stanton v. Miller, 58 N. Y. 193. An intermediate judgment, however, would attach against the grantor in most cases. Jackson v. Rowland, 6 Wend. 666 ; Jackson v. Catlin, supra. The distinction between a present delivery and an escrow reiterated (citing Hathaway v. Payne, 34 N. Y. 93-105). Grain v. Wright, 36 Hun, 74. The depository in escrow is bound to deliver when the condition is per- formed, and the deed if put in escrow for a valuable consideration is not revocable except according to the terms of the deposit. Stanton v. Miller, 65 Barb. 58; rev'd, on other grounds, in 58 N. Y. 193. TIT. IX.] AVOIDANCE, ALTEKATION, ETC. 545 Delivery Compelled.— Courts of equity will compel delivery by a de- pository in proper cases. lUd. Acceptance and Ratification.— To make the delivery complete there must be an acceptaTice express or implied ; and not merely a physical taking, but an intention to accept. 13 Johns. 418; 11 Wend. 240; 24 Wend. 280; Stephens v. Buffalo & N. T. E. R. Co. 20 Barb. 332; 28 N. Y. 333; 46 Barb. 109; 47 id. 505. A subsequent aeceptanee, even on the same day, cannot divest the right of an intermediate lien, deed, or levy. 47 Barb. 505; 24 Wend. 280. Where a deed has been duly executed, delivered, and accepted, a subsequent surrender or destruction of it will not divest the estate conveyed by it. 1 Johns. Ch. 417; 6 Hill, 469; 46 Barb. 109; 3 Barb. 404; 6 id. 373 ; Parshall V. Shirts, 54 Barb. 99; and see post, "Alteration." An acceptance in some cases may be applied, even where the grantor retains possession of the deed. McLean v. Britton, 19 Barb. 450 ; see also,. supra, "Delivery." As a general rule, a ratification of a grantor's unauthorized delivery can- be made by the grantee, but not when the effect would be cut out an inter- vening mortgage for value. Parmlee v. Simpson, 5 Wall. 81 ; and svpra, p„ 544 ; Foster v. Beardsley Scythe Co. 47 Barb. 505. As^a general rule, there is a presumption in favor of an acceptance wheai a delivery has been proved. Cruise's Digest, title 32, ch. 1 ; Cunningham v.. Freeborn, 11 Wend. 240; Jackson v. Bodle, 20 Johns. 184; Jackson v. Phipps^ 12 Johns. 418; and Spencer v. Oarr, 45 N.T. 410, in support of presumed ac- ceptance by an infant of deed beneficial to him ; also note, 15 Fed. Rep. 46. Title IX. Avoidance, Alteration, and Cancellation. A deed may be invalid for defect in the requisites above set forth, or it may be avoided by matter ex post fadto, as — I. By erasure, interlining, or other alteration, in any material part, unless a memorandum be made thereof at the time of the execution and attestation, or the altera- tion be made by authority of the parties. The question of authority is one of fact for the jury. Smith v. Ohadsey, 1 N. Y. S. C. 7«. Striking out a covenant in an executed deed is held to avoid the deed. Stone V. Lord, 80 N. Y. 60. But filling blanks in an executed instrument which do not in any way enlarge or extend the meaning, as inserting "Sis, " "Tier," and the like in appropriate places is in no legal sense a material alteration. Kinney v. Schmitt, 12 Hun, 521. See also Hemmenway v. Mulock, 56 How. Pr. 88. 35 546 AVOIDANCE, ALTBRATTOK, ETC. [OH. XX. 2. By Breaking off and Defacing the Seal.— A deed is not avoided by the seal being torn off by the grantor^ or by his direction (1 Gall. 69), or by a stranger. Bees V. Overbaugh, 6 Cow. 746 ; Enevery. v. Merwin, 6 Cow. 360. Nor ■when done after delivery. Frost v. Peacock, 4 Bdw. 678. 3. By Cancellation. — As a general rule, executed and recorded deeds under seal can be surrendered and can- celled only by other deeds under seal {vide 1 Black. 450 ; 4 McLean, 12), and the destruction or surrender of the instrument will not destroy title. 2 Johns. 84 ; 3 Barb. 404 ; 6 id. 378; 6 Hill, 469; 1 Johns. Ch. 417; 46 Barb. 109; 54 H. 99 ; and «»<«, p. 543, and infra. Alteration. — As a general rule, the material alteration of a deed made by a party claiming under it, or by any person under whom he claims, renders it void. Any alteration, however, by a stranger, without the privity of the party interested, does not render the deed void when its original contents can be ascertained ; and the party seeking to recover must show that the alteration was not made by him, or by those under whom he claims; or that it was made before execution, unless the alteration is against the interest of the party producing the deed, when he is not bound to account for the alteration. Jackson v. Jacoby, 9 Cow. 135 ; Acker v. Ledyard, 8 Barb. 514; reversed on other grounds, 4 Seld. 63; Garret v. Maybee, 3 E. D. Smith, 1 ; affi'd, 16 N. Y. 560 ; Marcy v. Johnson, 5 Lans. 365. In order to avoid a deed on the ground of alteration, it must be proved that the alteration was made by the party in interest (3 Edw. 14), or by some one under whom he claims. 36 Miss. 355. An immaterial alteration after title passed does not destroy the title or the deed. 1 Wend. 625, 659 ; 23 Wend. 388; 1 Denio, 239; 39 Barb. 319; see also 5 Lans. 365. An alteration by a third person does not vitiate. 6 Cow. 746 ; 3 Barb. Ch. 133; 6 Cow. 360. A deed may be altered after execution in material parts with consent of ' parties. 4 Johns. 54 ; Penny v. Corwithe, 18 Johns. 499. Semble, an interlineation without anything to excite suspicion that it was not made before execution, will be presumed to have been so made. Herrick v. Malin, 22 Wend. 388 ; Waring v. Smyth, 3 Barb. Ch. 133. See these cases as to the proof relative to alterations. The fraudulent destruction of a deed may operate to discharge the estate held under it, unless the estate may exist without the deed. Herrick v. Malin, 22 Wend. 338 ; Smith v. McGowan, 3 Barb. 404. So also an alteration in a material part. Waring v. Smith, 3 Barb. Ch. 119; Garret v. Maybee, supra. The alteration of one of two duplicates does not vitiate the other. 4 Wend. 433. An authority to fill in blanks or alter a deed ceases after it has been delivered. 6 Cow. 59. The mere surrender, destruction or cancelling of a deed "by the grantee after delivery will not reinvest the grantor with the title, nor when done by agreement of parties. Schutt v. Large, 6 Barb. 373 ; Parker v. Kane, 4 Wis. 1; Jones v. Nea,le, 3 P. & H. (Va.) 339; Jackson v. Chase, 1 Johns. 84; Raynor v. Wilson, 6 Hill, 469 ; Nicholson v. Halsey, 1 Johns. Ch. 417 ; Lewis V. Payn, 8 Cow. 71 ; Smith v. McGowan, 8 Barb. 404 ; also, 46 Barb. 100 ; 6 id. 373 ; 54 id. 99. TIT. X.] DEEDS UNDER ADVERSE POSSESSION. 547 The above cases hold that although the title passed by the deed will not be changed by surrender cr cancellation, the deed itself and the covenants therein will be avoided. Where a deed is cancelled on the ground of mistake at the suit of the grantor, the grantee is relieved thereby from the covenant of assumption of a mortgage. Crowe v. Lewin, 95 N. Y. 433. Destruction of a deed by the grantor, after delivery, has no effect, and the existence and contents of the deed may be proved by parol. Simmons V. Havens, 101 N. Y. 437. Title X. Deeds qxyen tinder Adverse Possession, Champerty, etc. By our statutes, every grant of lands by parties out of possession at the time of delivery, and with an adverse possession against them, are absolutely void. Webb V. Bindon, 31 Wend. 98; 1 B. S. p. 740, 1st ed. § 147; Poor v. Horton, 15 Barb. 485 ; Vrooman v. Shepherd, 14 id. 441; Ten Eyck v. Craig, 3 Hun, 453 ; affi'd, 62 N. Y. 406 ; HoUister v. Dowe, 3 Weekly Dig. 557. Adverse possession cannot be founded upon such a deed. EUwood v. Northrup, 106 N. Y. 173. Actual possession by the occupation of grantor is not necessary to give effect to his deed ; for if the possession held by another be of a fiduciary character, or if its origin and continuance were such as not to amount to a disseizin, it will not impede the operation of the deed. Although deeds by parties out of possession are void as against the person holding possession, and his privies, they are good as to the rest of the world, and as between grantor and grantee (Hamilton v. Wright, 37 N. Y. 502; 15 Wend. 164 ; 3 Barb. 589 ; 15 id. 485; 17 id. 665; 3 Hill, 536), as the conveyance works an estoppel. 10 Johns. 164. Ejectment will lie by the grantee in the name of the grantor. Co. Civ. Proc. § 1501. As to mortgages when mortgagor out of possession, vide head " Title by Mortgage." A deed from the true owner while a trespasser is in possession is good. 3 Duer, 35. The prior possession, in order to avoid the conveyance, must be under claim of the entire specific title, which must cover the possession, and the title must be adverse to that of the grantor, in the deed sought to be avoided. 4 Duer, 454 ; Hallas v. Bell, 53 Barb. 347 ; Fish v. Pish, 39 Barb. 513; Stevens V Hauser, 39 N. Y. 303; Crary v. Goodman, 23 N. Y. 170; Howard v. Howard, 17 Barb. 663; Corning v- Troy Factory, 39 Barb. 611 ; affi'd, 40 N. Y. 191 ; Higginbotham v. Stoddard, 72 N. Y. 94 ; Nash v. Kemp, 13 Hun, 593 ' As to what title the possessor should have in order to avoid the deed, mde 13 Johns. 453 ; j5. 488; 14 Wend. 327 ; 13 id. 603, 674 ; 7 Hill, 476 ; 9 Cow. 530; 1 «6. 386 ; 9 Wend. 513; 5 il. 346 ; 5 Wend. 533; 3 ib. 357 ; 5 Cow. 74; 5 Bob. 71 ; Christie v. Gage, 3 Suprm. Ct. 344 ; affi'd, 71 N. Y. 189 ; Moody V. Moody, 16 Hun, 189. The above rule as to a " specific title" would not apply to adverse posses- sion under the statute of limitations. Orary v. Goodman, 33 N. Y. 170. See also, 53 Barb. 247. An Indian possession would not be considered an adverse one so as to avoid deeds by patentees. 3 Johns. 375. 548 DEEDS UNDER ADVERSE POSSESSION. [OH. XX. There is no adverse possession against a reversioner. Clarke v. Hughes, 13 Barb. 147. A party may always buy in outstanding titles, to quiet bis title. 8 Johns. 137 ; Marble v. McMinn, 57 Barb. 421. The time to which the grant is to relate is the time when the bargain for the sale was concluded. Jackson v. Bull, 1 Johns. Ca. 81. Adverse possession cannot be set up to avoid a grant of the State. Jackson v. Jumaer, 3 Cow. 552 ; Candee v. Haywood, 34 Barb. 349 ; afl'd, 37 N. Y. 653 ; Baldwin v. Ryan, 3 Supm. Ct. 251. But it can as against a grant of water lots by the city of New York. Towle v. Eemsen, 70 N. Y. 303. Although a deed would not be good to a stranger where there is adverse possession, the party ousted may release to the party in possession. Williams V. Council, 4 Jones Law (N. C), 206 ; Early v. Garland, 13 Gratt. (Va.) 1 ; 4 Kent, 446. As to adverse possession set up by a tenant or one holding over, vide Learned v. Tallmadge, 26 Barb. 443. A conveyance made by a person out of possession does not impair his previous title. Chamberlain v. Taylor, 92 N. Y. 348. As to what constitutes adverse possession see Chap. Xxxi V. Possession by a railroad company of a road-bed does not prevent the owner of the fee from conveying it. Broiestedt v. S. S. R. B. Co. 55 N. Y. 220. Champerty and Maintenance. — Champerty is defined as a bargain between a plaintiff or a defendant and a third person, to divide the land or matter in dispute between them, if they prevail, the champertor to carry on the suit at his own expense. Maintenance is an assistance improperly given to either party, in a suit by a third person not concerned in it, for the pur- pose of stirring up litigation and strife. The prohibitions of law against them were not supposed to apply to parties having any legal or equitable interest in the matter in dispute, or standing in relationship to each other, such as husband and wife, ancestor and heir, etc. Nor to disputed boundary lines. Allen v. Welch, 18 Hun, 326. Every agreement relating thereto was also held void; and solicitors, counsel, attorneys and other officers could not contract for a part of the matter in litigation, as a compensation for services, nor accept anything from the client pending the suit except lawful demands for services, etc. Our statutes provide that taking a conveyance of any interest in lands in suit, from a party not in possession, is a misdemeanor; as also it is a misde- meanor to buy or sell pretended rights in lands, unless the grantor or those under whom he claims have had possession, or the reversion or remainder or the rents, etc., for a year. 3 Eev. Stat. p. 691, 1st ed. The above is not to apply to releases or mortgages under chap, i, part ii, Revised Statutes. Nor where the person, in possession, does not hold adversely to the grantor. Pepper v. Haight, 20 Barb. 429; Webb v. Bindon, 21 Wend. 98. Nor in case of a merely constructive possession. Brown v. Dawley, 79 N. Y. 390. These statutes have no application to judicial sales. 6 Wend. 213; 3 Barb. 156 ; 2 Wend. 166 ; 7 Cow, 338 ; 5 N. Y. 320 ; Smith v. Scholtz, 68 N. Y. 41. Unless there is an actual adverse possession at the time of the decree. Carroll v. Dawson, 5 Cranch C. C. 514. Nor to confirmatory deeds nor to a deed of an assignee in bankruptcy made by order of court. Coleman v. Manhattan, &c., 94N. Y. 229; affl'g 26 Hun, 525. If the grantor is in possession, the conveyance would be good. 31 Wend. 98. It seems the statute against champerty has no application to a devise. 2 Wend. 166. By the Revised Statutes the old laws against cham- TIT. XI.] DIFFERENT POEMS OF CONVEYANCE. 649 perty and maintenance were abolished, except as therein provided. 14 N. Y. 289. For other cases in this State, on this subject, vide 34 Barb. 56 ; 14 N. Y. 289; 22 N. Y. 170. Under the Code, agreements made with attorneys relative to remiineration to be made out of land in suit are valid. 23 Barb. 420. See also Pepper v. Haight, 30 Barb. 429 ; Wallis v. Loubat, 3 Den. 607 ; Small v. Mott, 33 Wend. 403; reversing 20 id. 212; also 5 Johns. 489; 10 Pai. 852; 1 HofE. Ch. 421. And the law fully reviewed in Sedgwick v. Stanton, 14 N. Y. 289. These statutes, however, did not apply where there was no knowledge of the pendency of the suit, nor where both parties had an interest in the litiga- tion. 8 Johns. 479; 12 id. 484; 8 id. 320; 3 Cow. 623. The Revised Statutes modified the earlier statutes and common law on these subjects ; and the Code has removed the restriction so far as attorneys are concerned. Sedgwick v. Stanton, 14 N. Y. 289. And maintenance is no longer an offense, except as to buying and selling pretended titles, and falsely suing and maintaining suits. Small v. Mott, 20 Wend. 313 ; 33 ib. 403. Former Statutes.— Acts of 1788; 1801 ; 1 R. L. of 1802, 343 ; 1 R. L. of 1813, 172. The statutes on the subject of champerty and maintenance in this State were founded on laws passed in the reigns of Ed. I and III and Henry VIII. Title XL Different Forms of Convetanoe. It may be desirable tbat a brief memorandum of the old modes of conveyance should be given, and of the modifications of them now in use. The different classes of conveyance, as given by Blackstone, are distinguislied as — 1. Conveyances at Common La/w. 2. Such as had their force and efficacy hy vi/rtue of the Statute of Uses. 3. Those operative by force of Statutory 3nacPments. The f/rst class are subdivided into Pri/ma/ry or Orig- inal.! i. e., those by which an estate is created or first arises, and Derivative or Seconda/ry., whereby the estate orig- inally created is enlarged, restrained, transferred or extin- guished. Original Conveyances are specified as — 1. Feoffment. 2. Gift. 3. Grant. 4. Lease, 5. Exchange. 6. Parti- tion. Derivative Conveyances are subdivided into — 1. Me- 550 GIPTS AND GRANTS. [OH. XX. lease. 2. Gonfirmabion. 3. Swrrender. 4. Assignment, 5. Defeascmce. Title XII. Feoffment. A Feoffment was the ancient feudal conveyance, trans- ferring a feud or fee. It required a delivery of the cor- poreal possession of the land, actual or symbolical, called livery of seizin^ without which the feoffee had a mere es- tate at will. The transfer was not at first, but was sub- sequently, accompanied by a written deed in order to specify the purposes, limitations and subject-matter of the grant. The feoffinent, in time, became the usual mode of transfer of an estate of inheritance. Livery of seizin is still by the common law impliedly necessary on every grant of a freehold estate, whether of inheritance or for life. Schott v. Burton, 17 Barb. 173. The livery, to be valid, required actual possession in the feoffor. By the common law the feofiment operated upon the possession, and though the feoffor had nothing more than a naked or even tortious posses- sion, the feoffment passed the fee by reason of the Iveery, and cleared away all other estates. It barred the feoffor also from all ftiture right or possi- bility of right ; and the feoffee continued vested with the freehold until the disseisee, by entry or action, regained his possession, the right to which might be barred by time. The conveyance by feoffment with livery has become obsolete in England. The Revised Statutes have in terms abolished it. 1 Rev. Stat. p. 738. Title XIII. Gifts and Grants. The conveyance by gift (donatio) is properly applied to the creation of an estate tail. The operative words of the conveyance were " do " or " dedi,'''' Gifts in tail also required livery of seizin. Grants. — This was the conveyance by the common law, used in transferring interests in incorporeal heredita- ments, as reversions, rents, commons, services, etc., which could not pass by liwery. The operative words were " dedi " and " concessit To render the grant effectual, the common law required the consent of the tenant of the land TIT. XIV.] LEASES. 551 out of which the rent or other incorporeal interest pro- ceeded, and this consent was called " attornment." A " grant " passed only the estate that the grantor could lawfully convey. A feomuent, it has been seen, would pass an estate, and disseize the true owner, even if the feoffor's possession were tortious. vide ante as to the effect of a grant in transferring an estate under the Revised Statutes, Title I, and jpos«, p. 556. Attornment. — The Revised Statutes (vol. i, p. 739) provide as to attom- mmts that "where any lands or tenements shall be occupied by a tenant, a conveyance thereof, or of the rents or profits, or of any other interest there- in, by the landlord of such tenants, shall be valid without any attornment of such tenant to the grantee ; but the payment of rent to such grantor, by his tenant, he/ore notice of the grant, shall be binding upon such grantee ; and such tenant shall not be liable to such grantee for any breach of the condi- tion of the demise, until he shall have had notice of such grant. Vide Moflfat V. Smith, 4 Corns. 126, as to constructive notice. By Revised Statutes also, the attornment of a tenant to a stranger shall be absolutely void, and shall not in anywise affect the possession of his landlord unless it be made with the consent of the landlord, or pursuant to a legal judgment, order or decree, or to a mortgagee after forfeiture of the mortgage. Vide Chalmers v. Wright, 5 Rob. 713. See as to attornments, ante, p. 180. The Revised Statutes have given to deeds of tlie con- veyance of the inheritance of freehold the denomination of Grants ; and all the interest of a freehold estate of in- heritance may now be transferred by grcmt. Deeds of " Bargain and Sale," and "Zease and Release^'' are now to be deemed grants. Title XIV. Leases. A Lease is properly a conveyance (usually in consid- eration of rent) for a less time than the lessor has in the premises. The usual operative words in a lease are " de- mise, grant, and to farm letP No livery of seizin was necessary except for leases for life. By Revised Statutes, leases for a year and under need not be in writing / but leases for a longer period, as also contracts for leasing for a longer period than a year, are void, unless the contract or some memorandum or note thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made, or his lawful agent. Vol. 3, p. 134; and see ante, p. 170. 552 EBLBASBS. [CH. XX. Leases in fee or for life, like grants of freehold estates, must be sealed and ■witnessed or acknowledged. 1 R. S. p. 738. Otherwise no seal is necessary to a lease. 12 Johns. 73. , ■ . Leases are generally in duplicate, both parts of which are deemed ortgi- nals. 8 Cow. 71. See fully as to leases, and the rights and obligations of parties under them, cmte, pp. 122 to 139; 168 to 211. Title XV. Exchange and Paetition. An eccchcmge is a mutual grant of equal interests, the one in consideration of the other. The word " exchcmge " is necessary. Before the Revised Statutes the word " ex- change " impUed a warranty. The old conveyance by ex- change is now not usual. The estates should be equal in quantity of interest, but need not be equal in value. As a, fee for a fee, etc., viae Wilcox v. Randall, 7 Barb. 628; Runyan V. Stewart, 12 Barb. 542. A parol exchange of lands cannot operate as a conveyance. Clark v. Gra- ham, 6 Wheat. 577. JPwrUUon is where two or more joint tenants or tenants in common agree to divide the lands so held among them in severalty, each taking a specified and distinct part. Vide infra, Ch. XXX, " Title by Partition." It is also held that a pa/rol partition followed by possession, is valid and severs the estate. 7 Wend. 136, 141; 4 Johns. 202; 3 Cai. 174; 9 Johns. 270; 14 id. 619; 5 Cow. 221; 25 id. 434. After twenty years no mistake or errors in the survey, etc., can be cor- rected. Jackson v. Hasbrouck, 3 Johns. 331. Title XVI. Releases. A release is classified under the above enumerated secondary or derivative conveyances. It is a discharge or conveyance of a right in land to another who already has an estate in possession. The operative words generally used are "remise, release, and forever quitclaim.''^ A release technically operates upon a present interest only (9 Johns. 123), and not on a right subsequently acquired (24 Barb. 55), or to a person out of possession (3 Johns. 363), although it may operate as an egtoppel, though neither party is in possession. A mere possibility of a future interest was at first generally held by the courts not capable of being affected by a release. (^Vide 5 Den. 664.) But see this case partially overruled, and cases on this point cited, and the provisions of the Revised Statutes as TIT. XVII.] CONFIKMATION, SUKBENDEE, ETC. 553 to the transfer of estates in expectancy. Ante^ p. 318, changing the former law. Releases as classified by common law writers operate, 1. By way of enlarging an estate, as a remainderman releasing to a par- ticular tenant in possession. 3. By way oi passing an estate, as one tenant in common or joint tenant to another. 3. By way of passing a right, as where a disseizee released to the disseizor. 4. By way of extinguishment. 5. By way of entry and feofiinent, as where a release is made by disseizee to one of two joint disseizors, who enters and excludes the other disseizor. No livery was necessary to a release, the releasee being in possession. A release has been held good in this State as a conveyance by bargain and sale, and sufficient to pass the fee though the releasee was not in possession. 10 Johns. 456; 31 Wend. 130; 3 Seld. 43. It is, therefore, under the Revised Statutes, good as a grant. Tide &\&opo8t, "Lease and Release." Title XVII. Confirmation, Sueeendee, Assignment AND Defeasance, A confirmation confirms a voidable estate or mcreases a particular estate. The words usually used are " given, granted, ratified, approved and confirmed.''^ A. sv/rrender yields up an estate for life or years to tlie reversioner or remainderman, or to one having the greater estate. The usual words are " surrendered, granted, a/nd yielded up^ To make a valid surrender, there should be privity of estate between the parties, and the surrenderer must be in possession. 8 Johns. 263 ; 13 Wend. 603 ; 5 Cow. 97. A surrender may be by parol or act of the parties ; as where a tenant gives the key of premises to ttie landlord, who accepts the same and resumes possession. 1 E. D. Smith, 131. The acceptance of a new lease im- plies a surrender of a prior one. 12 Johns. 357 ; 16 Johns. 28 ; see Livingston V. Potts, 16 Johns. 38, as to a surrender by operation of law, and more fully, ante, p. 201. An assignment is usually applied to an estate for life or years. It diflfers from a lease in that by a lease an in- terest less than the lessor's is passed, and by an assignment the whole estate is transferred. Vide ante, p. 180, and as to the difference between an assignment and an under-lease, and the rights and obligations of assignees, etc. Before the Statute of Frauds, chattels real might be assigned by parol. 12 Johns. 384; 17 id. 384; ,19 Johns. 343; id. 95. By the Revised Statutes, assignments of real estate interests must be in writing. A defeasance is a collateral deed made at the same 554 CONVEYANCES BY STATUTE OP USES. [OH. XX. time with the principal conveyance, and containing certain conditions defeating the latter when performed. Mort- gages were originally so made. Vide infra, Ch. " Mortgages." A writing to operate as a defeasance to a deed, must be of as high a na- ture, and therefore under eeal. 4 Mass. B. 443 ; 14 Pick. 179 ; 23 id. 530. Title XVIII. Conveyances by Vikttje of the Statute OE Uses. These conveyances arose by virtue of the "Statute of Uses," hefore alluded to. ( Vide ante, p. 246.) This statute executed the use, i. e., annexed the possession to the use, and thereby made the cestui qui use the legal instead of equitable owner of the land. Such conveyances were in use in this State before the revision of 1830. The conveyances that had their operative effect through this statute were as follows : 1. A Covenant to stand seized to Uses.— By this, in consideration of hlood or marriage, the covenantor stood seized to the use of a child, wife, or kinsman. Here the statute transferred the possession to the use, for the benefit of the party who had acquired the use. Affinity by a past marriage is n^Dt a sufficient consideration for this covenant. 3 Seld. (6 N. Y.) 343. Such a covenant in this State -would be good, doubtless, in equity, or might be upheld as a grant. Vids Hayes v. Kershow, 1 Sand. Ch. 358; also, Lynch v. Livingston, 8 Barb. 463; affi'd, 6 N. Y. 433; Jackson v. Staats, 11 Johns. 378; Lossee v. Ellis, 13 Hun, 685. The consideration of blood may be shown aliunde. Goodell v. Pierce, 3 Hill, 169. A marriage in futuro would be a good consideration. 33 Wend. 140. A deed to a stranger in trust for relatives cannot operate as a covenant to stand seized. The blood or marriage relation must exist between the covenantor and covenantee. Schott v. Burton, 13 Barb. 173. A freehold to commence in fuMtro might be granted by a covenant to stand seized. Roberts v. Roberts, 32 Wend. 140. Such a covenant is still good under ^;he Revised Statutes. Bysaman v. Eysaman,. 34 Hun, 430. 2. Bargain and Sale.— This is the species of convey- ance now most prevalent in the United States, and has superseded the old form of transfer by lease and release. TIT.XVIII.] CONVEYANCES BY STATUTE OF USES. 555 Under the statutes existing here, it is equivalent to the deed of feoffment with livery. It originally was a kind of real contract, whereby the la/rgainor for some pecuniary consideration bargains and sells, that is, contracts to convey the land to the bargainee, and became by such bargain a trustee for or seized to the use of the bargainee ; and then the " Statute of Uses " completed ^ the purchase and transfer, w^'^Aom^ livery of seisin. Thus the ha/rgain first vested the use, and then the statute vested the possession. The use could be limited to no other person than the bargainee. (16 Johns. 302.) This form of deed required an actual pecunia/ry or valu- able consideration expressed. 16 Johns. 47, 515; 1 Cow. 632; 9 Wend. 619; 6 N. Y. 342; 9 Barb. 219, 487; 3 Seld. 342; 3 Ker. 509; Schott v. Burton, 17 Barb. 173. The consideration need not be money (30 Barb. 392, 396), but valuable. 16 Johns. 47 ; 4 Cow. 437 ; 9 Cow. 69. The consideration may be proved if not in the deed. 10 Johns. 456 ; 30 Barb. 293 ; 3 Kern. 509. The words remised, released, and quitclaimed, where an intent to convey the estate of the grantor is recited, and a pecuniary consideration appears, have been held effectual as words of " bargain and sale," although in a deed to one not in possession. Vide 10 Johns. 456 ; 18 id. 60, 78 ; 6 N. Y. 432 ; 31 Wend. 120; 18 Barb. 303, and infra, p. 556. A pecuniary consideration to take effect in fwtwro is effectual. 3 Wend. 233; 9 Wend. 611; 4 Denio, 301. So also the words " release and assign " (10 Johns. 456), "make over and confirm " (18 Johns. 60), " make over and grant " (3 Johns. 484), have been held effectual as words of bargain and sale. The use must be limited to the bargainee. 16 Johns. 303 ; 3 id. 388. So also a deed not good as a lease and release, because the grantee was not in possession, nor as a covenant to stand seized, may be good as a bargain and sale, notwithstanding the granting words are " remise, release, and quit- claim, " if there is a pecuniary consideration expressed, and an intention is evident to convey the whole estate. Lynch v. Livingston, 8 Barb. 463 ; affl'd, 3 Seld. 423. The nominal consideration of one dollar not paid has been held not sufiBcient. 9 Barb. 487. Natural affection or aflSnity by past marriage is not sufficient. Corwin v. Corwin, 3 Seld. 343; reversing 9 Barb. 343. The words "for value received," have been held evidence of a pecuniary consideration, and as suflBcient to raise the use. Jackson v. Alexander, 3 Johns. 484; Jackson v. Koot, 18 iJ. 360. Judge Nelson observes, in Rogers v. Eagle Fire Ins. Co. 9 Wend. 619, that the consideration sufficient to support a bargain and sale has become purely technical, without substance or value, and a nominal consideration has been held sufficient. In Wood v. Chapin, 13 N. Y. 509, the court holds, however, that without some consideration, even though nominal, the deed would be void, if executed before the Revised Statutes. Those statutes, as to grants of freehold estates, may have altered the rule. 556 CONVETANOBS BY STATUTE OF USES. [OH. XX. By Revised Statutes of 1830, deeds of " Bm-gain and JSale,^'' and of " Lease and Release," may continue to be used, and shall be deemed " Grcmts" and as such shall be subject to all the provisions of the chapter concerning grants. IR. S. 739;1N. Y. 248. A deed of bargain and sale to take effect in futwro is effectual. 6 Wend. 611. 3. Lease and Release.— Under this form of conveyance a lease, or bargain and sale for a pecuniary consideration (generally a nominal one), was made for a year. This, in the case of a lease, vested the possession in the lessee ; or in the case of a bargain and sale, vested in the lessee the use of the term for a year, and then the statute annexed the possession ; and being then in possession, he could receive a release of the freehold and reversion from the lessor, by way of enlargement of the estate, without livery of seizin or consideration. .Thus the lease and release operated as one conveyance, and in effect amounted to a feoffment, without the ceremony of Imery of seizin. This was the usual mode of conveyance in England substituted for the feoffment. It was also the mode universally in practice in New York until about 1st May, 1788, when all English statutes were by law abolished, except those specifically re-enacted. 2 Q-reenl. 116, § 37. It was then supplanted in a great measure by the deed of bargain and sale, although it was at times still lawfully used. The lease was not usually recorded. The recital of it in the release was deemed conclusive evidence of its existence upon all persons claiming under the parties in privity of estate. 4 Pet. 88; Carver v. Jackson, 4 J6. 1. And in order to support the release, a previous lease may be presumed. McBumey v. Cutler, 18 Barb. 303 ; Jackson v. Lamb, 7 Cow. 431. By Revised Statutes, deeds of " lease and release " may continue to be used, and shall be deemed ^^ grants" and as such shall be subject to all the provisions of the statute relative to grants. 1 Rev. Stat. p. 789, § 162.' Estates both in possession, remainder, and reversion, can be conveyed by lease and release. The consideration (although nominal) was inserted in the lease to raise the use ; but the release need not have a consideration expressed, being a common law conveyance. TIT. XIX.] B'lHES AND EECOVBEIES. 557 Title XIX. Fines and Recoveries. These were solemn and public alienations by matters of record, and at times were employed in this State for the purpose of barring claims and assuring title. Fines and recoveries were established by the statutes of this State. For the proceedings jinder them, inde " An Act concerning fines and recoveries of lands and tenements." 1 Rev. Laws of 1813, p. 358. By the Eevised Statutes, fines and recoveries are ex- pressly abolished. Vol. ii, p. 843, § 24. CHAPTER XXL FRAUDULENT CONVEYANCES. Title I. — Fraud on Purchasers. Title If. — Fraud on Creditors. Title III. — Fraudulent Conveyances. — Miscellaneous. It has been seen, in the preceding chapter, that a gift or voluntary conveyance would be effectual as between the parties, and is only liable to be questioned in certain cases, when the rights of creditors and subsequent pur- chasers are concerned ; and it is a principle of law that a deed, however fraudulent, is valid as to the parties to it, nor will courts of equity give relief to any party to the deed who is implicated in the fraud. Van Wyck v. Seward, 18 Wend. 375; Rosevelt v. Carow, 6 Barb. 190; The Manhattan Co. v. Evertson, 6 Pai. 457 ; Matthews v. Duryea, 45 Barb. 69 ; affi'd, 4 Keyes, 525 ; Maloney v. Horan, 49 N. Y. Ill ; Mapes v. Snyder, 2 N. Y. S. C. 318 ; affi'd, 59 N. Y. 450 ; Bicknell v. Lancaster, &c., Fire Ins. Co. 1 N. Y. S. C. 315; affi'd, 58 N. Y. 677; Renfrew v. McDonald, 11 Hun, 254. To make a deed voluntary, it must be without the least valuable consid- eration. Seward v. Jackson, 8 Cow. 406. A voluntary conveyance may become valid upon matter, ex post facto, or it may acquire validity so far as concerns the claims of others. Wood v. Jack- son, 8 Wend. 9. The English Statutes (of Elizabeth, 13th and 27th, and Charles II), confirmatory of the common law against frcmdulent conveyances have been substantially re-enacted in this State, commencing with "An Act for the preven- tion of Fraud," passed 26th July, 1787. 1 Greenl. 381 ; 1 Rev. Laws, p. 75. Title I. FEAtrD on Purchasees. The Revised Statutes provide that every cowoeycmce of or cTia/rge upon land, etc., or rents and profits of land, made XIT. I.] FRAUD ON PUEOHASBRS. 559 with intent to defraud prior or subsequent pwrcJiasers for valvMhle consideration, shall be void as against them; but no such conveyance shall be deemed fraudulent in favor of a subsequent purchaser if he have actvxil or legal notice thereof at the tm/te of Ms pv/r chase, unless the grantee or person to he benefited -wa.^ privy to the intended fraud. Part 3, ch. 7, title 1, §§ 1 and 2. The deed is good as against the grantor and his heirs. Jackson v. Gram- sey, 16 Johns. 189. Also as against the grantee. Mosely v. Moseley, 15 N. Y, 334. § 3, ib. It is further provided, that every conveyance or charge on an estate or interest in land containing any provision for the revocation, determi/aation, or alteration thereof at the will of the grantor, shall be void as against subsequent pwchasers from such grantor, for valuable con- sideration, of any estate or interest so liable to be revoked, etc., although the same be not expressly revoked, etc., by the grantor, by virtue of the power reserved or expressed in the prior conveyance or charge. § 4, ib. Where a power to revoke a conveyance of any lands, rents or profits, and to reconvey the same, shall be given to any person other than the grantor in such con- veyance, and such person shall thereafter convey the same lands, etc., to a purchaser for value, such subsequent con- veyance shall be as valid as if the power of revocation were recited therein, and the intent to revoke the former conveyance expressly declared. § 5, *5. If a conveyance to a purchaser under either of the last two sections be made before the person making the same shall be entitled to execute his power of revoca- tion, it shall be as valid from the time the power vests in such person as if then made. Purchasers for Value Without Notice.— The title of a purchaser for value shall not be affected unless it appears that such purchasers had previous notice of the fraudulent intent ^of his immediate grantor, or of the fraud rendering void the title of such grantor. Vide title iii, ch. vii, § 5; 18 Wend. 353; 14 Johns. 493; 18 Johns. 515. 560 FEAUD ON PUEOHASBRS. [OH. XXI. The purchaser must have acquired the legal title, to be entitled to pro- tection, Peabody v. Fenton, 3 Barb. Ch. 451. See also infra. Actual Value. — The consideration, or something of value, must have been actually parted with or secured. Jewitt v. Palmer, 7 Johns. Ch. 65 ; Starr v. Strong, 2 Sandf. Ch. 139; DeMott v. Starkey, 3 Barb. Ch. 403; Key- ser V. Harbeck, 3 Duer, 373. Taking the deed merely in payment of a former debt is not sufBcient to protect. Root v. French, 13 Wend. 570. Release of inchoate right of dower is held a valuable consideration for conveyance to wife. Smart v. Haring, 14 Hun, 376. But an agreement to separate is not. Morgan v. Potter, 17 Hun, 403. Nor is a transfer in trust to support grantor and wife for life. (10 N. Y. 189 ; 2 H. 865) Todd v. Mo- nell, 19 Hun, 362. Benefit to Grantor.— A mere incidental benefit to grantor does not, of itself alone, invalidate conveyance. (15 N. T. 9, 123) Shoemaker v. Hastings, 61 How. Pr. 79. But a trust for the benefit of the grantor himself is void. Parker v. Conner, 47 Super. Ct. 532 ; rev'd on another point, 93 N. T. 118. At least to the extent of his beneficial interest. Crouse v. Frothingham, 27 Hun, 123. Parent and Child. — Previously rendered services, even by a minor son, are held a valid consideration. Canavan v. McAndrew, 14 Weekly Dig. 283. So of indebtedness to a daughter ; although the consideration expressed was " $1, and love and afliection," it appearing that the indebtedness existed. Smith V. Smith, 17 Weekly Dig. 81. Contract as Consideration. — An agreement to pay forged notes is held a valid consideration. Hatch v. Collins, 34 Hun, 314. An agreement of an attorney to render future service, is held a sufficient consideration to prevent the act being a controlling evidence of fraud. Remington Paper Co. v. O'Dougherty, 36 Hun, 79. So of an agreement by a son to support his parents. Vial v. Mathewson, 34 Hun, 70. Mortgage by Grantee. — Where a husband conveyed to his wife in fraud of creditors, her mortgage, to secure his prior debts, was sustained as for value, though the mortgagee after the execution but before delivery, had notice that the conveyance to her was fraudulent. Murphy v. Briggs, 89 N. Y. 446. Notice to Purchasers for Value . — Actual, notice of the intended fraud, or of suspicious circumstances, is required. Stearns v. Gage, 79 N. Y. 102 ; Herrlich v. Brennan, 11 Hun, 194 ; Weiss v. Brennan, 41 Super. Ct. 177 ; Par- ley V. Carpenter, 37 Hun, 359; Gottberg v. Conner, 44 Super. Ct. 554; Parker v. Conner, 93 N. Y. 118. A purchaser with notice, from one who purchased without notice of the fraud, may protect himself under the first purchaser. So also one who has taken without notice from one who had notice. Griffith v. Griffith, 9 Paige, 315 ; Noyes v. Burton, 39 Barb. 631 ; Jackson v. Walsh, 14 Johns. 407 ; Fra- zer V. Western, 1 Barb. Ch. 330; and affl'd, How. App. Ca. 447, 479. This last case reviews the obligations of grantees from those taking vol- untary conveyances, and how far they are under obligation to inquire into the circumstances attending the original transfer. Viak infra, Ch. XXVI, " Re- cord of Instruments," and the " Doctrine of Notice." A recorded purchase-money mortgage is good against subsequent cred- itors who relied on the ownership of the property unincumbered. An un- recorded or equitable mortgage would not be. Spring v. Short, 90 N. Y. 538. An inadequate consideration is only important, of itself, where the inad- TIT. II.] FKATJD AGAINST CKBDITOKS. 561 equacy is very great. Van Wyck v. Baker, 16 Hun, 168 ; vide cases supra, and Coddington v. Van De Venter, 19 Weekly Dig. 126 ; Smith v. Shaul, 21 Weekly Dig. 91. Conveyance to Wife. — Transfer by an insolvent for a valuable considera- tion, even to his wife through a third person, has been held valid however. Crawford v. Everson, 2 Weekly Dig. 168 ; Smith v. Smith, 17 Weekly Dig. ol. Also a mortgage to secure her as to an old debt, Jewett v. Noteware, 30 Hun, 192. But if there be fraudulent intent the fact of good consideration will not save such a transaction. Billings v. Russell, 101 N. T. 226. Merger. — If a conveyance be set aside as fraudulent, it will not operate to merge another estate. Moloney v. Horan, 49 N. Y. 111. Title II. Feaud against Creditoes. By the Revised Statutes it is provided as follows : Every conveyance or assignment, in writing or other- wise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing there- from, and every charge upon lands, etc., or upon the rents, etc., made with intent to hinder, delay or defraud creditors or other persona of their lawful suits, damages, forfeitures, delits or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed or defrauded, shall be void. R. S. part ii, ch. 7, title iii, § 1. The decisions under this section are very numerous, and are based on the intent of the parties, as manifested from the facts, in each case. * In the case of a voluntary conveyance, as well as in any other, the question is as to the actual fraud, and is to be passed upon as a fact. Jackson v. Post, 15 Wend. 588 ; Seward v. Van Wyck, 8 Cow. 406 ; Jackson v. Peck, 4 Wend. 300 ; Jackson v. Zimmerman, 7 id. 437; Hinde's Lessees v. Walworth, 11 Wheat. 199; Young v. Heermans, 66 N. Y. 374; Baldwin v. Ryan, 8 N. Y. S. C. 251 ; Brockway v. Fleming, 22 Weekly Dig. 430 ; Carr v. Breese, 81 N. Y. 584 ; Fox v. Moyer, 54 IT. Y. 125. What Creditors. — It has been generally held that the above section only applies where there are lawful debts of creditors existing at the time of the transfer. Baker v. Oilman, 52 Barb. 26 ; Lormore v. Campbell, 60 Barb. 62. This limitation was not sustained in the case of Case v. Phelps, 39 N. Y. 164, where it is held that a voluntary deed may be set aside by subsequent creditors, where made not in fraud, but to secure against possible loss, on en- gaging in a new business. See also Dvgert v. Remerschnider, 32 N. Y. 629 ; Savage v. Murphy, 34 N. Y. 508; Partridge v. Stokes, 66 Barb. 586. A decision in the U. 8. Supreme Court, in construing a similar statute, holds that the deed would not be set aside in favor of subsequent creditors, vmless a fraud was intended at the time of the conveyance. Mattingly v. 36 562 FRAUD AGAINST CKEJDIXOES. [CH. XXI. Nye, 8 Wallace, 371; Loeschig v. Addison, 4 Abb. N. 8. 210; affi'd, 51 N. Y 160. The same rule is laid down by the Court of Appeals in Carr v. Breese,' 81 N. T. 584 ; distinguishing Case v. Phelps and Savage v. Murphy, aupra. Only a. jvdgment-CT&diiioT can bring an action to set aside the conveyance. National Bk. of Eondout v. Dreyfus, 14 Weekly Dig. 160; National Bk. v. Wetmore, 43 Hun, 359. And execution must have been issued and returned. McCaflrey v. Hickey, 66 Barb. 489. The judgment must have been recovered before grantor's death. Lichtenberg v. Herdtfeldter, 103 N. Y. 302. Nor can any but a judgment-creditor attack a fraudulent judgment. Jacobstein v. Abram, 44 Hun, 272. A creditor may reach land -which his debtor bought and caused to be conveyed to another, though his judgment never was a lien or has ceased, from lapse of time, to be so. Scoville v. Halladay, 16 Abb. N. C. 48. The fraud must appear to have been mutual, i. e., between grantor and grantee. Carpenter v. Muren, 42 Barb. 300 ; Jaeger v. Kelly, 52 N. Y. 274. Unless no consideration at all appears. Newman v. Cordell, 43 Barb. 448; Wood v. Hunt, 88 Barb. 303; Mohawk Bk. v. Atwater, 2 Pai. 54. Inadequacy of price or want of consideration alone is not proof of fraud. Jaeger v. Kelly, 53 N. Y. 274 ; Emmerich v. HeflEeman, 58 Super. 98. Post-nuptial settlements are void against antecedent creditors. 3 Johns. Ch. 481; 5 Wend. 661. A conveyance, however, which operated as the in- ducement to a marriage, held good. 8 Wend. 9; 3 Johns. 488. See also as to a contract to convey after marriage, 16 Barb. 136 ; Starkey v. Kelly, 50 N. Y. 676. This is not good if the woman had notice. Keep v. Keep, 7 Abb. N. 0. 240. In the case of Philips v. Wooster (36 N. Y. 412), it is held that voluntary conveyances to the wife, by the husband, without fraudulent intent, at a time when he was not indebted, cannot be questioned by subsequent creditors. Weld V. Reilly, 48 Super. Ct. 531. Also see Lowry v. Smith, 9 Hun, 514; disting'd Champlin v. Seeber, 56 How. Pr. 46. So held, also, as to children. Holmes v. Clark, 48 Barb. 287. See also, Wickes V. Clarke, 8 Pai. 161 . Whether the particular transaction was intended as a fraud upon cred- itors is a question of fact. Dygert v. Remerschnider, 32 N. Y. 629 ; affirm- ing 39 Barb. 417. But the mere fact that fraud was not intended will not always save the transaction. Coleman v. Burr, 93 N. Y. 17. Where the husband, in good circumstances, pays the consideration for a deed to his wife in good faith, it is valid as against subsequent creditors (Curtis V. Fox, 47 N. Y. 299; Carr v. Breese, 81 N. Y. 684; Phenix Bank v. Stafford, 89 N. Y. 405), and in some cases as to existing ones. See Childs v. Connor, 38 Super. Ct. 471. A void agreement (because not in writing) in consideration of marriage and a settlement based on it, is void as to creditors. Dygert v. Remer- schnider, 32 N. Y. 629. See also cases cited above. A voluntary conveyance in consideration of blood, etc., is only presump- tively fraudulent against creditors, and may be rebutted by circumstances. 8 Cow. 406; 5 Wend. 661; Sid. 9; IS id. 375; 6 Paige, 62. See also, 4 Wend. 300 ; 1 Johns. Ch. 261 ; 5 Cow. 67 ; Cole v. Tyler, 65 N. Y. 73 ; Holden v. Bumham, 63 N. Y. 74. A conveyance without consideration by an insolvent, is controlling evi- dence of fraud. Erickson v. Quinn, 47 N. Y. 410. See also, as to frauds against creditors, and the setting aside of conveyances, and who are ' ' creditors, " 4 Johns. 586 ; 18 ib. 515 ; 4 Cow. 603 ; 3 J. Ch. 871 ; Mead v. Gregg, 12 Barb. 653; Shadbolt v. Basset, 1 Lans. 121; Clements v. Moore, 6 Wald. 299 ; Wood v. Hunt, 38 Barb. 303 ; Rankin v. Amdt, 44 Barb. 251 ; Bayard v. Hoffman, 4 Johns. Ch. 452; Young v. Heermans, 66 N. Y. 374; Bowlsby V. Tompkins, 18 Hun, 219 ; Pendleton v. Hughes, 65 Barb. 136 ; affi'd, TiT. 11.] FRAUD AGAINST OEEDITOES. 563 53 N. T. 626; Stimson v. Wrigley, 86 N. Y. 332; Spring v. Short, 12 Weekly Dig. 360; Laws 1877, ch. 466; Royer Wheel Co. v. Fielding, 101 N. Y. 504; Spalding v. Norman, 51 N. Y, 672 ; Corbin v. Gordon, 25 Hun, 59 ; Crane v. Boosa, 40 Hun, 455. As to the judgment, see Orr v. Gilmore, 7 Lans. 345 ; Pendleton v. Hughes, 65 Barb. 136. A conveyance by husband to wife in accordance with an agreement with her father who intended to give the property conveyed to her, but made the deed to him without her knowledge, is not fraudulent. When a conveyance to wife is set aside and a sale ordered in supplementary proceedings, the sale must be subject to inchoate dower. The wife cannot be made to take a gross sum. Lowry v. Smith, 9 Hun, 514. A conveyance to wife to secure her for moneys earned by her before mar- riage, sustained. Harbottle v. Farrell, 21 Weekly Dig. 534. A conveyance by a solvent debtor of a portion of his property to trustee's to pay a portion of his creditors and providing for return of surplus, is not invalid, though if he were insolvent it would be. Knapp v. McGowan, 96 N. Y. 75. It has been held that a mortgage to a bona fide creditor is good, though made with fraudulent intent. Billings v. BilUngs, 31 Hun, 65, criticising many cases. A deed is not valid if made to hinder creditors and the grantee partici- pates. Union Nat. Bk. of Albany v. Warner, 12 Hun, 306 ; Davis v. Leo- pold, 87 N. Y. 620. See also, however, Doyle v. Sharpe, 74 N. Y. 154; Nu- gent V. Jacobs, 20 Weekly Dig. 254. In such case the deed is absolutely void and the grantee loses the property entirely. Davis v. Leopold, above. But a deed to one creditor in consideration of the debt, not void even if to hinder other creditors, unless grantee participated. Dudley v. Danforth, 61 N. Y. 626; Hale v. Stewart, 7 Hun, 591 ; Parett v. Segall, 12 Weekly Dig. 535 ; Stacy v. Deshaw, 7 Hun, 449. Compare Solomon v. Moral, 53 How. Pr. 342 ; distinguished in Roeber v. Bowe, 26 Hun, 554. Unrecorded Deed. — Held fraudulent as to those who relied on apparent ownership of the grantor and gave credit. Pendleton v. Hughes, 65 Barb. 136, 145 ; affl'd, it seeim, 53 N. Y. 626 ; but compare Trenton Banking Co. v. Duncan, 86 N. Y. 221, which holds that the grantee must have notice. See however, 15 Otto, 100, 117. A voluntary conveyance made before entering upon business, to secure the property against contingencies of the business, has been held void as against subsequent creditors. (39 N. Y. 164 ; 10 id. 227 ; 54 N. Y. 125) Haw- ley V. Sackett, 3 Hun, 605 ; Young v. Heermans, 66 N. Y. 874. As to deed by absconding debtor, vide Avery v. Reynolds, 5 Alb. L. J. 287. As to marriage settlement, vide more fully, ante, p. 68. As to when post-nuptial settlements will be sustained in equity, so as to give a support for the wife, vide Wickes v. Clarke, 8 Pai. 161; Garlick v. Strong, 3 Pai. 452 ; Searing v. Searing, 9 Pai. 289 ; Partridge v. Havens, 10 Pai. 618 ; Bleecker v. Bingham, 3 Pai. 246 ; King v. Whitely, 10 id. 465. The creditor may move to set aside the conveyance when he has a judg- ment for his debt. Mohawk Bk. v. Atwater, 2 Pai. 54. Implied and Resulting Trusts. — As to when conveyances are treated as void as against creditors, in cases where agrant for a valuable consideration shall be made to one person, and the consideration is paid by another, vide ante, pp. 270 to 275 ; also Dunlap v. Hawkins, 59 N. Y. 343. The provisions as to fraudulent conveyances do not preclude a party from establishing an implied or resulting trust recognized by the common law. Poote V. Bryant, 47 N. Y. 545. 564 FKAUDULENT CONVEYANCES. [CH. XXI. Assignments for Benefit of Creditors.— As to these vide post, Ch. XXXI. Title III. Featjdulent Conveyances ; Miscbllaneotts. The following provisions with respect to fraudulent transfers are also noted for reference. The Terms "Lands," etc., " Conveyance," etc.— The term "lands" in the above, ch. vii, as to fraudulent conveyances, is to be construed as co-ex- tensive in meaning with " lands, tenements, and hereditaments ;." and the terms "estate and interest in lands " shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, jtresent and future, vested and contingent, in lands, as above defined. Title iii, § 6. The term ' ' conveyance " is to be construed to embrace every instrument in writing, except wills, whatever its form, and however known in law, by which any estate or interest in lands is created, aliened, assigned, or sur- rendered. § 7. The chapter is not to aflFect prior instruments or proceedings. § 8. Fraud Punishable.— Py the Revised Statutes of 1830, parties to the making of conveyances to defraud purchasers, or to hinder or defraud cred- itors, or those privy thereto, or willingly putting the same in use, asif made in good faith, shall be guilty of a misdemeanor. Title vi, ch. i, part iv, B. S. ; mde 14 How. Pr. 11. Executors, Assignees, Trustees, etc., may disaffirm Fraud of their Principals.— By Laws of 1858, ch. 314, any executor, administrator, receiver, assignee, or other trustee of an estate, or of the property of insolvent persons or corporations, may, for the benefit of creditors and others interested, dis- affirm, treat as void, and resist all acts in fraud of the rights of any creditor, including themselves and others interested. But not for the benefit of the next of kin. Love v. Dierkes, 16 Abb. N. C. 47. Fraudulent Intent. — The question oi fraudulent intent, under the chap- ter, is one of fact, and not of law. No conveyance or charge, etc., shall be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a vahmile consideration. § 4, title iii. See, as to fraudulent intent, and the burden of proof, Bussel v. Lasher, 4 Barb. 232; Van Wyck v. Seward, 18 Wend. 875. Fraudulent Trusts. — All trusts in land, created for the benefit of the grantor, are void as against creditors existing or subsequent. By § 2 of the above title iii, grants or assignments or trusts, unless in writing, subscribed by the party or his lawful agent, are made void. Vide ante, p. 277; also 10 Barb. 346; 5 Johns. Ch. 11. Heirs, Assignees, etc. — § 3. — Instruments declared void in the chapter shall also be void as against heirs, successors, personal representatives, or assignees of the creditors or purchasers. As to devisees, see below. Fraudulent Title. — An action will lie for a fraudulent representation as to title. Whitney v. Allaire, 1 N. Y. 304 ; Barber v. Morgan, 51 Barb. 116. Bona Fide Purchaser. — Such a purchaser is one who has bought with- out notice of another claim and has parted with or paid value. Fraud fol- lows the land into the possession of any other persons. Spicer v. Waters, 65 Barb. 227. A deed acknowledging payment of purchase-money, is prima fade evi- TIT. lU.] FKAUDULENT OONVBTANOBS. 565 dence of a purchase in good faith and for value, but the evidence may be overcome by proof. Taylor v. Hoey, 86 Super. 403. Subsequent improvements are held to be forfeited where the grantee had notice of intent to defraud. Shand v. Handley, 71 N. Y. 319. But in cases of constructive notice only, moneys paid to reduce existing incumbrances have been allowed. Davis v. Leopold, 87 N. Y. 630 ; Love v. Dierkes, 16 Abb. N. C. 47. Though all creditors may join in the action aU are not necessary parties. White's Bk. v. Farthing, 101 N. Y. 344. But the grantor is a necessary party. Hubbell v. Merchant's Bk. 43 Hun, 300. Devisees may bring an action before probate to set aside as fraudulently procured a conveyance of property devised. The validity of the will may be determined then. The surrogate has no power to act. Norris v. Norris, 83 Hun, 175. CHAPTER XXII. CONVEYANCES, MISCELLANEOUS. The following miscellaneous provisions as to convey- ances are of importance to note : Transfers to Beceivers. — When a receiver of property is appointed by a court or judge in a judicial proceeding, he does not, by force of his appoint- ment as receiver, become possessed of real property. A deed is necessary, or other conveyance of title. Moak v. Coates, 33 Barb. 498 ; Chatauque Bank V. Risley, 19 N. T. 870. But see head "Receivers under Supplementary Proceedings," ^os*, Ch. XXXIX. Conveyances for Money Lost at Play, Lotteries, etc. — All things in ac- tion, judgments, mortgages, conveyances, or other securities, where any of the consideration is for money or value lost at play, or betting, or loans for the same, shall be void, except as to real estate, when they shall enure for the sole benefit of such person as would be entitled to such real estate if the grantor or person encumbering the same had died immediately upon the ex- ecution of such instrument, and shall be deemed to be taken and held to and for the use of the person who would be so entitled. All grants, covenants and and conveyances for preventing such real estate from coming to or devolving upon the person hereby intended to enjoy the same as aforesaid, or in any way incumbering or charging the same, so as to prevent such person from enjoying the same fully and entirely, shall be fraudulent and void. 1 Rev. Stat. p. 668, 1st ed. ; 1 R. L. 158; mde 19 Barb. 137 ; 3 Den. 343; 1 N. Y. 393. For Lotteries or Games. — ^Every bargain, grant, conveyance, etc., or transfer of real estate, made pursuant to any lottery or game not authorized by law, or to assist or aid the same, are declared void. 1 R. S. p. 667 ; Laws of 1819, p. 359.' Absconding, Concealed, and Non-Resident Debtors. — All sales, assign- ments, transfers, mortgages, and conveyances made by them after first pub- lication of attachment and judgments confessed, were absolutely void as against creditors. 3 Rev. Stat. p. 8. This has all been repealed. Vide post, Ch. XXXI. Conveyances by Guardians ad litem, by Order of the Court. — Such deeds must be executed in the name of the infants, per M. or N. the guardian. Hyatt V. Seely, 11 N. Y. 52. Special Partnership Property. — Transfers of the effects, etc., of such a partnership, when insolvent or in contemplation of insolvency, with a view to give a preference to creditors, are made void. Also, judgments, liens, etc. 1 R. S. 1st ed. pp. 766, 767; 9 Abb. 133; 16 Abb. 71; 28 N. Y. 491; 36 Barb. 263 ; 6 Pai. 581 ; 16 Abb. 71. Usury Laws. — Conveyances, etc., taken in violation of the usury laws, are void. 1 R. S. p. 773, 1st ed. § 5. Also see " Usury " in Chap. XXIIL Reform of deed cannot be had by the injured party if he accept a portion of the land conveyed through devise from the wrongful grantee. Haack v. Weickens, 43 Hun, 486. CHAPTER XXIII. MORTGAGES. Title I. — DEriNiTioN and Nature op a Mortgage. Title II. — The Defeasance. Title III. — The Bond or Note. Title IV. — The Power op Sale. Title V. — The Estate of the Parties. Title VI. — The Equitt op Redemption. Title VII. — Assignment op Mortgages. Title VIII.— Discharge, Payment, and Extinguishment. Title IX. — Usury. Title X. — Mortgages ; Miscellaneous Provisions. Title I. Definition and Natuee op a Moet»age. (See also post, Title X, Miscellaneous.') A mortgage is defined as the conveyance of an estate by way of pledge for the security of a debt ; to become void on payment of the debt, as provided. All estates and interests in property may become the subject of a mortgage, whether present, future, or con- tingent. Vide supra, p. 318, fully, as to the transfer of expectant estates. Whatever is annexed to the freehold, and would pass between vendor and vendee, passes with the mortgage. 6 Cow. 655 ; King v. Wilcomb, 7 Barb. 363. " Appendages" covers anything commonly used on the property though not a fixture. Miller v. Hart, 33 Hun, 639. Partnership Lands. — One partner may mortgage partnership property to secure the firm debts. WiUet v. Stringer, 17 Abb. 153 ; Tarbel v. Bladley, 7 Abb. N. C. 378, affl'd (in effect) 86 N. T. 380. A mortgage of the partner's individual share is not a mortgage of partnership property. Mabbitt v. White, 13 K. T. 454; Graser v. Stellwagen, 35 N. Y. 315. As to mortgages by limited partnerships, see 1 R. S. 766, § 30; w?. 767, § 31. Corporations.— See Chap. XXIV. • Mortgage on a Lease. — The mortgagee, under the present views of the courts, is not liable on covenants in the lease, if he have not taken possession. Vide ante, p. 183; Walton v. Cronly, 14 Wend. 63; Astor v. Miller, 3 Pai. 68 ; reversed, 5 Wend. 603. 568 NATUBB OP A MORTGAGE. [CH. XXIII. A mortgage on a lease will attach to the renewal thereof. Gibbs v. Jenkins, 3 Sandf. Ch. 130. By Revised Statutes, a mortgagee of a lease might redeem within six months after judgment in ejectment against the tenant. 3 R. S. 1st. ed. 506 ; repealed by L. 1880, c. 245. This right is now given by Co. Civ. Proc. § 1508. Fixtures put on the property after foreclosure are not covered. Henry V. Von Brandenstein, 13 Daly, 480. Necessary appliances for raising a perennial crop are covered. Bishop v. Bishop, 11 N. T. 133. Validity. — A mortgage has no validity until a sum of money has been actually advanced on it. Schafer v. Reilly, 50 N. T. 61. But a mortgage given to secure an existing indebtedness is valid. Knapp v. McGowan, 96 N. Y. 75. So if given to secure a bond already secured by another mort- gage. Havens v. Willes, 100 N. Y. 483. A mortgage by a wife to obtain time for her husband to pay debt, is valid. Pennsylvania Coal Co. v. Blake, 85 N. Y. 236. An agreement to pay full legal interest in consideration of an extension of a mortgage reserving a less rate is valid. Ritter v. Phillips, 53 N. Y. 586. Mortgage by Trustees. — A mortgage by a trustee in which remainder- man and ce«er shall be deemed a part of the security, and shall vest in and may be executed by any person who by assignment or otherwise shall become en- titled to the money. * A power to sell in a mortgage is not divisible, and an assignment by a mortgagee of a part of his interest in the mortgage debt and estate, would not carry a corresponding part of the power. Wilson v. Troup, 2 Cow. 195; afHrming 7 Johns. Ch. 25. Such a power survives the mortgagor, and is irrevocable, being coupled with an interest. Bergen v. Bennett, 1 Cai. Ca. 1 : Knapp v. Alvord, 10 Pai. 205. TIT. v.] THE ESTATE OP THE PARTIES. 579 See further as to such a power, ante, p. 331. Payment of a mortgage extinguishes the power of sale in it, and a subse- quent foreclosure would be void. Cameron v. Irwin, 5 Hill, 573 ; partially- overruling 10 Johns. 185 ; 5 Wend. 295. But not if the first foreclosure was invalid. Stackpole v. Bobbins, 48 N. T. 665. A power to mortgage includes a power to authorize a sale on default of payment, but not to make covenants in any deed given. Wilson v. Troup, 7 Johns. Ch. 35 ; affl'd, 3 Cow. 195 ; vide also ante, p. 839. As to a mortgage by tenant for life having power to make leases, or by a married woman by virtue of a beneficial power, vide ante, p. 333, and as to the extinguishment of such powers, p. 349. Title V. The Estate of the Paeties. (See also Obligations of the Vendee, Title III.) By the common law, a mortgage created an estate upon condition, or a base or determinable fee, with a right of reverter attached to it, on performance of the con- dition strictly at the time ; which right was neither alien- able nor devisable, but was confined to the mortgagor and his heirs. If the mortgagor was in default, the estate became absolute in the mortgagee, without the right of redemp- tion. There were many refinements of the common law principles, relative to mortgages, based upon the equitable interference of courts, to avoid the operation of the strict common law rules, which it is unnecessary here to re- view. Although by force of the mortgage the legal estate, at common la/w technically vested in the mortgagee, subject to defeasance on condition performed, and until defeas- ance the mortgagee had the right of entry and possession, and the mortgagor, if in possession, was considered there by permission and assent of the mortgagee, in equity, the mortgage was considered a mere secv/rity'iov the debt, and only a chattel interest, and until a decree of foreclosure and sale the mortgagor continued the real owner of the fee. The courts of law of this State have gradually adopted 580 THE ESTATE OF THE PAETIES. [OH. XXITI. the views of the subject long adopted by courts of equity, and a mortgage is now considered merely a chattel interest or chose in action by way of security for debt. The mort- gagor in possession is considered to retain the real or legal as well as the equitable ownership of the freehold, and his title is not affected by default in payment nor by surren- der of possession nor the taking possession by the mort- gagee. A mortgagee in possession is held as holding a pledge in possession, and may retain possession until the debt is paid, but the title is always in the mortgagor. 21 N. Y. 343; Jackson v. Willard, 4 Johns. 41; 6 «?. 290; 15 id. 319; 3 Cow. 195 ; 5 Wend. 603; 2 Paige, 68; 3 Barb. 347 ; 2 Pai. 536; 3 Hill, 95; 2 Barb. Ch. 119, 135; 23 N. Y. 556; 10 Pai. 49; 20 N. Y. 412; Trimm v. Marsh, 54 K Y. 599 ; Trustees v. Wheeler, 61 N._ Y. 88. A mortgagee in possession stands in no fiduciary relation to the mortga- gor and may acquire any other mortgage, or the title of the mortgagor or a superior title and enforce it. Ten Eyck v. Craig, 62 N. Y.-406; Cornell v. Woodruff, 77 N. Y. 203. But he may so agree as to put himself in the position of trustee, and in that case he cannot acquire interests or title adverse to the mortgagor. Genet v. Davenport, 56 N. Y. 676 ; Miller v. McGuckin, 15 Abb. N. C. 204. A mortgagee out of possession need not protect the land at a sale under a superior claim, but may trust to the bond. Marshall v. Davies, 78 N. Y. 414; Fleishhauer v. Doellner, 9 Abb. N. C. 372. Right to Possession and Rents. — The mortgagee has no right before forfeiture, unless by agreement, to the possession or rents, and has his remedy only in equity, where aid would be afforded if the rents became indis- pensable to his indemnity. Syracuse City Bank v. Tallman, 31 Barb. 201 ; Astor V. Turner, 11 Paige, 436 ; Bank of Ogdensburgh v. Arnold, 5 Paige, 38; Bigler V. Waller, 14 Wall. 297; Zeiter v. Bowman, 6 Barb. 133; Walsh V. Rutgers Fire Ins. Co., 13 Abb. 33. The mortgagor is entitled to the possession, and the rents and profits up to the time the purchaser under the decree of sale becomes entitled to the possession. 5 Sandf. 447 ; 5 Pai. 38; \\ ib. 436; Syracuse City Bank v. Tall- man, 31 Barb. 201 ; Neudecker v. Kohlberg, 81 N. Y. 296. If the mortgagee is in possession, he cannot commit waste and must keep the premises in repair. He will be accountable for the actual receipt of the rents and profits, and for those lost by his negligence, after deducting dis- bursements for taxes, necessary repairs, collection by an agent, if necessary, etc. He stands in the relation of trustee, and any renewal of a lease enures to the benefit of the estate : he can make no gain out of the estate. Van Buren v. Olmstead, 5 Pai. 9; Ensign v. Colburn, 11 Pai. 503; 4 Kent, 167; 10 Pai. 49 ; 2 Johns. Ch. 80; Kelly v. Bruce, 17 Weekly Dig. 89 ; Gastleman v. SimsoB, 16 Weekly Dig. 455 ; Chapman v. Porter, 69 N. Y. 276. He can retain possession if lawfully obtained until the debt is paid. Madison Ave. Bap. Ch. v. Bap. Ch. in Oliver St., 78 N. Y. 83, 94. Also see Trimm v. Marsh, 54 N. Y. 599. But it seems he can end the possession at any time and foreclose. Union Dime Savgs. Bk. v. Quinn, 18 Weekly Dig. 304 ; affi'g 63 How. Pr. 311. The mortgagor might maintain trespass against the mortgagee or a person acting under his license. Runyan v. Mersereau, 11 Johns. 534; Hitchcock V. Harrington, 6 id. 290; Coles v. Coles, \5iA. 513. The mortgagee, also may bring " waste " against the mortgagor or a pur- TIT. VI.j THE EQUITY OP EEDEMPTIOK. 581 chaser. Van Pelt v. McGraw, 4 Corns. 110 ; ib. 3 Barb. 347 ; Herman v. Stewart, 5 Weekly Dig. 408. A mortgagee of leasehold premises if he take possession, takes it, cum on&re, i. e., subject to all covenants. Astor v. Hoyt, 3 Pal. 68 ; as partially reversed, 5 Wend. 590. Actual payment of prior incumbrances by a mortgagee entitles him, in equity, to hold the land until reimbursed. Cameron v. Irwin, 5 Hill, 373. As to possession under conditional conveyances, see ante, p. 573. li'ectment.— It is provided (Co. Civ. Proc. § 1498, following 3 Rev. Stat. p. 313, § 50, which was repealed by L. 1880, ch. 245) that a mortgagee, or his assignee or other representative, cannot maintain an action of ejectment to recover the mortgaged premises. Vide 27 Barb. 54; 9 Barb. 284; 13 Wend. 486; 11 ib. 538: 31 N. Y. 199; 42 Barb. 401. A mortgagor may have ejectment against a grantee of the mortgagee. Jackson v. Bronson, 19 Johns. 325 ; also 2 Uow. 195. As against the mortgagee in possession if the lien be removed. Trimm V. Marsh, 54 N. Y. 699. But he cannot have it against the mortgagee lawfully in possession. His remedy is by an action for an accounting. Hubbell v. Moulson, 53 N. Y. 225. Title VI. The Equity op Redbmptiok. The mortgagor is allowed by the law, as it now exists, to redeem the estate by the performance of the condition, even after forfeiture of the condition by non-payment at the day. 1 Johns. 110 ; 26 Wend. 541 ; and Kortright v. Cady, 21 N. Y. 343. This right to redeem is technically called the " JEquity of Redemption.''' This equity of redemption is the real and beneficial estate, tantamount to the fee at law ; and it is descendible by inheritance, devisable, alienable and subject to dower, and sale on execution, precisely as if it were an absolute estate of inheritance at law in the mortgagor. The estate of the mortgagee, on the contrary, is not, at least before entry and foreclosure, subject to sale on execution, even after forfeiture of con- dition. 4 Johns. 41. Sale of Equity of Redemption.— Although an equity of redemption is vendible as real property on an execution at law, by the Revised Statutes, vol. 3, p. 368, § 45, the equity of redemption could not be sold on execution under a judgment at law for the mortgage debt, and this restriction is con- tinued by Co. Civ. Proc. § 1483. Vide 6 Hill, 16; 7 Pai. 438; 3 Sand. Oh. 37; Trimm v. Marsh, 3 Lans. 509; affl'd, 54 N. Y. 599. The provision of the Revised Statutes was repealed by Laws of 1883, ch. 245. All collusion and dealings for the deprivation of the mortgagor of the 582 THE EQUITY OF REDEMPTION. [CH. XXIII. equity of redemption are looked upon unfavorably by_ the courts, and wiU not stand in equitv, if impeached as oppressive, within a reasonable time. Odell V. Montross, 68 N. Y. 499. A fair contract for its purchase, however, may be made between the parties, and the mortgagee may become the purchaser at a sale under a decree. The equity of redemption is however an inseparable incident to the mortgage, and cannot be restrained or clogged by agreement. That which was once a mortgage is always a mortgage. 3 Cow. 334 ; 7 Johns. Ch. 40 ; 39 Maine, 110 ; see also, Jencks v. Alexander, 11 Pai. 618; Hall v. Ditson, 5 Abb. N. C. 198. Who may Redeem. — The equity of redemption exists not only in the mortgagor himself, but in his heirs and personal representatives, and in every other person who has an interest in or a legal or equitable lien upon the land, as grantee, reversioner, remainderman, tenant by curtesy or dower, in- cumbrancer, etc. Redemption must be made by the heirs of the mortgagor, in case of his decease. Sutherland v. Barber, 47 Barb. 144. Equity will aid to redeem only one who holds the estate of the mortgagor, or a subsisting interest under him. Chamberlin v. ChamberUn, 44 Super, 116. Further as to who may redeem, iiide infra, "Foreclosure of Mortgages," Ch. XXVIII. Redemption, how Made. — He who redeems must pay the mortgage debt and interest due, and he will then stand in the place of the party whose interest in the estate he discharges. The power of enforcing the right of redemption is an equitable power residing in courts clothed with such powers. As to redemption by a junior mortgagee, against a prior one, vide Pardee v. Van Auken, 3 Barb. 534. Redemption by assignee of a lease. Averill v. Taylor, 4 Seld. (8 N. Y.) 44. Mortgages on Leases of Five Years unexpired and upwards. — When lessees of such terms are ejected, under summary proceedings, mortgagees, judgment-creditors, etc., may redeem within a year. Co. Civ. Proc. §§ 3256, 2257, superseding Laws of 1842, ch. 340 ; which repealed Act of Ap. 25, 1840, and was itself repealed by L. 1880, ch. 245. Redemption under mortgages to the State, vide Laws of 1836, ch. 457. Equity of Redemption Barred by Time.— The right of redemption may be barred by length of time. In this State, twenty years' adverse possession gives an absolute title. (See Title " Adverse Possession," Ch. XXIV.) Until this time has run action to redeem may be brought. Co. Civ. Proc. § 379. Before the Code of Civil Procedure an action to redeem must have been brought within ten years after the mortgagee's entry. Peabody v. Roberts, 47 Barb. 91 ; Miner v, Beekman, 50 N. Y. 83 ; Hubbell v. Sibley, ib. 468. The lapse of twenty years would not bar the mortgagee's right to fore- closure, if any payment have been made within twenty years, or there have been acts reco^izing the mortgage; and any purchaser of the land would take at his peril, and at the risk of such payment having been made, al- though the mortgage was presumptively discharged by lapse of time. Vide N. Y. Life Ins. v. Covert, 6 Abb. N. S. 154 (Court of Appeals); Calkins v. Calkins, 3 Barb. 305; 30 N. Y. 147; Borst v. Boyd, 3 Sand. Ch. 501. tit. vii.] the assignment of mortgages. 583 Title VII. The Assignment of Mortgages. A mortgage is assignable as a chose in action or a chattel interest. It is not a " conveyance " within the Statute of Frauds, and would pass by delivery. The debt is considered the principal, and the land an incident ; and even a bona fide assignee takes subject to all equities, unless the mortgagor is considered estopped. The as- signee is affected, even by latent equities in favor of third persons, having an interest in the mortgaged premises who are represented by the mortgagor, 2 Johns. Ch. 441; 3 id. 479; 2 Cow. 246; 2 Pai. 302; 5 U. 644; 7 id. 316; 5 Den, 640; 11 Pal. 467; 11 Johns. 534; Ingraham v. Disborough, 47 N. T. 431; Hartley v. Tatham, 2 Ab. Ap. Ca. 333; Prouty v. Eaton, 41 Barb. 410; Hovey v. Hill, 3 Lans. 168; also, 22 N. T. 535; 60 ih. 61; 39 How. Pr. 339; Schaefer v. Reilly, 50 N. Y. 61; Crane v. Turner, 67 N. T. 437; Westbrook V. Gleason, 79 N. Y. 23; Davis v. Bechstein, 69 N. Y. 440; Trustees, &c. v. Wheeler, 61 N. Y. 88 ; Simonson v. Palihee, 25 Hun, 570 ; Viele v. Judson, 82 N. Y. 33; Green v. Fry, 93 N. Y. 358. But see Simpson v. Del Hoyo, 94 N. Y, 189, holding a lona fide assignee of a mortgage not affected by the fraudulent title of the mortgagor, though his assignor, who was the mortgagee, had full notice. Effect of Record of Assignment. — It was formerly said that the effect of recording an assignment of mortgage was merely to protect the assignee against a subsequent sale of the same mortgage (Crane v. Turner, 67 N. Y. 437 ; Greene v. Warnick, 64 N. Y. 236 ; Westbrook v. Gleason, 79 N. Y. 33) ; but these dicta were overruled by Decker v. Boice, 83 N. Y. 215, which held that the record of the assignment was notice to all persons and would give an assignee without notice preference over a prior unrecorded mortgage or conveyance even though his assignor had notice and so could not have obtained such preference. In Viele v. Judson, 83 N. Y. 32, it was held that the record is notice to all persons claiming under the mortgagee by assignment or otherwise (Belden v. Meeker, 47 N. Y. 307), but not to subsequent purchasers or incumbrancers who derive title in good faith from the mortgagor, and the old rule was criticised as too narrow. This case also held that noting the assignment in the margin of the record of the mortgage was unnecessary. The case of Brewster v. Games, 103 N. Y. 556, holds that the record is notice to a subsequent purchaser of the equity of redemption and approves Viele 'v. Judson. The mortgagor is not bound by subsequent records and payments made by him to the mortgagee after assignment and record thereof are protected. Kelly V. Bruce, 17 Week. Dig. 39; Pettus v. McGowan, 37 Hun, 409; Van Keuren v. Corkins, 66 N. Y. 77. But a purchaser of the equity of redemp- tion after record of the assignment of mortgage is bound by the record. Brewster v. Games, 103 N. Y. 556. Vide also post, Ch. XXVI, as to record. Acts of Mortgagee after Assignment. — Discharge by a mortgagee after assignment is ineflectual. Heilbrun v. Hammond, 13 Hun, 474; Viele v. Judson, 82 N. Y. 32. But see Trustees, &c. v. Wheeler, 61 N. Y. 88, holding a release in such case, to one without notice, to be good. In this case the assignment was not recorded until after the releases. 584 THE ASSIGNMENT OF MORTGAGES. [CH. XXIII. Where a mortgagee, after assignment, took a conveyance of the land in satisfaction, and afterward conveyed to an innocent purchaser, the mortgage was held to be a subsisting lien, though the assignment was not recorded. Miller v. Lindsey, 19 Hun, 307; Puvdy v. Huntington, 42 N. T. 334. Where a mortgagee after assignment satisfied the mortgage of record, a subsequent lona fide mortgagee was protected, the assignment not being recorded. Van Keurens v. Corkins, 66 N. T. 77 ; Bacon v. Van Schoonhoven, 87 N. y. 446. Assignee of Assignee. — The assignee of the assignee of a mortgage takes only the title of his assignor. Sweet v. Van Wyck, 3 Barb. Oh. 451 ; White V. Knapp, 8 Pai. 173 ; Bush v. Lathrop, 33 N. Y. 535. Collateral Rights. — An assignment of the bond and mortgage and the money due, etc., carries all collaterals. Belden v. Meeker, 3 Lans. 470 ; affl'd, 47 N. Y. 307; Craig v. Parkes, 40 N. Y., 181. Infant. — An infant cannot assign a bond and mortgage. Peabody v. Fenton, 8 Barb. Ch. 451. Assignment to Mortgagor. — The legal effect of an assignment of a mortgage from the mortgagee to the mortgagor is to extinguish it, so as to let in subsequent liens (Moore v. Hamilton, 48 Barb. 120; 42 N. Y. 884; Smith V. Roberts, 91 N. Y. 470), but this may be controlled. Coles v. Appleby, 87K Y. 114. Effect of Lis Pendens. — An assignee is an "incumbrancer," and is bound by a " Zis pendens" notice. Hovey v. Hill, 3 Lans. 168. But see Lament v. Cheshire, 65 N. Y. 69, distinguishing this case. So is a mortgagee of the grantee whose mortgage was recorded after a lis pendens was filed in a suit by a receiver in supplementary proceedings. Ay- rault V. Murphy, 54 N. Y. 303. Assignment without Bond. — The assignment of the debt transfers at least an equitable title to the mortgage. The mortgage interest, however, as distinct from the debt created by the bond, has no determinate value, and is not a fit subject of assignment. The assignment, without the accompany- ing bond, whether by writing or parol, and as collateral or otherwise, is a nullity, and the assignee acquires no interest. Cooper v. Newland, 17 Abb. 343; Merritt v. Bartholick, 47 Barb. 353; afli'd, 36 N. Y. 44; Pattison v. Hull, 9 Cow. 747; Jackson v. Blodget, 5 Cow. 302; Payne v. Wilson, 74 N. Y. 348 ; Greene v. Warnick, 64 N. Y. 320 ; Carpenter v. O'Dougherty, 67 Barb. 397. And if he take the mortgage without production of the bond he is chargeable with notice of defect in his assignor's title. Kellogg v. Smith, 26 N. Y. 18. Estoppel of Assignor. — The assignor is estopped to deny in any way the validity, of the bond or mortgage. Smith v. Simpson, 8 Week. Dig. 4. Implied Warranty. — A warranty of validity is implied in an assign- ment, on which action will lie if injury be sustained from any invalidity. Ross V. Terry, 68 N. Y. 613; Corwin v. Wesley, 34 Super. 109. A warranty of the mortgage is a warranty of the bond. Ross v. Terry, supra. Estoppel of a Mortgagor. — A mortgagor is liable even on an invalid mortgage if he do any act or make any representation from which an as- signee may properly infer validity. Day v. Perkins, 3 Sand. Ch. 359; Car- penter V. O'Dougherty, 67 Barb. 397 ; Eitel v. Bracken, 88 Super. 7 ; First Nat. Bk. &c. V. Stiles, 32 Hun, 339. But not if the acts were procured by fraud. Wilcox v. Howell, 44 N. Y, 398;affl'g44Barb. 396. TIT. VIII.] DISCHAEGE OF MORTGAGES. 585 A mortgagor is estopped to set up usury against one who took an assign- ment of the mortgage relying on his affidavit of validity. Hirsch v. Trainer, 3 Ab. N. C. 274; Weyh v. Bolan, 85 N. Y. 394 ; Dinkelspiel v. Franklin, 7 Hun, 839; Paine v. Burnham, 63 N. Y. 69; Real Est. Trust Co. v. Roder, 53 How. Pr. 231. So of a mortgagor who induced an assignee (in good faith and without notice) to take the mortgage and paid him for an extension. Harnett v. Zacharias, 24 Hun, 304. Reliance on a certificate of validity as a protection in law will not create an estoppel. There must be a change of position due to reliance on the truth of the facts stated. Shapley v. Abbott, 43 N. Y. 443 ; Nichols v. Nussbaum, 10 Hun, 314. See also post, Title IX, " Usury." The principle that the assignee takes subject to all equities, applies only to equities attending the original transactions and not those subsequently arising. Bank for Savings, &c. v. Frank, 45 Super. 404 ; Coles v. Appleby, 87 N. Y. 114 I Smyth v. Knickerbocker L. I. Co. 84 N. Y. 589. He is not i)Ound by an unrecorded agreement by the mortgagee to release part of the premises for a certain sum. St. John v. Spalding, 1 N. Y. S. C. 483. As to assignment by Trustee vide ante, p. 284. Title VIII. Payment, Extinguishment and Discharge OP Moktgages. Provision was made by law of December 12th, 1753, and February 26th, 1788, re-enacted, by law of March 19, 1813, for the discharge of mortgages on record by clerks of counties on presentation of a certificate similar to the one below mentioned, the certificate to be signed in presence of two witnesses and acknowledged or proved as then required by law. The Revised Statutes (§ 60, p. 761, vol. 1) provide as follows : " Any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged tipon the record thereof by the officer in whose custody it shall be, whenever there shall be presented to him a cer- tificate signed by the mortgagee, his personal representa- tives or assigns, acknowledged, or proved and certified as hereinbefore prescribed, to entitle conveyances to be recorded, specifying that such mortgage has been paid or otherwise satisfied and discharged." It may be discharged by order of Supreme Court, a county court, or the Superior Courts of New York or Buffalo (within their respective jurisdic- 586 DISCHARGE OF MORTGAGES. [OH. XXIII. tions) in certain eases, in case of death of mortgagees, or of dissolution of a corporation or association. Laws of 1862, ch. 365 ; amended by Laws of 1868, ch. 798; amended Laws of 1873, ch. 551»; Laws of 1883, chs. 100 and 278; Laws of 1884, ch. 326. Where conflicting assignments are on record the register or county clerk cannot be compelled by mandamus to cancel the mortgage. People v. Miller, 43 Hun, 463. Under these acts payment in fact must be alleged and proved. A legal presumption is not enough. Matter of Townsend, 6 Suprm. Ct. 327 ; s. c. 4 Hun, 31. Mortgage to Secure a Tmst. — A mortgage may be given to secure a trust or annuity, and not be dischargeable by the mortgagee even with con- sent of the mortgagor until complete fulfillment. McPherson v. Rollins, 21 Weekly Dig. 254. Discharge after Judgment. — Discharge of a mortgage which has be- come merged in a judgment does not discharge the debt. Purdy v. Purdy, 9 Weekly Dig. 425. Waiver of performance of the condition of the mortgage extinguishes it. Morrison v. Morrison, 4 Hun, 410. Collateral Mortgage. — Where a mortgage is given to secure payments to become due on a contract, the cancellation of the contract discharges the mortgage. Wanzer v. Gary, 76 N. Y. 526. Forged Satisfaction Piece. — A mortgagee may be barred by laches from having reinstated a mortgage which was discharged of record on a forged satisfaction piece. Costello v. Meade, 55 How. Pr. 353. As to merger see post, this title. Joint Mortgagees, Executors, etc. — One of several joint mortgagees or one joint executor or partner, may discharge a mortgage. The People v. Keyser, 38 N. T. 226 ; reversing, 39 Barb. 587; 3 Barb. Ch. 151; 17 Abb. Pr. 314; 33 How. Pr. 223; 3 Johns. 68 ; 37 Barb. 466; reversing 32 Barb. 612; Stuyvesant v. Hall, 2 Barb. Ch. 151; Bogert v. Hertell, 4 Hill, 492. This is the rule, whether the mortgagees held jointly as individuals or as executors ; and the executors of a deceased joint mortgagee or assignee do not have to join. 28 N. T. 336, supra, explaining Peck v. Williams, 6 Seld. 509, and The People v. Miner, 32 Barb. 613. See also, Babcock v. Beman, 11 N. Y. 200; Chouteau v. Suydam, 31 id. 179; Carman v. Pultz, 21 id. 550. As to trustees, vide supra, p. 284. Return of the Mortgage.— When the debt is satisfied the mortgagor is entitled to have the mortgage and bond delivered up to him, and canceled. Matter of Coster, 2 Johns. Ch. 508. Mortgages to the State. — As to the discharge of such mortgages, vide Rev. Stat. vol. 1, pp. 488, 496. Mortgages to Loan Commissioners may be discharged also by the comptroller. Laws of 1868, ch. 693. After Assignment. — After assignment recorded, the mortgage cannot be discharged by the mortgagee ; and see, as to protection of bona fide purchasers, Belden v. Meeker. 47 N. Y. 308; Ely v. Scofield, 35 Barb. 330; Van Keuren V. Corkins, 66 N. Y. 77 ; Trustees v. Wheeler, 61 N. Y. 88. Vide alsp ante, p. 583. On Decease of Mortgagee, his executors or administrators are the ones to acknowledge satisfaction. Ely v. Scofield, 35 Barb. 830. A satisfaction piece executed by the next of kin who has not been appointed is validated by his subsequent appointment as administrator. Smith V. Robinson, SO Hun, 269. TIT. VIII.J DISCHARGE OP MORTGAGES. 587 Where there is a domestic administrator, a foreign one cannot satisfy. Stone V. Scripture, 4 Lans. 186. By Guardians of Infants.— Subsequent mortgagees or purchasers are bound to inquire by what authority a guardian discharges a mortgage, and that every requisite has been performed. Swartout v. Curtis, 5 N. Y. 301. By a Public Officer. — Parties must see that he had proper authority, and acted under the order of a court, where that is necessary. Walworth v. F. L. & T. Co. 1 Coms. 433. But a county treasurer may release a mortgage taken by him ofiBcially, and even if he do so without consideration his act is good as against subsequent lonafide mortgagees or purchasers. Baldwin v. Crary, 30 Hun, 433. Record of Certificate of Discharge.— § 61. Every such certificate, and the proof or acknowledgment thereof, shall be recorded at full length ; and a reference shall be made to the book and page containing such record, and a minute of the discbarge of such mortgage made by the officer upon the record thereof. 1 Rev. Stat. p. 761. Taken from 1 Eev. Laws, p. 373, § 4. Before the Revision of 1830, there was no provision that the certificate of discharge should be recorded. Partial Release. — A partial release is not within the recording act. Judson V. Dada, 79 N. Y. 373. Error of clerk in recording release does not affect the releaser. Simonson V. Palihee, 25 Hun, 570. Mistakes. — ^A discharge by mistake is held not to make an existing second mortgage a prior lien, to the injury of the holder of the first mort- gagee. Weaver v. Edwards, 39 Hun, 233. Production of Bond. — In paying principal on a bond and mortgage, the bond should be seen, or it is at the peril of the mortgagor that he makes the payment, lest the bond should have been assigned to some other person. Clark V. Igelstrom, 51 How. Pr. 407. But the production of the bond and mortgage are not necessary on the paying off the debt if the person receiving the money has a clear record title to the bond and mortgage. Bacon v. Van Schoonhoven, 19 Hun, 158 ; affi'd, 87 N. Y. 446. Releasing Mortgaged Premises.— Fit^e How. Ins. Co. v. Halsey, 8 N. Y. 271 ; 8 Paige, 378; 87 N. Y. 1. Upon release of mortgage, dower revives against grantee of the land. Everson v. McMullen, 43 Hun, 369. Release of partnership mortgage as to one surviving partner cancels the mortgage. Murray v. Pox, 104 N. Y. 383. Release of part of the Premises. — This does not release the balance, and even if not under seal, it mav be enforced in equity. Headley v. Goun- dry, 41 Barb. 379. A mortgagee cannot by releasing one or more parcels of the mortgaged land throw more than a pro rata share of the mortgage debt upon the other parcels while in the hands of other persons than those by whom the release is desired. Stevens v. Cooper, 1 Johns. Ch. 435. But it seems that notice of such rights must be brought home to him. He is not bound to examine the records subsequent to his mortgage. Chese- brough V. Millard, 1 Johns. Ch. 414; 8 N. Y. 371. See also Chap. XXVI, Title III. Release by mortgagee of part of the premises after assigning his mortgage, held valid as to some of the premises without notice of the assignment. Trustees of Union College v. Wbeeler, 61 N. Y. 88. But see ante, p. 583. A partial release of the debt or part of the land is not within the record- 588 DISCHARGE OF MORTGAGES. [CH. XXIll. ing act, and does not affect a subsequent assignee for value without notice. Judson V. Dada, 19 N. Y. 373. Discharge by Payment or Tender.— By the Revised Statutes (vol. 2, p. 301), after the expiration of twenty years from the time a right of action accrued upon any sealed instrument for the payment of money, such right was to be presumed to be extinguished by payment ; but such presumption might be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period. This part of the Revised Statutes was repealed by Chapter 245 of the Laws of 1880, and the only provision of the Code of Civil Procedure affecting the subject is the simple limita- tion of the time for beginning actions upon sealed instru- ments to twenty years contained in § 381. This would not apply if payments had been made within twenty years before commencement of foreclosure. N. Y. L. & T. Co. v. Covert, 6 Abb. N. 8. 154. The purchaser is bound to inquire as to these facts. 8 Abb. Ap. Ca. 350 ; ante, p. 583. After twenty years, where no interest has been paid, and there has been no foreclosure or entry, the mortgage will be considered as paid. Jackson V. Wood, IS Johns. 243. A mortgage that has once Taeen paid cannot be revived to the prej- udice of subsequent incumbrances, etc. 6 N. Y. 449 ; ib. 147 ; 33 N. Y. 536. Payment extinguishes the power of sale (5 Hill, 373) ; and prima Ja. Where lands are so mortgaged the widow shall not be entitled to dower therein, as against the mortgagee, or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons. This is the case even where the mortgage is given to a third person who advances the money. Kittle v. Van Dyke, 1 Sand. Ch. 76. See fully as to these provisions, ante, p. 149. Mortgages to and by .Aliens. — Vide ante, pp. 81 to 95. Their con- sideration money mortgages are valid, and only the equity of redemption is liable to escheat. Mortgages to the State. — Vide 1 R. S. ch. 9, title 6. Mortgages by Tenants for Life, and Married Women under a Power. — Vide ante, p. 332. Adverse Possession. — Those having a just title to lands held under ad- verse possession, may execute a mortgage on such lands, which shall bind the lands from recovery of possession, and have preference over judgments and mortgages subsequent to the record of the above mortgage. 1 R. S. 739, 1st edit. See also, 5 N. Y. 347; 41 Barb. 288. Rate of Interest. — Reduced to 6 per cent, after May 10, 1881. See 94 N. T. 354. Insurance. — ^A mortgagee whose mortgage does not contain an insurance clause has not an equitable lien on insurance moneys. Smith v. Knapp, 18 Weekly Dig. 95. See also, Raid v. McCrum, infra. A covenant to insure does not run with the land. Reid v. McCrum, 91 N. Y. 412; Dunlop v. Avery, 89 N. Y. 592. If there is an insurance clause the mortgagee may insure his debt directly if the mortgagor fail to insure. Foster v. Van Reed, 70 N. Y. 19. Breach of condition to insure can only be enforced upon notice to mort- gagor. Doran v. Franklin Fire Ins. Co., 86 N. Y. 635. Even where there is an insurance clause the mortgagee cannot collect if the policy is by its terms payable to another incumbrancer. Dunlop v. Avery, 89 N. Y. 592. Insurer may be subrogated to mortgagee in certain cases. Ulster Co. Savgs. Bk. V. Leake, 73 N. Y. 161; Thomas v. Montauk Fire Ins. Co., 43 Hun, 318. Taxes. — May be paid by mortgagee (likewise insurance, etc.), and charged up to the loan, when necessary to protect the security, and may be collected TIX. X.] MISCELLANEOUS PROVISIONS. 597 on foreclosure, even though there be no tax clause in the mortgage. Siden- berg v. Ely, 90 N. Y. 257. Subrogation. — A second mortgagee has the right, when necessary to protect himself, to compel an assignment of a prior mortgage and also of a collateral guarantee for its payment. Clark v. Mackin, 95 N. Y. 346 ; Ellsworth T. Lockwood, 43 N. Y. 97 ; Twombly v. Cassidy, 83 id. 155; Frost V. Yonkers Savgs. Bk., 70 N. Y. 553; Dings v. Parshall, 7 Hun, 533; Patter- son V. Birdsall, 64 N. Y. 394; Vandercook v. Cohoes Savgs. Inst'n, 5 Hun, 641. He must pay into court the amount of the mortgage with interest and costs if foreclosure be already begun. Day v. Strong, 29 Hun, 505; also see Twombly v. Cassidy, above, if after judgment. The same rule was applied in favor of the maker of a mortgage who had sold the land, in Johnson v. Zink, 51 N. Y. 383. A person on paying off an existing mortgage, believing it to be the only lien on the land, and loaning on a new mortgage, is subrogated as to the canceled mortgage as against a judgment subsequent to the canceled mort- gage, and marked " secured on appeal." 64 N. Y. 397; 56 How. Pr. 382; Green v. Milbank, 3 Abb. N. 0. 138. Where the widow and executrix of a deceased mortgagor with her second husband, having no title, executed a mortgage and paid a former mortgage with the proceeds, subrogation was decreed. G-ans v. Thieme, 93 N. Y. 335. The same rule was applied to protect against the dower of infant wife who executed the subsequent mortgage, in Snelling v. Mclntyre, 6 Abb. N. C. 469. A mere volunteer cannot claim subrogation. Acer v. Hotchkiss, 97 N. Y. 395. Defect in Title. — ^A vendee in possession who has made part payment and given a mortgage for the rest cannot have the mortgage set aside for defect in title, but must rely on the covenants in the deed. Ryerson v. Willis, 81 N. Y. 377. Priority, Notice and Recording. — See post, Chap. XXVI. A deed for a valuable consideration has preference over a mortgage for a pre-existent debt made and recorded after the contract of sale in pursuance of which the deed was made, but before the deed. Young v. Guy, 33 Hun, 1 ; affl'd, 87 N. Y. 457. On foreclosure of such mortgage the vendee is en- titled to be credited with sums paid by him in cash, but not the amount of a purchase-money mortgage made by him and paid to the assignee. li. Where one without title makes a mortgage, title afterwards acquired, enures to the benefit of the mortgagee, and the mortgage is notice to a bona fide purchaser, though it was recorded before the mortgagor acquired title. Tefit v. Munson, 57 N. Y. 87. But it will be postponed to a purchase-money mortgage. Dusenbury v. Hurlbut, 59 N. Y. 591. Simultaneous mortgages are concurrent. Granger v. Crouch, 86 N. Y. 494. Possession under a contract is notice of title to an intending mortgagee. Westbrpok v. Gleason, 79 N. Y. 33. A defective mortgage or an agreement to mortgage to secure an antece- dent debt takes precedence of a judgment recovered before the mortgage is perfected or legally carried into effect. Nat'l Bk. of Norwalk v. Lanier, 7 Hun, 633. Receiver's Certificates. — The rights of mortgagees are superior to those of holders of receiver's certificates. Raht v. Attrill, 106 N. Y. 433. Order of Charge, when Lands are Sold. — When lands are contracted to be sold, or are sold to different purchasers at different times, the residue, if any, is the primary fund for the payment of the original mortgage, and if 598 MISCELLANEOUS PROVISIONS. [OH. XXIII. a purchaser transfer different parcels, they are chargeable in the inverse order of sale. This right is an equitable, not a legal right. 8 Pal. 182; Crafts v. Aspinwall, 2 Corns. 289; How. Ins. Co. v. Halsey, 4 Sand. 565; 4 Seld. 371; 46 N. y. 637 ; Halsey v. Reed, 9 Pai. 446. See this case as to the rights of heirs and the various owners. Schryver v. Teller, 9 Pai. 173 ; G-rosvenor v. Lynch, 2 Pai. 300; Gruion v. Knapp, 6 Pai. 35; Snyder v. Stafford, 11 id. 71; N. Y. L. Ins. Co. v. Milnor, 1 Barb. Ch. 353 ; Stuyvesant v. Hall, 3 id. 151 ; Skeel V. Spraker, 8 Pai. 183; Miles V. Fralich, 11 Hun, 561; 3 N. Y. 389; 94 N. Y. 98; 50 id. 381 ; 80 id. 555. The right enures to subsequent mortgagees of portions of the land. Hopkins v. Wolley, 81 N. Y. 77. Mortgage in Blank. — Where one delivers a mortgage in blank to get a loan, the agent may flU in the mortgagee's name. Hemmenway v. Mulock, 56 How. Pr. 88. The Abstract of Title is part of the security, and the mortgagor cannot have it till he pays the debt. Holm v. Wust, 11 Abb. N. S. 113. Cemetery Lots. — A mortgage of a Greenwood Cemetery lot after inter- ments is void. Thompson v. Hickey, 8 Abb. N. C. 159. Dower. — A wife's dower is affected by her joining in a mortgage with her husband, only to the extent of the mortgage. If the mortgage fail as to the husband, it likewise fails as to her dower. Hinchliffe v. Shea, 103 N. Y. 153; rev'g 34 Hun, 365. Fixtures as between mortgagor, mortgagee and others. (See also Chap. XX.) Mirrors with frames of same wood as mantel and pretty firmly attached, held fixtures. Lockwood v. Lockwood, 3 Redf. 330. But not if resting on a bracket and connected with the house only as picture frames usually are. li. See also below " Gas Fixtures.'' Theatre chairs held fixtures. See 48 N. Y. 378 ; 40 id. 387 ; Grosz v. Jackson, 6 Daly, 463. Machinery in a building especially adapted to hold it, and permanently fastened to the floor with the intention of leaving it there for permanent use, held as between mortgagee and creditors of mortgagor to be fixtures. Mc- Rea V. Central Nat. Bk. of Troy, 66 N. Y. 489 (disting'd in "Wells v. Maples, 15 Hun, 90). See also, Wahath v. Henderson, 6 Weekly Dig. 393 ; Hart v. Sheldon, 34 Hun, 38. But as between mortgagor and mortgagee, when only sufficiently fastened to hold it in place, and there being no evidence of any intention to make it part of the freehold (40 N. Y. 297 ; 18 id. 28; distinguishing 40 N. Y. 387 ^ 48 id. 378; 66 id. 489), it is personal property. Wells v. Maples, 15 Hun, 90. Gas Fixtures, when detachable by simply unscrewing them and mirrors not built into the walls but supported on hooks, whence they may be taken without injury, do not form part of the realty. McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38. Even when it was the intention that they should pass, if in conflict with an innocent purchaser of them as chattels. Ih. See also as to mantels following same rule. Cottrell v. Griffin, 18 Weekly Dig. 370. Hop-poles are covered by a mortgage of the land to which they belong. Sullivan v. Toole, 36 Hun, 303. Action to Cancel Mortgage. — An action for equitable relief from fraud as to the value of the land may be maintained by a mortgagor as to a pur- chase-money mortgage given to the grantor, and that before money damage has been sustained. See Ranney v. Warren, 17 Hun, 111. But he cannot have such a mortgage set aside for failure of title. He must rely on the covenants in his deed. Ryerson v. Willis, 81 N. Y. 377. TIT. X.J MISCELLANEOUS PKOOEEDINGS. 599 Extension. — Time for payment of a mortgage may be extended by parol. Burt V. Saxton, 4 Hun, 561 ; Valentine v. Heydecker, 12 Hun, 676. The extension does not necessarily aflect the provisions respecting non- payment of interest, etc. Jester v. Sterling, 33 Hun, 344. Acts of the Mortgagor cannot affect the mortgagee's estate and interest in the land mortgaged. Erie Co. Savgs. Bk. t. Roop, 80 N. Y. 591. Land Bought by Husband and conveyed to Wife.— A bond given by a husband secured by a mortgage on property bought by him and conveyed to his wife is good against him as between them. White v. Button, 37 Hun, 556. Sale of Land for Taxes ; Mortgages, how Apportioned. — See Laws of 1855, ch. 427; 1 R. S. 5th edit. 937. Purchasers of Lands Sold for Quit Rents. — See Act of Apr. 13, 1819; 1 Wend. SOI. Madison Co. Mutual Insurance Notes. — By Laws of March 23, 1836, the deposit notes of said company when filed with a county clerk where the property is situated, are made a mortgage lien. Consideration Money Mortgages a Prior Lien to Judgments. — Where real property is sold and conveyed and at the same time a mortgage there- upon is given by the purchaser to secure the payment of the whole or a part of the purchase-money, the lien of the mortgage is superior to the lien of a previous judgment against such purchaser. Co. Civ. Proc. § 1254, superseding 1 Rev. Stat. p. 749, § 5, which was to the same effect. If both instruments are of the same date, the presumption is that the mort- gage is for the consideration. Such preference is given over judgments even if the mortgage is executed to a third person, who advances the money. Jackson v. Austin, 15 Johns. 477; Card v. Bird, 10 Paige, 46; Cunning- ham V. Knight, 1 Barb. 399; Coutant v. Servoss, 3 Barb. 128. Effect of Partition. — Where a mortgage was given on an undivided share, on partition, the mortgage is to be considered attached to the divided share. Jackson v. Pierce, 10 Johns. 414. Unexpired term of Five Tears or over. — Mortgagees, etc., may re- deem within a year on removal of a lessee holding such a term. Co. Civ. Proc. § 2257 following Laws of 1842, ch. 240, which was repealed by Laws of 1880, ch. 245. National Banks.— It was held in Crocker v. Whitney, 71 N. Y. 161, that national banks being prohibited by law from taking mortgages except for antecedent debts, a mortgage to such a bank to secure future advances was void, but this decision was reversed in 13 Otto, 99, on the ground that only the United States could raise the objection, and such mortgages were held to be valid in Simons v. First Nat. Bk., 93 N. Y. 269. CHAPTER XXIV. THE HOLDING AND TRANSFER OF REALTY BY CORPORATIONS. Title I.— General Powees to take and TEANsrsR Land. Title II. — Transfers, how Made. Title III. — Miscellaneous Provisions as to Corporations. Title IV.— Religious, Educational, and Charitable Corporations. Title V. — Moneyed Corporations. Title VI. — Insurance Corporations. Title VII. — Eailroad Corporations. Title VIII. — Cemeteries and Burial Corporations. Title IX. — Other Special Corporations. Title I. General Powers to Take and Transfer Land, The power to purchase lands, in the course of its lawful operations, is a power incident at common law to every corporation, unless specially or impliedly re- strained by its charter, or by statute ; and when an au- thority to purchase is allowed or conferred, the power to sell is necessarily implied. The law as to devises to cor- porations has been reviewed in a preceding chapter. Jackson v. Bowen, 5 Wend. 590 ; Angell & Ames on Corporations, 83, et seq.; Moss v. The Rossie Lead Co. 5 Hill, 137; De Ruyter v. St. Peter's Church, 3 Corns. 238; Barry v. Merchants' Ex. Ins. Co. 1 Sand. Ch. 280; Central Gold Co. v. Piatt, 3 Daly, 263 ; Tyson v. Gibbs Mfg. Co., 11 Repor- ter, 748. A community not incorporated cannot purchase and take in suc- cession. It has been so held with respect to the people of a county (8 Johns. 388), and of a town. 9 Johns. 73 ; 12 Johns. 199. The Revised Statutes have altered this restriction as to counties, towns, etc. 1 Rev. Stat. 364, 337; 2 id. 701; mi post, Title IX. See also, as to towns, Lorillard v. Town of Monroe, 1 Ker. 892 ; People v. Stout, 23 Barb. 338. As to counties, Hill V. Livingston Co., 2 Ker. 52 ; Jackson v. Hartwell, 8 Johns. 423. A change of name or extension of powers does not alter rights in property of a corpora- tion. Girard v. Philadelphia, 7 Wall. 1. Corporations likewise, unless restrained by charter, have the power to mortgage their property to secure TIT. 1.] TO TAKE AND TRANSFEE LAND. 601 borrowed money, or their debts ; but without some special statute allowing it can neither sell nor mortgage their franchises. Carpenter v. Black Hawk Gold Mining Co., 65 N. Y. 43. Receiving and applying the avails of a mortgage ratifies it though it had not been sufficiently authorized before execution. Whitney v. Trust Co., 65 N. Y. 576. A corporation, though incorporated for a limited pe- riod, may acquire title in fee to lands necessary for its use ; and it would take such fee without words of suc- cession, and pass it to others ; and a grant to it generally would be a grant in fee. NicoU V. N. Y. & E. R. R. 13 N. Y. (3 Ker.) 131 ; The People v. Mauran, 5 Den. 389; Owen v. Smith, 31 Barb. 641 ; 1 R. 8. 1st ed. p. 600, § 9. See also, 31 Barb. 411, 643; 30 ib. 587; 7 J. C. R. 138; 10 Wend. 454; 5 Denio, 574; 46 Barb. 365; 43 ». 174; Yates v. Vandebogert, 56 N. Y. 536. Contra, Turnpike Co. v. Illinois, 6 Otto, 63. States. — A statutory conveyance of property cannot strictly operate be- yond the local jurisdiction, although its eflEect may be extended by State comity. Oakey v. Bennett, 11 How. 33 ; Van Horn v. Dollrance, 8 Dall. 304. See fully, also, as to transfers from the State by letters patent, char- ter, grant, and legislative act, ante, Ch. I. The United States. — The United States are a body corporate, hav- ing capacity to contract and to take and hold property in any of the States. When the United States purchase lands within the boundaries of a State, without the consent of the State, which they may do, the jurisdiction over the lands still continues, and the lex rei sites will govern. When the pur- chase is made for forts, docks, arsenals, etc., with the consent of the State, the lands fall within the exclusive jurisdiction of Congress, and State jurisdiction is ousted. Dibble v. Clapp, 31 How. 430; The People v. Godfrey, 17 .Johns. 335; Stearns v. United States, 2 Paine, 300; U. S. v. Cornell, 2 Mass. 60; Constitution of U. S. Art. i, § 8: U. S. v. Ames, 1 Wood. & M. 76; Irvine v. Marshall, 30 How. 558; U. S. v. Cornell, 3 Mass. 60 ; Act of Apr. 38, 1838 ; 5 Stat, at Large, 364 ; see also, ante, p. 394, as to devises to the United States. Foreign Corporations. — A legally constituted corporation in another State may hold land ad libitum in this State, provided it is authorized by charter. 3 Kent, p. 383. This is the general rule. Christian v. Yount, 11 Otto, 353. See Laws of 1877, ch. 158, allowing foreign corporations to purchase lands at foreclosure in this State. By Revised Statutes of 1830, every corporation, as such, has power to hold, pii/r chase a/nd convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter; 602 TO TAKE AND TRANSPBE LAlfD. [OH. XXIV. and also to make and use a common seal, and alter tlie same at pleasure. Part 1, title 3, ch. xviii, § 1. These provisions are applicable as well to future corporations. J6. | 3 ; 5 Den. 577; 3 Cow. 664. Unless otherwise provided, a majority of its directors, etc., is to act, and a decis- ion of a majority assembled as a board shall be a valid act. Rev. Stat. ib. § 6. Its corporate powers are to cease, unless it organize and transact business within a year from the date of incorporation ; and its charter is subject to repeal, alteration or suspension by the legislature. lb. §§7, 8 ; 5 Hill, 383; 14 Barb. 559; 10 Barb. 360; 17 Barb. 603; 8 Barb. 364. Where its charter specifies the objects for which it may hold real estate, it cannot take it for another purpose. Boyce v. St. Louis City, 29 Barb. 650 ; Central Gold Mining Co. v. Piatt, 3 Daly, 368. A provision in the char- ter enabling a corporation to take land by purchase or otherwim, is an authority, within the statute of wills, to take by devise. Downing v. Mar- shall, 23 N. T. 366. One purchase does not exhaust the power. Johnson v. Utica, &c. Co., 67 Barb. 415. Provision against Mortgaging. — A provision against mortgaging does not preclude an equitable lien in favor of vendors of land to the corpora- tion. Dubois V. Hull, 43 Barb. 26. Unlawful Alienations may be set aside. — The Supreme Court is author- ized to set aside and restrain all alienations of property made by a cor- poration contrary to law or its charter. Co. Civ. Proc. § 1781. So formerly by 3 R. S. 763, repealed by Laws of 1880, ch. 245. But where a corporate act is within the general power of the corporation and the invalidity arises from something not apparent in the grant of power, and extrinsic thereto, one dealing with the corporation in ignorance of that which vitiates, will not be necessarily affected thereby. So held for the protection of a title acquired for value and of longstanding. Alward v. Holmes, 10 Abb. N. C. 96. Only the corporation stockholders or creditors can impeach a transfer for want of previous action by the board of directors. Castle v. Lewis, 78 N. Y. 131. Transfers after Proceedings for Dissolution. — All conveyances, mort- gages, assignments and transfers, etc., of real and personal estate made by a corporation after filing a petition for dissolution are void as against the receiver and creditors. 3 Rev. Stat. p. 469. As to such proceedings see Co. Civ. Proc. §§ 3419-3431, also 55 N. Y. 18, explaining the statute. Increase beyond Amount Allowed to be Held by Law. — This cannot divest title, and the holding iu excess is invalid only as to the State. Cham- berlain v. Chamberlain, 3 Lans. 348, modified in 43 N. Y. 434; Bogardus V. Trinity Church, 4 Sandf. Ch. 663. And indebtedness of the corporation is to be deducted in making the estimate. Wetmore v. Parker, 7 Lans. 121 ; affi'd, 53 N. Y. 450. By Laws of 1882, ch. 390, it is provided that any corporation having conveyed part of its real estate may, with leave of court, acquire other prop- erty adjacent to that which it already holds, provided that the value of the new land does not exceed the value of the lands sold by the corporation within three years previous to the purchase. TIT. II.] TEANSPEKS, HOW MADE. 603 Title II. Teansfees, and Moetgages, how Made. The real estate of a corporation can be conveyed by it only in its corporate capacity, and not by the individ- ual members of the corporation or the stockholders j unless individuals have the title in their names. Nor can directors contract with themselves, as individuals, on behalf of the corporation. Cammeyer V. United Lutheran Churches, 3 Sandf. Ch. 186; Wilde v. Jenkins, 4 Pai. 481 ; De Zeng v. Beekman, 3 Hill, 489 ; Coleman v. 3d Av. E. E. 38 N. Y. 301; and see post, " Religious Corporations." The conveyance or mortgaging by corporations is effected by the signature of the instrument by the proper officer or agent of the corporation, under its direction, who has charge of the corporate seal, and by the impression of the seal, with a proper attestation thereof, and that the same was affixed by authority of the body. The Affixing of the Seal is prima facie evidence that it was done by the authority of the corporation. 6 Paige, 54 ; 1 Denio, 530 ; 1 Seld. 355 ; 5 Wend. 575 ; 7 Hill, 91 ; Whitney v. Union Trust Co. 65 N. Y. 576 ; Canan- daigua Academy v. McKechnie, 19 Hun, 63 ; and 90 N. Y. 618. If directors have been deprived of authority, except to close the concern, their conveyance would be void. Green v. Seymour, 3 Sandf. Ch. 385. The instrument is usually signed by the president, and attested by the secretary. How far the authority to sign from the board, should be shown, where a previous direction is necessary, vide 3 Barb. Ch. 307 ; 5 N. Y. 830 ; 3 Bosw. 267, 285 ; 3 Black. 715 ; 7 Hill, 91. It is stated in Hoyt v. Sheldon, 3 Bosw. 385, that a company would be esto-pped from denying the authority of its officers to execute the instru- ment. So also. Philips v. Campbell, 43 N. Y. 271. If the company receives and applies the avails of a mortgage it ratifies it, even though made without authority. Whitney v. Union Trust Qo., 65 N. Y. 576. An assignment of all its property without specific authority from the company would be void. Murray v. Vanderbilt, 89 Barb. 140. A treasurer cannot assign a mortgage without authority from the direc- tors (5 Wend. 573), nor can the president and cashier. 5 N. Y. 331 ; 39 Barb. 140. The recitals showing authority are not conclusive evidence. Hojrt v. Thompson, 1 Seld. 230. The Seal. — The seal must be that of the corporation. Mann v. Pentz, 3 Sandf Ch. 357. Formerly its seal had to be on wax or some other tenacious substance. By recent laws the seal, when it is authorized by law, to be affixed, may be impressed on the paper. Co. Civ. Proc. § 960, replacing Laws of 1848, ch. 197, § 1. which was repealed by Laws of 1880, ch. 345. By § 3 of the Act of 604 PBOVISIONS AS TO OOEPOKATIONS. [CH. XXIT. 1848, instruments which had been so sealed before that act are declared valid. This section is still in force. Proof by the president signing the deed that the seal is the corporate seal, and was affixed by its authority, entitles it to be recorded. 6 Paige, 54 ; 3 Barb. Oh. 207, 238. It should be affixed by the officer having custody, by the direction of the managing officers. In the absence of proof, courts would presume it was affixed by authority of trustees, etc. Jackson v. Campbell, 5 Wend. 573 ; Moore v. Rector, &c., 4 Abb. N. C. 61. See also, Curtis v. Leavitt, 17 Barb. 809; modified in 15 N. Y. 16; Leavitt v. Blatchford, 17 N. Y. 541, as to bonds of a corporation. A temporary seal may be adopted if the corporation have none, e. g., the seal of the trustees. Christie v. Gage, 3 N. Y. S. C. 344 ; South Bap. Soc. v. Clapp, 18 Barb. 36 ; Hunter v. Hud. Riv. Co., 20 Barb. 494. See the latter case as to an attestation by the treasurer, ■yvhere the company had no seal. Two out of an appointed committee of three may act and affix the seal where the third is absent but has approved the act. Pres. etc. v. Troy, etc. Co., 7 Lans. 340. The body may subsequently ratify any act not ultra vires. Hid. Banking Associations under Law of 1838.— The president may assign mortgages under under his own name. Valk v. Crandall, 1 Sandf. Oh. 179. Execution by Agent. — It seems that the corporate seal and formal resolu- tion of the directors are not necessary to the validity of a contract by a corporation. It may be signed by its proper agent with the name of office attached. Hascall v. Life Assoc, of America, 5 Hun, 151 (affl'd, it seems, 66 N. Y. 616) ; Hoag v. Lament, 60 N. Y. 96. Acknowledgment. — The officer who is intrusted with and affixes the seal is the one to acknowledge the instrument ; stating his authority, that he knows the seal, and that the same was affixed by order of the board, and that he subscribed his name as witness. Lovett v. The Steam Saw Mill Ass'n, 6 Pai. 60 ; Johnson v. Bush, 3 Barb. Oh. 307. A bond of a corporation is defectively executed when the attorney sign- ing on behalf of the corporation in the acknowledgment merely stated that " he executed the same." Howe Machine^ Co. v. Avery, 16 Hun, 555. Delivery. — The deed of a corporation, it has been said, does not need delivery, if the seal has been duly affixed with that intent, unless there is a direction to the contrary. Derby Canal Co. v. Wilmot, 9 East, 360. Foreign Corporations. — As to validity of their acts see L. 1873, c. 634. Title IIL Miscellaneous Provisions as to Corpora- tions. The following provisions are of importance to note : Certain Transfers Void. — Any incorporated company that has refused the payment of any of its notes or evidences of debt, in specie or lawful money of the United States, cannot make any transfer of its property, etc., to any of its officers or stockholders, directly or indirectly, in payment of a debt ; and no transfer, etc., in contemplation of insolvency to any person whatever shall be legal. And if insolvent for a year, or if it has neglected to redeem its notes, etc., or suspended business, etc., for a year, it shall be deemed dis- solved. 1 R. S. 603, 1st edit. § 4. The latter part of this section was repealed by Laws of 1880, ch. 245. The whole section was repealed by sub- TIT. III.] PROVISIONS AS TO CORPORATIONS. 605 division 39, of ch. 402, of the Laws of 1883, but this repeal was stricken out by Laws of 1884, ch. 434, so that the prohibition of transfers now stands. By the Rev. Stat, and Law of 1871 , ch. 883, this is qualified so as not to apply to religious corporations, or to moneyed corporations created or renewed after January 1, 1828. An assignment even to pay creditors pro rata would be void. Harris v. Thompson, 15 Barb. 62; Sibell v. Remsen, 33 N. Y. 95. VMe infra, as to moneyed corporations and religious societies. Laws of 1825, 450 ; 3 Barb. 121 ; 11 Barb. 365 : 30 Barb. 646 ; 5 Hilt. 221 ; 44 Barb. 631 ; 36 Barb. 261. Associations under the banking law are within the prohibition. Robin- son V. Bank of Attica, 21 N. T. 406. Otherwise than as above provided, a general assignment might be made of property, but not of the franchise. De Ruyter v. St. Peter's Church, 3 Coms. 338; Hurlbut v. Carter, 21 Barb. 221. But it seems that a general assignment by the directors of a corporation of all its property would be void as against stockholders not consenting, whether the company were solvent or not. Smith v. N. Y. C. Stage Co. 18 Abb. Pr. 419. Unauthorized Purchase or Loan. — A corporation cannot avoid an obli- gation on the ground that it was given for property which the corporation was unauthorized to purchase. Moss v. The Rossie Lead Co. 5 Hill, 137; State of Indiana v. Woram, 6 Hill, 33. That an act was ultra vires is no defense where the contract has been per- formed by the other party and the corporation has had the benefit of it. WoodruflF v. The Erie Railroad Co. 93 N. Y. 609. If it loan in any manner unauthorized by its charter, the security is void. Life, &c., Ins. Co. v. Mechanics' Ins. Co. 7 Wend. 31 ; Bissell v. The In. M. R. supra. But the money may be recovered back. Steam Nav. Co. v. Weed, 17 Barb. 378; Mott v. U. S. Trust Co. 19 id. 568; Moss v. McCuUough, 7 Barb. 279. Legislature may Confirm Void Grant. — The legislature has the power to confirm a grant attempted to be made by a corporation, but void for irregu- larity. The People v. Law, 34 Barb. 494. Reverter of Lands on Dissolution. — On the dissolution of a corporation without having aliened its lands, it was formerly the law that the title to land not transferred by it, would revert to the original grantor or his heirs, unless there was provision to the contrary in its charter or by statute. Property undisposed of would now belong to the corporators. The People v. Mauran, 5 Denio, 389; Owen v. Smith, 31 Barb. 641 ; Tink- ham V. Borst, 31 Barb. 407. Mahon v. N. Y. 0. R. R. 24 N. Y. 658, is to the contrary so far as a turnpike franchise is concerned ; the company having but an easement. The case of Bingham v. Weiderwax, 1 Corns. 509, also intimates that there would be a reverter to the original grantor on a dissolu- tion. As to plank roads, vide 50 N. Y. 302. Consolidation.— If two corporations be legally consoli- 606 PROVISIONS AS TO COEPOEATIONS. [OH. XXIV. dated the rights and franchises of both the old ones vest in the new one. People V. Brooklyn F. & C. I. K. R. Co. 89 N. T. 75. Change of Name of Corporations.— By Act of April 31, 1870, ch. 333, as amended Laws of 1874, ch. 76, and Laws of 1876, ch. 380, corporations, associations or societies, except banks or banking associations, trust compan- ies, and insurance companies, may have their names changed on complying with the provisions of the act. The excepting clause originally covered com- panies created by special charter and railroad companies. Banks, banking associations and trust companies may now change their names by complying with the provisions of ch. 518 of the Laws of 1887. As to change of name and identity see First Society, &c. v. Brownell, 5 Hun, 464. Corporation adopting a name for the purpose of contract estopped from asserting that it was not the appropriate appellation. Hascall v. Life Assoc, of America, 5 Hun, 151 ; affl'd, it seems, 66 N. T. 616. Proceedings against Corporations by Izijnnction and to Obtain Re- ceivers. — Vide Code of Civil Procedure, §§ 1809 to 1813, which substantially follow the Act of April 7, 1870, ch. 151. This latter act was repealed by Laws of 1880, ch. 345. Dissolution for Insolvency, etc. — By the Revised Statutes if an incorpo- rated company remained insolvent for a year, or for that time refused to pay its notes, etc., or for one year suspended its ordinary business, it was to be adjudged dissolved. 3 R. S. p. 463, § 38. This provision was repealed by Laws of 1880, ch. 345, and, in place of it, the Code of Civil Procedure provides for an action to dissolve the corporation for such causes. Co. Civ. Proc. §§ 1785, 1786. Purchases of Franchises and Property of Corporations Sold by Mort- gage, and Reformation of Companies. — Act of May 9, 1873, ch. 469; amended by Laws of 1880, ch. 113. By Laws of 1881, ch. 33, all certificates of incorporation required to be filed must also be recorded. Amended Certificate. — By Law of April 5th, 1870, ch. 135, where cor- porations are organized under general acts, and the original certificate is de- fective, an amended one may be filed ; and the corporation shall be deemed created from the time of filing the original certificate. This is held to allow amendment only of patent defects or omissions. Matter of N. T. & Lack. R. R. Co. 35 Hun, 556 ; afli'd, 88 N. Y. 379. Transfers to Stockholders. — Corporations cannot make dividends except from surplus profits, nor transfer to stockholders, nor reduce the capital stobk, without the consent of the legislature. 1 R. S. p. 601 , § 1. A special provision of a similar character as to moneyed corporations (1 R. S. 689, § 1) was repealed by Laws of 1883, ch. 408, such corporations being now regulated by Laws 1883, ch. 409. Corporations to Acquire Land in Other States. — By Law of March 38, 1873, ch. 146, corporations organized here, and transacting business in sev- eral States, may acquire and convey in such States, with the consent thereof, real estate requisite for the convenient transaction of their business. Amended Laws of 1875, ch. 119, so as to include foreign countries and stocks of other corporations representing real estate. Devises to Corporations. — See fully as to this, ante, pp. 418 to 422. Unless authorized by statute they cannot take land by devise. 4 Abb. Ct. App. 337. TIT. IV.] CHABITABLE OOBPORATIONS. 607 Title IV. Keligiotjs, Educational and Charitable Corporations. Religious corporations do not have the common law rights of other corporations to alienate their real property, but are under restrictions imposed by the legislature. Act of 1813.— The trustees of every " religious soci- ety," incorporated under the Statute of 1813, originally enacted, were authorized to take into their possession all its real estate and other temporalities, and to purchase and to hold other real and personal estate, and to demise., lease, and improve the same for the use of the church, etc., or other pious uses, so that its whole real and personal estate should not exceed the annual value or income of $3,000. By Laws of 1875, ch. 79, they were authorized to receive property by bequest or devise subject to the provisions of Laws of 1860, ch. 3.60, provided that the annual net income, exclusive of pew rents, should not exceed $12,000. By Laws of 1875, ch. 443, the provisions of ch. 79 were made applicable to any religious society, organized under the laws of the State, and the exclusion of pew rents in computing income was repealed. The Reformed Protestant Dutch Church of the city of New york, by said law of 1813, might have an income of $9,000; the First Presbyterian Church of the city of New York, |6,000 ; St. George's Church, of the city of New York, $6,000; the Reformed Dutch Church of Albany, $10,000. The provision allowing an income of $3,000 was altered to $6,000 for the churches in the city of New York. Laws of 1819, ch. 33. Formerly religious corporations in this State, although authorized to purchase, take and lease lands, were not authorized to sell the same. The first general act for incorporating religious societies was passed April 6, 1784, 1 Greenl. 71 ; altered for Dutch Churches, March 7, 1788, 3 Gr. 133; amend. 1806, ch. 43. The general act now existing was passed in substance April 5, 1813 (3 Rev. Laws, p. 313), and re-enacted by the Revised Statutes. The Act of 1813 was amended in various particulars by Laws of 1801, ch. 79; 1814, ch. 1; 1819, ch. 33; 1823, ch. 187; 1835, ch. 303; 1836, ch. 47; 1844, ch. 158; 1850, ch. 123; 1866, ch. 414; 1867, ch. 656; 1875, ch. 354; 1877, ch. 177; 1880, ch. 337; 1883; ch. 390; 1886, ch. 98; and as hereafter stated. The Supreme Court (23 Barb. 337), formerly the chancellor, also County Court (Code of Civil Procedure, § 340, Code of Procedure, § 30, and Law of Dec. 14, 1847, ch. 470 [repealed by Laws of 1877, ch. 417], amending Act of May 12, 1847), in any case deemed proper, on application from a religious cor- poration, may make an order for sale of real estate belonging to it. [This act not to extend to any lands granted by this State for the support of the gos- pel.] The county courts are to act on lands in the county. Rev. Stat, part 608 CHAEITABLB CORPORATIONS. [OH. XXIV. 1, ch. 18, title 6; Laws of 1806, ch. 43; 2 Laws of 1813, p. 318. The vice- chancellor had the same power as the chancellor. The conveyance cannot be made gratuitously. 45 Barb. 356. The court cannot order a gift or surrender (19 Abb. 105), but may order an exchange or union with another society; but not unless there is a corporate consolidation on either side, so as to amount to a sale. Mad. Av. &c. Church v. The Bap. Church, 30 How. 455 ; 3 Rob. 570 ; 11 Abb. N. 8. 133; 1 Abb. N. S. 314; partially reversed 46 N. T. 131, and 73 N. Y. 83, on another appeal; Alex. Pres. Church v. Pres. Church, &c., 64 N. Y. 374. As to unions vide Laws of 1875, ch. 309. As to the limitation in amount of property see Rector v. Rector, 68 N. Y. 570; As to the effect of ch. 79 of the Laws of 1875 and ch. 110 of the Laws of 1876 (infra), as restricting sales, vide Matter of First Presbyterian Church, &c. 106 N. Y. 351. " Pious TJses." — As to what are pious uses under the Laws of 1813, and how far the Law of 1813, is within subsequent general statutes as to trusts, vide ante, p. 399. Diocesan Conventions or Religious Governing Synods or Bodies.— As to their formation, government and power to hold lands, mde Laws of 1876, ch. 110. This act also provides for the disposition of the temporalities of extinct churches or parishes. Amended Laws of 1880, ch. 55 ; Laws of 1883, ch. 33; Laws of 1886, ch. 309. Administration of Temporalities and Union of Religious Societies. — Laws of 1876, ch. 176. Transfers by Protestant Episcopal religious societies in Western New York to the parochial fund, vide Laws of 1884, ch. 124. The Sale. — The trustees cannot sell, etc., except as provided by the Act of 1813, or other acts. They have no power to make an absolute sale of a pew without reservation of rent, nor to sell without consideration, even if so ordered by the couW. Voorhees v. Presb. Ch. 8 Barb. 135, and 17 Barb. 103 ; Abernethev v. Ch. of Puritans, 3 Dal. 1 ; The Mad. Av. Ch. v. Bap. Ch. 46 N. Y. 131 ;■■ overruling 3 Rob. 570; 30 How. 455. Nor to make a sale closing the existence of a church. 16 Barb. 337; 18 N. Y. 395; 3 Sand. Ch. 186; 11 N. Y. 94 ; 9 How. 133. Nor can the court compel the trustees to sell. lb. They may remove the church edifice without application. Second Bap. Soc. 20 How. Pr. 334. A deed taken virtually in trust for a religious corporation, i. e., a naked trust, either express or implied, even without written declaration, will vest the legal title in the corporation, if it be afterwards incorporated. Voorhees V. The Presb. Ch. 8 Barb. 135; Baptist Church v. Witherell, 3 Pai. 396 ; The Refd. D. Ch. v. Mott, 7 Pai. 77. The trustees are special not general agents and their unauthorized acts do not estop the corporation. Moore v. Rector, 4 Abb. N. C. 51. A devise to the trustees of a church is a devise to the church and the con- sent of the court must be had for a sale. Christie v. Gage, 3 N. Y. S. C. 344. Pews. — Vide ante, p. 100; and Voorhees v. Presb. Ch. 8 Barb. 135, and 17 Barb. 103; The Elders, &c. v. Witherell, 3 Pai. 196; also 13 Barb. 135; as to changes in the church edifice, and the rights of pew-owners. Also Abemeth- ey V. Church of Puritans, 3 Dal. 1. Legislative Authority. — An authority given by a general law to a religious corporation, to sell, for its own benefit, its real estate, impairs the obligation of no contract, and violates no law, although its charter forbids the alienation of its real estate. Burton's Appeal, 57 Penn. St. 313. TIT. IV.] CHARITABLE CORPORATIONS. 609 Interference of Courts. — ^As to how far courts may interfere with the in- ternal action of a religious society, vide Robertson v. Bullions, 9 Barb. 64 ; affl'd, 11 N. Y. 243 ; Youngs v. Ransom, 31 Barb. 50 ; Burrill v. Associate, &c., Ch. 44 Barb. 282. As to bow far a donation to it may be restricted in its use, and confined to the purposes for which it was given, vide same cases ; also the People v. Dil- cher, 6 Lans. 172, as to the rights of a corporator, reversing 3 Lans. 434. Courts cannot order an exchange; only a sale. Mad. Av. &c., Church v. Oliver St. &c., Church, 73 N. Y. 83. As to division and alienation by parent church to a branch, vide Reformed Church V. Schoolcraft, 65 N. Y. 134. A sale subject to the payment of all debts of the church may be author- ized in a proper case. Lynch v. PfeiflFer, 38 Hun, 603. Alienation, by Whom. — All the trustees may execute a mortgage without previous resolution. S. Bap. Soc. v. Clapp, 18 Bar. 36. But the power to make sales is in the court, and it may make them through a referee. DeRuyter v. St. Peter's Church, 3 Coms. 238. And a sale of lands, etc., would not carry the franchise. JJ. In the case of The Mad. Av. Bap. Ch. v. The Baptist Church, 46 N. Y. 131, it is held, that the trustees are the proper persons to take steps under § 11, to make the sale, and their acts are binding without the assent of a majority of the corporation, overruling Wyatt v. Benson, 23 Barb. 327; and s. c. 4 Abb. 182. The trustees of a religious corporation are not its corporators, but its managing agents, to make applications for sale or mortgaging, etc. St. Ann's Church, 14 Abb. 434 ; Robinson v. Bullions, 9 Barb. 64; affl'd, 11 N. Y. 243; Cammeyer v. United German Church, 2 Sand. Ch. 186. Under the Act of 1813, a religious corporation may mortgage its property without the order of the court. Manning v. Moscow P. Society, 27 Barb. 52 ; Fifth Baptist Soc. v. Clapp, 18 Barb. 35. The trustees must act as a body and not individually. Constant v. St. Alban's Church, 4 Daly, 305. They have the legal control and may bring actions for the property. First Methodist Church v. Filkins, 3 N. Y. S. C. 279. Law of i868, Amending the Act of 1813. — The above Act of April 5, 1813, was extensively modified by the Act of May 9, 1868, ch. 803. By said act, the church warden and vestrymen, and their successors and the rector, if any, are to be a body corporate and trustees under the name ex- pressed in the certificate. The rector is to be present at all meetings affecting realty. The general provisions of the act are to apply to Protestant Episco- pal churches in the State, incorporated under the Act of 1813, or its amend- ing acts. Also to the various acts for the incorporation of religious societies, passed April 6, 1784 ; March 27, 1801 ; and March 17, 1795 ; and also to soci- eties incorporated by special charter, before or after July 4, 1776, whereof the vestry shall, by regular meeting, vote to adopt the same, and it shall be ratified by a majority vote of all qualified votes, as provided ; provided a cer- tificate of the resolution passed, etc., be filed with the county clerk, as in the act required. This act also repeals § 1 of Act of March 5, 1819; also § 3 of February 15, 1826, is not thereafter to apply to any Protestant Episcopal churches in the State. Inconsistent acts are repealed. Amended by Laws of 1886, ch. 98. 39 610 CHABTTABLE COEPORATIOUS. [CH. XXIV. The following acts supplementary to the Act of 1813, are also noted for reference : Presbyteries. — Incorporation, trustees and control of temporalities, vide Laws of 1875, ch. 381. True Reformed Dutch ChaTch..—Vide Laws of 1835, ch. 303. May be incorporated under the Act of 1813. Reformed Protestant Dutch Church.— Vide Law of April 15, 1835, ch. 90. Names of Religious Corporations may be Changed.— Act of June 4, 1853, ch. 323. Burial Places Acquired by Religions Corporations. — See post, Title VIIL Other Lands may be Acquired.— See Laws of March 3, 1850, ch. 123; April 10, 1860, ch. 335, as to acquisition of other lands for churches, chapels, schools, rectories, etc. Record of certificate in the city of New York, as to errors in, vide Law April 29, 1863, ch. 287; Rector t. Rector, 68 N. Y. 570; Laws of 1882, ch. 290. Greek Churches.— Laws of 1871, ch. 13. Reformed Presbyterian Churches or Congregations. — By Law of April 7, 1866, ch. 447, they may incorporate under the Law of 1813 and 1832, sujpra. Parsonages, etc., for Elders, Priests and for other Ministers. — Act of April 5, 1867, ch. 265 ; amended by Act of May 9, 1868, ch. 784, and by Laws of 1875, ch. 408. Roman Catholic Churches. — Act of March 25, 1863, ch. 45. They may incorporate under the Act of 1813. The whole real and personal estate in value, exclusive of the church edifice, parsonage and school houses, and the land therefor, and burying places, shall not exceed annually $3,000. The act is not to be construed to alter or repeal the Act of 1860, ch. 860, as to devises to religious corporations, etc. The act confirms conveyances there- tofore made to the use of the corporation. Free Churches. — They may hold real estate, as in the case of " ieneoolent, charitable, etc., societies," under the Act of April 13, 1848, and Apr. 7, 1849, vide infra, except that the limitation as to value shall not apply to any church edifice or lot for the same owned or occupied in the city of New York. Laws of 1854, ch. 318. No real estate of a free church can be sold or mortgaged without the direction of the Supreme Court, to be given as in cases of relig- ious corporations. See also, as to free churches or chapels. Law of Apr. 23, 1867, ch. 657. Religious Societies. — By Law of Apr. 10, 1872, ch. 309, religious societies are allowed to be incorporated under "the act for the incorporation of benevolent, charitable and missionary societies," of Apr. 12, 1848, infra. By Act of Apr. 27, 1873, ch. 424, religious societies may be dissolved by the Su- preme Court, except in the city and county of New York, on application of a majority of trustees, and a sale of their property decreed. Law of 1871, ch. 776. This act extends the rights and powers, under the Law of April 5, 1813, to all religious corporations ; the value of any school-house or rectory to be not computed in any valuation. General Provisions of Statute as to Corporations. — ^Religious societies and moneyed corporations created or renewed after January 1, 1828, are ex- cluded from the operation of title iv, ch. 18, part 1, of Rev. Stat, relative to corporations generally. Laws of 1871, ch. 883. TIT. IV.] CHARITABLE OOKPORATIONS. 611 Ecclesiastics. — The Act of 1855, ch. 330, prevented conveyances, etc., to those holding ecclesiastical offices, or for religious purposes, except under cer- tain conditions. It was repealed by Law of April 8, 1863. Associate Churches. — Establishment of by parent church, vide Laws of 1879, ch. 117. Baptist Churches. — Vide Laws of 1873, ch. 965. Consolidation with other Societies. — Vide Laws of 1875, ch. 37; Laws of 1880, ch. 167. Qualifications of Voters. — Vide Laws of 1875, ch. 597. Benevolent, Charitable, Scientific and Missionary Socie- ties.— Act April 12, 1848, ch. 319, as amended by ch. 88 of the Laws of 1885. They may take, receive, purchase and hold real and personal estate for the purposes of their incorporation only, to an amount not over $2,000,000; the clear income of both not to exceed $200,000. See, also, the restriction as to their taking by devise or bequest, § 6, and ante, Devises, p. 420. By Act of April 7, 1849, ch. 373, the trustees of such societies, by con- forming to the requisites of the first section, of the Act of 1848, may re-in- corporate themselves for the time limited, and the property, etc., of the ex- isting corporation shall vest in the re-incorporation. The act was amended as to real property, etc.. May 11, 1873, ch. 649, and further amended so as to include many new objects by Laws of 1881, ch. 354 and ch. 526. As to the number of trustees, vide Laws of 1875, ch. 453, and as to exten- sion of term of existence, Laws of 1876, ch. 190; also Laws of 1883, ch. 367, restricting the formation of such corporations. Reports, Penalties, Inspection, Trials, etc. — Laws of 1881, ch. 356; amended by Laws of 1881, ch. 641. This last act does not afiect § 6, of the Act of 1848. Matter of Conner, 44 Hun, 434. Sunday School, Mission, Religious Knowledge or Opinion. — Amended so as to include corporations for such purposes, May 11, 1873, ch. 649; relig- ious societies ; Laws of 1873, ch. 309. The act was amended so as to include historical, literary and art societies (Laws of 1860, ch. 343 ; 1863, ch. 303); also orphan asylums. Laws of 1861, ch. 58. Sales and Mortgages. — The Supreme Court, upon the application of any Benevolent, Gha/ritoible, Seientiflc or Missionary Society, incorporated by law, may make an order for the mortgaging of any real estate belonging to said cor- poration, and direct application of proceeds. Laws of 1854, ch. 50. See also Laws of 1861, ch. 58, allowing sales or leases through the Supreme Court on application of three-fourths of trustees; also including orphan asylums. No purchase, lease, or sale of real estate, however, shall be made, unless two-thirds of the whole number of trustees are present at the meeting ordering it. See Laws of 1853, ch. 487, as to the above and as to the trustees generally. Fine Art Associations. — Such associations may be incorporated under the Law of AprU 13, 1848, and amending acts. As to what property it may take, vid:e Laws of i860, ch. 343. Under the above Act of 1848, a corpora- tion for business purposes, although for the interest of others as well, cannot be incorporated. The People v. Nelson, 46 N. T. 477. 612 MONEYED COEPOBATIONS. [OH. XXIT. Corporations to establish Edacational Institutions, Chapels or Places of Worship, Parsonages, Rectories, Residences of a Bishop or Ministers. — The Law of Apr. 12, 1848, supra, was, by Law of March 8, 1870, ch. 51, ex- tended to societies for the above purposes. Property to be Held. — By Law of March 8, 1870, ch. 51, any university or college incorporated under said Act of 1848, or of 1870, may hold by gift, grant, devise or bequest, property or endowment not exceeding $1,000,000, subject to the restrictions of the Act of 1860, Apr. 13, as to devises. The act was in other respects amended. Academies and Colleges. — By the Rev. Stat. vol. i, 1st ed. p. 460, col- leges have power to take and hold by gift, grant and devise, any real or per- sonal property, the yearly revenue or income of which shall not exceed the value of $35,000. To sell, mortgage, let and otherwise use and dispose of such property, in such manner as they shall deem most conducive to the interest of the college. Similar provisions are made as to academies (ib. p. 463), except that the limitation is $4,000. Trusts in favor of Charitable and Educational Corporations, etc. — Vide ante, p. 420 ; also trusts for charitable uses, p. 287. The only power in educational and charitable corporations to hold property in perpetuity in trust, is by virtue of their charters and the Acts of 1840 and 1841. Ante, p. 420 ; vide Adams v. Perry, 43 N. T. 487 ; also ante, p. 287 ; Wetmore v. Parker, 52 N. Y. 450. Trustees of Charitable and Benevolent Institutions. — By Law of March 12, 1872, ch. 104, no trustee or director of any charitable or benevo- lent institution organized either under a general act or special charter, shall receive any salary or emolument. School-houses, taking Lands for. — Vide Law of 1866, ch. 800; Law of May 9, 1867, ch. 819. Public Libraries.— Laws of 1872, ch. 458 ; am'ded by Laws of 1885, ch. 479. Devises and Bequests. — As to the validity of devises and bequests to these corporations and the restrictions upon them, vide Stephenson v. Short, 92 N. Y. 433 ; also ante, p. 418. Title Y. Moioited Coepoeations. By ch. 409 of the Laws of 1882, § 186, no conveyance, assignment or transfer of real estate, etc., by a moneyed corporation, over the value of one thousand dolla/rs, shall be valid without previous resolution of its board of direc- tors. But conveyances in hands of bona fide purchasers for value are protected. This is in place of 1 Rev. Stat. p. 549, § 8, which was similar in its terms and was repealed by Laws of 1882, ch. 402. Ch. 409, of the Laws of 1882, is the general banking act and supersedes many former laws which have ac- cordingly been repealed. As to who are lona fide purchasers as above, vide Curtis v. Leavitt, 15 N. Y. 9. It was held in Gillet v. Campbell, 1 Denio, 520, that this provision only applied to corporations that had a board of directors or trustees by their charters. See, also, Gillet v. Moody, 3 Corns. 486, partially overruling the above ; Leavitt v. Blatchford, 17 N. Y. 521, partially reversing the latter case. TIT. v.] MONEYED CORPORATIONS. 613 An assignment, though made without previous resolution, may be made valid if ratified by a subsequent one. 15 N. Y. 0. The provision of the Revised Statutes did not apply to banking com- panies under ch. 260, Laws of 1838. Belden v. Meeker, 47 N. Y. 307 ; see Gillet V. Moody, 3 Coms. 479; Leavitt v. Blatchford, 17 N. Y. 521. " Moneyed corporations " is construed to mean those having banking powers, or to make loans upon pledges or deposits, or to make insurance, created since Jan. 7, 1838; or whose charter is renewed or extended since that time, unless expressly exempted by their charters or amendments. Laws of 1882, ch. 409, §§ 214, 215, following 1 R. S. 1st ed. p. 599, §§ 51, 52, which were repealed by Laws of 1882, ch. 402 ; Act of Dec. 10, 1828, § 15 ; 16 N. Y. 424 ; 9 N. Y. 591; 7 N. Y. 338; 4 N. Y. 444; 26 How. Pr. 271. The above provision of the Revised Statutes, § 8, did not apply to a sale of mortgages or securities pledged to secure a loan, made to realize the money secured by the pledge. The Corn Bank v. Ten Eyck, 48 N. Y. 305. As to who may object to the transfers as illegal, vide Eno v. Crooke, 10 N. Y. 60 ; Elwell v. Dodge, 33 Barb. 336. The latter case is partially overruled in Houghton v. McAuliffe, 26 How. Pr. 270. As to the above section 8 R. S., see, also, 13 N. Y. 118; 12 iS. 237; 9 ib. 591 ; 82 Barb. 313 ; 17 ib. 309 ; 5 *. 185 ; 1 S. Ch. 209 ; 1 Du. 139 ; 7 Hill, 93; 3 S. S. C. 144; 2 ib. 187 ; 26 N. Y. 414; 26 How. Pr. 271. No such conveyance, assignment, etc., made by any such corporation, or auj Judgment suffered, Ke% created or security given by any sitch corporation when insolvent or in contemplation of insolvency with a view of creating & preference to creditors, shall be valid. II. § 187. So formerly by Rev. Stat. § 9, which was repealed by Laws of 1882, ch. 402. When a friendly suit amounts to such an assignment. In re Bowery Bank, 16 How. Pr. 56. An assignment to pay creditors pro rata, not made to officers, has been held valid. 3 Wend. 13; 16 Barb. 280; 21 Barb. 231; Curtis v. Leavitt, 15 N. Y. 9. The section applies to insurance companies. Ib. As to whether the provision of the Revised Statutes applied to associa- tions organized under the old banking law, vide 1 Denio, 520; compare 3 Corns. 479, and Leavitt v. Blatchford, 17 N. Y. 521. This law applies to mutual insurance eompamies (16 Barb. 280) and to banks. 5 Abb. 415. The intent to prefer must be shown under an insolvency that exists or is expected. 15 N. Y. 9 ; 17 N. Y. 531. In order to avoid the transfer, it is immaterial whether the creditor has knowledge or not of the status of the corporation. Brower v. Harbeck, 5 Seld. 59; see, also, 9 N. Y. 591 ; 17 Barb. 316 ; 5 Barb. 15, 185 ; 1 S. Ch. 309; 4Edw. 170; 1 Du. 129; 3 S. 8. C. 533; 3 Coms. 479; 16 How. Pr. 57; 31 N. Y. 45. Conveyances, etc., for its benefit, to be valid, must be made to a moneyed corporation directly and by name. Conveyances or assignments for the benefit of creditors are excepted. Ib. § 185, following 1 Rev. Stat. p. 549, § 7, which was repealed bv Laws of 1882, ch. 403. 614 MOIfEYED CORPORATIONS. [CH. XXIV. This provision does not apply to foreign corporations. 10 Barb. 97. An asBignment to tbe president of a banking corporation for the corpora- tion would be good. 4 Duer, 1. Miscellaneous Provisions. — Moneyed corporations, having power to am- vey, may mortgage real estate for their debts, and may sell what they take in payment of debt. Jackson v. Brown, 5 Wend. 590. Receivers of Banks. — Sales of real estate by receivers of banks were to be at public auction, under the advice and direction of the Supreme Court, which might enlarge the time for sale, by Bev. Stat. pt. 1, ch. 18, title 3, art. 4, § 147, which was repealed by Laws of 1883, ch. 402. Banking Association. — ^A banking association may hold real estate : 1. Necessary for its immediate accommodation in the convenient transaction of its business. 2. Such as shall be mortgaged to it in good faith as security for loans and debts. 3. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. 4. Such as it shall pur- chase at sales under judgments, decrees or mortgages held by it. They shall not purchase, hold, or convey real estate in any other case or for any other purpose. And all conveyances of such real estate shall be made to the cor- poration directly and by name. Laws of 1882, ch. 409, § .88. This is in place of pt. i, ch. xviii, title 2, art. 4, § 197, R. S., which provided for conveyance to an officer of the association, and was repealed by Laws of 1882, ch. 402. These provisions were in the Act or April 18, 1838, ch. 260, es- tablishing banking associations. By Laws of 1849, ch. 313, an association formed by assent of all stockholders to take the place of any incorporated bank whose charter had expired, or was about to expire, might bold such ad- ditional real estate as had been received by it in payment of debts due said bank, or purchased by said bank under judgments in its favor. Both these acts were repealed by Laws of 1882, ch. 402. As to whether the provisions of the Revised Statutes relative to assignments with preference, and relative to transfers of property over the value of $1,000, were applicable to banking associations, mde ante, p. 613. See also, as to transfers made by them, p. 604, Title III, and 1 Sand. Ch. 207; iJ. 179; 2 Sand. Ch. 339; 3 tb. 485; 15 N. T. 9 ; 19 N. T. 245 ; 1 Den. 520 ; 3 Ker. 114 ; 10 N. T. (6 Seld.) 550. As to the incorporation of banking associations under the Law of April 18, 1888, i>ide Qifford V. Livingston, 2 Den. 380 ; overruling DeBow v. The People, 1 Den. 9. See also Burrows v. Smith, 10 N. Y. 520 ; Valk v. Crandall, 1 Sand. Ch. 179. Savings Banks. — Savings banks may hold real estate (1) For a building in which to transact business, but the building and lot must not exceed in value one half the company's surplus. It may rent such parts of the building as it does not need. The superintendent of the banking department may relieve the company of the limitations as to the value of the property and it does not apply in any case where the land was bought or plans made before the restric- tion was enacted. The bank may, with the consent of the superintendent, change its location within the city or town where it does business and then sell the property which it formerly occupied and buy other property in its place. (3) Land bought in on foreclosure of mortgages. Such, lands must be sold within five years after taking title unless on application of the trustees the superintendent of the banking department enlarges the time. Laws of 1882, ch. 409. These provisions were in Laws of 1875, ch. 371, § 29, which was repealed by Laws of 1882, ch. 402. National Banks. — Mortgages to national banks to secure future advances are valid. National Bank v. Whitney, 13 Otto, 99 ; Simons v. First Nat. B'k, 93 N. T. 369. General Provisions of Statute. — By Rev. Stat, and Law of 1871, ch. 883, religious societies or moneyed corpora- TIT. Til.] EAILKOAB C0KP0EAT10N8. 615 tions created or renewed after Jan. 1, 1828, and whicli are subject to title ii, are excluded from the operation of title iv, ch. 18, of Rev. Stat, part i. This relates to im- plied dissolutions ; to transfers in view of insolvency, as to loans, discounts, elections, etc. Title VI. Insukanoe Coeporations, The following are some of the most important acts re- lating to insurance companies as regards their realty : Fire, Marine and Life Insurance Companies. — By Law of April 10, 1849, such companies may hold and convey real estate, as is provided for banking associations, ante, p. 614. Uther real estate not required as above shall be sold and disposed of in five years after acquisition, unless the " comptroller '' give a certificate to the contrary. Law of June 24, 1863, ch. 263. — Life and Health Companies. — This law contained similar provisions as in the above Law of April 10, 1849. Cer- tain sections of the latter act were repealed. See also amendment, April 8, 1865, ch. 328, extending the law to every kind of insurance except fire, marine, and life. See also Law of April 13, 1866, oh. 535, as to their invest- ments; amended, as to annual statements, April 34, 1866, ch. 785 ; see also L. 1873, ch. 170. Act of June 25, 1853, ch. 466, for the incorporation of fire insurance companies. Similar provisions as in the Law of 1849 ; the 3d subdivision being modified that they are to take real estate for debts previously contracted in their legitimate business or for moneys due. Companies incor- porated under the Act of 1849 are brought under the provisions of the act, and the Act of 1849 is partially repealed as to fire and inland navigation in- surance companies. As to investment on mortgage, vide Law of April 29, 1863, ch. 342 ; also ch. 363; also May 4, 1864, ch. 563 ; March 35, 1865, ch. 451 1 L. 1871, ch. 608 ; L. 1875, c. 423. Life and Health Insurance Companies in New York city. Restricting investments on mortgage to certain property. See L. 1876, c. 357. Town Insurance Companies. — Law May 21, 1873, ch. 561, amending prior Law of 1872, ch. 335 ; see also L. 1874, e. 560. As to real estate bought in by an insurance company on foreclosure and the effect of L. 1853, c. 466, vide Home Ins. Co. v. Head, 30 Hun, 405. Title VII. Raileoad Coepoeations. The following of the many general acts relating to railway corporations are designated for reference as bear- ing more or less on their real estate. It has been found impracticable to give acts affecting railroads more in detail : Ap. 33, 1839, ch. 218. — To contract for the use of other roads. 616 EAIIiBOAD COEPOBATIONS. [CH. XXIV. May 7, 1847, ch. 323.— To connect tracks of different companies. May 13, 1847, eh. 373.— To alter lines and to acquire titje to land. Nov. 37 1847 ch. 404. To alter routes and to acquire title to lands Nov. 37, 1847, ch.' 405. To lay second tracks. Ap. 3, 1850, ch. 140. A general act. Amended 1876, ch. 77 and ch. 198. The acquisition of the title to lands. Amended Ap. 15, 1854, ch. 283; Ap. 14, 1857, ch. 444; 1851, ch. 19; Feb. 13, 1851, ch. 637. To use a common track. 1853, ch. 53. As to acquiring lands, etc. 1854, ch. 382. As to acquiring lands. L. 1871, ch. 560; 1873, ch. 8i ; 1877, ch. 232. As to roads to be laid over railway tracks, see 1853, ch. 63 ; Boston, &c.. R. R. v. Greenbush, 53 N. Y. 510. Judgment-cred- itors are not entitled to compensation as " owners " under the above statutes. Watson V. N. Y. C. R. R. Co. 47 N. Y. 157. Railroads in Cities.— Act ofAp. 4, 1854, ch. 140; and ante, p. 44. A railroad company may lease to another railroad company, but not to an individual. Fisher v. Met. &c. Co. 34 Hun, 433. Railroads Held under Lease.— Vide ante, p. 210. Ap. 13, 1855, ch. 302. — As to railroads under lease and the acquisition of stock of another company, vide Fisher v. The N. Y. C. & H. E. R. 46 N. Y. 644. Ap. 14, 1857, ch. 444.— Purchases on mortgage sales, and as to acquisi- tion of special lands. May 5, 1864, ch. 582.— As to fences, railways over highways, taking lands for railway purposes. Ap. 20, 1866, eh. 697. Railroads operating by stationary power, etc. Ap. 8, 1867, ch. 354. — In relation to railroads held under lease. Ap. 33, 1867, ch. 515. — Proceedings to obtain lands for the road. Ap. 25, 1867, eh. 775. — Corporate existence to cease, unless the road is begun in five years, and ten per cent, of capital expended, and the road op- erated in ten years from formation. May 9, 1868, ch. 779. — Mortgages need not be filed as chattel mortgages. But see Hoyle v. Plattsburgh, &c. R. R. Co. 54 N. Y. 314. Ap. 17, 1869, ch. 287. — As to acquiring additional real estate and the use of waters. 1875, c. 586. May 30, 1869, ch. 917. — Authorizing the consolidation of railroad com- panies. Land may be taken for depots, and other conveniences for railroads, under the general railroad act and amendment of 1869, ch. 337, even though the company is a lessee. In re N. Y. & H. R. R. v. Kip, 46 N. Y. 546. The lands when taken are taken free of judgment liens, under certain statutes, when "owners" have to be made parties. Judgment-creditors are not " owners." Watson v. N. Y. C. E. R. 47 N. Y. 157. The use of the track by a railroad is a franchise in the nature of a contract, and inviolable, ex- cept under the general power of the State to alter or repeal the charter. In re Central Park, 63 Barb. 383. See, as to taking land in invitum, in re Nor- ton, 63 Barb. 77. This act was amended by Laws of 1873, ch. 353 ; 1874, ch. 340, as to extension of time of the franchise. Mortgages by Railroads of the Franchise and Property. — Such mort- gages must be recorded in the several counties where the road is laid. The track and fixtures may be mortgaged without the franchise. See, as to such mortgages, Seymour v. The Canandaigua, &c. R. R. 25 Barb. 284 ; Stevens v. Buffalo, &c. Co. 31 Barb. 590 ; Beardsly v. Ontario Bk. 31 Barb. 619; Peunock v. Coe, 33 How. U. S. 117; Farmers' Loan, &c. Co. V. Hendrickson, 35 Barb. 484 ; overruled, 47 Barb. 104 ; Hoyle v. Platts- burgh, &c. R. R. Co. 53 N. Y. 314; Elwell v. Grand St. &c. Co. 67 Barb. 83. See also, Law of 1854, p. 608, allowing a new company to be formed after sale. Also ante, p. 606. Also, Laws of 1874, ch. 480; Laws of 1876, ch. 446. Also, Law of 1868, p. 1747. See also, ante, p. 568, as to mortgages of franchises and after-acquired property; and Pennock v. Coe, 23 How. XIT. VIII.] BURIAL CORPORATIONS. 617 117 ; Stevens v. Watson, 45 How. Pr. 104. See 5 Otto, 10. See also, as to the taking of land by railroad corporations, " Eminent Domain," ante, Ch. II. One Line used by Two Companies. — Laws of 1873, ch. 843. Title VIII. Cemeteries and Burial Corporations. The following acts with reference to corporations or associations of the above character, are designated for reference : By Rev. Stat, of 1830, land used as a burying ground for fourteen years before January 1, 1830, is declared to be vested in the town so using it. 1 R. S. 1st ed. p. 360. Act April 11, 1842, ch. 153, allowing religious corpo- rations to acquire lands for burial purposes. Act of 1843, April 11, ch. 315, restricting mortgages of burial grounds by religious corporations. Section 3 of this act was partially amended by Laws of 1878, ch. 349, as to the re- moval of remains. This latter act was amended by Laws of 1887, ch. 600. Co. Civ. Proc. §§ 1395, 1396, following Act of 1847, ch. 85, which was repealed by Laws of 1877, ch. 417, as to exemption of burial lots from execution. April 37, 1847, ch. 133. Rural cemetery associations. — Makes provision as to the acquisition and transfer of their realty, and the use thereof. This act was amended, April 14, 1853, ch. 380; also, April 5, 1853, ch. 133; April 14, 1853, ch. 338; April 5, 1860, ch. 163; 1861, ch. 94; also, 1869, ch. 708; Law of 1870, ch. 760; 1871, chs. 378 and 696; May 8, 1873, ch. 361; 1874, chs. 301 and 345; 1877, chs. 31 and 156; 1879, chs. 107 and 108 ; 1886, ch. 593. The association owns the fee, the lot- owners have the usufruct of their lots. The Buff. C. Cem. v. City of Buf. 46 N. Y. 503; Law of 1871, ch. 419, as to sale of unoccupied lands. May 7, 1847, ch. 309. — Cemeteries may be purchased and established in incorporated villages, and lands acquired therefor ; amended, Law of April 3, 1864, ch. 117 ; 1873. ch. 696. March 30, 1850, ch. 133. — Allowing religious societies to acquire land for burial purposes; also, cities, &c., by trusts, ante, p. 301. Vide Laws of 1881, ch. 501, as to sale of lots. Private and Family Cemeteries. — April 1, 1854, ch. 113 ; amended March 6, 1871, ch. 68. Monument Associations, to perpetuate the memory of Union soldiers. March 30, 1866, ch. 373 ; Supplementary Acts, 1875, ch. 35; 1877, ch. 136. National Cemeteries. — Act of Congress, 33d February, 1867, ch. 61, and July 1, 1870, ch. 300. •Cemeteries in ViUages.— 1869, oh. 737; 1870, ch. 760; 1871, ch. 696; 1873, ch. 453; 1875, ch. 306. Burying Grounds. — March 5, 1873, ch. 46. Taxes on Lot Owners of Rural Cemeteries. — FitZe Law of April 37, 1868, ch. 403, amended by Law of 1877, ch. 436 ; and Buff. City Cem. v. City of Buffalo, 46 N. Y. 503 and 506, showing that assessment should be against cemeteries, and not lot-owners ; and that such associations, though exempt from taxes, are liable to assessment for local improvements. Mort- gaging and foreclosing on cemetery lots, vide Lantz v. Buckingham, 11 Abb. N. S. 64 ; Thompson v. Hickey, 8 Abb. N. C. 159. A cemetery lot bought by husband, improved by wife's money and used for her family, cannot be sold by the husband without the wife's consent. Shro- der V. Wanzor, 36 Hun, 433. 618 OTHER SPECIAL OORPOBATIOXS. [CH. XXIV. Title IX. Other Special Corporations, Other general acts have been from time to time passed for the formation of corporations, for specified purposes, under them. The principal of these acts, with such amendments to them as are deemed desirable to notice, as affecting the powers of such corporations with -respect to real estate, are below briefly indicated. Corporations for Manufacturing, Mining, Mechanical or Chemical Business.— Act of Feb. 17, 1848, ch. 40. The above act has been amended as follows: June 7, 1853, cb. 333, as to places of business; and the corpora- tion may issue stock for property acquired. Feb. 16, 1857, ch. 39, as to salt companies; and as to term of existence and place of business. Ap. 11, 1866, ch. 269, as to number of trustees. Ap. 13, 1861, ch. 170, as to place of business. May 3, 1864, ch. 517, allowing change of place of business, and an amended certificate therefor ; and to mortgage property for past or future debts contracted in itshusiness. See Greenpoint v. Kings Co. 7 Hun, 44 ; afiB'd, 69 N. T. 328. Feb. 31, 1866, ch. 73, as to increase of capital stock. Ap. 35, 1866, ch. 799, title amended so as to read after " chemical," the words, '^or other.'''' April 28, 1866, ch. 838, title further amended to include various general purposes. 1867, ch. 13, as to extension of term. 1867, ch. 348, as to increase in number of trustees. May 7, 1869, ch. 706, as to mortgages on land without the State. Apr. 30, 1871, ch. 657, as to judgments against trustees. 1871, ch. 481. — As to mortgaging by filing consent of two-thirds of the stockholders in the county where the property is situated. 1871, ch. 652. — As to re-flling certain certificates. 1874, eh. 149. — As to filing certificate, liability of stockholders, &c. Re- pealed as to liability of stockholders. L. 1876, ch. 363. 1875, ch. 88. — As to, filing consent to mortgage nunc pro tunc, in certain cases. 1878, eh. 163. — As to mortgaging franchises. Consolidation.— Laws of 1867, ch. 960, amended, 1877, ch. 374. Dissolution. — Laws of 1876, ch. 442. Powers as to Real Estate. — Companies, organized under the above general act, may purchase, hold and convey any real and personal estate whatever, which may be necessary to carry on their operations as designated in the certificate of incorporation. They cannot make a general assignment (33 N. T. 97) in contemplation of insolvency. By Law of 1853, ch. 333, they may purchase mines, manufactories and other property necessary for their purposes, and issue stock in payment. 36 Barb. 339, affirming 30 ib. 644. By a law of March 32, 1811, ch. 67; amended, 1815, ch. 47, manufacturing companies might be formed, and hold and convey lands necessary for their operations. This act was extended for other purposes. 1816, ch. 58 ; 1817, ch. 333; 1818, ch. 67; 1819, ch. 103; 1831, ch. 14; 1822, ch. 213. This last act gave power to mortgage on assent of two-thirds in value of stockholders. By Laws of 1848, p. 54, these companies could not mortgage their lands for any purpose. By Law of May 3, 1864, ch. 517, they can do so only to secure an existing debt, or one which may be contracted in the business for which it was incorporated, on filing with the county clerk assent of two- thirds of the capital stock-owners in value. A subsequent assent will vali- date a mortgage if there are no intervening rights and the filing of the assent is only for notice and is not essential to validity. Rochester Savings Bk. v. Averell, 96 N. T. 467. A mortgage of property and franchises, where con- TIT. IX.] OTHER SPECIAL CORPORATIONS. 619 sent is only given as to property, is still valid as to the property though not as to the franchises. Lord v. Tonkers. &c. Co. 99 N. Y. 547. It was held in the case of the Central Gold Mining Co. v. Piatt, that the debt must have been already contracted to authorize the execution of a mortgage to secure it. The general term however reversed the decision, and held valid a mort- gage given by the company to secure coupon bonds. 3 Dal. 263 ; Lord v. Yonkers, &c. Co. 99 N. Y. 547. Corporations formed under the Act of 1848, cannot issue new stock in addition to capital stock, nor make any increase thereof m payment for property required ; but they may apply the whole capi- tal stock for such purposes; and when so paid, the owner thereof is not liable to creditors of the company, under § 10, Act of 1848. Schenck v. Andrews, 46 N. Y. 589. And when the stock is so paid, and the certificate filed, stock- holders are released from personal liability, unless there be fraud. But the stock paid must be for or represent the actual value of the property acquired. Boynton v. Hatch, 47 N. Y. 235. Vide further decision in Schenck v. Andrew, 57 N. Y. 133. (^Vide Law of May 7, t869, ch. 706, as to filing assent of the corporation to mortgage its lands beyond the State.) The corporation cannot mortgage for the purpose of carrying on business. Carpenter v. Black, &c. 65 N. Y. 43. See fully as to these mortgages, Greenpoint v. Whitin, 69 N. Y. 838 ; "Vail V. Hamilton, 30 Hun, 355; afli'd, 85 N. Y. 453; Astor v. Westch. &c. Co. 33 Hun, 383. Manufacturing corporations may give a mortgage to secure future ad- vances. If it were Id valid no one but the State could take advantage of that fact. Martin v. Niagara Falls Paper Mfg. Co. 44 Hun, 130. By Law of 1880, ch. 116, corporations formed under the Act of 1848, were exempted from the special pro- visions of the Revised Statutes, but the exemption was repealed by Law of 1881, ch. 116. The Act of 1848 has been extended to corporations for almost all purposes. The amendments to effect these extensions are too numerous to be fully noted, but the more important are as follows : Agricultural, Horticultural, Medical or Curative, Mercantile and Commercial — April 28, 1866, ch. 838. — The act had been extended to agri- cultural companies; also by Law of March 29, 1865, ch. 234. As to curative purposes, see, also, Act of 1866, ch. 799. See also, as to agricultural and horticultural societies. Law of 1855, ch. 425; amended 1855, ch. 512; 1876, ch. 846, and post, p. 633. Constructing and Using Machines for the Raising of Vessels and other Heavy Bodies.— Feb. 7, 1851, ch. 14. Salt Companies.— Feb. 16, 1857, ch. 29. Printing and Publishing Companies for Books, Pamphlets, or News- papers.— Ap. G, 1857, ch. 262; Ap. 20, 1871, ch. 657. Bottling and Selling Natural Mineral Water.— March 31, 1863, ch. 63, Towing and Wrecking Companies.— Ap. 23, 1864, ch. 837. Buying, Selling, and Transporting Coal and Peat Ap. 6, 1865, ch. 307. " ' .' 620 OTHER SPECIAL OORPOEATIONS. [GS. XXIV. Hotels, Musenms, or for Curative Purposes.— Ap. 25, 1866, ch. 799; 1874, ch. 143. To Supply Water for Mining Purposes— Ap. 4, 1866, ch. 371. Quarrying stone.— 1867, ch. 248. Skating Rinks, Companies for Pairs, Meetings, Exhibitions, Enter- tainments, and Amusements. — May 9, 1868, ch. 781. Elevating, Warehousing, Storing, or Milling. — May 9, 1868, ch. 781 ; May 5, 1869, ch. 605 ; Ap. 22, 1867, ch. 509. Ice Companies.— Ap. 12, 1855, ch. 301. Real Estate Companies. — 1871, ch. 535. Erecting Buildings and Hotel Keeping.— 1866, ch. 799; and Ap. 20, 1871, ch. 657. 1880, ch. 182, provides tor moi-tgages by these companies. Preserving and Dealing in Meats. — Ap. 20, 1871, ch. 657 ; Ap. 27, 1872, ch. 426. Dairy Products, Church Sheds and Laundry Purposes. — Ap. 27, 1872, ch. 426. Joint-Stock Companies and Associations. — By Law of Ap. 9, 1867, ch. 289, any joint-stock company or association may purchase, hold and con- vey real estate for the following purposes, and no other: 1. Such as shall be necessary for its immediate accommodation in the convenient transac- tion of its business. 3. Such as shall be mortgaged to it in good faith for loans made or debts due to it. 3. Such as it shall purchase at sales under judgments, and mortgages held by it. All conveyances are to be made to the president (as such), who and his successors may sell, assign and con- vey the same, free from all claims by shareholders or those under them. See Act of Ap. 32, 1868, ch. 290, as to reducing the capital of such as- sociations. See Act of Ap. 15, 1854, ch. 245, as to continuation of such associations on the death of shareholders, and as to the appointment of managers. A lease to a masonic lodge purporting to be by certain persons as a committee, but signed merely by their names without addition, binds the lodge. Oohn v. Borst, 36 Hun, 562. Medical or Surgical Colleges and Institutions may hold real and per- sonal property to the extent of $200,000. Laws of 1853, ch. 184. Under the Law of Ap. 10, 1813, ch. 94, they could hold for county, $1,000, and for State societies, $5,000. See, also, Law 1866, ch. 838. Homoeopathic Medical Societies. — Act of Ap. 13, 1857, ch. 384. Savings Banks.— Laws 1853, ch. 32; 1837, ch. 136 ; 1867, ch. 357; 1868, ch. 845 ; 1869, ch. 213. Social and Recreative Corporations. — Ap. 11, 1865, ch. 368; Ap. 35, 1867, ch. 799 ; amended Law of May 6, 1869, ch. 629 ; Law of 1870, ch. 668; 1871, ch. 705; and ^os«, p. 622. Odd-Fellows.— Law May 6, 1873, ch. 417. Free Masons and Knights Templars — Law of Ap. 2, 1866. Grand Commanderies, etc.— 1869, ch. 176; Ap. 22, 1873, ch. 254. Bridge Companies.— Ap. 11, 1848, ch. 359 ; Ap. 16, 1853, ch. 373. Literary Societies and Libraries. — The earliest act was Ap. 1, 1796, ch. 43. The recent acts are Law of 1853, ch. 23; L. 1875 c. 419. See also, as to devises to, 1853, ch. 295. As to trusts for literary institutions, i>ide ante. See, also, Adams v Perry, 43 N. Y. 487, and ante, "Trusts for Charitable Purposes,"' p. 287. TIT. IX.] OTHER SPECIAL OOEPOKATIONS. 621 See also, Laws of 1875, ch. 343. Steam Heating.— 1879, ch. 317, and 1881, ch. 432, ch. 295; 1880, ch. 187 (the last act am'd 1881, ch. 551); 1878, ch. 384. Title Guarantee Companies.— 1885, ch. 538. Credit, Guaranty and Indemnity Companies. — 1886, ch. 611. Full Liability Companies. — 1885, ch. 535. To Purchase and Improve Lands for Depots. — L. 1882, ch. 273. Steam.— 1882, ch. 309. Residences and Apartment Houses and Buildings. — L. 1881, ch. 58, ch. 232, ch. 589. Warehouses, Wharves and Docks. — 1881, ch. 650. Petroleum, Storage and Transportation of. — 1875, ch. 113. Telegraph Companies.— Law of April 13, 1848, ch. 365; April 8, 1851, ch. 98; June 29, 1851, ch. 471, amending act of 1848; April 22, 1862, as to extending lines, and joining lines with other corporations or associations ; Law of May 13, 1845, ch. &3, are allowed to place poles in the waters in the State, so as not to interrupt navigation. By Law of 1870, ch. 568, they may sell or lease their property of franchises to, or purchase those of another company, on a three-fifths' vote by the directors, and by written consent of three-fifths in interest of its shareholders. Skating Ponds and Sporting Grounds. — April 8, 1861, ch. 149. "^ Business Corporations. — General act for, Laws of 1875, p. 755, ch. 611; amended, 1880, ch. 187; 1881, ch. 295, ch. 433, ch. 551; 1888, ch. 103; 1884, ch. 308, ch. 397 (a supplementary act) ; 1885, ch. 584 (a supplementary act), ch. 540 1886, ch. 579 ; ch. 586 (supplementary acts) ; 1887, ch. 561 (supple- mentary act). Fire and Hose, etc., Companies.— May 2, 1873, ch. 397, amended; 1879, ch. 350. Trades' Union and Working Men.— 1871, ch. 875. Municipal Corporations. — As to restrictions on their power to make loans, borrow money, and make contracts. Rev. Stat, part 1, ch. 18, title 5; Law of July 21, 1853, Ch. 608. Such a corporation may, at common law, purchase and hold real property necessary for its powers. Patterson v. The Mayor, 17 N. T. 449. But the land must be within its boundaries, so far at least as its governmental powers are concerned. Riley v. City of Rochester, 9 N. Y. (5 Seld.) 64, reversing 13 Barb. 331. Such a corporation has not the power to make a contract or covenant that would embarrass or impede its legitimate powers or duties. Brick Church v. The Mayor, 5 Cow. 538 ; Stuyvesant v. Mayor, 7 id. 588 ; Davis v. Same, 4 Kem. 506 ; Costar v. Brush, 2 Wend. 68. Those dealing with such a corporation must see that it acts within the restrictions of its charter. Brady v. The Mayor, 20 N. Y. 312. See as to special power to each municipal corporation, their respective char- ters; see also, ante, p. 16, as to transfers from the State to municipal corpora- tions ; see also as to the powers of such corporations in holding and transfer- ring realty. The People v. Piatt, 17 Johns. 195 ; Britton v. The Mayor, 21 How. Pr. 251 ; Davidson v. The Mayor, 27 How. Pr. 342; The People v. Morris, 13 Wend. 325; Benson v. The Mayor, 10 Barb. 335; Dartmouth College V. Woodward, 4 Wheat. 697 ; Hooper v. Scheimer, 23 How. U. S. 385 ; The People v. Lowber, 38 Barb. 65 ; The People v. Brennan, 39 Barb. 523. As to the powers of supervisors, OT(^e 1 R. S. p. 364; and as to their rights to the realty of a county, ib. 622 OTHEB SPECIAL OOEPOKATIONS. [CH. XXIV. Counties, Towns and Villages. — As to the rights of towns and villages to take and hold lands, vide 1 B. S. p. 337, 1st ed., and laws of December 7, 1847, ch. 436 ; April 20, 1870, ch. 391. These are general acts for the in- corporation of villages and have frequently been amended in matters of detail. Formerly counties were not esteemed a corporate body, and a com- munity not incorporated could not take by succession. By the Revised Statutes, each county is made corporate, with a right to take and hold lands within its limits. Jackson v. Corry, 8 Johns. 388 ; Hornbeck v. Westbrook, 9 id. 73 ; 1 E. S. 364, 1st ed. See as to the power of counties and towns to take lands, and how they are to be conveyed, People v. Stout, 33 Barb. 349 ; Hill v. Supervisors, 3 Ker, 52 ; Baker v. The Mayor, 9 Abb. 83 ; Loril- lard V. Town of Monroe, 1 Ker. 394 ; Denton v. Jackson, 3 Johns. Ch. 330. It is supposed that neither a county or town can hold lands out of their respec- tive limits, nor for purposes not connected with their duties or the use of the inhabitants. Dickson v. Hartwell, 8 Johns. 433 ; and see ante, p. 301. Companies for the recovery of stolen cattle, etc.. and to catch thieves, etc.. and to insure against loss, and to prevent horse stealing. — April 7, 1859j ch. 168. Gas-light Companies.— February 16, 1848, ch. 37 ; April 15, 1854, ch. 312; April 30, 1867, ch. 480; April 35, 1871, chs. 697, 95; 1873, c. 374; 1875, c. 130. Agricultural and Horticultural Societies. —April 13, 1855, ch. 435; amended 1872, ch. 116; April 13, 1856, ch. 183; June 8, 1853, ch. 389. See also, ante, Law of 1848, p. 565 ; and April 38, 1866, ch. 838 ; ante, p. 619. Guano and Fertilizing Companies. — ^Act of May 15, 1847, ch. 546. They are made subject to the provisions of the Revised Statutes. Societies or Clubs for Social or Recreative Purposes. — April 11, 1865, ch. 368; amended Laws of 1866, ch. 457; Laws of 1869, ch. 639; 1873, c. 698 ; 1874, ch. 35 ; 1875, ch. 380 ; 1880, ch. 98. Amended so as to include societies for " social, temperance, benefit, gymnastic, athletic, musical, yachting, hunting, batting, or lawful sporting purposes. May 1, 1865, ch. 668; also, 1871, ch. 705 ; and ante, p. 630. Dental Societies.— April 7, 1868, ch. 153. Musical Colleges and Schools. — 1875, ch. 176. Stage-coach Companies.— August 6, 1867, ch. 974; 1878, ch. 85. Co-operative and Industrial Unions.- June 34, 1867, ch. 971. Companies to Navigate Lakes and Rivers.— April 15, 1854, ch. 383, § 3; amended March 10, 1857, ch. 83, amending § 1 and extending it; amended February 18, 1858, ch. 10, as to dissolution, etc. ; amended April 12, 1862, ch. 205 ; May 11, 1865, ch. 691; amended April 15, 1861; 1875, ch. 58; 1878, ch. 394. Caloric Engine Ocean Navigation Companies.— April 12, 1853, ch. 328; amended law April 5, 1853, ch. 124; amended April 3, 1866, ch. 333; amended April 17, 1867, ch. 419 ; 1875, ch. 445. Navigation of Lake George.— Act, April 14, 1854, ch. 3. Turnpike and Plank Road Companies.— Act of April 18, 1838, ch. 263; toll bridges and turnpikes are to become highways on dissolution of the corporation. Act of May 7, 1847, ch. 310, providing for the formation of companies to construct plank or turnpike roads, and how the land is to be acquired. Act of November 34, 1847, ch. 398 ; Act of July 10, 1851, ch. 487; see also Act of April 17, 1869, ch. 234. Act of April 15, 1857, ch. 483, as to sales on execution of their lands. Act of May 30, 1873, ch. 780, TIT. IX.] OTHER SPECIAL OOEPOEATIONS. 623 as to presumed dissolution. Vide 50 N. Y. 302; Acts of 1873, ch. 128, ch. 283; 1878, ch. 131; 1879, ch. 253. Building, Mutual Loan, and Accumulating Fund Associations. — ^Act of 1851, ch. 132. As to building companies- 1873, ch. 616; 1875, ch. 504; 1878, ch. 96. Homestead Companies.— 1871, ch. 535; May 22, 1873, ch. 830. For Erection of Buildings, Villa Plots, etc. — Act of April 6, 1853, ch. 117; amended April 23, 1867, ch. 509, to include companies for the construc- tion or leasing of elevators and warehouses for storage or elevating grain, or for making, constructing, and selling materials for the construction of huildings. Amended by Law of May 10, 1870, so as to include corporations for laying out and dividing lands into building lots or villa plots, and the improvement or sale thereof ; and amending the Act of 1867. Amended further, 1881, ch. 351; 44 Barb. 631. Ocean Steamship Companies. — Law of April 5, 1853, ch. 124. Ferry Companies. — Act of April 9, 1853, ch. 135. Companies to Navigate Long Island Sound. — April 15, 1861, ch. 338. Driving Park, and Agricultural Associations. — April 11, 1872; May 9, 1872, ch. 609; April 16, 1872, ch. 348; 1876, ch. 159. For Improving Breed of Horses. — Act of April 15, 1854, ch. 269 ; amend- ed April 15, 1857, ch. 768; March 28, 1864. For Keeping and Guarantying Personal Property. — 1875, ch. 613; amended 1877, ch. 10. Trades Unions.— 1871, ch. 875. MUitary Drill.— 1871, ch. 705. Railroad RoUing Stock.— 1873, ch. 814. Small Birds, Poultry, Fish, and Domestic Animals.— 1874, ch. 288, also 1877, ch. 266. Societies or Clubs, etc., for certain purposes. — 1875, ch. 367; 1876, ch. 53. Dredging, Filling and Docking. — 1875, ch. 365. Corporations for any Lawful Purpose except, etc. — 1875, ch. 611. Full liability and limited liability amended. L. 1880, ch. 187. Boards of Trade and Exchange. —1877, ch. 328. Steam and Hot Air— Laundry and Church Sheds.— 1879, ch. 290. Co-operative Insurance Companies.— 1881, ch. 171; 1883, ch. 175; 1884, ch. 353; 1887, chs. 167, 385. Suburban Homes and Villa Parks. — 1881, ch. 351. CHAPTEE XXV. ESTATES OF INFA2TTS, LUNATICS, IDIOTS AND DRUNKARDS. Title I. — Alienation, etc., bt Infants. Title II. — Guardian op Infants. Title III. — Sale of Lands of Infants. Title IV. — Estates of Lunatics, Idiots, and Deunkakds. Title I. Alienation, Era, by Infants. By Revised Statutes, "idiots, persons of unsound mind and infants" are not allowed to alien real estate. Deeds of infants were also void at common law, and were voidable on arrival at full age, not only by themselves but by their heirs. 15 Wend. 631; 17 Wend. 119; 3 N. Y. Surr. 1 Red. 498; 1 R. S. 1st. ed. 719; 1 Hill, 121 ; 35 Barb. 399; Chapin v. Shafer, 49 N. Y. 407. They are good, however, until disaffirmed. 6 Paige, 335 ; Hill's Supple- ment, 260. If grantees, they may also, when of age, disagree to any deeds, and waive any estates conveyed to them during infancy, or may affirm the same. Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 ih. 124; Tucker V. Moreland, 10 Pet. 73; Walsh v. Powers, 43 N. Y. 23. A ratification may be implied by not dissenting, and by acts of ownership, or otherwise ; and would relate back to the original instruments. Irvine V. Irvine, 9 Wall. 618; Bool v. Mix, 17 Wend. 119; Henry v. Root, 33 N. Y. 526 ; Jones v. Phoenix Bk. 4 Seld. 228 ; Dominick v. Michael, 4 Sandf. 374; Voorhies v. Voorhies, 24 Barb. 150; Spencer v. Carr. 45 N. Y. 406; Tafft v. Sergeant, 18 Barb. 320 ; Palmer v. Miller, 25 Barb. 399. Three years of passive acquiescence after coming of age is not a ratification. Green v. Green, 69 N. Y. 553. A subsequent conveyance would be a dis- affirmance of a prior conveyance made during infancy. Tucker v. Moreland, 10 Pet. 58; Boole v. Mix, 17 Wend. 119. The deed being voidable only, it can only be impeached by the infant when of age, or privies in blood or estate, and not by a stranger. Dominick V. Michael, 4 Sandf. 374 ; Irvine v. Irvine, 9 Wall. 618 ; Boole v. Mix, 17 Wend. 119. It is binding on adults with whom he dealt, so long as it is not rescinded by the infant. Smith v. Bowen, 1 Mod. 35; Holt v. Ward, Str. 937; Warwick v. Bruce, 3 Maule & Sel. 205 ; Brown v. Caldwell, 3 Serg. & Rawle, 114. TIT. n.] GUARDIANS OP INFANTS. 625 The infant need not restore the consideration. Green v. Green, 69 N. T. 553. An -infant partner may make an assignment for the benefit of creditors, with his copartners. Yates v. Lyon, 61 N. Y. 344 ; reversing 61 Barb. 305. An infant wife who releases dower may have twenty years after coming of age to disaflarm. Wells v. Seixas, 23 Blatchf. 342. The remedy of the infant is by ejectment. Weidersum v. Naumann, 10 Abb. N. C. 149. Infant Heirs to Convey. — Provision is also made in the Code of Civil Procedure for infant heirs or others to perform contracts made by a deceased ancestor, for a sale of real property or an interest in real property on action brought by any parties interested, or the representatives of the deceased. Co. Civ. Proc. §§ 3345, 2346 (as amended by L. 1883, ch. 399), 2347. Formerly regulated in a similar way by 2 R. S. 194, § 167, which was repealed by Laws of 1880, ch. 245. The contract must have been legally binding on the ancestor. Knowles V. McCamley, 10 Pai. 342. Where the infant is a lunatic, vide Swartout V. Burr, 1 Barb. 495. The contract wiU not be enforced unless for the infant's benefit. Sherman v. Wright, 49 N. Y. 237. They will not be obliged to covenant in the deed. Hill v. Ressegieu, 17 Barb. 163; see also, ante, pp. 495, 500. Determination of age. — The age of an infant may be determined by an inspection. L. 1882, ch. 340. Conversion of Real Estate of an Infant. — See fally as to this, ante, pp. 368, 364, Skuipost, Title III, as to the nature of the converted lands. Also Petition of Thomas, 1 Hun, 473. Partition of Infant's Lands. — Vide post, Ch. XXX. Collusive Recovery by Dowress. — Infant's rights on, vide p. 163. Infant Trustees and Mortgagees. — May be made to convey, etc., and the court has power over them, independent of statute. Ante, p. 386. Co. Civ Proc. §§ 2345, 2346, as amended by Laws of 1883, ch. 399. 2 R. S. Ist. ed. p. 194, which was repealed by Laws of 1880, ch. 245 ; Anderson v. Wood 44 N. Y. 249; Wood v. Mather, 38 Barb. 473; 2 R. S. 1st ed. 184. As to 'the former practice on the application, vide Ex parte Quackenboss, 3 Johns. Ch 408 ; Wood v. Mather, 38 Barb. 473; see, also, 11 N. Y. 56; 6 Barb 499 • 2 Edw. 416;4 J. C. R. 378. ' TiTiiE II. Guardians of Infants. The following statutory provisions, as to the guardian- ship of infants, affect the realty belonging to them. The father, as a general rule, if a proper person, is the natural guardian of his infant children. In many cases however, courts will dispose of the care and custody of the children to the mother or others. As guardian by 40 626 GUARDIANS OF INFANTS. [CH. XXV. nature, a father has no control over the property of his child. On the death of the father, the mother is the guardian by nature, by the common law. As to modi- fications by our laws, of the above rules, vide mfra. The People v. , 19 Wend. 16 ; Fonda v. Van Home, 15 Wend. 631 ; Wilcox v. Wilcox, 4 Ker. 575. Statutory Guardians as of Socage. — The father, and if none, the mother, or if none, the nearest and eldest relative of full age and legal capacity, males being preferred as between those of the same consan- guinity, is guardian of an infant's real property, with the rights, powers and duties of guardians in socage. To such guardians statutory provisions relative to guardians in socage are to apply. But the authority of such guardian is superseded whenever a guardian is appointed under the proceed- ings provided for in chapter xviii, title vii of the Code of Civil Procedure, i. e. by deed or will or by the surrogate. 1 R. S. 1st ed. p. 718, §§ 5 to 7. Pre- vious to the Rev. Stat, a father could not be guardian in socage of his child. Fonda v. Van Home, 15 Wend. 631. Such guardianship continues if no other guardianship succeeds. Jackson V. DeWaltz, 1 Johns. 157 ; Byrne v. Van Hoesen, 5 Johns. 66. Such guardian in socage has the custody of the land, and is entitled to the profits for the infant's benefit. Beecher v. Crouse, 19 Wend. 306. And may bring ejectment. Holmes v. Seely, 17 Wend. 75. And collect rents, and sue for injuries to the possession. Sylvester v. Ralston, 31 Barb. 286. A lease made in the guardian's own name, will bind the infant ; a general guardian has the same power. Such lease is assignable. Thacker v. Hen- derson, 63 Barb. 371 ; see also, as to leases by, and when they expire, ante, p. 179. He may lease for so long as his guardianship continues, or within the minority of the ward, subject to the appointment of another guardian, and the latter's election to avoid it. Emerson v. Spicer, 55 Barb. 428 ; affi'd, 46 N. Y. 594; Putnam v. Ritchie, 6 Pal. 390 ; Field v. Schiefielin, 7 Johns. Ch. 154. See further as to such guardianship, 30 Barb. 635 ; 7 Cow. 38; 5 Pai. 41, and also infra, this title. Guardians by Deed or Will. — A father, whether of full age or a minor, of a child likely to be born, or of a living minor child unmarried, may, by deed or will, dispose of the custody and tuition thereof, during its minority, or for a less time, to any person or persons, in possession or remainder; which shall be effectual as against every other person. Such guardian is to take the profits of the realty and the management of the personalty, and bring actions, as might a guardian in socage. Rev. St. part 2, ch. 8, title 3, §§ 1, 3, 3. Section 1 was amended by Law of Feb. 10, 1871, ch. 33, by allowing the mother to make the appointment if the father is deceased, and has not done so. The Law of 1860, ch. 90, made the wife joint guardian with the husband. This Act was repealed by Law of 1862, ch. 173, making the same provision, and that the fether should not create a testamentary guardian without assent of the mother. A married man could not, under the Married Woman's Act of 1860, ch. 90, supra, appoint a testamentary guardian of his child without the consent of his wife, nor could he do so under the Act of 1863, ch. 173, amie. In both cases the power survived to the wife on his death. People v. Boice, 39 Barb. 307. The Act of 1863, was repealed and the father restored to his rights by Laws of 1871, ch. 33, which, however, retained the wife's power to act where the husband had not appointed. Matter of De Marcellin, 34 Hun, 207. Letters will not issue to a non-resident though appointed by will. Matter of Taylor, 3 Redf. 359. By Laws of 1877, ch. 306, testamentary TIT. II.J GUAEDIANS OF INFANTS. 627 guardians in New York, were to qualify within thirty days after probate, or might renounce. Objections might be filed to the issue of letters as in case of executors and for like causes. In case of failure to qualify as provided such proceedings might be taken as were allowed against renouncing execu- tors, and in no case was the guardian to have any power before letters issued. Kepealed by Laws of 1880, ch. 245. The whole matter of testamentary guardians is now regulated by Co. Civ. Proc. §§ 2851-3860, which in gen- eral follow the Act of 1877. The time for qualifying may be extended by the surrogate for cause but not longer than three months. Security, inven- tory, accounting, removal, etc., are all provided for by §§ 3853-2860, and the provisions of the Code applicable to objections to the issue of letters to an ex- ecutor (§§ 2636-2638) are made applicable to a guardian. Guardians Appointed by Surrogate. — By the above ch. viii, title iii, R. 8. if no guardian had been appointed, by deed or will, the surrogate where the minor resided might appoint one, on the minor's application, if over 14 ; or, if under, on that of another person. In the latter case, notice was to be given to relatives, and the guardian was to continue such until discharged, or until another was appointed. A bond was to be given as prescribed. §§ 4 to 10. See also, Laws of 1837, ch. 460, as to notice to relative; and also 22 Barb. 186; 8 Cow. 307; 7 Barb. 641; 9 Pai. 206; 8 How. Pr. R. 99; Laws of 1830, ch. 320, § 31. This portion of the Revised Statutes and the Act of 1837, were repealed by Laws of 1880, ch. 245. Similar provisions are now contained in §§ 2821 to 3831, of the Code of Civil Procedure. Formerly the surrogate had no jurisdiction, unless the minor resided in his county. Brown v. Lynch, 2 Bradf. 214. Now he has jurisdiction, in case of a petition, over a non-resident who has property in his county. Co. Civ. Proc. §§ 2823, 3827. He cannot appoint a non-resident guardian. Matter of Hosford, 3 Redf . 168. Nor can he appoint on petition of the infant where there is a testamentary guardian. Matter of Reynolds, 11 Hun, 41 ; Co. Civ. Proc. § 3822, subdiv. 1. No general guardian can be appointed of a married woman. Co. Civ. Proc. § 3825. A guardian appointed for an infant under 14 holds his ofiice only till the infant is 14 or until, after that time, his successor quaUfles or he is re- moved. Co. Civ. Proc. § 2828. Powers of such Guardians. — He was to have the same powers as a testa- mentary guardian. § 10. See also, as to their duties in the care of the infant, Clark v. Montgomery, 33 Barb. 464. By Laws of Ap. 32, 1870, ch. 341, surrogates have the same power as has the Supreme Court, and may appoint a guardian for an infant whose father is living, and they shall ascertain the amount and value of the estate. Amending § 6, 3d title, ch. 8, part 2 of R. S. which was repealed by Laws of 1880, ch. 245. § 7 was repealed by Laws of 1830, oh. 320, § 31. The same provision is in the Law of Ap. 25, 1871, ch. 708, with addition as to the notice to be given. The Act of 1871 was an amendment of § 6, and was repealed by the repeal of that section. See Co. Civ. Proc. § 3821, conferring similar powers on the surrogate and giving him the power of the chancellor. Guardians appointed by the Supreme Court. — The Supreme Court, suc- ceeding to the functions of the Court of Chancery, has power, as a branch of its general jurisdiction over minors and their estates, to appoint guard- ians for infants who have no testamentary or other guardian. By our stat- utes, the powers and jurisdiction of the Court of Chancery are made co- extensive with those of the Court of Chancery in England, except as modi- fied by the constitution or by law. 3 R. S. p. 173, 1st ed. repealed by Laws of 1880, ch. 345; Co. Civ. Proc. § 317; ira te Nicoll, 1 Johns. Ch. 35; Wilcox v Wilcox, 14 N. T. 575. Accounting and Removal before the Code of Civil Procedure. — ^Pro- vision was made in said title iii as to the accounting of such guardians appoint- 628 GUARDIANS OF INFAlsfTS. [CH. XXV. ed by the surrogate, both voluntary and compulsory. Also, as to the removal for waste, misconduct, etc. , or in case of removal from the State, or insuflBcienoy of sureties ; and for the appointment of another. Also, for appeals to the Supreme Court. §§ 11 to 19. And see Laws of 1837, ch. 460, §§ 45, 49; Ap. 25, 1867, ch. 783 ; 1871, ch. 482, as to removal of guardians generally, and their accounting. These acts were all repealed by Laws of 1880, ch. 245. Also, Seaman v. Duryea, 10 Barb. 523; afll'd, 11 N. Y. 325; Diaper v. Anderson, 37 Barb. 168 ; People v. Delamater, 15 Abb. 823 ; Laws of 1874, ch. 156, repealed, Law of 1880, ch. 245 ; Laws of 1874, ch. 469, repealed by the same act by the repeal of the provision of the Revised Statutes which it amended. The Supreme Court has power to change the guardian appointed for the custody of the child, if for the benefit of the child, and may make the order at chambers (so-called). Wilcox v. WUcox, 14 N. T. 575. Re-marriage. — A widow who is guardian will be removed on re- marriage. Swartout v. Swartout, 2 Bed?. 52. Accounting and Removal under the Code of Civil Procedure. — By §§ 2832-2834, provision is made for the removal of a guardian upon petition of the ward, a relative, or a surety, for incompetency, misconduct, removal from the State, obtaining the letters by fraud, or for the general welfare of the infant. By §§ 2835, 2836, provision is made for revocation of letters on the guardian's petition. By §§ 2842, 2843, 2844 (amended by Laws of 1881, ch. 534) and 2845, provision is made for an annual inventory and account. Other accountings by a guardian appointed by the surrogate are regulated by §§ 2837, 2847, 2848 (amended by Laws of 1881, ch. 535), 2849, 2850, (amended by Laws of 1882, ch. 400, and Laws of 1887, ch. 143). Accountings of a testamentary guardian are regulated by §§ 2855-2857, and removals and resignation of the same by §§ 2858-2860. County of New York. — As to the removal and accounting of guardians in, vide Laws of 1870, ch. 854; L. 1879, ch. 406; L. 1883, ch. 410, § 1203. Acts and Purchases by. — Guardians cannot purchase the ward's property for themselves. Vide surrogates' sales, ante, p. 466, and 1 E. 8. 1st ed. 104; Dodge V. Thompson, 13 Weekly Dig. 104 ; Valentine v. Belden, 20 Hun, 537. Such sale is merely voidable, however. Bostwick v. Atkins, 3 N. Y. 53 ; White V. Parker, 8 Barb. 48. They cannot convert the personal property into realty, or vice versa, nor use the ward's money. All advantages will enure to the ward. They cannot build on the wai-d's land without order of the court, nor contract for sale of his land. White v. Parker, 8 Barb. 48; Hassard v. Rowe, 11 Barb. 33; Thacker v. Henderson, 63 Barb. 274. Guardians holding over after determination of particular estate. Vide ante, p. 243. Duties of Guardians. — By the Revised Statutes, every guardian in soc- age, and every general guardian, whether testamentary or appointed, is to safely keep the ward's property and inheritance, and is to prevent waste, sale, or destruction thereof ; to keep up and sustain the houses, gardens, and other appurtenances of the lands, with the issues and profits thereof, or other moneys of the ward, and deliver the same up in good order, etc., and account for issues and profits. They are allowed their reasonable expenses, and the same compensation as executors. If they commit waste, sale, or de- struction, they forfeit custody of the inheritance and triple damages. 2 R. S. p. 153, 1st ed. See folly, as to guardian's duties, White v. Parker, 8 Barb. 48. A guardian cannot rebuild destroyed buildings under the above powers. Copley v. O'Neill, 1 Lans. 214. Nor sell the real estate, nor lease over the period of the ward's majority. Emerson v. Spicer, 55 Barb. 428 ; and 46 N. Y. 594. TIT. II.] GUARDIANS OF INFANTS. 629 They are bound to keep moneys invested. Depeyster v. Clarkson, 3 Wend. 77. They are under the control of the court. Wood v. Wood, 5 Pai. 596 ; Putnam v. Ritchie, 6 ib. 391. They can reap no benefit from the estate. Lefevre v. Laraway, 33 Barb. 168. The general guardians of infants have the same powers as a testamentary guardian. They may collect the profits and income of real estate, and give discharges therefor, and may discharge mortgages of record. Chapman V. Tibbets, 33 N. Y. 389. They may bring actions on securities taken by them as guardians. Co. Civ. Proc. § 749. Sureties and Security. — No guardian to receive property of an infant until he give security. Co. Proc. § 420 ; Co. Civ. Proc. §§ 3830 (amended by Laws of 1881, ch. 535), 2858, 3854; Supreme Court Rules, 5; 10 Abb. 41; 3 Abb. 11. As to release of sureties see Laws 1876, ch. 378, repealed by Laws of 1880, ch. 345 ; Co. Civ. Proc. § 3600. Guaxdians ad litem. — There are various provisions of statute as to the appointment of guardians of infant parties to actions. The general rule is, that an infant may sue or be sued in actions relating to real property. If plaintiff', he appears by a next friend ; if defendant, a guardian ad litem is to be appointed, and security is to be given. The details of these proceedings are matters of practice. They will be found in R. S. part iii, ch. 8, title li. Also, in the Code of Procedure, §§ 471, 116; Co. Civ. Proc. §§ 469-477. As to guardians in partition suits. Law of 1833, ch. 237, repealed, L. 1880, c. 345 ; 1853, ch. 277, repealed, L. 1880, c. 345 ; Co. Civ. Proc. §§ 1535, 1536 (amended by L. 1884, c. 404); and see post, Ch. XXX, "Partition." The above § 116 of the Code of Proceijure was amended by Laws of 1851, ch. 479; 1852, ch. 393; 1863, ch. 460; 1863, ch. 393; 1865, ch. 615. As to guardians ad litem, and for proceedings in Surrogate's Courts, see sales by surrogates, ante, Ch. XVIII ; and Laws of 1867, ch. 782. This act was also repealed by Laws of 1880, ch. 245, but was amended by Laws of 1887, ch. 630, which possibly revives it. A guardian ad litem cannot make a settlement of the whole matter in con- troversy, so as to bind his ward. Morgan v. Morgan, 39 Barb. 589. The Code of Procedure was repealed by Laws of 1880, ch. 345, which, by § 3, effects also the repeal of all acts amendatory thereof. The Acts of 1851, 1853, 1863, 1863 and 1865, above referred to, are therefore repealed, as well as § 1 16 of that Code. Indigent Children. — As to the appointment of trustees of orphan, etc., asylums, as guardians of indigent children, by the parent or by the court, vide Laws of April 27, 1870, ch. 431; repealed by Laws of 1884, ch. 488, which now regulates such matters ; also as to the care and binding out of such children, Laws of 1857, ch. 61; 1855, ch. 159; 1869, ch. 411; 1870, ch. 431; 1875, ch. 533; 1878, ch. 112. All these acts, with the exception of § 3 of the Act of 1878, were also repealed by the general Act of 1884, ch. 438. Marriage of a Female Ward. — This terminates the guardianship. Brick's Estate, lo Abb. 12. Surplus Moneys paid into Surrogate's Court. — As to guardians obtain- ing these, vide Law of April 11, 1870, ch. 170, amending Act of April 23, 1867 ; repealed by Laws of 1880, ch. 245. See Co. Civ. Proc. §§ 2408, 3790, 3799, as to distribution of surplus moneys paid into Surrogate's Court. Compensation of Guardians. — Vide Morgan v. Hannas, 49 N. Y. 667; 13 Abb. N. S. 361 ; rev'g Morgan v. Morgan, 39 Barb. 30 ; Clowes v. Van Ant- werp, 4 Barb. 416; affi'd, 2 Seld. 466; Vanderheyden v. Vanderheyden, 3 Pai 387 ; and ante, this title, p. 638. 630 SALE OP LANDS OP INPANTS. [CH. XXV. Non-resident guardians may obtain property in this State belonging to their wards resident in other States or territories. Law of March 10, 1870, eh. 59 ; amended Laws of 1875, oh. 442. Both acts were repealed by Laws of 1880, oh. 345. See Co. Civ. Proc. §§ 3838-2840, for the present law. and pro- cedure. As a general rule, foreign guardians have no extra-territorial author- ity, and letters of foreign guardianship afford no title within this State. M'Loskey v. Reid, 4 Bradf. 334. Title III, Sale of Lands op Infants. Authority for the care, disposal, and protection of infants' estates, is considered to be inherent in the Supreme Court of this State, as successor to the Court of Chancery, independent of any statutory proceedings. The powers conferred by statute, hereinafter referred to, relate only to lands of which the infant is seized and not to equitable interests. See the cases, Cochrane v. Van Surlay, fully reviewed, ante, p. 804; Pitcher V. Carter, 4 Sand. Ch. 1 ; OnderdonkV. Mott, 84 Barb. 106 ; Anderson v. Wood, 44 N. Y. 249; Wood v. Mather, 38 Barb. 473; Fonda v. Van Home, 15 Wend. 663 ; Wilcox v. Wilcox, 4 Ker. 575 ; Knott v. Stearns, 1 Otto, 91. The cases of Rogers v. Dill, 6 Hill, 415 ; and Baker v. Lorillard, 4 Coins. 366 ; and Onderdonk v. Mott, 34 Barb. 106, and MuUer v. Struppman, 6 Abb. N. C. 843 ; are to the efiEect that the whole power of the court to direct the sale of lands of infants is derived from the statute below given ; and that there is no such original jurisdiction in a court of equity. Sales of Lands of Infants.— By the Code of CivU Pro- cedure upon the application of the guardian, or any rela- tive of an infant (in which he must join if over fourteen years of age) the court may order the sale, leasing or mortgaging of any real property, or a term, estate, or other interest in real property belonging to an infant (1) Where his personal property and the income from his realty are not enough to pay his debts or to support and educate himself and his family, or (2) Where, for any reason, his interests require such disposition, or (3) Where an action might be maintained to compel a conveyance. Co. Civ. Proc. §§ 3848, 3349. As to compelling conveyance vide ante, Title I. No leave of court is required for a sale where the guardian purchased the lands on foreclosure of a mortgage held by him as such. Bayer v. Phillips, 17 Abb. N. C. 425. A contingent remainder of an infant may be ordered to be sold. Dodge V. Stevens, 105 N. Y. 585. TIT. III.] SALE OP LANDS OP INFANTS. 631 By the Revised Statutes, part 3, ch. i, title 3, art. 7, any infant aeiised of any real estate, or entitled to any term of years in any lands, might, by his next friend or by his guardian, apply to the Supreme Court or a county court for its sale or disposition. Repealed by Laws of 1880, ch. 345. Seizin Necessary. — ^Por the above proceedings under the Revised Statutes the infant's estate must have been vested ; he must have heen iewed, to make the sale valid. A vested remainder^ however, might be sold. The legal estate must have been in the infant. Baker v. Lorillard, 4 Ooms. 357 ; also, 3 Barb. Ch. 33 ; Rogers v. Dill, 6 Hill, 415 ; Wood v. Mather, 38 Barb. 473 ; Matter of Haight, 14 Hun, 170 ; Jenkins v. Fahey, 73 N. T. 355. The Code of Civil Procedure provides for the sale of " real property or a term, estate or other interest in real property belonging to an infant " (§ 8348). "Real property " is defined as " lands, tenements and heredita- ments " (§ 3343, subd. 6). The petition should be by the general guardian, if he had one. 3 Paige, 265. But might be by the natural guardian. In re Whitlock, 33 Barb. 48. It must be to the court. 21 Barb. 348. The original act authorizing sales of infants' estates through the chancel- lor was passed April 9, 1814, ch. 108; also, Laws of 1815, ch. 106; 3 Johns. Ch. 408. That the infant did not join in the petition, if over fourteen, did not in- validate title of the purchaser in proceedings under the Revised Statutes. Cole V. Gourlay, 79 N. T. 527. The rule is otherwise now under the Code of Civil Procedure, § 2349. A contingent interest in property depending on the mother's remarriage is not an estate capable of being sold under the statute. Matter of Dodge, 40 Hun, 443. County Courts. — As to the power and jurisdiction of county courts now and formerly in such proceedings, vide Code of Procedure, § 30, sub. 6 ; Co. Civ. Proc. § 340, sub. 4 ; and Styles v. Beman, 1 Lans. 90 ; and Brown V. Snell, 57 N. Y. 386. As to supervisory jurisdiction thereof in Supreme Court. Spehnan v. Terry, 74 N. T. 448. Supreme Court. — An application to the Supreme Court must be made in a district where at least some of the property is situate. Co. Civ. Proc. § 3349. Guardian. — By the Revised Statutes a guardian was to be appointed, who was to give a bond as the court might direct, to be filed with the clerk. The guardian could be appointed at chambers. 31 Barb. 348 ; also, 3 Pai. 365 ; 3 id. 413 ; 4 id. 4A. Such is still the law under the Code of Civil Procedure, §§ 2354, 2355. Vide Rule 57 of the Supreme Court. The court retains control of the guardian and regulates his conduct until final paying over of the proceeds to the infant when of age. See Matter of Price, 67 N. Y. 331. Petition. — For requisites of the petition see Co. Civ. Proc. g 3350. Reference and Final Order.— Co. Civ. Proc. §§ 3354, 3355. Judgment. — ^Effect of, where minor was regularly represented in court, etc. See Matter of Tilden, 98 N. Y. 434. Sale, etc., Under the Code of Civil Procedure.— Before any sale, leasing or mortgaging can be effected, the special guardian must enter into an agreement therefor and report 632 SALE OF LANDS OF INFANTS. [CH. XXV. it to the court, and if it be approved the proper instru- ment must be executed. If a deed is made in a case where it could be compelled, it must be reported to the court. But nothing can be done contrary to the terms of the will or other instrument by which the infant derived title. The deed has the same effect as if the infant were of age and executed it himself. Co. Civ. Proc. §§ 2356, 2357, 2358. Sale, etc., under the Be vised Statutes. — If it appeared necessary and proper for the support and maintenance of the infant, or for his education, or that his interests required it, after report of referee or on the facts by deter- mination of the court (15 Abb. 91), the court might order the leasing, sale or other disposition of the real estate or interest by the guardian ; but not so as to conflict with the provisions of any will or conveyance under which the infant received the estate. Also in Laws of 1814 and 1815. MiUer V. Struppman, 6 Abb. N. 0. 343. The court was to direct a conveyance to be executed on the sale, etc., being reported on oath and confirmed ; which sales, leases, or dispositions, if honafide when confirmed, were to be effectual and valid. The proceeds were to be invested or applied under the direction of the court ; and they were to be deemed real estate of the same nature as the lands, etc., sold; and the infant was to have no other estate therein. The conveyance was to be executed by the guardian ad litem, by subscribing the name of the infant, and adding "by , his guardian ad litem." In re Hyatt v. Seeley, 1 Kern. 52. By statute of May 6, 1872, ch. 524, sales made as above, before Jan. 1, 1872, were confirmed, notwithstanding the deed may be erroneously signed. A " mortgage "is a "sale •' within the meaning of the statutes, which re- quires a report of the proposed sale by the guardian and a confirmation thereof. Battell v. Torrey, 65 N. Y. 294. See also Matter of Valentine, 73 N. Y. 184. Proceeds. — As to the nature of the proceeds continued as realty, and for how long, vide Davison v. DeFreest, 3 Sand. Ch. 456 ; Shumway v. Cooper, 16 Barb. 556 ; Sweezy v. Thayer, 1 Duer, 286, and ante, p. 364 ; Foreman V. Marsh, 11 N. Y. 544; Co. Civ. Proc. § 2359. As to disposition of the proceeds, vide Co. Civ. Proc. § 2361. Particular Estates.— Any person who has any actual or contingent interest in the infant's real estate to be sold, may file a consent to accept a gross sum calculated on the annuity tables in lieu of his rights or to have a propor- tionate share of the proceeds invested and the income paid to him during the time when his particular estate would run. He must, however, file with the clerk a full and complete release of his interest in the land, acknowledged like a deed. On like terms, if the infant holds an estate TIT. III.] SALE OE LANDS OF INFANTS. 633 of dower, for life, or for years the court may authorize the special guardian to join in a conveyance by the reversion- ers. Co. Civ. Proc. §§ 2363, 2363. Statute to be Strictly Followed.— Any sale of an infant's real estate made by order of a court, contrary to the provisions of the statute, are utterly void. The power of the court to direct a sale is derived entirely from the statute. Eogers v. Dill, 6 Hill, 415, and supra, p. 633. Any order in the proceed- ings fraudulently obtained will also make them void. Rogers v. DiU, 6 Hill, 415_; Clark v. Underwood, 17 Barb. 303. It seems that courts of equity have an inherent jurisdiction, independent of statute, to order a sale of the equi- table interests of infants. The statutory proceedings apply only to kgal estates. Wood v. Mather, 38 Barb. 473 ; In re Turner, 10 Barb. 553. By Laws of 1878, ch. 139, amending Laws of 1850, ch. 82, all such sales, mortgages or leases are validated in spite of irregularities. But these acts were repealed by Laws of 1880, ch. 345, having been superseded by the Code of Civil Procedure. Statutory requirements must be strictly carried out. One claiming under sale must affirmatively show regularity of proceedings. Elwoodv. Northrup, 106 N. Y. 173. As to regularity, see also Stilwell v. Swarthout, 81 N. T. 109. Infants ITuborn. — ^It has been questioned whether the estates of infants unborn could be divested by the courts under the above proceedings. See Bowman v. Tallman, 37 How. Pr. 212; Baker v. Lorillard, 4 Corns. 257. See, however, as to the power of the Legislature to pass ac ts affe cting such interests, ante, pp. 304 to 308, and post, Chs. XXVIH and XXX. Brevoort V. Grace, 53 N. T. 345, and Powers v. Bergen, 6 N. T. 358, hold that the Legislature may, by statute, authorize such divesting, but not without con- sent of adults interested, except the sale be for taxes or assessments. Dower.— The Revised Statutes also provided that on such sale, on the consent of a party entitled to dower in the lands, the court might award a gross sum or direct an investment of a sum for such dower, on a release thereof being given. Laws of 1815, 103. As to the law under the Code of Civil Procedure, vide supra. The Code of Procedure. — Section 471 expressly retained in force the former statutory proceedings relative to the estates of infants, lunatics, etc. Devises tJy Infants, Idiots and Lunatics.— Such devises are not allowed. Ante, p. 389; Shumway v. Cooper, 16 Barb. 556. Accumulations for Minors (vide ante, pp. 233, 262) and as to moneys for their support. Partition of Infants' Estates Without Action. — Vide post, Ch. XXX. Also 3 R. S. 330 ; repealed by Laws of 1880, ch. 345 ; Co. Civ. Proc. 634 ESTATES OF LUNATICS, ETC. [OH. XXV. §§ 1590, 1591, 1593 (amended by Laws of 1886, ch. 208), and In re Congdon, 3 Pai. 566. Security by Guardian before Proceeds are Paid to Him. — Vide Code of Procedure, § 420 ; Code of Civil Proce- dure, § 474, and Supreme Court Rules, 57, 59. Hunt V. Church, 65 Barb. 577. Private Act of Legislature.— A private act of the Leg- islature, authorizing the sale of an infant's estate, is valid. See the cases of Cochran v. Van Surlay ; Towle v. Forney, and William- son V. Suydam, ante, pp. 307, 308 ; Leggett v. Hunter, 19 N. T. 445 ; Powers V. Bergen, 3 Seld. 258; Brevoort v. Grace, 53 N. T. 345. So, also, acts ren- dering valid defective proceedings. Marshall v. Marshall, 4 Bush (Ky.), 348. See as to taking lands of infants for public purposes under an act therefor. Battel! v. Burrill, 50 N. T. 667 ; vide also, ante, pp. 304 to 308. Mortgaging. — The above provisions apply to mortgages as well as sales. Battell V. Torrey, 65 N. T. 294. Title IV. Estates op Lunatics, Idiots and Deunk- AEDS. By the common law, idiots or lunatics are incapable of binding themselves by a deed ; but mere imbecility, not amounting to idiocy, will not avoid it, and sanity is pre- sumed until the contrary is shown. 4 Cow. 307 ; 36 Wend. 398 ; 3 Den. 37. The acts of a lunatic before ofBce found were not void, but voidable. 3 Cow. 552. A deed in this State is void. Van Deusen v. Sweet, 51 N. Y. 378. A mortgage executed by a lunatic is only voidable at his election or that of those claiming under him. 9 N. T. 45. Lunacy does not revoke a power of attorney until the fact is judicially established. 3 Hall, 495. Deeds of a lunatic are not set aside as matter of course, but only on equitable principles. Oanfleld v. Fair- banks, 63 Barb. 462. See also post. By the Revised Statutes, idiots, persons of unsound mind, and infants, are excepted from those who are authorized by law to alien lands. An habitual drunkard is not necessarily incompetent. Van Wyke v. Brasher, 81 N. Y. 260. It is also provided that the Supreme Court (formerly chancellor), the superior city courts and the county courts within their respective jurisdictions shall have the care and custody of all idiots, lunatics and habitual drunkards, TIT. IV.] ESTATES OF LUNATICS, ETC. 635 and of their real and personal estates, and shall provide for their safe keeping and maintenance, and for the main- tenance of their families and the education of their chil- dren out of their personal estates, and the rents and profits of their real estates. Law of March 30, 1801 ; 1 Rev. L. 148 ; 2 E. S. Ist ed. p. 53, § 1 ; Laws of 1874, ch. 446. These former laws being repealed (Laws of 1880, ch. 345), the jurisdiction of the Supreme Court is regulated by Co. Civ. Proc. §§ 363, 340, 2330, 3331. By § 3 R. 8. the Common Pleas were to have the powers of the Court of Chancery over the real and personal estate of an habitual drunkard. Laws of 1821, 99. Vide also, 8 N. T. 388; 28 Barb. 51; 16 Barb. 318; 8 Barb. 552; 1 Barb. 441; 3 Barb. Ch. 336; 7 Pai. 337; 6 Pai. 11 ; 5 Pai. 133 ; 3 Pai. 301 ; 1 Pai. 580 ; 6 J. C. R. 440 ; IJ. C. R. 601 ; 3 Ed. 381; 34 Wend. 86; 1 Abb. 110; 1 Hill, 336; 8 How. Pr. 330; 6 ib. 348; 30 ib. 448; 39 How. Pr. 339; 11 N. T. 53, as to the estates of the above classes of persons generally. See also post. As to appointment of committee of person of unsound mind, see Co. Civ. Proc. §§ 3330-3344. Foreign committee has no standing here in courts of this State. In re Neally, 36 How. Pr. 403. Trust company may be appointed without giving bond. L. 1885, ch. 435. A committee taking and remaining in possession of leased premises is liable for rent. Matter of Otis, 34 Hun, 543 ; affl'd, 101 N. Y. 580. Sale of Lands.— The same sections of the Code of Civil Procedure which regulate the proceedings for the sale of lands of infants, and their effect, cover the case of lunatics, idiots, etc. It will therefore be unnecessary to go into the present law in detail as a reference to Title III, of this chapter, will show the whole proceeding. The only- difference between the cases is that a committee acts for a lunatic or idiot instead of a special guardian, the appoint- ment of a committee being necessary before the petition for the sale of lands is presented. The former practice is given below, and reference is made to the provisions of the Code as to minor matters not before referred to. Co. Civ. Proc. §§ 3345, 2363. The proceedings for appointment of a committee are regulated by §§ 3330 to 3344, inclusive. Application for Sale of Lands. — By title 3, ch. 5, part 3, of Revised Statutes, it was provided that when the personal estate of such a person was insufficient, his committee might apply to the court by which he was appointed, or, when the personalty and income of realty was insufficient, to the Supreme Court, or the court having jurisdiction, for permission to mort- gage, lease, or sell so much of his real estate as might be necessary to pay his debts, or for the maintenance of himself or family, or for the education of his children. The proceedings for so doing are given at length in succeed- ing sections of said chapter. The court might thereupon direct the mort- 636 ESTATES OP liUKATIOS, ETC. [CH. XXV. gage, leasing, or sale of the whole or such part of the real estate as may be necessary. All the provisions of the Revised Statutes on this subject are repealed by Laws of 1880, ch. a45. The proceedings would not be regular unless the application was to raise money for the above purposes, and unless the personalty was insuffi- cient. In re Petit, 3 Paige, 596. There must be a reference. Matter of Valentine, 73 N. T. 184. The Conveyance. — By §§ 18, 33, all conveyances, etc., executed by the committee under the direction of the court, were to be as valid as if executed by the lunatic, etc., when of sound mind. No conveyance was to be exe- cuted, however, until the sale had been reported on the oath of the com- mittee, and confirmed by the court. Ai to remedy of purchasers in case of defective title, see Matter of Valentine, 73 N. Y. 184. Leases, etc. — By § 23, such real estate could not be leased for more than fime years, nor mortgaged, aliened, or disposed of, except as above. When Lunatic, etc., is a Trustee, etc. — If the lunatic, etc., were seized of any estate as trustee, mortgagee, etc., the court might also direct a proper conveyance to be made to the persons entitled. Co. Civ. Proc. § 3345, is to the same eflfect. Restoration to Sanity. — If he become of right mind, the real estate, etc., of such person was to be restored to him. § 24. So now by Co. Civ. Proc. § 3348. Mortgages held by committee, being investments of the estate made by him, may be released as to a portion of the lands mortgaged without apply- ing to the court. Picksergill v. Reade, 5 Hun, 170. Sales of Lunatics' Lands under Laws of 1864. — By Laws of 1864, ch. 417, hmaties, whether manied or not, might apply by committee, or by a husband, if married, to the Supreme Court, for the sale of their real estate, and any and all interest therein. The committee was to give bonds, and the court might order a reference, and decree a disposition of such estate, not inconsistent with the provisions of any will or conveyance by which the lunatic obtained the estate. The court might also order specific performance of contracts. The court, under this law, was to be the judge of the expedi- ency and necessity of the sale. The sale was to be confirmed by the court before the deed was to be given. Matter of Valentine, 73 N. T. 184 (2 R. S. 54). This act was superseded by Laws of 1874, ch. 446, which consolidated all provisions of law relating to lunatics. The Act of 1874, was amended as to the care of lunatics' estates by Laws of 1875, ch. 574, and Laws of 1876, ch. 367. These portions of the Act of 1874, as well as the Act of 1864, were repealed by Laws of 1880, ch. 345. Proceeds. — Proceeds were to be deemed realty, and dower or other inter- ests were to be ascertained and provided for, and the lunatic was to have the same interest as he had in the realty. Descent of Proceeds of Real Estate of Lunatic, etc. — As to this, vide ante, p. 368. Idiots and those of Unsound Mind.— By Law of May 6, 1869, ch. 637, the provisions of the above Act of 1864, were extended to " idiots and per- sons of unsound mind." So, also, by Act of March 3, 1870, ch. 37. Contracts made when sane. — Specific performance by the committees might be adjudged. Swartout v. Burr, 1 Barb. 495 ; Matter of Ellison, 1 Johns. Ch. 361 ; 3 R. S. p. 55, 1st ed. This was amended by Act of 1880, ch. 423, providing that where the person entitled to performance is the com- TIT. IV.] ESTATES OE LUKATIOS, ETC. 637 mittee the courts may appoint another person to perform. For the present law mde Co. Civ. Proc. §§ 3345 and 2351. Receivers. — Receivers of lunatics and habitual drunkards, appointed by a court of chancery, might take and hold real estate, on such trusts and for such purposes as the court should direct, subject to its order. And receivers and committees of such persons appointed by the court might sue claims in their own names, as also might purchasers of claims sold. Act of Ap. 28, 1845, ch. 112. See, as to transfers to such receivers, Wilson t. Wilson, 1 Barb. Ch. 593. Dower. — As to committee's petition for sale of lands to pay dower, vide Laws of 1880, ch. 487, amdg. Laws of 1870, ch. 717, § 7. Repealed by Laws of 1880, ch. 245, § 1, subd. 46. Compare Co. Civ. Proc. § 3362. See also Agricultural Ins. Co. v. Barnard, 96 N. Y. 526 ; Valentine's Case, 73 N. Y. 184. Partition proceedings, a party defendant being insane, but not so declared judicially, are held valid. Prentiss v. Cornell, 31 Hun, 167 ; affi'd, 96 N. Y. 665. Suits by and against Lunatics, etc. — All suits by or against them should be in their individual names. McKillip V. McKillip, 8 Barb. 553; Petrie v. Shoemaker, 34 Wend. 85; Burnet v. Bookstaver, 10 Hun, 481 ; Compare Co. Civ. Proc. § 2840 ; Love V. Schermerhom, 1 Hill, 97. Under § 113 in the Code of Procedure, however, the committee might sue to set aside a deed made by the lunatic (Pierson v. Warren, 14 Barb. 488) ; or to the lunatic. Fields v. Fowler, 2 N. Y. S. C. 508. But not to recover real property belonging to the lunatic before appoint- ment of committee. Burnet v. Bookstaver, 10 Hun, 481. Ec[uitable rule. — A court of equity when invoked to set aside deeds and contracts of a person on the ground of insanity acts upon equitable princi- ples. It is by no means a matter of course to declare them void ; it is only done upon equitable terms. Canfleld v. Fairbanks, 63 Barb. 461. Compare Van Deusen v. Sweet, 51 N. Y. 378. A person though feeble in mind and adjudged to have been at the time of unsound mind, may make a valid mortgage. Hirsch v. Trainer, 8 Abb. N. C. 374; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541 (this latter case ex- plained, 84 N. Y. 330, 337). As to sale to lunatic and enforcement of equitable rules, see Johnson V. Stone, 35 Hun, 380, citing 51 N. Y. 378; 8 Hun, 337; 84 N. Y. 330; 79 id. 541. CHAPTER XXVI. THE ACKNOWLEDGMENT, PROOF, AND RECORD OF INSTRU- MENTS. Title I. — The Acknowledgment and Proof of Instruments. Title IE. — Before what Officers Instruments mat be Proved and Acknowledged. Title III. — Eecording of Instruments, Title IV. — The Acknowledgment, Proof, and Record of Instru- ments BEFORE THE ReVISED STATUTES. Title V. — The Doctrine of Notice. Title I. The Acknowledgment and Peoof of Deeds. Acknowledgment or Attestation of Grants in Fee, why Necessary.— By the law of this State, every grant in fee or of a freehold estate, if not duly acknowledged previous to its delivery, shall have its execution and delivery attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incv/m- hrancer until so acknowledged. Seeonte, p. 541, as to decisions under this provision and as to how far the grant is good as between the parties ; and 63 Barb. 273. A deed unattested and unacknowledged is invalid as against a subsequent grantee from the same grantor by a proper deed. Chamberlain v. Spargur, 86 N. Y. 603. This law includes mortgages under seal. Canandaigua Academy v. McKechnie, 19 Hun, 63. It did not take effect until January 1, 1830. 1 b. The law in force at the time of the acknowledgment governs. Richardson V. Pulver, 63 Barb. 67. Acknowledgments Necessary before Deed can be Re- corded.— Conveyances also have to he acknowledged in order to be recorded with the clerk or register of the county. The object of the record is to give constructive legal notice to subsequent purchasers or incumbrancers, and to make the record evidence. The law provides that, TIT. I.] PROOF OF DEEDS. 639 to entitle any conveyance to be recorded, it shall be ac- hnowledged by the party or parties executing the same, or shall be proved by a subscribing witness thereto before any one of certain specified officers. 1 Rev. Stat. p. 756, § 4, 1st ed. 1. Acknowledgments by the Party.— § 13, ib. " No acknowledgment of any conveyance having been executed shall be taken, unless the officer taking the same shall hnow or have satisfactory evidence that the person making such ac- Icnowledyment is the individual described in and wJw executed siuih conveyance." The identification of the grantor need not be by the subscribing witness, but by a third person, and his residence need not be stated. Dibble v. Rog- ers, 13 Wend. 537. But if not known to him, the commissioner must take proof of the iden- tity, or the certificate will be a nullity. Watson v. Campbell, 38 Barb. 421. The knowledge which the officer is to have is a question for his own con- science, and the means of his obtaining knowledge are not essential. Wood V. Bach, 54 Barb. 34 ; reversing Jones v. Bach, 48 id. 568 ; Rexford v. Rex- ford, 7 Laos. 6. The certificate need not state that the officer had " satisfactory evidence." Ritter v. North, 58 N. T. 638. But knowledge of the party must in some way appear. Miller v. Link, 5 Hun, 86. It is sufficient if the officer state that he knew the grantor to be the one who executed the deed without the words " described in." Thurman V. Cameron, 34 Wend. 87. The words " to me known," alone held sufficient, where the other words, viz. : " to be the person described in and who executed, etc.," were omitted. Jackson v. Gumaer, 3 Cow. 553, in 1834. A certificate that the parties appeared as " grantors of the within indenture " is insufficient. Fryer V. Rockfeller, 63 N. Y. 268. If there is an omission of words of acknowledgment of the execution of the conveyance, the certificate is not sufficient. The People v. Harrison, 8 Barb. 660. The certificate is only prima facie evidence, and may be rebutted. Thur- man V. Cameron, 24 Wend. 87. See also, as to this section, Duval v. Covenhoven, 4 Wend. 561. The words "to be the individuals described in and who executed the same " are held sufficient. Smith y. Boyd, 101 N. Y. 473. An introduction of the party making the acknowledgment to the officer by persons known to him is sufficient to enable him to certify that he knows the party as required by law; though if he make a mistake the deed could be avoided. Rexford v. Rexford, 7 Lans. 6. The words " personally appeared A. B," with nothing further as to knowl- edge that he was the individual described in and who executed the convey- ance, are insufficient. Miller v. Link, 2 Supm. Ct. 86. A certificate in due form proves itself. Canandaigua Academy v. McKech- nie, 19 Hun, 63. Rules of construction of a certificate of acknowledgment, collated and commented on in Clafiin v. Smith, 35 Hun, 373; s. c. 15 Abb. N. C. 341. Acknowledgments by Married Women in the State.— (Also ante, Ch. III.) — The acknowledgment by a married woman residing in the State in addition to the above requisites was formerly required to state that she acknowledged ''■on a private examination apart from Tier husband ; and that she executed such conveyance freely and without any fear or compulsion of her husband. 640 PROOF OP DEEDS. [CH. XXVI. This is held to be unnecessary when a separation has been procured. Delafield v. Brady, 38 Hun, 404. The statute provided that " no estate of any such married woman shall pass hy any conveyance not so acknowledged.^' § 34. This provision was enacted as early as 1771. 2 Van Schaick, 611. It was contained in the Law of 26th of February, 1788, 2 Green, 99 ; and in Law of April 6th, 1801, 1 Web. 478; and 1 Rev. Laws of 1813, p. 369. Her assent might be implied from her not dissenting from questions asked. Bexford v. Rexford, 7 Lans. 6. If the statute was substantially complied with, it was sufficient. Sheldon V. Stryker, 42 Barb. 284 ; Canandaigua Academy v. McKechnie, 19 Hun, 68. So held where the words "private" and "freely" were omitted from a married woman's acknowledgment, and "separate and apart '' and " with- out fear," etc., substituted. Dennis v. Tarpenny, 20 Barb. 871. So held where the words used were without any fear, threat or com^lsion, in lieu of the statutory words, the word " freely " being omitted. Meriam v. Harsen, 2 Barb. Ch. 282; affirming 4 Ed. 71. Her acknowledgment cannot be established by parol, by examination of the officer after his term had expired. Elwood v. Klock, 13 Barb. 50. As to when and how far the acknowledgment of a married woman was necessary to pass title in this State, vide fully, aiite, pp. 70 to 78. The above provision as to private examination only applied to a married woman residing in the State. Andrews v. Shaffer, 12 How. 441. A contract to convey had also to be acknowledged by her. Knowles V. McCamley, 10 Pai. 342. Biit such an acknowledgment was not necessary in executing a power of appointment imder a trust. Richardson v. Pulver, 63 Barb. 67. Not Necessary under Acts of 1848 and 1849. — Since the passage of the Laws of 1848 and 1849 relative to the powers of married women to convey lands, as if single, no private examination nor acknowledgment is held nec- essary relative to property acquired since April 7, 1848. Andrews v. Shaffer, 12 How. 441 ; Blood v. Humphrey, 17 Barb. 660 ; Yale v. D.ederer, 18 K Y. 271 ; Wiles v. Pick, 26 N. Y. 42 ; Richardson v. Pulver, 63 Barb. 67 ; Allen v. Reynolds, 36 Super. Ct. 297 (holding that the Acts of 1860 and 1862 did not revive the necessity). Since May 5, 1879, the necessity has been obviated beyond all question as to acknowledgment by Laws of 1879, ch. 249 ; and since May 15, 1880, as to proof by married woman, by Laws of 1880, ch. 300, which provide that they shall be made as in case oi fem^s soles, and repeal all inconsistent acts. Acknowledgments by Harried Women out of the State. — § 11, 1 R. S. p. 759. The Revised Statutes further provided that "when any married woman not residing in this State shall join with her husband in any convey- ance of any real estate situated within this State, the conveyance shall have the same effect as if she were sole; and the acknowledgment or proof of the execution of such conveyance by her may be the same as if she were sole." This provision was also contained in the Law of April 6, 1801, and in the Law of 1813. 1 R. L. p. 370. As to Acknowledgment of Powers of Attorney by Married Women out of the State, mde " Powers of Attorney," ante, p. 354. It will be observed that ' ' residence " is necessary. If the woman were a mere so- journer the acknowledgment as above would doubtless have been insufficient prior to the above Acts of 1879 and 1880. Acknowledgments by Corporations. — Vide ante, p. 604. 2. Proof of Execution by a Subscribing Witness.—! 12 R. S. " The proof of the execution of any conveyance shall be made by a subscribing wit- ness thereto, who shall state his own place of residence, and that he hnew the TIT. I.] PROOF OF DEEDS. 641 person deseribed in and who executed such conveyance ; and such proof shall not be taken unless the officer is personalh/ acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was a sub- scribing witness to such instrument.'' This was, in substance, originally in the Laws of 1801. 1 Web. 478. As to the proof under the former law, mde Jackson v. Osbom, 3 Wend. 555; Jackson v. Gould, 7 id. 364; also 1 J. R. 498, and post, Title IV; also 1 Wend. 406. A statement that the officer knew the witness is sufficient. Sheldon V. Stryker, 42 Barb. 284. Where the witnesses are dead, then the conveyance may be proved before any of the officers above enumerated except Commissioners of Deeds and County Judges (not Counsellors of the Supreme Court), by proof of the de- cease of said witnesses, and of the handwriting of one of them, and of the grantor. The evidence and the names and residences of the witnesses are to be set forth in the certificate. The conveyance may be then left for record, if the original is left on deposit, and the record becomes constructive notice. §§ 30, 81, 33, ib. But neither the conveyance nor the record is made evidence. Vide 30 Barb. 404. See also, as to proof when the witness is deceased, Borst v. Empie, 1 Seld. 38; Brown v. Kimball, 25 Wend. 359; reversing 19 id. 487. The grantee cannot prove the execution by the grantor. Goodhue v. Berrien, 3 Sand. Ch. 630. As to what makes a subscribing witness, vide HoUenback v. Fleming, 6 Hill, 303; Norman v. Wells, 17 Wend. 136; and ante, p. 541. As to when it is necessary to call a subscribing witness in proving an in- strument, vide Laws of 1883, ch. 195, and Simmons v. Havens, 101 N. Y.^. 437, tried before the passage of the Act of 1883. Certificate to be Indorsed. — By § 15, 1 R. S. p. 759, " Every officer who- shall take the acknowledgment or proof of any conveyance, shall indorse a certificate thereof signed by himself on the conveyance ; and in such certificate' shall set forth the matters hereinbefore required to be done, hnown or proved,. on such acknowledgment or proof, together with the names of the witnesses; examined before such officer, and their places of residence, and the substance- of the evidence by them given." By § 17 the certificate is made only pre- sumptive proof, and may be rebutted and contested, and the witness shown to be interested and incompetent. This section was repealed by Laws of 1877, ch. 417. A similar provision is contained in Co. Civ. Proc. § 936. See also, 5 Hill, 86 ; 3 i6. 54 ; 3 Du. 95. The words " and their places of residence,'^ were introduced by the Revised Statutes on the previous law. The residence of the subscribing witness is to be set forth when he is examined, but not necessarily that of other witnesses examined. Dibble v. Rogers, 13 Wend. 536. The identity of the grantor need not be proved by the subscribing wit- ness, when the grantor acknowledges it, but by any third person. li. It will be observed that the certificate is to be indorsed on the conveyance, and not merely amnexed ; but if the certificate is subjoined, it has been held sufficient. Thurman v. Cameron, 24 Wend. 87. The certificate should state that the subscribing witnesses were present at the execution. Norman v. Wells, 17 Wend. 136. It is not necessary that the precise words of the statute should be used. Sheldon v. Stryker, 43 Barb. 484. Certificate — what to State as to Time and Locality. — The certificate of the officer taking acknowledgments out of the State must state the day, and city, town or county, within which the acknowledgment or oath was taken ; and the commissioner must take the proof of acknowledgment within the city or county for which he was appointed, otherwise it is void. Laws of 1850, ch. 41 642 PROOF OF DEEDS. [OH. XXVI. 370, § 4; 1 Bev. Stat. p. 757, § 13; Act of 1859, ch. 333. The certificate should state, when the acknowledgment is taken out of the State, all that is required by the statutes, without recourse to extrinsic proof. People v. Reg- ister of N. Y. 6 Abb. 180. Certificate of Secretary of State. — Where the acknowledgment is Tjefore a commissioner appointed for this State residing in another State, his certificate must be authenticated by a certificate of the Secretary of this State. Laws of 1850, ch. 370. Conveyances so Acknowledged or Proved to be Recorded.--^ 16, 1 E. S. p. 759. " Every conveyance acknowledged or proved, and certMedinthe manner above prescribed by any of the oflicers before named, may be read in Evidence, without further proof thereof, and shall be entitled to be recorded.'' Law of April 6, 1801 ; 1 Wend. 478 ; 1 Rev. Laws, 1813, p. 369. This was re- pealed by Laws of 1877, ch. 417, but the provision is re-enacted in Co. Civ. Proc. § 935, with the exception of the provision for record. Certificates on Conveyances to be Recorded in another County. — § 18, ■ib. Conveyances to be recorded in another county than where the commis- sioner or county judge, unless a counsellor, resided who took the acknowl- edgment, must be authenticated by the county clerk of the county where the officer resided. Laws of 1818, p. 44; Campbell v. Hoyt, 33 Barb. 55, as modified by Laws of 1867, p. 1515. Conveyances executed by the agents of the Eolland Land Company or Poultney estate are excepted. Ih. §§ 1, 9. County judges' certificates, since 1847, do not have to be authenticated by the county clerk. People v. Hurlburt, 44 Barb. 136 ; Laws of 1847, vol. 3, p. 643. As to its being requisite before that time, vide Wood v. Weiant, 1 Coms. 77. See as to recording such certificates, post, Title HI. Re-acknowledgment. — If a deed which is void for want of a proper acknowledgment is re-acknowledged it is made good. Doe v. Howland, 8 Cow. 277 ; Osterhout V. Shoemaker, 3 Hill, 513. The term " Real Estate " Defined.— § 36, ib. The term " real mtau;' as regards the proof and record of deeds, is to be construed as co-extensive in meaning with " lam,ds, tenements and hereditaments ; " and as embracing all chattels real, except leases for a term not exceeding three years. This would in- clude " growing timber." Vorebock v. Roe, 50 Barb. 303 ; Warren v. Leland, 3 Barb. 613; Goodyear v. Vosburgh, 57 Barb. 343. Defective Acknowledgment. — The defective acknowledgment of deeds may be made good by statute. 8 Pet. 88 ; 3 McLean, 383 ; iJ. 230. Ancient Deeds. — It may be remarked that a deed appearing to be of the age of thirty years proves itself, and is allowed in evidence as presumptive before the courts, provided possession has accompanied it, or there are cor- roborating proofs. Jackson v. Thompson, 6 Cow. 178; Willson v. Betts, 4 Den. 301 ; Staring v. Bowen, 6 Barb. 109 ; Troup v. Huriburt, 10 Barb. 354; Clark V. Owens, 18 N. Y. 434. And it is evidence of the facts recited as to authority, etc. Ensign V. McKinney, 30 Hun, 249 ; Hoopes v. Auburn, &c. Co. 37 Hun, 568. By Laws of 1886, ch. 637, a sheriffs deed which has been recorded twenty years is presumptive evidence of the facts recited. And so with wills. Staring v. Bowen, 6 Barb. 109. Possession is not essential. Ensign v. McKinney, 30 Hun, 349; s. c. 12 Abb. N. C. 463. TIT. II.] RECORDING. 643 Title II. Before what Officers Instruments mat BE AoKNOWLEDftED OR PrOVED. By the statutes now in force the acknowledgment and proof may be before the following officers. See U. 8. Rev. Stats. § 1778. 1. When Taken within the State. — Before a justice of the Supreme Court, a county judge, surrogate, mayor, or recorder of a city, justice of the peace in towns. 1840, ch. 338. Commissioners of deeds for a city or county, or notary public. 1 Rev. Stat. 756, § 4; Laws of 1840, 187, ch. 238. Laws of 1859, ch. 360; and of 1863, ch. 508; and 1864, ch. 29, as to notaries. And probably justices of the New York Superior Court as Supreme Court commissioners. See 1 Rev. Stat. 754, § 4 ; 1 Laws of 1847, 281, ch. 255, § 7; Renaud v. Hargous, 13 N. Y. (3 Kern.) 259; affirming s. c. 2 Duer, 540. The office of Supreme Court commissioner was abolished by the Constitution of 1846. Vide the People v. Hurlburt, 44 Barb. 126. As to election of surrogate besides county judge in counties of over forty thousand population mde Laws of 1851, cb. 175. As to powers of surrogates to take acknowledgments and affidavits, Laws of 1884, ch. 309. Commissioners of Deeds and Justices of the Peace. — As to early acts appointing commissioners of deeds, vide Laws of 1818, ch. 55. This act ren- dered Masters in Chancery incompetent. Repealed in 1828. See also, as to commissioners of deeds. Acts of 1823, p. 243; 1829, ch. 52; 1833, ch. 28; 100, 101. Various local acts also created commissioners for certain towns 1837, ch. 439 ; 1846, ch. 35 ; 1848, ch. 158 ; 1851, ch. 516 ; also 1 R. S. pp. and cities. By Act of 1840, ch. 338, the office of commissioners of deeds of the towns in the State were abolished ; and their duties were to be exe- cuted by the justices of the peace of the towns. Commissioners of deeds are local officers, and are confined in the execution of their duties, to the county for which they were appointed. 1 R. S. 1st ed. 100 ; Law of 1854, ch. 92. By Law of 1848, ch. 75, they are to be appointed by the common councils of the cities of the State, and vacancies so filled. Amended, 1848, ch. 158 ; 1848, ch. 161. By the Revised Statutes, part ii, ch. 3, no county judge or commissioner of deeds shall take any proof or acknowl- edgment of deeds out of the county or city for which he was appointed. 1 R. S. 1st ed. p. 756. Jnrisdictiou of the Officer. — The notary formerly could not act out of his county. 33 How. Pr. 312. Nor can a judge out of his State. Jackson V. Humphreys, 1 Johns. 498. Acta of notaries, since April 15, 1859, were confirmed by the Laws of 1860, ch. 443 ; 1861, ch. 346 ; 1881, ch. 44, and 553 ; 1883, ch. 16; 1883, ch. 29, and 230; 1884, ch. 304; 1885, ch. 63; 1886, ch. 448. The officer will be presumed to have acted within the limits of his jurisdiction. People V. Snyder, 41 N. Y. 397; Carpenter v. Dexter, 8 Wal. 513. By Laws of 1884, ch. 270, amended by Laws of 1885, oh, 61, a notary may also act in any adjoining county upon filing a certificate and his signature there. See post, p. 645, as to notaries in New York, Kings and other counties. As to justices of the peace, see confirmatory acts. Laws of 1886, chs. 310 and 461. 2. When taken without the State, but within the United States. — Before a judge of the United States Supreme or District Courts, or of the Su- preme, Superior, or Circuit Court of a State or Territory, or before a judge of the United States Circuit Court in the District of Columbia; but such acknowledgment must be taken at a place within the jurisdiction of such 644 RECORDING. [CH. XXVI. officer. Or before the mayor of any city. 1845, ch. 109. Or a New York commissioner. 1840, ch. 390 ; 1850, ch. 270. The certificate of a New York commissioner must be accompanied by the certificate of the Secretary of State of the State of New York, attesting the existence of the officer, and the genuineness of his signature; and such commissioner can only act within the city or county in which he resided at the time of his appoint- ment. 1 Rev. Stat. 757, § 4, subd. 2; Laws of 1845, 89, ch. 109; Laws of 1850, ch. 270; amended, 2 Laws of 1857, ch. 788. The certificate of a New York commissioner, residing out of the State, must be under his seal of office, and is wholly void unless it specify the day on which, and the city or town in which it was taken. Laws of 1850, ch. 270 ; amended by Laws of 1876, ch. 58, and 1880, ch. 115. This act repealed the Law of May 13, 1840, and gave power to take affidavits to said commissioners, and was repealed as to so much thereof as allows the appointment of conmiissioner for Canada by Laws of 1875, ch. 136. See also Act of 1859, ch. 222, amending Act of 1850. When made by any person residing out of the State, and with- in the United States, it may be made also before any officer of the State or Territory where made, authorized hy its laws to take proofs or acknowledg- ments. But no such acknowledgment is valid, unless the officer taking the same knows or has satisfactory evidence, that the person making it is the indi- vidual described in and who executed the instrument. And there must be attached or subjoined to the certificate of proof or acknowledgment, a certificate under the name and official seal of the clerk, register, recorder, or prothonotary of the county in which such officer resides, or the clerk of any court thereof having a seal, specifying that such officer was, at the time of taking such proof or acknowledgment, duly authorized to take the same, and that such clerk, register, recorder, or prothonotary, is well acquainted with the handwriting of such officer, and verily believes his signature genuine. Laws of 1848, ch. 195, as amended by Laws of 1856, ch. 61, repealing Law of 1853, ch. 808; 1867, ch. 557. When taken without the State, where the grantor is dead, vide Laws of 1858, ch. 259. Vide Laws of 1883, ch. 233, increasing the number of commissioners. 3. When taken without the United States. — When the party in other parts of North or South America, or in Europe, before a minister plenipo- tentiary, or minister extraordinary, or charge d'affaires, of the United States, resident and accredited there ; or before any United States consul resident in any port or country ; or before a judge of the highest cowrt in Upper or Lower Canada (1829, ch. 222; and by Law of 1870, ch. 208), before the judge of any court of record, or the mayor of any city therein, to be cer- tified in a certain way. In the British dominions, before the Lord Mayor of London, or Chief Magistrate of Dublin, Edinburgh or Liverpool. Laws 1829, 348, ch. 223; 1 R. L. 870; 1817, 58; 1854, ch. 306. Extended to vice and deputy consuls and consular agents, and commercial and vice- commercial agents. Laws of 1863, ch. 346; 1865, ch. 431. Extended to mayor, provost, or chief magistrate of any city or town in said dominions or before any consul of the United States appointed to reside at any place in said dominions. Laws of 1883, ch. 80. Their previous acts are confirmed if in form. lb. Acknowledgment may be also made before a person specially authorized by the Supreme Court of the State, by a commission issued for the purpose. 1 Rev. Stat. 757, § 8; Law of March 8, 1817. The governor of New York was also authorized to appoint commissioners of deeds, not ex- ceeding three in each, for the following cities : London, Liverpool, Glasgow, Paris and Marseilles. Laws of 1858, ch. 308. Extended to Dublin, Belfast, Corh and Oalway, by Laws of 1863, ch. 288; and the governor in his discre- tion might appoint a commissioner for any other foreign State. lb. They might take affidavits and give certain certificates. See amendment as to that. Law of 1865, ch. 421. The Act of 1858, ch. 308, and all acts amendatory thereof, were repealed by TIT. Il-I.J LAWS RELATING TO KECOEDING. 645 Laws of 1875, cli. 136, which, however, continued in office for the term of their appointment, all commissioners appointed under the acts repealed. This Act of 1875 regulated the appointment of foreign commissioners m general terms, and thus superseded the acts repealed. The number of commissioners was increased by Laws of 1883, ch. 233. Persons in Military Service. — By Laws of 1863, ch. 471, it was provided that persons in the actual volunteer military service of the State or of the United States, might make an acknowledgment before a colonel or higher officer and also before a commissioned officer in said service, being a coun- sellor at law of this State, if such officer is out of the State. This act was repealed by Laws of 1877, ch. 417. During the wax in Mexico before o£B.cers of the army. — By soldiers or officers of the army of the United States. Laws of 1847, ch. 170. Relationship to parties. — ^Relationship to parties does not invalidate the acknowledgment. Lynch v. Livingston, 3 Seld. 422; Remington Paper Co. V. O'Dougherty, 81 N. T. 474, modifying 16 Hun, 594 ; mem. id. 650. As to Oaths and Affirmations taken before officers in foreign countries, iiide Law of 1854, ch. 306, repealed by Laws of 1880, ch. 345. Notaries in New York and Kings Counties may perform official acts in toth counties. Law of 1873, ch. 703. See also. Law 1873, ch. 807, as to Hichmond, Queens, Westchester, Rockland, Kings and New York. Amended by Laws of 1875, ch. 458, and 1880, ch. 334. The same provision is contained in Laws of 1882, ch. 410 (New York City Consolidation Act of 1882), §§ 1712, 1713. Also further see Laws of 1884, ch. 270; am'd. Laws of 1885, ch. 61 ; allow- ing a notary to act in any adjoining county and in his own county for the ad- joining county, with the same powers as in his own county. Fifing of certificate in the other county need not be recited. Estate of King, 2 Civ. Proo. R. 71. Title III. Of the Existing Laws RsLATiwa to Record- ing OF Instruments. The existing provisions for the record of instruments are found in the Revised Statutes. It is therein pro- vided that every grant shall be conclusive as against sub- sequent purchasers from a grantor or from his heirs ■claiming as such, except a* subsequent purchaser in good faith, and for a valuable consideration, who shall acquire a superior title by a conveyance that shall have been Jirst duly recorded. In part i, ch. 3, of the Revised Stat- utes, are contained most of the statutes now in force rela- tive to the record of instruments. Conveyances to be Recorded, or to be Void, etc. — It is provided that " every conveyance of real estate within this State hereafter made shall be recorded in the office 646 LAWS KELATING TO KEOOKDING. [CH. XXVI. of the clerk of the county where such real estate shall he situated; and every such conveyance not so recorded shall be void as against any subsequent purchasers in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall he first duly recorded.'''' Rev. Stat. vol. i, p. 756, 1st. edit. § 1. This section is founded on Rev. Laws, pp. 362-373; Laws of 1819, p. 369; of 1821, p. 127; of 1822, pp. 261-284; of 1823, p. 412. The statute protects none but innocent and tona fide purchasers. 10 Johns. 462; 17 Wend. 25; Schutt v. Large, 6 Barb. 378; Hams v. Norton, 16 Barb. 264 ; Westbrook v. Gleason, 79 N. Y. 23. A deed inoperative for want of a seal is within the act. Grandin v. Her- nandez, 29 Hun, 899. Compelling Record. — One of several grantees may maintain an action against a co-grantee in possession to compel him to record the deed. Smith V. Cole, 39 Hun, 348. The law applies to easements. Snell v. Leavitt, 39 Hun, 227. Bona fide Purchaser. — The receiving a conveyance in payment of a pre-existing debt will not give preference over a prior unrecorded mort- gage. 20 Johns. 637; 3 Barb. 493; 4 Paige, 215; 17 Barb. 446. There must be a new consideration at the time of the purchase, or the relin- quishment of some security. Jessup v. Hulse, 29 Barb. 589 ; reversed, on an- other point, 21 N. T. 168. Those who take for a precedent debt are not so considered except to the extent of the value they part with. Dickerson v, Tillinghast, 4 Pai. 315 ; Evertsen v. Evertsen, 5 Paige, 644 ; Woodburn v. Chamberlin, 17 Barb. 446; Merrit v. N. R. R. 13 Barb. 605 ; Pickett v. Baron, 29 Barb. 605 ; Gary v. White, 53 N. Y. 138 (dist'g'd, as not passing on the suflBciency of the consideration, in Union Dime Svgs. Inst. v. Duryea, 67 N. Y. 84, 87 ; Mutual Life Ins. Co. v. Smith, 23 Hun, 535, 540) ; De Lancey v. Stearns, 66 N. Y. 157. But a judgment-creditor purchasing at execution sale is a lona fide pur- chaser if he pay the purchase-money into court. Barto v. Tompkins Co. Nat. Bk. 15 Hun, 11. The want of record does not avoid the deed as between the parties or those having actual notice. See also post. Title V ; 8 Wend. 620 ; 9 Cow. 945 ; 10 Johns. 457 ; Jackson v. West, iA. 466. " Subsequent purchasers" means those from the same vendor. Raynor v. Wilson, 8 Hill, 469. The purchaser must also be one in good faith, and not one merely whose rights lie in executory contract. Ring v. Steele, 3 Keyes, 450 ; Villa v. Rodriguez, 12 Wall. 323. An Unrecorded Couveyance, however, divests the owner of any interest, so that a subsequent sale on execution against him passes nothing. 4 Cow. 599; 9 id. 120. Nor has he any interest liable to attachment. Wilson V. Kelly, 31 Hun, 75. Otherwise as to mortgages. See post, this title, as to preference over judgments. Books to be Provided. — § 3, ib. provides that the clerks of counties shall provide different sets of books, properly indexed; one for conveyances absolute, and the other for mortgages or conveyances intended to operate as such, or as securi- ties. See as to form of index. Laws of Apr. 18, 1843, ch. 199. As to in- TIT. III.] LAWS RELATING TO KEOORDING. 647 dices in the city of New York, vide Laws of 1883, ch. 410, (" Consolidation Act ") § 1753. Defeasance to be Recorded. — § 3, i6. Any instrument of defeasance, showing that a deed is intended to be a seewrity, must be recorded with the mortgage, and at the same time, to operate for the advantage of the person for whose benefit the deed is made. Vide ante, p. 573 ; Qrimstone v. Carter, 3 Pai. 431. Deeds proved in another State. — Deeds proved in another State or Ter- ritory may also be recorded in this State, when the officer and grantor are both deceased. Laws of 1858, ch. 359. Certificates to be Recorded. — All certificates of acknowledgment and proof, and any eertifleates required of the authentication of any officer, must be recorded with the conveyance. Unless so done, neither the record or transcript thereof shall be evidence. § 30. Former Conveyances. — §§ 33, 33, iJb. Conveyances theretofore (before 1830) proved or acknowledged under laws then in force may also be recorded and read in evidence. Those not acknowledged shall have the like effect, when acknowledged and recorded, as those acknowledged and recorded under the present law. Order of Recording. — §§ 34, 35, ih. Conveyances are to be recorded in the order, and as of the time of delivery to the clerk, who shall certify the time, book, and page, in the record and on the conveyance. Record to be Evidence.— As to this vide §§ 16, 30, 37, 1 R. S. 759 to 761, and ante, pp. 641, 643. Instruments in Secretary of State's Office, relating to real estate, may be recorded in any county clerk's office, or in the Registry of N. Y. 1839, ch. 395. When Witnesses are Deceased. — §§ 30, 33. Conveyances proved under these circumstances, and deposited for record, shall be constructive notice from the time of record and deposit. Ante, p. 641. No Instrument to be Recorded (§ 34) unless duly Acknowledged, or Proved and Certified, under a penalty against the county clerk, as for a mis- demeanor. Pen. Code, § 164. A deed executed by an officer who is himself authorized to take acknowl- edgments need not be acknowledged to be recorded. Chamberlain v. Taylor, 36 Hun, 34. The term " Real Estate," vide ante, p. 643. To be Recorded in the proper Book. — Care must be taken that the instrument be recorded in liber of Deeds or Mortgages, according to its tenor and effect. If recorded wrongly, the record is not notice. Gillig v. Maas, 38 N. Y. 196; also infra, this title. But it need not be indexed properly — the indexing is no part of the re- cording. Mutual Life Ins. Co. v. Dake, 1 Abb. K. C. 381 ; affl'd, 87 N. Y. 357. As to mistakes in recording and their effect, see Simonson v. Falihee, 35 Hun, 570 ; Mut. Life Ins. Co. v. Dake, 87 N. Y'. 257 ; 10 Alb. L. J. 310. Not every conveyance of land upon condition is to be recorded as a mortgage, nor does every condition in a grant make it a mortgage. Mac- aulay v. Porter, 71 N. Y. 173. The term, " Purchaser''' (§ 37) is held to embrace a grantee of any real estate or interest therein for a valuable consideration, and every assignee of a mortgage, lease or other conditional estate. The term Conveyance (§ 38) is stated to embrace every instrument in writing^ ty which any estate or interest in real estate is created, aliened, m/yrtgaged 648 LAWS RELATING TO EBCORDING. [CH. XXVI. or assigned, or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceeding three years, and execu- tory contracts for the sale and purchase of land. Loan Commissioners' mortgages are within the recording acts, when entered on their books, and then become notice. Tefft v. Munson, 63 Barb. 31 ; affi'd, 57 N. T. 97. A covenant passing an equitable title may be recorded. Hunt v. Johnson, 19 N. Y. 379. To entitle a document to be recorded, it must directly operate on the land and affect the title. Ludlow v. Van Ness, 1 Bos. 178; Gillig v. Maas, 38 N. Y. 191. The right of the lessor to rent under the lease is a mere chose in action and not real estate. Riley v. Sexton, 33 Hun, 345. Record of an executory contract for the sale of lands is not, it seems, con- structive notice to purchasers. Boyd v. Schlesinger, 59 N. Y. 301. But record of a deed which is inoperative for want of a seal is notice of the equitable rights of the grantee. Grandin v. Hernandez, 39 Hun, 899. Sheriff's certificates must be recorded to be effectual against an innocent purchaser. Bowers v. Amoux, 33 Super. Ot. 530. When the deed to the grantor is not recorded, recording by his grantee of the deed to him, is not notice to a subsequent grantee of the original grant- or. Page V. Waring, 76 N. T. 463. Compare, however, Goelet v. McManus, 1 Hun, 306 ; affi'd, 59 N. Y. 634. Powers of Attorney and Contracts for Sale of Land.— § 71. The above section, 38, is not to apply to them, but when duly proved or acknowledged, they may be recorded and read in evidence. As to Powers of Attorney, vide ante, 483, and 3 Barb. Ch. 307 ; as to Contracts, ante, p. 353, and 5 Lans. 160, and Merithew v. Andrew, 44 Barb. 301, showing that when a purchaser has actual or constructive notice of such a contract, he takes subject to the rights of parties under it. Instruments improperly or incorrectly recorded, are not available as notice; and there must be actual notice by the record to make it notice. Shepherd v. Burkhalter, 13 Geo. 448 ; Brown v. Lunt, 87 Maine, 433; Johnson V. Slater, 11 Gratt, 321; James v. Morey, 3 Cow. 346; Frost v. Beekman, 1 Johns. Ch. 300; Cook v. Travis, 32 Barb. 338 ; Gillig v. Maas, 38 N. Y. 191 ; Fryer v. Rockfeller, 63 N. Y. 368. But a correct index is not necessary to make the record notice. Mutual Life Ins. Co. v. Dake, 87 N. Y. 357. And an error in the first name of a party or failure to index will not hurt. Bed- ford V. Tupper, 80 Hun, 174. See also, post, Title V. For definitions of "conveyance'' and " purchaser " within the meaning of the recording act, see Bank for Savings, &c. v. Frank, 45 Super. 404. A mortgage to secure future advances may be recorded. Ackerman V. Hunsicker, 85 N. Y. 43. The above Provisions as to Mortgages.— Mortgages, satisfactions, and assignments of mortgages are embraced in the word " conveyance " in the registry acts now in force. The clerks of the respective counties are required to keep distinct bopks for the records of mortgages and securities in the nature of mortgages. The record of a mortgage is not indispensable, except to secure its prior lien. (2 Johns. Ch. 603 ; 8 Cow. 266 ; 28 Barb. 42.) Its TIT. III.] liAWS RELATING TO RECORDING. 649 record becomes notice to all subsequent mortgagees and purchasers, of the lien created. Record in Different Counties. — If the mortgage is on property in differ- ent counties, it must be recorded in each county. 47 Barb. 416. Conveyance and Defeasance. — It has been seen above (p. 573), that any conveyance and the separate instrument of defeasance constituting a mort- gage, must be recorded together as a mortgage. Otherwise it has no more effect than an unrecorded mortgage, and subsequent bona Jide purchasers from the mortgagor are protected against it. 1 Rev. Stat. p. 756, § 3 ; 3 Wend. 308; 1 Paige. 554; 3 Johns. Oh. 188; id. 417; 3 Cow. 348; 3 Pai. 431; Sid. 360; 11 Pai. 459. A deed by way of security, recorded without defeasance, may, by circum- stances, become valid as a deed absolute. Warner v. Winslow, 1 Sand. Ch. 430 ; see also as to the effect of a defeasance not being recorded. Mills v. Corn- stock, 5 Johns. Ch. 314; Stoddart v. Rotton, 5 Bos. 378. Notice. — If the mortgage is recorded improperly or in the wrong place, it is no notice. Gillig v. Maas, 38 N. Y. 191. A mortgage by a married woman containing a general clause binding her other separate estate for its payment, though recorded, will not affect a iona Jide purchaser for value of such other separate estate. Rourk v. Murphy, 13 Abb. N. C. 403. Indexing is no part of the record. Mutual Life Ins. Co. v. Dake, 87 N. T. 357; Bedford v. Tupper, 30 Hun, 174. Preference of Unrecorded Mortgage. — An unrecorded mortgage has preference over a subsequent general assignment, though the latter is first re- corded (11 Paige, 564), and over a subsequent grantee or mortgagee with notice (16 How. Pr. R. 119; 5 Denio, 187; 6 Barb. 373; 8 Cow. 366), even though the latter mav first register his deed, etc. Butler v. Viele, 44 Barb. 106. And over a subsequent mortgage taken to secure an obligation already due. But if the mortgage supersedes the former obligation the mortgagee, if without notice, is protected by first recording. Durkee v. Nat. Bk. of Ft. Edward, 36 Hun, 565. If improperly discharged, a subsequent recorded deed takes preference. Ely V. Scofield, 35 Barb. 330. A prior uoregistered mortgage is superior to a subsequent unregistered deed, even, if the latter was taken bona Jide and for value. lb. If one purchase land bona Jide for value, a prior unregistered mortgage cannot be enforced against him. Jackson v. McChesney, 7 Cow. 360 (1834) ; Jackson v. Campbell, 19 Johns. 381 (1833); Delancey v. Stearns, 66 N. Y. 157; Westbrook v. Gleason, 89 N. Y. 641. Extension of time for payment makes a new consideration and the mort- gagee a purchaser for value, but when he takes the mortgage merely as col- lateral security the mortgagee is not a purchaser for value. Cary v. White, 53 N. Y. 138 ; rev'g 7 Lans. 1. Junior Mortgagee. — A junior mortgagee, with notice of a prior unre- corded mortgage, cannot gain priority by recording his mortgage, nor can a bona fide assignee of such a mortgage without notice, unless his assignment be recorded before the prior mortgage. Forth v. Burch, 5 Den. 187 ; DeLan- cey V. Stearns, 66 N. Y. 157; Westbrook v. Gleason, 79 N.Y. 33; further de- cision, 89 N. Y. 641. A mortgage to secure an antecedent debt is not given for value so as to get a preference over a prior mortgage by being first recorded. Constant v. Am. Bapt. &c., Soc. 53 Super. 170. As to the time when a junior mortgage would take effect as against a prior one, vide Strong v. Dollner, 3 Sand. 444. 650 LAWS KBLATING TO RECORDING. [C^. XXVI. The lien of a first mortgage will be presumptively lost in favor of a sec- ond mortgage first recorded, unless it can be overcome in the manner sanc- tioned by law. Peabody v. Roberts, 47 Barb. 91 ; Van Keuren v. Corkins, 66 N. y. 77 (disting'd, 13 Hun, 474, 480). Releases by Mortgagee. — ^A mortgagee releasing part of mortgaged premises, is not bound to take notice of alienations by the mortgagor, unless he have notice to put him on inquiry. How. Ins. Co. v. Halsey, 4 Sand. 565 ; affl'd, 4 Seld. 271; Stuyvesant v. Hone, 1 Sand. Ch. 419 ; affl'd, 3 id. 151. See also ante, "Mortgages," Chap. XXIII. Preference over Judgment. — A mortgage, though unrecorded, has prefer- ence over a subsequent docketed judgment. 3 Johns. 316 ; 1 Ed. 652 ; 30 Barb. 268. So of a deed. Schroeder v. Gurney, 73 N. T. 430 ; Trenton, &c. Co. v. Duncan, 86 N. Y. 231. See for modifications of this rule, Hulett v. Wbipple, 58 Barb. 224; Dwight v. Newell, 4 N. T. 185. But, should the land be sold by the sheriflF under the judgment, prior to the registry of the mortgage, a tona Jide purchaser would be protected. 4 Johns. 216; 13 m^. 471; 4 Cow. 599; 1 Ed. 652; 9 Pai. 133; see post, Ch. XXXVIII. The rule is otherwise, as to an unrecorded deed. See ante, this title, as to unrecorded conveyances. Nor is it necessary to record an agreement by a judgment-creditor that a subsequent mortgage shall be a prior lien, to protect the mortgagee against a subsequent sale under the judgment. Frost v. Tonkers Sav'gs Bk. 70 N. Y. 553. Consideration Money Mortgages. — Mortgages for consideration money have also preference over prior judgments against the mortgagor. Co. Civ. Proc. § 1354, following 1 Rev. Stat. p. 749, § 5, which was repealed by Laws of 1877, ch. 417. Spring v. Short, 90 N. Y. 538. Even if the mortgage is given to a third person who advances the con- sideration. Jackson v. Austin, 15 Johns. 477; and ante. p. 599. Mortgage given before a Deed Taken. — A mortgage by purchaser be- fore he receives a deed is merely an equitable lien, and recording it before the date of the deed is not constructive notice to subsequent purchasers. Farmers' Loan Co. v. Maltby, 8 Paige, 361. Contra, Tefft v. Munson, 57 N. Y. 97. Nor will it prevail over a purchase-money mortgage given on acquir- ing the title, even if prior in record. Dusenbury v. Hulbert, 59 N. Y. 541. Two Mortgages Recorded Simultaneously. — When two mortgages are recorded simultaneously, the intention of the parties governs the time. 2 Barb. Ch. 440. Or neither has the preference. Rhoades v. Oanfield, 8 Paige, 545; Granger v. Crouch, 86 N. Y. 494. As to priority of assignment thereof, see Greene v. Warnick, 64 N. Y. 320; dist'g'd, 83 N. Y. 315, 231, and ante, p. 583. Otherwise the priority must be determined by equitable rules. Stafford V. Van Rensselaer, 9 Cow. 316 ; Greene v. Warnick, 64 N. Y. 330 ; reversing Greene v. Deal, 4 Hun, 703; also, White v. Leslie, 54 How. Pr. 394; 17 Hun, 148. An agreement between mortgagees for postponement of one to the other is not entitled to record and, if recorded, is notice to none. Bank for Sav- ings, &c. V. Frank, 45 Super. 404. Deed with Covenant of Assumption. — Record of a deed by which grantee assumes payment of a mortgage is not notice of the assumption to an assignee of the mortgage. Mead v. Parker, 39 Hun, 63. Mortgage by a Vendor. — Where a contract of sale is prior to a mortgage given, the assignee of the contract it seems is not bound by a prior recorded TIT. lU.J LAWS BEIiATINa TO RECORDING. 651 assignment of the mortgage. Trustees of Union College v. Wheeler, 61 N. T. 88. Nor is the vendee. Young v. Guy, 13 Hun, 325. But where the vendee gave back a purchase-money mortgage upon tak- ing title the vendor's mortgage was held valid to the extent of the vendee's mortgage and when, after service in foreclosure upon the grantee, he paid his mortgage to his grantor's assignee, the first mortgagee was allowed to fore- close, lb. Married Woman's Mortgage. — A clause in a married woman's mortgage that she "hereVjy makes a payment of the moneys hereby secured a charge upon her other sole and separate estate" is too indefinite to create a lien on her other property as against a lonaflde holder, and is not notice under the recording act. Rourk v. Murphy, 12 Abb. N. C. 403. Record of Assignments of Mortgages.— Under the for- mer laws the recording acts did not apply to assignments of mortgages ; and no notice of the assignment was nec- essary to protect the assignee of the mortgage against a subsequent assignee or persons claiming under him. James v. Mowrey, 3 Cow. 346. The recording statutes now apply to assignments and satisfactions of mortgages, (1 Rev. Stat. 763.) They should be recorded in order to operate as notice, and to guard against subsequent acts of the mortgagee, but otherwise it is not indispensable. See ante, "Mortgages," Chap. XXIII, Title VIII. Purdy v. Hun- tington, 46 Barb. 389; reversed, 43 N. Y. 334; Vanderkemp v. Shelton, 11 Pai. 38; Hoyt v. Hoyt, 8 Bos. 577; explained in Belden v. Meeker, 2 Lans. 471 ; afli'd, 47 N. Y. 307 ; N. Y. Life Ins. Co. v. Smith, 3 Barb. Ch. 83; The Trustees, &c. v. Wheeler, 59 Barb. 585; partly affirmed and partly reversed, 61 N. Y. 88; Gillig v. Maas, 28 N. Y. 191; Fryer v. Rockfeller, 63 N. Y. 368; Smyth v. Knickerbocker Life Ins. Co., 84 N. Y. 589 ; Heilbrunn v. Hammond, 13 Hun, 474 ; Bacon v. Van Schoonhoven, 87 N. Y. 446. The case of Purdy v. Huntington, 43 N. Y. 334, exemplifies the necessity of not relying on the doctrine of merger, in the case of out- standing mortgages. The court there holds that the assignee of a recorded mortgage on lands which were conveyed by the mortgagor to the mort- gagee after the assignment, had a valid lien thereon as against a purchaser from such mortgagee who purchased without knowledge of the assignment, although the conveyances, both from the mortgagor to the mortgagee and from him to the purchaser, were recorded prior to the recording of the as- signment; the court holding that the conveyance to the mortgagee, after assignment, was not a merger of the mortgage. To the same effect is Miller V. Lindsey, 19 Hun,'307. A subsequent assignee for value, whose assignment is first recorded, has preference over a prior assignment not recorded. Pickett v. Baron, 39 Barb. 505 ; Greene v. Warnick, 64 N. Y. 320. The record is not sufficient notice to the mortgagor so as to invalidate payments made by him to the mortgagee. § 41 ; 3 Barb. Ch. 83 ; 10 Paige, 409 ; 11 Pai. 37 ; 2 Cow. 388 ; 35 Barb. 334. 652 LAWS EELATING TO RECORDING. [CH. XXVI. If a junior mortgagee with notice assign to one mthout notice, who records his assignment before the prior mortgage, he is entitled to a prefer- ence. Forth V. Burch, 5 Den. 187. If a junior mortgagee in a recorded mortgage, without notice of a prior mortgage unrecorded, assign to another with notice, the assignee will have preference. A purchaser of a mortgage is a "purchaser" of real estate within the meaning of the recording act, and a subsequent assignee of a mort- gage, who records his assignment, obtains a valid title against a prior unrecorded assignment of the same mortgage. Decker v. Boice, 83 N. T. 215 ; Trustees v. Wheeler, supra ; Campbell v. Vedder, 1 Abb. App. Cas. 375; overruling Hoyt v. Hoyt, 8 Bos. 511, distinguished in Belden v. Meelser, infra; Greene v. Warnick, 64 N. Y. 220 ; Seymour v. McKinstry, 31 Week. Dig. 77. Where the assignment of a mortgage is recorded, the record is notice to all the world, except the mortgagor and his representatives. Ely v. Scofield, 35 Barb. 830. To them it is no notice whatever. Pettus v. McGowan, 37 Hun, 409. And if the assignee (whose assignment is recorded) of a junior mortgage is not made a party to a foreclosure, he is not bound by a sale under the decree. Vanderkamp v. Shelton, 11 Pai. 38. The record of the assignment is notice to the grantee of the mortgagor that the mortgagee cannot release the mortgage. Belden v. Meeker, 47 N. Y. 307. The assignee, to protect himself, must see that the assignment is definite and is noted on the record of the mortgage, or else he must give actual no- tice to the mortgagor. More v. Sloan, 50 Barb. 443. See Van Keuren v. Corkins, 66 N. Y. 77. An unrecorded agreement to release will not bind an assignee of the mortgage. St. John v. Spalding, 1 N. Y. 8. C. 483. An unrecorded assignment is not valid as against a subsequent recorded mortgage, the mortgagee relying upon a satisfaction of the prior mortgage executed by the assignor. Bacon v. Van Schoonhoven, 87 N. Y. 446. As to the rights of an assignee who first records, over an unrecorded assignment, vide Clark v. Mackin, 30 Hun, 411 ; modified, 95 N. Y. 346. As to his rights over an unrecorded deed or mortgage, see Decker v. Boice, 83 N. Y. 315 ; Westbrook v. Gleason, 79 N. Y. 23. A recorded assignment of a mortgage without mention of the bond is notice if, in fact, the bond were assigned. Yates Co. Nat. Bk. v. Baldwin, 43 Hun, 136. An unauthorized satisfaction of a mortgage will not protect a lona flde purchaser of the property from foreclosure. McPherson v. Rollins, 21 Weekly Dig. 254. An assignment of mortgage not entitled to record by reason of lack of ofiBcial certification as to the notary will operate as notice if actually recorded. Heilbrunn v. Hammond, 13 Hun, 474. As to what an assignment should contain to entitle it to record, see Viele v. Judson, 82 N. Y. 32. There is no necessity of noting assignments of mortgage on the margin of the record. I b. See also ante, p. 583, for a full consideration of the eflEect of assignments of mortgages and the record thereof. General Assignment. — A general assignment for the benefit of creditors must be recorded as a conveyance in the Register's office, if it affect real estate. Wagner v. Hodge, 34 Hun, 524. Easements. — The recording act applies to easements and an unrecorded release of an easement is void as against a tonafde purchaser of the domi- nant estate without notice. Snell v. Leavitt, 39 Hun, 327. Other Instruments to be Recorded. — The copy of a record or a recorded TIT. IV.] AOKNOWLEBGMENT AND KBOORDING. 653 deed, if lost. Laws of 1843, ch. 210. This was amended to cover any re- corded instruments without requiring proof of loss, by Laws of 1887, ch. 539. Patents for lands, 1845, ch. 110. Wills of real estate, mde ante, p. 435. Judgments in partition. Co. Civ. Proc. § 1595, replacing acts of May 11, 1846, ch. 182; 1851, ch. 377; which were repealed by Laws of 1880, ch. 345. Assignments by the comptroller. 1841, ch. 319; repealed by Laws of 1882, ch. 403. Assignments by the superintendent of insurance. 1859, ch. 366; 1868, ch. 733. Assignments for creditors. 1860, ch. 348; 1877, oh. 466, which also repealed the Act of 1860. Of insolvent debtors. 3 R. B. 1st ed. p. 38; Repealed by Laws of 1880, ch. 245; Co. Civ. Proc. §§ 2175, 2311. Treasurer of Connecticut. — As to instruments by, vide Laws of 1835, 35 ; and 1 R. S. 1st ed. 760. Holland Land Co. — As to records thereof and title papers, vide Law of 1839, ch. 395. Montgomery and Hamilton Cos. — As to records therein, vide Laws of 1840, ch. 4. Other Written Instruments except Promissory Xotes and Bills of Exchange and Wills. — Such instruments may be acknowledged or proved and read in evidence. Co. Civ. Proc. § 937, replacing Laws of 1833, chap- ter 371, which was repealed by Laws of 1880, ch. 245 ; see 1 N. T. 77 ; 33 Barb. 558; 17*. 599. Leases in certain Counties. — The provisions of ch. iv, as to the acknowl- edgment and record of deeds, are not to extend to leases for life or lives or years in Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware and Schenectady. Ih. § 43; Laws of 1823, 413. Revenue Stamp. — The Laws of 1863, ch. 456, provide that the officer should record any stamp affixed to any instrument. Title IV. Op the Acknowledgment and Record oe Instetjmbnts, beeoee the Revised Statutes. The following summary may be useful for reference. Under the Dutch Government. — The practice of acknowledging and recording conveyances existed. The deed was acknowledged or proved in the presence of some public officer. The Colonial Government. — Under the Duke's Laws of 1665, acknowl- edgments were to be made before a justice of the peace or superior officer of the government. By the charter of liberties and privileges granted by the Duke of York in October, 1 683, /ernes coverts were required to make a sepa- rate acknowledgment in some court of record and to be privately examined whether they acted without fear or compulsion of their husbands. By the Laws of 1665, the clerks of the Courts of Sessions were to " enter" all deeds and mortgages specifying the date and estate granted. Records from the North and West Riding (Long Island) of wills and of conveyances above £30 were to be at New York. Prior to the Act of 1710, there was a usage or common law of the colony sanctioning the record of deeds upon proof by a subscribing witness, as well as upon acknowledgment by the grantor. Van Cortlandt v. Tozer, 30 Wend. 433; Hunt v. Johnson, 19 N. Y. 379. The first act under the English colonial government was passed October 30, 1710. Under this act conveyances might be recorded in the secretary of State's office, or in the county records, and the practice continued of recording in 654 ACKNOWLEDGMENT AND KECOKDING. [CH.XXVI. either office until the year 1811. Under the colonial administration, there was no prescribed form for the certificates. It was the practice to acknowl- edge or prove deeds before a member of the council (Act of December 13, 1753; Act of February 10, 1771 ; 2 Van Schaick, 611), a judge of the Supreme Court, or a judge of a Court of Common Pleas where the land lay, mayors of cities, or master in chancery; and femes coverts were required to make a sepa- rate acknowledgment. The certificate was to be endorsed on the deed. Law of February 16, 1771 ; 3 Van Schaick, 611, 765. This act provided no form of the acknowledgment, but to entitle the deed to be recorded in any of the public offices, it had to be duly acknowledged by the grantor, before one of the council, a judge of the Supreme Court, a master in chancery, or judge of the County Court, not a Mayor's Court, or proved by one of the subscribing witnesses, or if deceased, by proof of the handwriting. As to right of mem- bers of the council to take acknowledgments, vide 19 N. T. 279. Previous to the Act of 1771, any judge of a Court of Common Pleas might take acknowl- edgments, even if the land was not situated in his county. 17 Wend. 338; 20 id. 338. As to acknowledgments by married women before the Act of 1771, vide ante, p. 73. Their acknowledgment then and subsequently became necessary to pass title. Vide ante, p. 71. Act of 1787.— By the Law of March 1, 1787; 3 Jones & Varick, 92; 1 Greenl. 335, an act was passed making effectual and valid all conveyances executed after July 9, 1776, and prior to November 35, 1783, and acknowl- edged before persons acting under authority of the king of Great Britain, as usual in cases of like nature, when the State was a colony. Persons Abroad. — By Law of March 8, 1773, 2 Van S. p. 765, provision was made as to the acknowledgment of deeds by persons abroad, and as to the acknowledgment of deeds by married women abroad, for which see ante, p. 71. Act of 1788.— By Law of February 26, 1788; 3 Jones & Varick, 266; 3 Greenl. 99, instruments to entitle them to be recorded in the office of sec- retary of State or clerk of the county, had to be acknowledged, etc., before a justice of the Supreme Court, Master in Chancery, or judge of the Supreme Court or of the U. S. (Law of April 6, 1793, and of 1813), or a judge of the court of Common Pleas of the county where the lands were, or the mayor of New York, Albany, or Hudson (subsequently Schenectady also), if lands therein situated. A similar law was passed on same day relative to mort- gages (2 Greenl. 100), to have priority according to date of registry ; and no mortgage, or deed in the nature thereof, made since March 19th, 1774, should affect bona flde purchasers, unless registered with the clerk of the county. This act also required the separate examination of married women to pass title. Act of March 9, 1793. — By this act, acknowledgments might be taken before the Mayor of London. Law of 1797.— By Law of February 11, 1797; 3 Greenl. 218, no acknowl- edgment could be taken unless the officer Jcnew or had satin/actory evidence that the person who acknowledged was the person " described in and who had executed such deed ;" nor take proof from a subscribing witness, unless he should then know such person, or have satisfactory evidence that he was the subscribing witness; nor unless he shall have satisfactory evidence that such witness knew the person who executed, etc. : all of which to be inserted in the certificate, and names and the substance of the evidence of witnesses. This seems to be the first act that prescribed the form of the acknowledg- ment, or contents of the certificate. Previous to the Act of February 17, 1797, it was unnecessary for the certificate to state that the officer knew the witness or the witness the grantor. Bradstreet v. Clark, 13 Wend. 673; Hunt V. Johnson, 19 N. Y. 279. TIT. IV.] ACKNOWLEDGMENT AND RECORDING. 655 Act of 1801.— A further Act was passed on April 6, 1801 ; 3 Greenl. 338, enacting the same provisions as the above Act of 1797, as to the knowledge of the party, proof and certificate, and as to the acknowledgments of mar- ried women, and re-enacting the above provisions of the Act of April 3, 1798. It also repeals so much of the Act of January 8, 1794, as makes any provision for the acknowledgment, etc., of deeds different from those of the act. This Act of 1801 was amended by Law of 1806 ; 4 Web. 615, allowing acknowledg- ments, etc. to be taken before any judge of a Court of Common Pleas of the State. It also provided that deeds theretofore duly acknowledged, etc. might be recorded, except those relating to bounty lands. Under this Law of 1801 the words "to me known," are held sufficient without the words " to be the person described in and who executed," etc. 3 Cow. 553; 34 Wend. 87. As also, the words " known to be the persons described in," etc. were held sufficient. Hunt v. Johnson, 19 N. T. 379. A similar act was passed, also, April 6, 1801, relative to mortgages (1 Web. 480), requiring them to be registered with the clerks of counties. By Act of January 39, 1811, judges of territories might take acknowledgments the same as judges of the Supreme Court. By Act of April 9, 1811, a judge of the Supreme or Superior Court of any State. This Act of 1811, also allowed a conveyance or record of any conveyance, executed before July 4, 1776, and acknowledged, etc., according to law, to be read in evidence, or a sworn copy thereof; also Act of March 8, 1817, ch. 69, as to lands out of the State. Law of 1813. — A further act was passed April 13, 1813, entitled an act "Concerning deeds," 1 Rev. Laws, 369, re-enacting the above Acts of 1801 and 1806. Deeds might also be acknowledged before a first judge of the District of Columbia, or any judge of a Court of Common Pleas; also mayor of London, and United States Minister there ; or the mayor or recorder of the cities of New York, Albany or Hudson, or mayor of Schenectady. Any U. S. minister in Europe, by Law of April 13, 1816 ; also the recorder of Troy. Law of March 8, 1817. § 7. Deeds not duly acknowledged were not to be recorded, and deeds duly proved before April 6, 1801, might be recorded, excluding those relating to bounty lands. By Laws of 1812, this section, so far as it relates to certain bounty lands, was repealed. See also, as to Bounty Landg, Act of 1794, 3 Web. 45; also of 1798, April 4, 1820; 10 Pai. 188; 8 Wend. 630. Under the Act of 181.S, a certificate has also been held good where the words "to me known to be the parties who executed the deed" were omitted. 19 N. Y. 279. Under this act also, the certificate need not state that the officers personally knew the witness. 11 Johns. 434; 1 Wend. 406. The words " deseribed in " were first introduced in the revision of 1830. The certificate before that did not state that the grantor was known to the witness " to be the person described in and who executed," etc., but merely "that such witness knows the person who executed the same." 24 Wend. 87. See also as to proof by a witness under the Law of 1813, Gillet v. Stanley, 1 Hill, 131 ; Jackson v. Gould, 7 Wend. 364. Record of Deed Made Notice. — It was not until the Act of April 3, 1798, that deeds were in any case required to be recorded under the penalty of be- ing adjudged void as against subsequent purchasers or mortgagees. This act was confined to the western counties, but was subsequently extended to other counties. As early as the Laws of December 17, 1753, however, mortgages were required to be registered with the clerks of counties. The act making deeds void as to subsequent purchasers, etc., unless recorded in the county clerk's office, was passed as to Steuben, Tioga, Herkimer, Oneida, Chenango and Otsego counties, April 3, 1798; 3 Green. 403; as to Rensselaer county, April 13, 1819, ch. 207; as to Greene, Clinton, Franklin, Delaware, Herkimer, parts of Onondaga and Cayuga counties, on March 33d, 1831, ch. 136 ; as to Saratoga, Kings and Sullivan, April 17, 1833, ch. 284 ; repealed general repealing act, as to Ulster and all other counties in the State, by Law of April 656 THE DOCTEINB OF NOTICE. [OH. XXVI. 33, 1823, ch. 363, excepting certain leases in certain counties. The act relat- ing to the city of New York was passed March 30, 1811. 6 Webster, 484 ; re- pealing Act of April 5, 1810. By Law of 1833, the provisions of the exist- ing registry acts were stated not to apply to leases for life or years, in the counties of Albany, Sullivan, Ulster, Herkimer, Dutchess, Columbia, Belaware and Schenectady. A general recording act was passed in 1813, vol. 3, p. 45. See as to the effect of the statutes of 1813, on prior deeds, Varick V. Briggs, 33 Wend. 543; affirming 6 Pai. 333; Beal v. Miller, 1 Hun, 564. Early Acts as to Record of Mortgages. — The early statutes of the State required the " registry " of mortgages, and of the defeasance thereof, but did not require them to be recorded at length. Under former registry acts, there was a distinction drawn between the registry or record of mortgages and that of other conveyances. By a colonial act, passed Dec. 13, 1753; 3 Smith & L. 19, all mortgages executed after June 1, 1754, were to be registered with the clerks of cities and counties, and to have priority as registered. The Act of Feb. 36, 1788; 3 Green. 99, required all mortgages executed after March 16, 1774, or executed after the passage of the act, to be registered, or else they should be ineffectual as against bona fide purchasers. The Act of April 6, 1801, made similar provisions, and gave priority to those first reg- istered, and required defeasancea to be registered with the deed. The Act of March 19, 1813, 1 Rev. Laws, p. 373, had similar provisions. An act was passed April 17, 1833, providing for the keeping of books of record of mort- gages by clerks of counties, and enacting similar provisions as the Law of 1813. The repealing act of December 10, 1838, repeals in terms the previous recording acts relative to both deeds and mortgages. The rules of priority, as respects deeds and mortgages, under the above statutes prior to 1830, were different. A mortgage not registered was absolutely iioid as against a subsequent hona fide purchaser, although the mortgage had been subsequently registered before the recording of the conveyance to the pur- chaser. 19 Johns. 383; 7 Cow. 360. But in all cases between two deeds, as well as between two mortgages, the deed or mortgage first registered was entitled to priority." Another distinction was that a mortgage not lona fide, or for value, as to subsequent purchasers, etc., was absolutely void, and an in- nocent assignee of the mortgage was not protected. 6 Barb. 67. Kfiect of the Revised Statutes on Former Unrecorded Instruments. — The general repealing act of December 10, 1838, establishing the provisions of the Revised Statutes, it has been held, did not affect the former acts as re- gards the order of the priority of prior unrecorded deeds or mortgages. 6 Barb. 60; 4 Cow. 605. Title V. The Doctrine of Notice. The general doctrine is, that whatever is sufficient to put a Tpartj fully upon an *wg"w*Vy, amounts to notice, pro- vided the party is under a legal obligation to inquire, as in the case of purchasers and creditors, and provided the inquiry would lead to a Jcnowledge of the requisite fact, through ordinary diligence and understanding. The ques- tion, however, is not whether the party liad the means of oUaining, and might by prudent caution have obtained TIT. v.] THE DOOTEINE OF NOTICE. 657 the knowledge in question, "but whether his not obtaining it was an act of gross or culpable negligence. He is bound to make inquiry as to facts brought to his notice affecting the title. Recitals of a Mortgage. — The recital of a mortgage in another deed is no notice of its existence as an outstanding mortgage. Jackson v. Davis, 18 Johns. 7. (Compare below, however.) Record of assignment is no notice to the mortgagor or his privies. Pettus V. McGowan, 37 Hun, 409. A notice which is barely suflcient to put a party on inquiry, or a suspi- cion of notice, is not eriough. Griffith v. Griffith, 1 Hoffman's Ch. R. 153, 166; Brush v. Ware, 15 Peters U. S. Rep. 93; Wilson v. Wall, 6 Wall. 83; 8 Cow. 360; Fort v. Burch, 6 Barb. 60; Cambridge Bk. v. Delano, 48 N. T. 337. Notice of a deed is notice of its contents, and if there is a general no- tice of the existence of liens, etc., and the circumstances are sufficient to put a prudent man upon inquiry, it would be sufficient notice. Baker v. Bliss, 39 N. Y. 70 ; Tardy v. Morgan, 3 McLean, 358 ; Reed v. Gannon, 50 N. T._ 345. A reservation of a right of way to lands of another is notice of his in- terest or claim in it. Bridge v. Pierson, 66 Barb. 614. A purchaser who advances the consideration to one not holding the prop- erty or indicia of title, will not be protected. Barnard v. Campbell, 65 Barb. 386; affi'd, 55 N. T. 456. A purchaser who in good faith or in ignorance of the existence of an un- recorded mortgage, advances part of the consideration is protected. Young V. Gray, 13 Hun, 325 ; 33 Hun, 1 ; 87 N. Y. 457. A purchaser is chargeable with notice of every fact referred to or recited in the deeds forming the chain of his title. Cambridge v. Delano, 48 N. Y. 326 ; Howard Ins. Co. v. Halsey, 4 Seld. (8 N. Y.) 371 ; affirming 4 Sandf. 556 ; Acer V. Westcott, 1 Lans. 193. Compare 8 Hun, 571. Mere notice is not sufficient, if, with due diligence, the purchaser could not discover the prior title. Williamson v. Brown, 15 N. Y. 354. A deed without seal, if recorded, is notice. Grandin v. Hernandez, 39 Hun, 399. A paper recorded, but not entitled to be, or one improperly recorded, is not constructive notice. Gillig v. Maas, 38 N. Y. 192, and ante, p. 649. The legal title of one who took without notice of a prior equity will pre- vail over such equity. Rexford v. Rexford, 7 Lans. 6. Compare Heilbrun v. Hammond, 13 Hun, 474. The following principles have been enunciated by the courts of this State, with respect to the efficacy of the record of an instrument as notice. A Prior Deed, not Acknowledged or Recorded, will not prevail against subsequent deeds acknowledged and recorded. Clark v. Crego, 47 Barb, 599 ; affi'd, 61 N. Y. 646 ; Jackson v. Humphrey, 8 Johns. 137 ; Barto v. Tompkins Co. Bk. 15 Hun, 11. , Nor will a recorded deed from such grantee prevail against a recorded deed from the original grantor. Page v. Waring, 76 N. Y. 463 Nor will an assignment for the benefit of creditors which has been only recorded in the cotmty clerk's office as an assignment. Wagner v. Hodge, 34 Hun, 534. Notice is not material to subject a grantee or mortgagee to a prior unre- corded ' deed unless he has given up a right or security or done hinxself a damage. Delansey v. Steams, 66 N. Y. 157. 43 658 THE DOCTRINE OF NOTICE. [CH. XXVI. And if the grantee had full notice of a prior unrecorded deed, he will not have preference under a prior recorded deed, and the subsequent record of the prior deed is notice to all purchasers under the first recorded deed. Jackson v. Post, 15 Wend. 588 ; Van Rensselaer v. Clark, 17 Wend. 35; Jack- son Y. Elston, 13 Johns. 453 ; Ring v. Steel, 3 Keyes, 450 ; Barnes v. Camack, 1 Barb. 392. The recording is equal to actual notice. Schutt v. Large, 6 Barb. 373. A prior deed not fully delivered will be postponed to a subsequent mort- gage. Parmlee v. Simpson, 5 Wall. 81. A purchaser for value will not be protected if, previous to the conveyance to his grantor, the lands were conveyed to a third person and the latter's deed be recorded anterior to the last purchase, although the deed to the pur- chaser's grantor be first recorded. 15 Wend, supra; 17 ift, 35, awpra. This case of Jackson v. Post (1 5 Wend. 588) was explained in Hooper v. Pierce (3 HiU, 650), where it was held that if one purchase lands unaflfected by a prior deed, and record his conveyance, the record will inure to vendees under him, however remote ; and no record of a deed subsequent to the first will operate to deprive such vendee of the rights of lonafide purchasers. A purchaser with notice, from a purchaser without notice, is protected; and a purchaser without notice, irom a purchaser with notice, is equally pro- tected as if no notice had been given. 8 Cow. 360 ; 3 Barb. 653 ; 8 Johns. 137; Varick v. Briggs, 6 Paige, 333, and 33 Wend. 543; Wood v. Chapin, 3 Ker. 509 ; Wagner v. Hodge, 34 Hun, 534. See, as to the protection of one holding under a contract of sale, Boon v. Chiles, 10 Pet. 177. To constitute a purchaser without notice^ it is not suflScient that the con- tract or deed should be made without notice, but that the purchaae-moTwy should he paid before notice. Wormley v. Wormley, 6 Brockenbrough, 330 ; 8 Wheat. 431 ; Harris v. Norton, 16 Barb. 265. A mere securing of the purchase-money is not sufficient. Spicer v. Waters, 65 Barb. 337 ; Genet v. Davenport, 66 Barb. 413 ; affi'd, 56 N. Y. 576. See also Barto v. Tompkins Co. B'k, 15 Hun, 11; and ante, p. 564, as to lonafide purchaser. A purchaser with notice, even without value, from a hma fide purchaser who is protected under the recording acts, has the same benefit as the latter. Webster v. Van Steenburgh, 46 Barb. 311. Filing for Record gives notice. The index is not necessary. Mutual Life Ins. Co. v. Dake, 87 N. T. 357. A Correct Description by Street Number is not notice when the metes and bounds cover a different lot. Thomson v. Wilcox, 7 Lans. 376. Actual Notice. — Priority of registry is held of no avail against actual no- tice of a previous unregistered conveyance. 3 Johns. 603 ; 9 Johns. 163 ; Barnes v. Camack, 1 Barb. 392; Webster v. Van Steenbergh, 46 Barb. 311; Tuttle v. Jackson, 6 Wend. 31 3 ; Jackson v. Burg, 10 Johns. 457 ; Jackson v. Cowen, 9 Cow. 94 ; Same v. Post, il. 130 ; Butler v. Viele, 44 Barb. 166. But the proof of notice must be very clear and must show fraud in the party having notice, or what would amount to fraud. Riley v. Hoyt, 39 Hun, 114 ; and in Wood v. Chapin, 3 Kern. 509, a bona fide purchaser for value, whose deed is first recorded, is held protected against a prior unrecorded con- veyance, although his grantor purchased with notice. It seems this rule will be applied as to innocent purchaser of a mortgage, as the effect of record of an assignment of mortgage is not merely to pro- tect the, assignee against a subsequent sale by the mortgagee of the same mortgage. Decker v. Boice, 83 N. Y. 315 ; overruling Crane v. Turner, 67 N. Y. 437. Vide fully, anU, p. 583. Actual notice of a vendor's lien for part of the purchase price will pre- vent a junior mortgagee from getting priority over a purchase-money mort- gage by recording first. Ellis v. Horrman, 90 N. Y. 466. TIT. Y.] THE DOCTRINE OF NOTICE. 659 Record of Deed from one not having Recorded Prior Conveyance. — A purchaser is not bound to take notice of the record of a deed from a person to whom there is no recorded conveyance. Thus, when a deed to a vendor is not recorded, the record of a mortgage given by his vendee, is not notice to a subsequent purchaser. Vide Loosey v. Simpson, 3 Stock. (N. J.) 346 ; Cook V. Travis, 32 Barb. 338; affirmed, 30 N. T. 400; Page v. Waring, 76 N. T. 468. See, however, Goelet v. McManus, 1 Hun, 306 ; affl'd, 59 N. T. 634. Assumption Clause. — Record of a deed containing a covenant to assume a mortgage is not notice to an assignee of the mortgage. Mead v. Parker, 39 Hun, 63. Notice to Agents, etc. — Notice to an agent is notice to a principal while the agent is concerned for the principal. Ingalls v. Morgan, tO N. T. 178. So notice to an attorney, who is advancing money of a client on mortgage, of a prior unrecorded mortgage, is notice to the client. Constant v. Am. Bapt. &c. Soc. 53 Super. 170. As regards mortgages to secure future advances being notice to subsequent purchasers when recorded, and necessity of giving notice to mortgagee to make no further advances, see Ackerman v. Hunsicker, 85 N. Y. 43. Sheriffs' Sales. — As to purchasers under sheriffs' sales, vide Ch. XXXVIII. Purchasers of Partnership Lands. — Where a purchaser has notice of lauds belonging to a partnership, they will be chargeable in his hands with the partnership debts, although he had no notice of such debts. Hoxie V. Carr, 1 Sum. 173. But record of a mortgage by one partner of his inter- est is no notice. Tarbell v. West, 86 N. Y. 380. Improvements. — A hona fide purchaser for value may enforce a lien against the true owner for improvements put upon the land. Bright v. Boyd, 1 Story 0. C. 478; 3 id. 605. Mistakes in Registry. — A party is only bound by the actual registry in the proper place of the record, in default of other notice. Military Bounty Lands. — As to the several acts concerning the registry of deeds, etc., relative to such lands, mde Laws, January 8th and March 37th, 1794; April 8, 1813; 1 R. S. pp. 309, 311, 303; February 4, 1814; April 13, 1819; April 14, 1830, ch. 245: February 4, 1814; AprU 13, 1818. Notice not Retrospective. — Notice by the recording acts is not retro- spective, so as to affect existing vested rights, and the recording of a deed or mortgage is not notice of its existence to a prior mortgagee. How. Ins. Co. v. Halsey, 4 Seld. 271 ; affirming 4 Sand. 565 ; Stuyvesant v. Hone, 1 Sand. Ch. 419; and 3 Barb. Ch. 151. Also Ackerman v. Hunsicker, 85 N. Y. 43. Foreclosure. — A grantee whose deed is not recorded until after the filing of the lis pendens in foreclosure need not be made a party to the action, for he is bound by the judgment without that. Kindberg v. Freeman, 39 Hun, 466. Possession as Notice.— The general rule is, thskt posses- sion of land is constructive notice to a purchaser, mort- gagee or others, of the occupant's title and equities, and when an estate is in the possession of tenants, the pur- chaser is chargeable with notice of the extent of their in- terest as tenants. It is also a rule that the possession of real estate is prima facie evidence of the highest estate 660 THE DOCTRINE OF NOTICE. [OH. XXVI. in the property, viz., a seizm mfee. Possession however, to operate as constructive notice, must be by actual, open, visible occupation, or by open and visible improvement, in distinction from mere fencing, pasturing, cutting tim- ber, etc. Under this head, vide Grimstone v. Carter, 3 Paige, 431 ; Tassett v. Smith, 23 N. Y. 253; Westbrook v. Gleason, 13 "Weekly Dig. 361; affi'd, 89 N. T. 641 ; The Trustees v. Wheeler, 61 N. T. 88 ; Lamont v. Cheshire, 65 N. T. 30 ; 5 Johns. Ch. 39; 6 Wend. 313, 336; 10 Barb. 47, 354, 454; 6 Cush. 170; 43 Maine, 519 ; 5 Barb. 53 ; 3 Stock. (N. J.) 419 ; 31 How. U. S. 498 ; Umfreville v. Eeeler, 1 N. T. S. C. 486; Pope v. Allen, 90 N. T. 398. The rule is not uniyersal ; the notice is merely inferential, and in some cases may not arise, or may be repelled or be restricted to some particular title or claim. Cook v. Travis, 33 Barb. 338 ; afBrmed, 30 N. Y. 400. Joint occupation by husband and wife is no notice of conveyance from him to her. Cary v. White, 7 Lans. 1. ' Possession to operate as notice should be inconsistent with the title sought to be established. Staples v. Fenton, 5 Hun, 173 ; Pope v. Allen, 90 N. Y. 298. Constructive possession is not enough. Brown v. Volkenning, 64 N. Y. 76. See also Trustees, &c., v. Wheeler, 61 N. Y. 88; Young v. Guy, 13 Hun, 335. Notice of Charges or Equities. — Persons taking title through instru- ments creating charges or raising equities are affected with notice of them. Cambridge Valley B'k v. Delano, 48 N. Y. 836 ; Salisbury v. Morss, 7 Lans. 359 ; affl'd, 55 N. Y. 675. Continued Possession of Vendor is notice of vendor's lien. Seymour v. McKinstry, 106 N. Y. 230. Possession under a Contract of Sale is notice of the vendee's rights. Williams v. Kinney, 43 Hun, 1. Where the grantee of a party without record title found a tax lessee in possession who attorned to him and gave him a deed, the possession of the tax lessee was held to be no notice of the grantee's rights. Willis v. Sanders, 51 Super. 384. Where a purchaser at foreclosure bought on an agree- ment with the owners to hold for them and convey to them on certain terms, their continued possession was held to be notice of their rights. Umfreville v. Keeler, 1 N, Y. S. C. 486. CHAPTER XXVII. SUCCESSION DUTIES, STAMPING OF INSTRUMENTS AND FOR- FEITURES UNDER.THE UNITED STATES REVENUE LAWS, AND NEW YORK STATE LAWS. Various laws have been passed by Congress, since July 1, 1862, requiring instruments transferring real estate to be stamped as provided, and that in default thereof, they were neither to be recorded nor read in evi- dence. Acts also were passed imposing the payment of a duty or tax by those " succeeding " to real or personal property. Such duties or taxes were to be liens on "property" or real estate, in some instances, for five, in others for twenty years, until they were paid. The succession might arise by deed, will or descent. By Law of July 14, 18Y0, such succession duties were abolished with the reservation of such as had accrued, or might accrue under the repealed acts. It is not considered nec- essary, therefore, in this treatise to review the above laws, as in case of future succession they are not appli- cable. It may be weU to state, however, tliat the United States officials still cl^im, that the law is in force so far as applicable to successions that may take effect at any future time, no matter how distant, provided that the right to the succession became vested at any time before the abolition of the acts, imposing the duty — no matter at how remote a past period, and men hefore the repealed acta were passed. Such a view is evidently not within either the letter or spirit of the repealing act of 1870, as will be clear from its inspec- tion, and would doubtless be not sustained, before any tribunal competent in legal learning, to pronounce upon the subject. As regards the provisions re- quiring the affixing and cancelling of revenue stamps on instruments to give them validity, such provisions have also been abolished by United States Law of June 6, 1872, to take effect on the 1st of October, then ensuing. Such repeal of the laws requiring the affixing of stamps to instruments would not act retrospectively, so as to affect instruments executed while the laws were in force ; and, in that view, it would be desirable to review their provisions, if the imposition of such stamps were considered a matter of legal necessity in order to give validity to instruments on which stamps were directed to be imposed. The question, however, under the views of the tribunals of this State ia no longer one affecting title to realty, but one merely of taxation, as between the Grovernment and the individual taxed. The recent views of courts of this State, are substantially to the effect, that 662 SUCCESSION DUTIES, ETC. [CH. XXVU. in no case would the omission to affix a revenue stamp to an instrument re- quiring a stamp invalidate the instrument, unless there was an intention to defraud the Government of the stamp duty; and that instruments requiring a stamp, might be stamped and used in evidence, in the absence of any such intent. In the case of More v. More (infra), the Court of Appeals have also determined that it wag not within the constitutional power of Oongreas, to pre- laribe for the States, a rule for the transfer of property within tlirnnj and that therefore, no deed would lie invalid, as an instrument transferring realty, because it had not been stamped as required by the United States laws. Vorebeck v. Roe, 50 Barb. 303; Frink v. Thompson, 4 Lans. 489; More v. More, 47 N. T. 467 ; overruling, Davy v. Morgan, 56 Barb. 218; see also, Cop- pemell v. Ketcham, ib. Ill; Howe v. Carpenter, 53 Barb. 383; People V. Gates, 43 N. T. 40; Brown v. Goodwin, 75 N. Y. 409. The Seizure and Sale of Land for non-payment of Internal Revenue Taxes. — The Act of July 1, 1863, provided for the seizure and sale of real es- tate for non-payment of taxes. Vide § 31. Redemption may be made in a year from record of (jeed. Taxes were to be a lien on all property. The col- lector is to keep record of sales of lands. Vide also Law of 1864, ch. 173, § 30 ; also Law of March 3, 1865, providing that taxes under the Internal Rev- enue laws shall be liens on all property of the person, etc., assessed; also Law of July 13, 1866, making provision of sale of real estate of party taxed, how deed is to be given, and redemption ; also Law of March 2, 1867, § 4 ; also E. S. U. S. §§ 3196 to 3306 inclusive. These liens do not take precedence of ex- isting liens. Decision of Commissioner Rollins. By § 106, of Law of 1868, now § 3307, R. S. U. 8., provision is made for a bill in equity to enforce the lien against real estate, making all persons having liens parties. Confiscation of Land for Violatiou of Internal Revenue Laws. — The various Internal Revenue acts and the Revised Statutes have provided for the forfeiture of land used in violation of these laws. The proceedings are by information filed by the District Attorney upon which a monition issues to the Marshal who takes possession of the property and gives notice to all par- ties in interest by publication of the monition. Upon the return of the mo- nition the interests of all persons who do not appear and put in a claim and an answer to the information are forfeited. Issues raised by the answers are tried by jury. Upon default of all parties or upon a verdict for the United States after a trial of the issues a decree of condemnation is made and a writ of venditioni exponas, formerly issued to the Marshal under which he sold the property substantially as a sheriff sells under execution. Now no writ issues but the property is taken charge of by the collector of internal rev- enue for the district in which it is situated, and its sale is regulated by the commissioner of internal revenue. Forfeitures of real estate may occur under the following acts; those prior to the Revised Statutes of 1873 are no longer in force. Act of July 30, 1868, c. 186, § 44 (15 Stats, p. 143) ; June 6, 1872, c. 315, § 12 (17 Stats, p. 240) ; R. S. § 3381; Act of July 30, 1868, c. 186, § 93 (15 Stats, p. 163); R. S. § 8400. These forfeitures, may, however, be remitted by the Secretary of the Treasury, where he is of opinion that they were incurred " without willful negligence or intention of fraud " in the person as to whose interest the remission is sought. A petition for remis- sion is presented to the District Judge upon notice to the District Attorney, and the matter is thereupon referred to a commissioned to take testimony. The testimony with the petition is forwarded to the Secretary of the Treasury who, in a proper case, issues his warrant of remission upon such conditions as he thinks fit. R. S. U. S. § 5393. State Tax on Legacies and Successions. — By Laws of 1885, ch. 483, a tax was imposed upon all property pass- CH. XXVII.] SUCCESSION DUTIES, ETC. 663 ing by will or descent to any person or corporation, with the exception of the parents, children or adopted children, husband, wife, brother, sister, daughter-in-law, or son-in- law of the decedent or intestate. This act was super- seded by ch. 713, of the Laws of 188Y, which fully regu- lates the assessment and collection of the tax. Executors are to have such power of sale to pay the tax as they have to pay debts. If taxable legacies are charged on land, the tax upon them is also to be a lien upon the land until paid. If taxes upon an estate are not paid payment may be compelled by proceedings before the Surrogate, and transcripts of his decree when docketed are to have the effect of judgments. The effect and manner of enforce- ment of the decree are to be as provided in Co. Civ. Proc. 8S 2553 and 2554. CHAPTER XXVIII. TITLE THROUGH FORECLOSURE OP MORTGAGE. Title I.— Jurisdiction over the Action. Title II. — Parties to the Action. Title HI. — Jurisdiction over Defendants. Title IV. — Judgment. Title V. — Sale. Title VI. — Resale. Title VII. — Strict Foreclosure. Title VIII. — Sale under a Power. Title IX. — Miscellaneous. The equity of redemption which, exists in the mortgagor after default in payment, may he foreclosed by action and sale, whether the mortgage contains a power of sale or not. The object of an action of foreclosure is to enable the mortgagee to have the mortgaged premises sold, in order to obtain his money, interest, and expenses; and that the mortgagor, and all persons claiming under him, be ha/rred of all equity of redemption in the mortgaged premises ; the purchaser taking a clear title to the land sold. K the mortgage be to secure unliquidated damages, or if there be no power of sale in the mortgage, it can only be foreclosed in a court of equity (Ferguson v. Kimball, 3 Barb. Ch. 616 ; Same v. Ferguson, 3 Coms. 360), or if the mortgage have to be proved by parol. Hart v. Ten Eyck, 2 Johns. Ch. 63. The foreclosure and sale must take place according to the statute in force when the mortgage was given, so far as the substantial rights of the mort- gagor are concerned. Cohoes Co. v. Goss, 13 Barb. 187 ; Calkins v. Calkins, 3 Barb. 305 ; affl'd, 20 N. Y. 147 ; Brown v. Kinzie, 1 How. U. S. 311. But as to changes in the statutes regulating the mere proceedings, tiiAe contra, James v. Stull, 9 Barb. 483 ; see also, Calkins v. Calkins, supra, as to terms of redemption when the mortgagee has gone into possession without fore- closure. The time and manner of enforcina; his security rests with the mortgagor. Adams v. McPartlin, 11 Abb. N. 0. 369. A mortgage containing a covenant for payment and for foreclosure in case of breach, which refers to an agreement, whereby the mortgagee collects the TIT. I.] JDRISBIOTION OVER THE ACTION. 665 rents and applies them on the mortgage, may be foreclosed. It is not a vivum vadium. O'Neill v. Q-ray, 39 Hun, 566. Bight to Foreclose, and Limitation. — Lapse of time may bar the action of foreclosure. If the mortgagor has been permitted to hold the land with- out account, or payment of principal or interest, or claim therefor for twenty years, the mortgage debt is considered extinguished, and a reconveyance of the legal estate from the mortgagee may be presumed. 7 Johns. 378; 13 ib. 343. The presumption, however, may be rebutted. Proceedings of foreclosure commenced will rebut such presumption. 13 Johns. 539; Calkins v. Calkins, 3 Barb. 305 ; Calkins v. Isbelt, 30 N. Y. 147. See also, ante, p. 583, and Minor v. Beekman, 11 Abb. N. S. 147. Where after a sale in foreclosure no deed passed and the mortgagor never afterward recognized the mortgage, redemption was presumed after twenty years. Barnard v. Onderdonk, 98 N. T. 158. While the suit is pending, and after judgment, no other proceeding can be had at law for the recovery of the debt, except by order of court (Co. Civ. Proc. § 1678), and when a judgment has been obtained at law, there can be no foreclosiire unless execution is returned at least partly unsatisfied. Co. Civ. Proc. § 1630. These sections replace 3 R. S. 1st ed. 191, which was re- pealed by Laws of 1880, ch. 345. This does not prevent a junior mortgagee who has filed a claim to surplus, from beginning another action for his debt without leave of court. WyckoflE V. Devlin, 13 Daly, 144. Section 1628 does not apply to mortgages on lands without the State Mutual Life Ins. Co. v. Smith, 19 Abb. N. C. 69; 8 Pai. 70; 9 ». 137. As to execution for the mortgage debt, vide Ch. XXXVIII. As to effect of a tender in removing the lien and right to foreclose, vide The Farmer's, &c. Co. v. Edwards, 26 Wend. 541 ; Kortright v. Cady, 21 N. Y. 343 ; and ante, p. 588. The latter case holds, reversing 33 Barb. 430, and overruling Arnot v. Post, 2 Den. 344, that tender of the money due at any time before foreclosure discharges the lien, though made after the law day, and not kept good ; and continued readiness to pay need not be shown. A conveyance to the mortgagee in satisfaction after he has assigned the mortgage does not merge nor satisfy it, and it may still be enforced against his grantee. Miller v. Lindsey, 19 Hun, 307. Title I. Jxjeisdiotion of Courts over the Action. Any judgment rendered by a court that had not obtained jurisdiction of the subject-matter to which it relates, and the persons to be bound thereby, is utterly void. On this head, vide Phelps v. Baker, 60 Barb. 107 ; and post, " Judicial Sale," Ch. XXXVIII. The Supreme Court has now the jurisdiction of the former Court of Chancery, which had power from its institution to decree a sale under foreclosure. 1 R. L. 90 ; Onderdonk v. Mott, 34 Barb. 106 ; Constitution, Art. 6, §§ 3-6; 3 Rev. Stat. 191, 1st ed.; ib. 334; Laws of 1847, ch. 380; Laws of 1848, ch. 170; Laws of 1849, ch. 30; ib. ch. 83; ib. ch. Ill; Laws of 1850, ch. 15 ; ib. ch. 1 ; Laws of 1851, ch. 163 ; Laws of 1853, ch. 374 ; Laws of 1853, ch. 338. These acts have been chiefly repealed by Laws of 1877, ch. 417, and Laws of 1880, ch. 345. As to the Supreme Court mde Co. Civ. Proc. § 317. When the court has jurisdiction of the parties and the cause of action it may decree 666 PABTIBS TO THE ACTION. [CH. XXVIII. foreclosure, though part of the lands be in another State. Union Trust Co. V. Olmstead, 102 N. T. 739. Superior and Common Pleas and other Courts. — Also jurisdiction in foreclosure cases was conferred on the Superior Court and Court of Common Pleas in New York city, and mayors' and recorders' courts of cities, and county courts, for lands in the city or the county (Constitution of 1846 ; Co. Proc. § 33, § 30, repealed by Laws of 1877, ch. 417), and the trial should be where the lands are located. § 133 of the same Code, repealed by the above Act of 1877; Co. Civ. Proc. § 982. See, also, 3 How. 335; 36 Barb. 197; 16 How. 41. As to the N. Y. Superior Court, vide Ring v. McCoun, 6 Seld. 368. Vide Hall v. Hall, 30 How. 51 ; Arnold v. Rees, 18 N. Y. 57 ; overruling Hall V. Nelson, 33 Barb. 90, as to County Courts and their jurisdiction ; and Benson v. Cromwell, 26 Barb. 318. They have also jurisdiction over lands out of the county, if included in a complaint to foreclose lands in the county. Strong V. Eighme, 41 How. 117; Co. Civ. Proc. § 340. As to City Court of Brooklyn, vide Laws of 1870, ch. 470; 1871, ch. 383. See, also. Law of 1873, ch. 339, extending jurisdiction of the N. Y. Common Pleas and Su- perior Courts, Superior Court of Buffalo, and City Court of Brooklyn, to be equal, in civil cases, with the Supreme Court. The groimds of jurisdiction of an inferior court must appear from the record. Walker v. Turner, 9 Wheat. 541. The Act of 1873 was held to be unconstitutional in Landers v. Staten Island R. R. Co., 53 N. Y. 450, in so far as it extended the jurisdiction of the local courts. The "Superior City Courts" have jurisdiction over foreclosures where the property is situate within their respective cities. Co. Civ. Proc. § 363. For a definition of " Superior City Courts" in the Code, mde Co. Civ. Proc. § 3343. The County Courts have jurisdiction over foreclosures on property within their respective counties. Co. Civ. Proc. § 340. , Remedy by Ejectment or Kxecution. — The action of ejectment will no longer lie by the mortgagee (Co. Civ. Proc. § 1498, following 3 R. S. 313, §57, which was repealed by Laws of 1877, ch. 417), nor can he sell the equity of redemption on an execution for the mortgage debt. Co. Civ. Proc. § 1433, following 3 Rev. Stat. 368, § 31, which was also repealed by Laws of 1880, ch. 245 ; Delaplaine v. Hitchcock, 6 Hill, 14. Lis Pendens. — A notice of lis pendens of the action was to be filed with the county clerk, giving particulars of the mortgage and the lands, at least forty days before judgment. See post, Ch. XLV, as to these notices, and their effect. The Law of May 7, 1844, ch. 346, required the notice to be filed forty days, at least, before decree. Repealed by Laws of 1880, ch. 345. It must now be filed at least twenty days before judgment of sale. As to the lis pendens vide Co. Civ. Proc. §§ 1631 and 1670. Title II. Parties to the Action. Parties Plaintiff.— The party bringing the action should be the mortgagee or his personal representatives ; or, if the mortgage has been assigned, the assignees or their personal representatives. A junior mortgagee may foreclose, although the premises have been sold under foreclosure of a first mortgage, if he were not party thereto. TIT. II.] PARTIES TO THE ACTION. 667 Peabodyv. Roberts, 47 Barb. 93: Walsh v. The Eutgers Fire Ins. Co. 13 Abb. 33. And he may redeem by paying the mortgage debt and interest without the costs of the previous foreclosure. G-age v. Brewster, 31 N. Y. 224. A mortgagee of premises who takes a conveyance of an undivided half of the same may foreclose as to the other half even after a foreclosure of a sub- sequent mortgage to which he was made a party generally. Smith v. Roberts, 91 N. T. 470. Where the executor of the mortgagee refused to foreclose, the adminis- trator of the mortgagee's wife, who was entitled to the interest, was allowed to bring foreclosure. Weed v. Hornby, 35 Hun, 580. Where-a trustee under a mortgage refuses to foreclose the bondholders may do so where it is necessary to protect their interests. Davies v. N. T. Concert Co., 41 Hun, 492. Section 1686, of the Code of Civil Procedure, which provides for bringing foreclosure, partition, etc., does not prevent the guardian of an infant as- signee of a mortgage from foreclosing it without joining the infant. Bayer V. Phillips, 17 Abb. HT. C. 425. Where a vendor mortgaged to one with knowledge of the contract and then conveyed, taking a purchase-money mortgage, the vendor's mortgage was held good to the amount of the purchase-money mortgage, and the grantee after notice of it, having paid the purchase-money mortgage to an assignee thereof, foreclosure of the vendor's mortgage was allowed. Young v. Guy, 13 Hun, 335. See also further decision in 87 N. Y. 457. The assignee of the mortgage, who is not assignee of the bond, cannot foreclose. 17 Abb. 343. The transfer of the mortgage does not transfer the bond. Ante, p. 584. If plaintiff die before judgment, no further proceedings can be had until the action is revived. This is not necessary if after judgment, though before sale. 13 How. 118. Nor to procure a writ of assistance. Lynde v. O'Bon- nell, 12 Abb. 386 ; 31 How. 34. Parties Defendant. — The equity of redemption of those made pa/rties to the action, and those in privity with them, is alone barred by the judgment. The Code of Civil Pro- cedure provides that under these proceedings, the deed to the purchaser on the sale vests in the purchaser the same estate only that would have vested in the mortgagee if the equity of redemption had been foreclosed, and is as valid as if executed by the mortgagor and mortgagee ; and is an entire bar against every pa/rty to the action, who was duly summoned, and every person claiming from, through or under a party by title accruing after the filing of the lis pendens. 1 Rev. Laws, 490; 3 Rev. Stat. p. 193, § 88; Co. Civ. Proc. § 1633; Slat- tery v. Schwannecke, 44 Hun, 75; Mygatt v. Coe, ib. 81. If the party enti- tled to the equity of redemption, or those having liens thereon, are not made parties, and their equity foreclosed, an action for the redemption of the mort- gaged premises may be brought by them in equity. Walsh v. Rutgers Fire Ins. Co. 13 Abb. 33; Morris v. Wheeler, 45 N. Y. 708; Holden v. Sackett, 668 PARTIES TO THE ACTIOK. [CH. XXVIII. 12 Abb. 473 ; Miner v. Beekman, 50 N. T. 337. See this case as to the action to redeem. The judgment is not a bar to the paramount rights of parties to the ac- tion, however, which have not been subjected to litigation, in the action, either through the form or substance of the pleadings. Lewis v. Smith, 11 Barb. 152; affi'd, 9 N. Y. 502, note 1. Nor does it affect rights prior to the mortgage, even though those claim- ing such rights are made parties. Emigrant Ind. Savings Bk. v. Clnte, 83 Hun, 83. Even though arising under an unrecorded deed if there be notice. Brown v. Volkenning, 64 N. T. 76. Or an unindexed (though recorded) mort- gage. Mutual L. I. Co. V. Dake, 1 Abb. N. 0. 381. Unless the land is sold free from their liens with their consent and the complaint asks that they be paid off, or it was so understood. Emigrant Ind. Savings B'k v. Goldman, 75 N. T. 127. Who are to be made Parties Defendant. — The owner of the equity of redemption, and all persons materially interested in the mortgage or mort- gaged estate, or who have any right to or lien thereon, or who may be affected by the judgment, ought to be made parties.' Hall v. Nelson, 28 Barb. 88; 3 Barb. 534. This will ordinarily include the heirs of the mortgagor (47 Barb. 144; Dodd v. Neilson, 90 N. Y. 243), or his deekee or assignee, and also personal representatives, if the mortgage is of a term ; the tenants for life, curtesy and dower, reversioners, and remaindermen, as also aU. persons having any contingent interest in the equity of redemption ; also aU persons interested in the proceeds of the estate. 8 Barb. 618. This does not include legatees where legacies are not charged on the realty and the person- alty was sufficient. Hebrew Soc. v. Schoen, 60 How. Pr. 185. A trustee joined only individually is not barred as trustee. Kathbone v. Hooney, 58 N. Y. 463 ; distinguished in Wagner v. Hodge, infra. The assignor of the mortgage, where it has been assigned as security, should be made a party. Matter of Gilbert, 104 N. Y. 200. All grantees of the mortgagor. 20 Wend. 260; 5-Sandf. 447; 10 Pai. 409. So held where the deed misdescribed the premises, but referred to a deed which contained a proper description (Grandin v. Hernandez, 29 Hun, 399), and where the deed was prior to the mortgage and unrecorded (Brown v. Volkenning, 64 N. Y. 76). His general assignee. Belden v. Slade, 26 Hun, 635. Where the assignee claims only as such it is enough if he be made a party individually. Wagner v. Hodge, 34 Hun, 524. Failure to make a general assignee a party was held cured after the lapse of twenty-five years. Kip v. Hirsh, 103 N. Y. 565. As to the wives of any grantees of the mortgagor. 23 Barb. 125 ; 8 Barb. 618; id Abb. 154; 11 Barb. 153; 18 id. 564. The wife of the mortgagor, whether of a purchase-money mortgage, or whether the mortgage was executed before coverture or not; or whether she has joined in the mortgage or not. Ante, pp. 149, 596 ; Mills v. Voorhies, 20 N. Y. 412. As to service on wife in foreclosure of a purchase-money mortgage, vide White V. Coulter, 3 N. Y. S. 0. 609; partly reversed, 59 N. Y. 639. Failure to make the wife of the owner of the equity a party only leaves ' A case, Giles v. Solomon, tried at Special Term, Jan. 1868, First District, exemplifies the neeesaity of caution in making the requisite parties defendants in tore- closure suits. Plaintiff's father died in 1840, leaving a widow and children. In 1841, a foreclosure suit was begun upon a mortgage executed by the father ; and the widow and children in esse were made parties. Two days before the decree, in 1841, the plain- tiff, a, posthumous child of the deceased mortgagor, was born. In 1866, she began her action to redeem. It was held that she was entitled to one-seventh of the premises and back rents on paying one-seventh of the mortgage. TIT. II.] PARTIES TO THE ACTION. 669 her right of redemption unforeclosed and does not make the proceedings in- valid as to the parties served. Candee v. Burke, 1 Hun, 546. One who claims dower by title paramount to the mortgage cannot be made to set up or defend her right and is not affected by the judgment, though made a party. Merchants B'k v. Thomson, 53 N. T. 7. See as to when the dower must yield to the superior title of a mortgagee, in possession under foreclosure. Smith v. Gardner, 42 Barb. 356. Where husband and wife are tenants by the entirety a conveyance by her of one-half of the premises gives no title and her grantee need not be made a party to the foreclosure of a subsequent mortgage. Bram v. Bram, 34 Hun, 487. One who has an interest in land, the deed of the whole of which was made to another, may be made a party if he desire. Johnston v. Donovan, 108 N. Y. 269. Also any person in possession, far possession is notice to all purchasers and mortgagees, and if not made parties, their prior equity is not cut oflF. 6 Wend. 656 ; 3 Barb. Ch. 555. Where the executors of a mortgagee have bought in the property at fore- closure his devisees and legatees are not necessary parties to the foreclosure of a prior mortgage. Lockman v. Keilly, 95 N. Y. 64. Also all judgment-creditors whose rights of redemption are otherwise fore- closed. 45 N. Y. 708; 10 N. Y. 356." Junior mortgagees (3 Barb. 534) and their assignees (11 Paige, 28). Also termntsjor yewrs, whose title becomes divested by the foreclosure. 52 Barb. 877. An assignee in bankruptcy. 47 N. Y. 36 1 . See, also, Cleveland v, Boerum, 34 K. Y. 613, holding a notice sufficient as to such an assignee. If the mortgagor's equity of redemption has been sold on execution, he must be made a party if his right of redemption on the sheriff's sale is still in force. Ealleck v. Smith, 4 Johns. Ch. 649. The mortgagor need not be a party on fffreclosure against his grantee who has assumed the mortgage. Van Nest v. Latson, 19 Barb. 604. Any person liable for the debt may be a party and a judgment for defi- ciency may be rendered against him. Co. Civ. Proc. § 1627. Executors of the mortgagor may be made parties. GHacius v. Pogel, 88 N. Y. 434. So may an assignor who has guaranteed the mortgage. Vanderbilt V. Schreyer, 91 N. Y. 392. Making a deceased mortgagor a nominal defendant is a harmless error, which can be corrected at any time. Ocumpaugh v. Wing, 12 Week. Big. 566. Only persons having or claiming to have acquired rights subsequent to the mortgage need be made parties. Emigrant Ind. Savings B'k v. Goldman, 75 N. Y. 137. Title acquired prior to the mortgage can neither be contested nor defeated. Emigrant Ind. Savings B'k v. Clute, 33 Hun, 82. As to the title of a purchaser at foreclosure, where the owner of the equity is not a party, vide post. Persons having future Interests, and those not in esse. — As to these vide post, Ch. XXX. Junior Incumbrancers need not appear and answer, in order to save their rights, if they are truly stated in the complaint. 4 Paige, 85. They may redeem if not made parties (3 Johns. Ch. 459 ; 47 Barb. 91) and foreclose their own mortgage. li.; and ante, p. 667. ' Between May, 1840, and May, 1844, it wasnot necessary to make judgment-cred- itors parties. Laws of 1840, ch. 842; of 1844, oh. 346. 670 JUKISDIOTION OVER DBFEKDANTS. [OH. XXVUI. They must assert their claims if not stated in the complaint, in order to protect themselves. Benjamin v. Elmira, &c. R. R. 49 Barb. 441. If not made parties the foreclosure is Toid as to them. Reynolds v. Park, 53 N. Y. 36. A purchaser at a tax sale is not barred unless made a party. Becker V. Howard, 66 N. Y. 5. Hence, such a purchaser who took after the mortgage is a proper party. Roosevelt Hospital v. Dowley, 57 How. Pr. 489. Prior Incumbrancers are not necessary parties, as the land may be sold subject to their liens; but they may be made parties, to have the amount due them liquidated. 3 Barb. 20. Vide also 10 How. Pr. 867; Metropolitan Trust Co. V. Tonawanda, &c. R. R. Co. 18 Abb. N. C. 368 ; s. c. 43 Hun, 521. But they cannot be compelled to litigate their claims. Merchants' B'k v. Thomson, 53 N. Y. 7. A junior mortgagee may make a prior mortgagee a party, without oflFering to redeem from a previous foreclosure to which he was not a party (Vander- kemp V. Shelton, 11 Pai. 28) ; and a decree may be made for sale of the equity of redemption subject to the prior mortgage (1 Paige, 284). Where priority is disputed it is error as against an incumbrancer who has not answered, to adjudicate it and order a sale subject to the liens. The proper course is to dismiss the complaint as to them. Payn v. Grant, 23 Hun, 134. Persons claiming any right or equity of redemption may be made parties. Law of 1840, ch. 343 ; repealed by Laws of 1880, ch. 345. Title III. Jitkisdiction ovee Dependants. It is necessary to ascertain that all the defendcmts are legalhf before the court, before their interests can be fore- closed by the judgment. No principle of law is better settled than that a judgment rendered without the court having obtained jurisdiction of the persons to be bound thereby, is utterly void as to them. There must be proper appearance or service of the process on all parties before their rights are barred by the decree. The manner in which parties are served and defaulted, or appear and litigate before judgment entered, is matter of legal practice, and cannot be here reviewed. Defendants brought in by Publication. — Where there has been service by puhKcation, all the statutory provisions and terms of the order must be strictly complied with to confer jurisdiction. Vids Co. Proc. §§ 134 to 137 ; repealed by Laws of 1877, ch. 417 ; Co. Civ. Proc. §§ 488-445. The requirements of the statutes must be strictly complied with to confer jurisdiction. 18 How. Pr. 43 ; 14 id. 380 ; 34 Barb. 95 ; 12 Abb. 359. Where there is a total absence of proof as to the facts necessary to confer jurisdic- tion, the order of publication and all proceedings founded on it are void; and the facts must appear from the papers on which the order is founded. Towsley v. McDonald, 32 Barb. 604 ; WaflBe v. Goble, 53 ib. 517 ; Carleton V. Carleton, 85 N. Y. 813; distinguished in Kennedy v. N. Y. L. I. &c. Co. 101 N. Y. 487; Seller v. Wilson, 42 Hun, 629; Crosby v. Thedford, 13 Daly, 150; Walter v. DeGraf, 19 Abb. N. C. 406. See those cases as to the req- uisites of service by publication. Where the defendant dies pending publication jurisdiction is not acquired. Barron v. So. B'kl'n Saw Mill, &c. Co. 18 Abb. N. C. 352. TIT. IV.] THE JUDGMENT. 671 All statutory requisitions as to service on infant defendants must be strictly followed. Ingersoll v. Mangam, 84 N. Y. 632; affi'g 34 Hun. The appointment of a guardian ad litem before service of summons upon, the infant is a fatal defect in foreclosure under Co. Proc. though allowable in partition. II. Jurisdictional Facts. — The court cannot amend any proceeding to confer jwisdiotion (13 How. Pr. 43 ; 14 id. 380), or acquire jurisdiction by proof of the necessary facts nunc pro tunc. 17 Abb. 67. Jurisdictional facts must be set forth (41 Barb. 549), and must exist (83' Barb. 71), and the judge's order is not conclusive. From the time of service of summons, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance is equiva- lent to personal service. Co. Proc. § 139 : repealed by Laws of 1877, ch. 417 ; Co. Civ. Proc. § 434. Infant Defendants. — These must appear through a guardian ad litem,, duly appointed. See fully, as to such guardians, post, Ch. XXX. Appearance. — An appearance (even unauthorized) by an attorney for a defendant who was neither served with process, nor had notice of the suit, is binding on the defendant and will confer jurisdiction. Brown v. Nichols, 43 N. Y. 36. But anything that would invalidate the notice of appearance, e. g., that it was a forgery, may be set up even in a collateral proceeding. Ferguson v. Crawford, 70 N. Y. 353. Appearance by a party cures any irregularity in giving him notice, or any defects in the process, and confers jurisdiction of the person. Unknown Parties. — As to unknown parties having interests, vide Co. Proc. § 135 ; repealed by Laws of 1877, ch. 417 ; Co. Civ. Proc. § 451 ; amend- ed, L. 1879, ch. 543; Wheeler v. Scully, 50 N. Y. 667. Title I"V. The JuDftMENT. Judgment of sale in foreclosure suits is obtained gen- erally, on a referee's report of facts, on due notice to all parties who have appeared. As to a merger and superseding of the decree of sale by contract of the parties, vide 13 How. Pr. 16. If part only is payable, the action is to be dismissed without costs against plaintiff, by payment into the court, before judgment, the amount due, prin- cipal, interest and costs. 3 R. S. 1st. edit. 193 (repealed, with the suc- ceeding provision of R. S., by Laws of 1880, ch. 345); Co. Civ. Proc. § 1634; 3N. Y. 800; 4 Abb. 379. After decree in such case, there may also be a stay of judgment. 3 R. S. 193; Co. Civ. Proc. § 1635. The court must decree a sale of sufficient to discharge the amount due, expenses of sale and costs of suit. 3 R. 8. 191; Co. Civ. Proc. § 1636. As to when and against whom there may be judgment for a residue of the debt due, vide Code of Procedure, § 167; Code of Civil Procedure, § 1637. A mistake in the description contained only in the judgment may be amended, even after sale. Wood v. Martin, 66 Barb. 341. Where some of the lands are without the State the judgment may direct the mortgagor to convey such lands to the purchaser and may be amended in this regard, even after sale. Union Trust Co. v. Olmstead, 103 N. Y. 739. 672 THE SALE. [CH. XXVIIl. If a mortgagee of a half interest pay tax on the whole, he can only have judgment for one-half. Weed v. Hornby, 35 Hun, 380. The judgment may direct subrogation in a proper case. Clark v. Mackin, 95 N. T. 346. * It does not merge the debt. Barnard v. Onderdonk, 98 N. T. 158. It Is not within Co. Ciy. Proc. § 376, raising presumption of payment in twenty years, nor does it prevent the presumption from arising as to the mortgage. Ibid. The purchaser cannot complain of any provision of the judgment except that which affects his title. Gaskin v. Anderson, 55 Barb. 257 ; 43 N. T. 186. As to staying judgment on appeal, vide &row v. Garlock, 29 Hun, 598. That the name of the mortgagor who died before suit appears as a defend- ant in the title of the judgment does no harm. Ocumpaugh v. Wing, 13^ Week. Dig. 566. Title V. The Sale. The sale of the mortgaged premises is directed in the judgment, which must particularly describe them. Eeal property adjudged to be sold, must be sold in the county where it or a part of it lies, by the sheriff of the county, or a referee appointed by the court for that purpose (formerly a Master in Chancery), unless otherwise directed by law ; and thereupon the sheriff or referee executes a conveyance to the purchaser. 3R. S. 1st edit. p. 193; Repealed by Laws of 1880, ch. 245; Co. Civ. Proc. § 1243; Rule 61. The sale will be made so as to protect parties having equities. Living- ston V. Mildrum, 19 N. Y. 440. By Law of 1869, ch. 569, in the city of New York, the sale had to be made by the sheriff. The law, however, was declared unconstitutional. Gaskin V. Meek, 43 N. Y. 186; affirming 55 Barb. 857. The sale is to be made as directed on the judgment. As to sales in Kings Co. Laws 1876, ch. 439; Dickinson v. Dickley, 14 Hun, 617; Abbott v. Curran, 98 N. Y. 665. Publication of Notice of Sale. — Notice of sale must be published twice a week for three successive weeks immediately preceding the sale. Co. Civ. Proc. § 1678. It has been held that under this section, publication must be made twice a week in each of three weeks, reckoning a week as beginning at twelve o'clock on Saturday night, and ending at twelve o'clock on the succeeding Saturday night, without regard to the day of the week on which publication was begun. Valentine v. McCue, 36 Hun, 456. Publication in all the editions of the newspaper, in which the notice was published, issued upon the day of publication, is not essential. Everson v. Johnson, 32 Hun, 115. Publication of a notice of adjournment is not essential. Stearns v. Welsh, 7 Hun, 676 ; Bechstein v. Schultz, 19 Abb. N. C. 168. ' How Lands are to be Sold. — A sale by a referee is not to be regarded as a contract requisite to be signed by him. 26 How. Pr. 325. TIT. v.] THE SALE. 673 Where a sale is made by a referee, he must be personally present. 3 Johns. Ch. 154. If the premises consist of several parcels, they must, unless otherwise ordered, be sold severally. 23 How. 385; 3 E. S. 193, Ist edit, (repealed by Laws of 1880, ch. 345) ; Co. Civ. Proo. § 1678, as amended by Laws of 1881, ch. 683. This Act of 1881 fully regulates sales and validates prior sales which would be lawful by its terms. As to the effect of this latter provision, vide "Wallace v. Feely, 10 Daly, 331. It is no ground for a resale that the premises were not sold in parcels where there was no request to the referee to do so, and he decided upon in- vestigation that it was not advisable. McLaughlin v. Teasdale, 9 Daly, 33. On foreclosure of a purchase-money mortgage on lands which the mort- gagor had cut up into streets and lots, it was held that the sale need not be made according to such division into parcels. Lane v. Conger, 10 Hun, 1. Omitting to sell in parcels does not make the sale void, and the irregu- laritv may be waived by act of the party, or by time. 7 Abb. 183; 17 Abb. 187. As to requisites of referee's report respecting manner of sale, vide Selkirk V. Ascough, 16 Alb. L. J. 151. If only an instalment be due a part only may be sold (Co. Civ. Proc. § 1636), or if the court think it better for all parties, the whole may be sold and either the debt be discounted and paid or a sum invested to pay it as it falls due. Co. Civ. Proc. § 1687. Upon application in writing of all parties the court may order the sale of all the property, even though a part would pay the debt. Barnes v. Stough- ton, 10 Hun, 14. Sales may be made at further times to meet future instalments due, by order on the foot of the decree. Brinckerhoof v. Thalhimer, 3 Johns. Ch. 486 ; Lyman v. Sale, 3 id. 487 ; Co. Civ. Proc. § 1636. The sale may be on election day. 35 How. 33. It seems the title cannot be objected to by a purchaser on the ground that the sale is made by the wrong officer. 7 Abb. N. S. 4 ; Abbott v. Curran, 98 N. Y. 665. After a judgment, a mortgagor, if a party, has no right of redemption. 10 How. Pr. 310. A tenant in possession, who was made party to the action, must attorn to the purchaser, or be removed by writ of assistance, although claiming under an expired lease previous to the mortgage. 9 How. 330. As to the order in which the lands should be sold to meet the different equities of parties, vide Breese v. Busby, 13 How. 485; Nat. Bk. v. Hibbard, 45 How. Pr. 280 ; Bowne v. Lynde, 91 N. Y. 93 ; Bernhardt v. Lymburner, 85 N. Y. 173, and ante, p. 597. Leasehold. — The sale of a leasehold on foreclosure does not impair the covenant to pay rent, which will bind the purchaser. Pardee v. Steward, 37 Hun, 359. The Deed. — Before a deed is executed, the mortgage must be filed or re- corded, if acknowledged. Rule 63. The deed passes the title, and conflnnation of the sale relates back to the date of the deed. 6 Barb. 60 ; 4 Hill, 171. A deed for premises not embraced in the sale, will not pass title, though the premises were embraced in the decree. Laverty v. Moore, 33 N. Y. 658. The purchaser takes the same estate, and no other, that would have vested in the mortgagee if the equity of redemption were foreclosed. 3 R. S. 1st edit, p. 193 (repealed by Law of 1880, ch. 34.5); Co. Civ. Proc. § 1633. The deed is as valid as if executed by the mortgagor and mortgagee ; and shall be a bar against them, and the parties to the suit, and their heirs, and those claiming under them. lb.; Short v. Bacon, 99 N. Y. 375. 43 674 THE SALE. [OH. XXVIII. The confirmation of the report of sale is not necessary to pass the title to the purchaser. The title passes by the referee's deed. 4 Hill, 171 ; 6 Barb. 60. The purchaser or his grantee takes the title the mortgagor had before the mortgage. Butler v. Viele, 44 Barb. 166. One who buys for the owners of the equity on a verbal agreement to re- convey to them on being reimbursed is only a mortgagee in possession. Um- freville v. Keeler, 1 N. Y. S. C. 486. Bona fide purchasers will be protected under a judicial sale, even though the sale be set aside. James v. Dodd, 2 Paige, 99 ; Tripp v. Oook, 26 Wend. 143. See also j!)o««, Ch. XXXVIII, " Sales on Execution." As to proper form of deed, vide Raudell v. Van Ellert, 13 Hun, 577, and note; Co. Oiv. Proc. § 1244. The deed must be sufficient to make the best title possible from the ref- eree to the purchaser. Easton v. Pickersgill, 55 N. T. 310. Where no deed is made and the mortgagor does not thereafter recognize the mortgage, redemption will be presumed after twenty years. Barnard v. Ohderdonk, 98 N. Y. 158. When not Excused from Completing.— The purchaser will not be ex- cused from completing on account of irregularities in the proceedings that may be corrected (5 Abb. 451 ; 4 id. 193 ; 11 Abb. 440) ; nor even where an appeal has been taken from the judgment ; nor if action is instituted to can- cel the mortgage (12 Abb. 473) ; nor because an assignment of the mortgage was not recorded. Fryer v. Rockefeller, 63 N. Y. 368. He must complete if the mortgagor had a good title by adverse posses- sion. Grady v. Ward, 20 Barb. 543. But will not be compelled to take a worthless or encumbered title. Mc- Gown V. Wilkins, 1 Paige, 120. That an order for service by publication of the summons in the foreclosure action was made by the court instead of a jadge is a valid objection, and is not cured by a later judge's order made nunc 'pro tunc. Schumaker v. Cross- man, 12 Weekly Dig. 99. So if the affidavit to obtain an order for service by publication upon a lienor was insufficient. Argall v. Bachracli, 18 Weekly Dig. 267. The purchaser, on being relieved from completing, is entitled to a return of his deposit and interest, the expenses of examining title smd costs of motion. 31 Barb. 394 ; Raynor v. Selmes, 53 N. Y. 579. The purchaser is entitled to a perfect title in law and equity (23 Wend. 498 ; 8 Edw. 428) ; otherwise he may refuse to complete purchase (5 Abb. Pr. 451) ; unless the title can be made good immediately. 23 Wend. 498 ; 30 Barb. 543. An obsolete mortgage of record is no objection. 4 Pai. 441. Nor are incumbrances the amount of which is by the terms of the sale to be deducted from the purchase price. Lenihan v. Hamann, 14 Abb. N. S. 374; affi'd without opinion, in 55 N. Y. 653. But the purchaser need not take a doubtful nor seriously clouded title. Argall V. Raynor, 30 Hun, 267. A mistake in description occurring in the judgment alone will not ex- cuse completion, for it may be amended nunc pro tunc. Wood v. Martin, 66 Barb. 241. Making an assignee defendant individually instead of in his representa- tive capacity is not such an irregularity as will excuse a purchaser. Wagner v. Hodge, 34 Hun, 524. That the sale was made in Kings county by a referee instead of the sherifE ; that the lands were insufficiently described in the complaint, where it appeared that they could be sufficiently identified by the description ; that the bond and mortgage were not produced before the referee where execu- tion, delivery and non-payment were proved and non-production was ac- TIT. TI.] RESALE, ETC. 675 counted for ; are all held insufficient to excuse a purchaser. Abbott v. Curran, 30 Weekly Dig. 344; affi'd, 98 N. Y. 665. Parties Estopped. — Persons made parties to the suit are estopped from disputing the purchaser's title (47 Barb. 179) ; and a purchaser is estopped from denying the validity of a mortgage, subject to which he purchased on an exeoation. Horton v. Davis, 36 N. Y. 495. A creditor who redeemed at a sheriff's sale, and, being made a party to the foreclosure of a prior mortgage, received part of the surplus, is estopped to question the title of the purchaser in foreclosure. Siegel v. Anger, 13 Abb. N. C. 363, Only the owner of the equity can object that more land was sold than was necessary, and he is estopped by allowing proceedings as to the surplus to go on. McBride v. Lewisohn, 17 Hun, 534, Where the Owner of the Equity is not a Party, — In Shriver v. Shriver, 86 N, Y, 575, it was held that a purchaser at foreclosure sale in an action to which the owner of the equity of redemption was not made a party, acquired no rights, but was a mere stranger whose title would not become complete until after twenty years occupation. But in Wing v. Field, 35 Hun, 617, this case was distinguished, and it was held that such a purchaser had the rights of a mortgagee in possession. When the Title Vests. — The bid, its acceptance and payment of a de- posit, makes no change in the title, even in equity. It is not until payment of the balance and delivery of the deed that the purchaser acquires a right to rents, and the title to the lands. Strong v, DoUner, 3 Sandf . 444 ; Clark V, Corley, 5 wi. 447; Brown v. Frost, 10 Pai. 347; Cheney v. Woodruff, 45 N. Y, 98; Blanco v. Foote, 33 Barb. 535; Wbitwell v, Bartlett, 53 Barb. 319. Eents intermediate the sale and delivery do not belong to the purchaser. Mitchell V. Bartlett, 51 N. Y. 447. A loss intermediate sale and delivery falls on mortgagor or mortgagee. The purchaser may refuse to complete. Aspinwall v, Balch, 4 Abb. N, C, 193; Mutual, &c, Co, v. Balch, 4 Abb, N. C. 300. Possession under the Deed. — The court may enforce the sale by com- pelling possession to be given to the purchaser ; formerly by a writ of assist- ance. 4 Johns. Ch, 609 ; 3 Rev. Stat. p. 19t, § 83 (repealed by Laws of 1880, ch. 345); Co. Civ. Pro., § 1675, Parties holding over may be removed by summary proceedings. Laws of 1874, ch, 308, amending 3 R, S. 513, § 38, and repealed with that section, by Laws of 1880, ch. 345, The case is now provided for by § 3383, Co, Civ, Proc, Title VI. Resale, etc. The court will not order a resale for a mere inade- quacy of price, but will where there has hQen fraud, acci- dent or mistake, misrepresentation or surprise, or where the price is very inadequate. 33 Barb. 167 ; 34 How. 440; 35 How, 403; King v. Piatt, 37 N, Y, 155, The Court of Appeals will never interfere on the ground of inadequacy of price. White v. Coulter, 59 N. Y. 639, Until confirmation of sale, any person may apply to vacate it, 10 Paige 343 ; Fuller v. Brown, 35 Hun, 163, ' Excusable accident or mistake may be a ground, 3 Abb. Pr, 296, Vacating the sale and opening the judgment, tolls the title of the pur- chaser and his grantee. 15 Abb. 468 ; Crane v, Stiger, 3 N, Y, S. C, 577. 676 BE8ALB, ETC. [CH. XXVIII. The purchaser may appeal (17 Abb. 239), but not to the Court of Appeals. 38 N. Y. 123. See also Lents v. Craig, 13 How. 72, as to the purchaser's, rights. Without some legal reason the sale will not be set aside. McCotter v. Gay, 30 N. Y. 80 ; Hotchkiss v. The Clifton Air-cure, 4 Keyes, 170. A resale formerly ordered if the lands were not sold in parcels as direct- ed, unless under the Rule 74, to the contrary. Wolcott v. Schenck, 23 How. 383. Or if the judgment be irregular. Raynor v. Selmes, 7 Lans. 440. As to costs on resale for irregularities in the conduct of the action, and the remedies of a purchaser, vide Raynor v. Selmes, 53 N. Y. 579 ; Riggs v. Pursell, 66 N. Y. 198. It is no ground for resale that the plaintiff had previously agreed to take a mortgage on the property from the purchaser (McLaughlin v. Teas- dale, 9 Daly, 33) ; nor that the property was not sold in separate parcels, where the referee was not requested to so sell, and it was not advisable to do so. li. But it is ground for a resale that the purchaser was required to take sub- ject to a second mortgage held by the plaintiff, which was not mentioned in the complaint. Homoeopathic Mut. Life Ins. Co. v. Sixbury, 17 Hun, 424. So if the price was inadequate and the conduct of the purchaser's agent tended to make it so. Abingdon Sq. Savings Bk. v. Cassidy, 5 Weekly Dig. 83. One not a party to the action but injured by proceedings at the sale, may apply for a resale, and is not limited to one year in applying under § 734 of the Code. Matter of Fuller, 35 Hun, 163. Purchaser refusing to Complete. — If the purchaser refuse to complete, application is made to the court to compel him, or for a resale of the prop- erty at his expense. Cazet v. Hubbell, 36 N. Y. 677 ; Miller v. CoUyer, 36 Barb. 350. Deficiency. — A judgment may also be rendered for any deficiency, and execution issue thereon. 2 R. S. 1st edit. p. 191 (repealed by Laws of 1880, ch. 345); Co. Civ. Proc. § 1637. Judgment may be against executors of a deceased mortgagor. G-lacius V. Pogel, 88 N. Y. 434. Or an assignor who has guaranteed the mortgage. Vanderbilt v. Schreyer, 91 N. Y. 393. A grantee who assumes is not liable unless his immediate grantor were so. Carter v. Holahan, 92 N. Y. 498. A mortgagor who gave no bond, and whose mortgage contains no ex- press covenant to pay, is not liable for deficiency. Spencer v. Spencer, 95 N. Y. 353. A mortgagee seeking to recover judgment for deficiency against a gran- tee who assumed the mortgage must show acceptance of the deed. G&ord v. McCloskey, 38 Hun, 350. But the invalidity of the conveyance is no defense to such grantee. Ibid. An entire failure of consideration due to a breach by the mortgagor of the agreement under which the assumption was made is a defense. Loeb v. Willis, 100 N. Y. 331. As to a guarantor, vide Pa. Coal Co. v. Blake, 85 N. Y. 326. A guarantee is not bound to diligence until after request by the guarantor. Humphrey v. Hayes, 94 N. Y. 594. Surplus Moneys are to be brought into court for those entitled theretoi subject to the order of the court. 2 R. S. 1st edit. 192 (repealed by Laws of 1880, ch. 345) ; Co. Civ. Proc. § 1633. As to those belonging to the estate of a deceased person, vide ante, p. 456 ; Pliess V. Buckley, 33 Hun, 551 ; Co. Civ. Proc. § 2799, as amended by Laws TIT. VII.] STRICT EORECLOSUKE. 677 of 1881, ch. 535 ; replacing Law of 1867, ch. 658, which was repealed by Laws of 1880, ch. 345. Persons not parties to the suit might, formerly, make application for sur- plus. Law of 1840, ch. 342; repealed, Law 1880, ch. 345. As to rights of tenants to surplus, vide Burr v. Stenton, 53 Barb. 377. As to lessees, vide Clarkson v. Skidmore, 46 N. Y. 397 ; Larkin v. Misland, 100 N. Y. 313. As to distribution of surplus, vide Co. Civ. Proc. § 1633. A junior mortgagee must pursue the surplus in the foreclosure. He cannot maintain a separate action. Fliess v. Buckley, 90 N. Y. 386. Title VII. Strict Foreclosure. The object of a bill for strict foreclosure^ is to obtain a decree for the payment of the mortgage debt, etc., within a short period after judgment, to be fixed by the court, or that in default thereof, the mortgage' and all persons claiming under Mm^ may he barred and foreclosed of all rights, interests, and equity of redemption, in the mortgaged premises, and their title be extinguished and vested in the mortgagee, without a sale. This action is often brought to foreclose parties having a right of redemption, who may have been omitted in a prior fore- closure ; or where a former court had no jurisdiction ; or where the mortgagee is in possession, and he wishes to bar the redemption of the mortgagor. It has been doubted whether strict foreclosure is now lawful under the language of § 1626 of the Code of Civil Procedure, but the question has never been adjudicated. Thomas on Mortgages, § 1078. See a full discussion as to whether strict foreclosure is still possible. N. Y. Daily Reg. March 10th, 1888. As to strict foreclosure in general vide Ross t. Boardman, 33 Hun, 537. The action will lie for lands without the State where the parties are with- in the jurisdiction and the summons is personally served within the State. House V. Lockwood, 40 Hun, 533. Parties. — ^The parties to a bill for strict foreclosure, are in general the same as to a bill for foreclosure and sale. The complaint should bring before the court all persons who have a right to redeem the premises, and all persons claiming any interest. The Judgment. — The judgments in these cases will have to be particu- larly examined, as there may be inserted in them special provisions with reference to the redemption by infants or other defendants. The decree generally is, that the amount be paid in six months from confirmation of the report, or the parties be foreclosed. This time may be enlarged. Infant heirs are often allowed to a certain day in court to show cause 678 SALE UNDER A POWER. [CH. XXVIII. against the decree. It is said that there can be no valid strict foreclosure against an infant heir of the mortgagor. Mills v. Dennis, 3 Johns. Ch. 67. The judgment must find the amount due, and allow a time for payment and redemption ; otherwise it will be void, unless authorized by special law. After the expiration of the time the lands become the property of the mortgagee. Clark v. Reybum, 8 Wall. U. S. 318; BoUes t. Duff, 43 N. Y. 469 ; Mills v. Dennis, 8 Johns. Ch. 67. Final Judgment. — If the mortgage money is not paid as directed by the court, the plaintiff takes final judgment that the defendants be absolutely debarred and foreclosed of all right, title, and equity of redemption, to the mortgaged lands. For form of proceedings and judgment on the strict fore- closure of a mortgage, vidM Kendall v. Treadwell, reported in 5 Abb. 168; 14 How. 165 ; Bell v. The Mayor, 10 Pai. 49 ; Benedict v. Gillman, 4 Pai. 48 ; Ruckman v. Astor, 9 Pai. 517; BoUes v. Trimble, 43 N. Y. 469. Extinguishment of the Debt. — The debt secured is not extinguished ex- cept as to the value of the land foreclosed. De Grant v. Graham, 1 N. Y. L. Ob. 75; Spencer v. Harford, 4 Wend. 384; Morgan v. Plumb, 9 Wend. 287 ; Lansing v. Goelet, 9 Cow. 346 ; Globe Ins. Co. v. Lansing, 5 Cow. 380. I Title VIII. Sale under a Power. The mortgagee also may sell under a power inserted in the mortgage. In this State a sale under a power is made the subject of a statutory provision. The sale under a power, if regularly made, according to the direc- tion of the statute, is a final and conclusive bar to the equity of redemption, even as to infant heirs. When title is made under the statutory proceedings, they will have to be strictly examined, for if not in every respect conformable to the statutes, they are void; and are not like proceedings in a court, where the court has certain amendatory powers to supply omissions and remedy defects. Vide Dwight v. Phillips, 48 Barb. 116; 9 Barb. 378; 11 iO,. 191 ; 16 id. 9; 30 idi. 18; 9 Abb. 66. The former statutory proceedings to foreclose under a power are to be found in the Rev. Stat, of 1830, as amended by the laws hereinafter noted, being chiefly the Acts of 1843, ch. 377; 1844, ch. 346; 1857, ch. 308. These proceedings were continued in force by § 471 of the Code of Procedure, but are now repealed by Laws of 1880, ch. 345. The mortgage may provide that foreclosure shall be by advertisement only. Farmers' Loan, &c. Co. v. Bankers, &c. Co., 44 Hun, 400. Earlier Provisions. — The principal provisions of the act were passed February 36, 1788. 3 Greenl. 99; see also 1 Rev. Laws of 1813, p. 373. By the Law of 1788, sales under powers in a mortgage were held good, and barred the redemption, provided the person giving the power was of the age of twenty-five years, and the power be acknowledged and recorded. These provisions were re-enacted by Law of April 6, 1801. Sales were to be by public auction, on six months' published notice. 1 Webster, 450. See TIT. VIII.] SALE UNDER A POWER. 679 also provisions of Act of Marcb 19, 1813, as to these proceedings. 1 Rev. Laws, p. 373 ; 5 Johns. Oh. 35 ; 7 Johns. Ch. 50. The above provisions vrere superseded by the provisions of the Revised Statutes. See also Act of 1833, 363. Provisions of the Revised Statutes and the Code of Civil Procedure. — The Revised Statutes of 1830 provided as follows: § 1. "Any mortgage of real estate made by a person being at the time more than twenty-five years of age, or hereafter executed by any person over the age of twenty-one years, containing a power of sale on default, may be foreclosed by advertisement in the cases and in the manner hereinafter specified." No such restriction as to age now exists. 3 R. S. part iii, ch. 8, title 15; repealed by Laws of 1880, ch. 345. Parties may contract as they please, as to the power and its exercise. Elliott V. Wood, 45 N. Y. 7l ; Doolittle v. Lewis, 7 Johns. Ch. 45. The power passed by any assignment of the mortgage. 1 Paige, 48 ; vide ante, p. 578. A sale under the power, after due tender of the mortgage debt by one en- titled to redeem, is void, and so held where the purchaser had notice. 5 Johns. Ch. 35. Payment of a mortgage extinguishes the power of sale. Cameron v. Irwin, 5 Hill, 373. And if a statute foreclosure afterwards took place even a tona fide purchaser acquired no title. Ih. But if the sale were illegal, the mortgage and power remained in force. Stackpole v. Robbins, 47 Barb. 313. A tona fide purchaser would be protected if the mortgage had not been satisfied of record. Warner v. Blakeman, 36 Barb. 501 ; affl'd, 4 Keyes, 487. The damages or amount must be liquidated, or there could be no foreclosure under these proceedings. Jacks v. Turner, 7 Wend. 458 ; Ferguson v. Kimball, 3 Barb. 619; modified in Ferguson v. Ferguson, 3 Corns. 364 ; and ante, p. 664. Notice to be given. — § 3 provided that to give the notice thereinafter specified : 1. Some default must have occurred, by which the power to sell had become operative. 3. There must have been no then existing suit to recover the mortgaged debt, or an execution therein must have been re- turned unsatisfied in whole or part. 3. The power of sale must have been duly registered, or the mortgage containing the same have been duly re- corded. The omission to record the power did not affect the validity of the sale before the Revised Statutes. 1 Gaines Oa. 1 ; 3 Cow. 339 ; 4 Cow. 366. The rule under the Revised Statutes seems peremptory. It must have been recorded in all the counties where the lauds were. Wells v. Wells, 47 Barb. 416. Substantially the same provision is found in the Code of Civil Procedure, § 3387. Notice, how Served under the Revised Statutes. — Notice of the fore- closure must have been given by publication for twelve weeks, once a week in a paper in the county or counties where the lands were, and by affixing a notice for twelve weeks on the outer door of the nearest county court house, and by delivering a copy thereof to the county clerk twelve weeks before the sale, who was to index and put the same in a book (as amended, 1843 ch. 377, § 8 ; 1844, ch. 346 ; and 1857, ch. 308). All these acts were repealed by Laws of 1880, ch. 345. If the lands were in several counties, the notices were to be affixed on the court house in each county (47 Barb. 416), and advertised in each county. As to publication when the printers refused to publish, iiide 2 R. S. p. 648, 1st edit.; and as to notice to mortgagees when publication was made in the State paper, ib.; Laws of 1818, ch. 335. Previous to the Act of 1843, a notice of twenty-four weeks was necessary. As to the change affecting existing mortgages, vide James v. Stull, 9 Barb. 483. 680 SALE UNDBB A POWBE. [OH. XXVTH. The subsequent removal of the notice did not vitiate. 13 How. 491. Notice published in each of the twelve weeks was sufficient. Howard v. Hatch, 39 Barb. 397 ; partially overruled in Bryan v. Butts, 38 How. 583 ; sustaining 37 Barb. 503 ; also George v. Arthur, 4 N. T. S. 0. 635. It must have been at least eighty-four days, exclusive of day of publica- tion. Bunce v. Reed, 16 Barb. 347 ; Howard v. Hatch, 39 Barb. 397. A copy of the notice must have been served fourteen days before the sale, upon the mortgagor or his personal representatives, and upon the subsequent grantees and mortgagees, whose conveyances and mortgages were upon record at the time of the first publication of the notice, and upon all judgment- creditors subsequent to such mortgage. The notice was to be served per- sonally, or at their dwelling in charge of some person of suitable age, or by depositing a copy in the post office at least twenty-eight days prior to the time therein specified for the sale, properly folded, directed to said persons at their places of residence. Laws of 1844, ch. 346 ; repealed, L. 1880, ch. 345 ; Stanton v. Kline, 1 Ker. 196. If not served as required, the sale was void. St. John v. Bumpstead, 17 Barb. 100; Dwight v. Phillips, 48 Barb. 116; Oole v. Mofflt, 30 Barb. 18. The holder of a judgment entered between the first publication and the sale must have been served. Groff v. Morehouse, 51 N. T. 503. Actual notice was enough to require diligence in one not served. Depew v. Dewey, 3 N. T. S. 0. 515. The 38 days counted from the time of deposit. Hornby v. Cramer, 13 How. Pr. 490. A wife of a mortgagor surviving the husband was entitled to notice ; but not his heirs. King v. Duntz, 11 Barb. 191. " Personal representatives " meant executors or administrators, and not heirs or devisees. Anderson v. Austin, 84 Barb. 319. A jumor mortgagee (or his assignee of a m.ortgage recorded) was entitled to notice. As to his rights, vide Hornby v. Cramer, 13 How. 490 ; Winslow V. McCall, 33 Barb. 341 ; Wetmore v. Roberts, 10 How. 33. If the mortgagor was deceased, service was dispensed with, if he left no personal representatives. Cole v. Moffit, 30 Barb. 18 ; and 34 Barb. 319, supra. Disapproved in Mackenzie v. Alster, 13 Abb. N. C. 210, holding that if there be no executor or administrator there could be no foreclosure in this way. See also, Van Schaak v. Sanders, 33 Hun, 515. Junior mortgagees, if not served, might redeem. Wetmore v. Roberts, 10 How. Pr. R. 51. Even actual notice to a lienor was held not to dispense with the statutory notice. Root v. Wheeler, 13 Abb. Pr. 394 ; Mowry v. Sanborn, 65 N. Y. 581. In the above case of Root v. Wheeler, it was held that the street and number of residence, the manner ot folding and the kind of stamps for postage, must have been specified. See also, Chalmers v. Wright, 5 Robt. 714. A direction upon an unsealed envelope did not satisfy the statute, although the notice was within. Rathbone v. Olarlie, 9 Abb. 66. The advertisement must not contain false statements, or the sale will be void (5 Johns. Ch. 35), except where there was mistake. 11 Paige, 34; 6 Barb. 347; 1 Hill, 108; 11 Pai. 636; 63 Barb. 338. If the notice was not properly served by mail, the foreclosure was void (35 N. T. 330) ; so, if the residence of the mortgagor was not specified. 48 Barb. 116. Ko particular post office was required (4 How. 346), but it should be in the State. 1 Kern. 196. The notice might be in all cases served through the post office. Stanton v. Kline, 11 N. Y. 196 ; reversing 16 Barb. 9. If the notice was addressed to a party, at a wrong place, the foreclosure would be void as to him (Robinson v. Ryan, 35 N. Y. 330), or if the affidavits TIT. VIII.] SALE UNDER A POWER. 681 disclosed no place of residence, when served by mail. D wight v. Phillips, 48 Barb. 116. The affidavit must show positively that the place of address was the res- idence. Mowry v. Sanborn, 65 N. Y. 581. The sale barred redemption though no affidavits were filed. Osbom v. Merwin, 13 Hun, 332. The sale might be proved by secondary evidence. Ibid. Or by any lawful evidence. Mowry v. Sanborn, 68 N. Y. 153. Under the Code of Civil Procedure.— Publication.— Publication must be for the twelve weeks immediately preceding the day of sale, once a week in a newspaper published in the county in which the lands or a part of them are situated. Co. Civ. Proc. § 3888. Posting. — The notice is to be posted at least eighty-four days before the day of sale in a conspicuous place at or near the door of the building where thecounty court holds its sessions. If there are two such buildings in the county, the one nearest the property is designated. In the county of New York the Common Pleas Court-house is appointed. IMd. Piling. — The filing with the County Clerk must be at least eighty-four days before the sale. IMd. The County Clerk must affix the notice to a book kept for the purpose, note at the bottom the time of filing, and index it in the name of the mort- gagor. Co. Civ. Proc. §§ 3388-2390. Personal Service. — The mortgagor, his executor or administrator must be served. A subsequent grantee or mortgagee who has recorded before the first publication, the wife or widow of the mortgagor or of a subsequent grantee, and any one holding a general or specific lien by judgment or de- cree docketed in the county ma/y be served. Service upon a mortgagor, his executor, administrator, wife or widow, a subsequent grantee and his wife or widow, is to be made as in case of a summons, or by leaving the notice at his or her residence with a person of suitable age and. discretion. Such service must be fourteen days before the sale. In case of non-residents or foreign corporations, similar service is to be made without the State, twenty- eight days before the sale. Other persons are served by mailing a notice addressed to each at his place of residence in a securely sealed post-paid wrapper, twenty-eight days before the sale. Co. Civ. Proc. §§ 3388, 3889, as amended by Laws of 1887, ch. 685. Notice under the Bevised Statutes, what to contain. — R. S. § 4. The notice formerly was to contain the dates and names of parties to the mort- gage and assignees, and when and where recorded, amount then due, and description of the premises as in the mortgage. Any postponement of sale must have been made by inserting notice as soon as possible in the newspapers in which the original advertisement was published until time of sale. 7 How. Pr. R. 373; Miller v. Hull, 4 Den. 107. The description of the land must be full and correct. 9 Abb. 66. An overclaim did not vitiate. Mowry v. Sanborn, 63 Barb. 333; reversed on other grounds in 65 N. Y. 581 ; Klock v. Cronkhite, 1 Hill, 108. Nor erroneous statements which did not mislead, especially if corrected. Hubbell V. Sibley, 5 Lans. 51 ; Jencks v. Alexander, 11 Pai. 619. The whole amount due must have been claimed. 11. The notice must have stated that the mortgage was to be foreclosed under a power, and an error in the book of record, or in the amount, might be dis- regarded if substantial indication was made. Klock v. Cronkhite, 1 Hill, 108; Bunce V. Reed, 16 Barb. 347; Judd v. O'Brien, 31 N. Y. 186; Jencks v. Alexander, 11 Pai. 636. Notice of postponement need not be in writing. Westgate v. Hamblin, 7 How. 373. 682 SALE XJUDBB A POWER. [OH. XXVIII. After sixteen years a mortgagor could not question the regularity of the notice. Demarest v. Wynkoop, 3 Johns. Ch. 129. The clerk's office and date of record was sufficient as to statement of re- cord ; but the notice must be of a foreclosure and sale. Judd v. O'Brien, 31 N. Y. 186. Under the Code of Civil Procedure.— The notice must contain the particulars above specified, and, where only an instalment is due, a state- ment of the amount which will become due. It must be signed by the mort- gagor unless his name clearly appears in the body of it, in which case his attorney may sign it. The publication of notices of postponement must in- clude the original notice and each notice of postponement, and must be con- tinued at least once a week until the day to which the sale is finally post- poned. Co. Civ. Proc. §§ 3388, 3891, 2392. Sale, how Made. — R. S. § 6. The sale was, under the Rev. Stat., to be at public auction in the day-time, in separate plots, in the county where the premises, or some part were situated, except that sales on mortgages to the people were to be made at the capital. No more is to be sold than neces- sary. A sale on any other than the fixed or adjourned day was void. 4 Den. 104. The sale must have been at auction (Lawrence v. The Far. L. & T. Co. 3 Ker. 200), unless there were agreement to the contrary. Elliott v. Wood, 45 N. Y. 71 ; .53 Barb. 385. The sale must have been for the whole amount secured. Holden v. Gilbert, 7 Pai. 308 ; Cox v. Wheeler, id. 248 ; Tice v. Anin, 3 Johns. Ch. 135 ; Leonard v. Morris, 9 Pai. 90. When there were future instalments, vide Jencks v. Alexander, 11 Pai. 619. The sale of a farm need not be in parcels. Lamerson v. Marvin, 8 Barb. 9 ; Elsworth v. Lockwood, 9 Hun, 548. The premises might be sold fi'ee and clear. Story v. Hamilton, 86 N. Y. 428. The foreclosure might be complete without a deed. 4 Den. 44 ; 4 Cow. 366 ; 1 Pai. 48. As to sale on Sunday, vide Sayles v. Smith, 13 Wend. 57 ; and as to post- ponement from such a day, Westgate v. Handling, 7 How. 372. Under the Code of Civil Procedure. — The sale must be at public auction in the day-time and cannot be on Sunday or a public holiday. If there are two or more distinct farms, tracts or plots, they must be sold separately, but where two buildings are on one city lot and access is had to one through the other, they must be sold together. Co. Civ. Proc. § 2893. Who might Purchase under the Revised Statutes. — The mortgagee, his assigns, or legal representatives, might fairly and in good faith purchase the premises or any part. § 7 ; 2 R. L. of 1813, p. 375 ; 30 Barb. 559 ; 4 Pai. 58; 1 Pai. 48; 4 Cow. 377. If no bidders were present but the auctioneer, who bid in for the mort- gagee, the sale was held void. Campbell v. Swan, 48 Barb, 109. Under the Code of Civil Procedure. — The same provision is contained in this Code, § 3394. Effect of the Sale before the Code of Civil Procedure. — Under the Law of 1830, the sale did not affect judgment-creditors. 4 Pai. 61; 5 id. 536; 7 id. 167. As amended, as above stated, every sale pursuant to a power, con- ducted as aforesaid, to a purchaser in good faith, was to be equivalent to a foreclosure and sale under the decree of a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them, by virtue of any title subsequent to such mortgage, and also of any person having lien by any judgment or decree subsequent to such mortgage, and of every TIT. VIII.] SALE UNBER A POWER. 683 person having any lien or claim by or under such subsequent judgment or decree, ■who had been served with notice of. such sale as required by law. As amended, Law of 1843, ch. 377, and 1844, ch. 346, § 4, repealed by Laws of 1880, ch. 245 ; Warren v. Blakeman, 36 Barb. 501. Before the amendment of 1844, the sale did not aflfect any mortgagee or judgment-creditor whose lien occurred prior to the sale, and they might re- deem. Benedict v. Gillman, 4 Paige, 58. If the sale was irregular, the purchaser took nothing by his deed. 7 Johns. 217. If the mortgage was usurious, the sale was void if purchaser had notice. 10 Barb. 558. The owner of the equity of redemption must have had notice, or the sale was void as to him (17 Barb. 100); also a junior mortgagee or his assignees. 10 How. Pr. 51. The sale was voidable if the lands were not sold in distinct tracts, or lots, if so situated. 47 Barb. 416. It was held generally, but not under our statute, that a mortgagornot ob- jecting to the sale waives defects. Markey v. Langley, 3 Otto, 143. Under the Code of Civil Procedure. — Persons claiming under the mort- gagor, his heir, devisee, executor or administrator, by title or by lien of a judgment or decree subsequent to the mortgage, if the conveyance were re- corded or judgment or decree docketed at the time of the first publication, can only be cut ofE by service. If the conveyance, judgment or decree were not then recorded or docketed service is not necessary, nor is it necessary in order to cut off statutory lienors or incumbrancers subsequent to the mort- gage. Wives or widows must be served to cut oflf dower. Co. Civ. Proc. § 3395. Record of Proceedings under the Revised Statutes. — R. S. §§ 9 and 10. Afladavits might formerly be made by the auctioneer, of the sales; and also by the printer, Ms foreman, or clerk, of the publication ; the affidavits of other persons, of the affixing of the notices and other service, and in the county clerk's books, were to be made and filed with the clerk of the county. As amended. Laws of 1831, ch. 266; 1844, ch. 346; and 1857, ch. 308. Parol or other evidence of service (in another action) might be given, but it would not dispense with the filing of the affidavits. Layman v. Whiting, 30 Barb. 559; Mowry v. Sanborn, 68 N. Y. 153; Story v. Hamilton, 86 N. Y. 438 ; Van Slyke v. Sheldon, 9 Barb. 378. The affidavit of posting the notice might be by one who posted the notice or saw it posted. 13 How. Pr. 490. The affidavits were only presumptive evidence of the facts, except as to the mortgagee and his privies. Bnnce v. Reed, 16 Barb. 347 ; Mowry v. San- born, 63 Barb. 323, reversed in 65 N. Y. 581, on the form of the affidavit; Sherman v. Willet, 43 N. Y. 146. Defects in them may be supplied aliunde ; and errors in date, etc., did not vitiate, if they could be corrected from entries made. Chalmers v. Wright, 5 Robn. 713; Mowry v. Sanborn, 68 N. Y. 153. Under the Code of Civil Procedure. — The publisher of the newspaper, as well as the persons named above, may make affidavit of publication. The person who posted the notice, or any one who saw it posted at least eighty- four days before the sale, may make affidavit of posting. As to affixing in the county clerk's book, the county clerk, or any person who saw it so affixed at least eighty-four days before the sale, may make affidavit.- The person serving may make affidavit of service. Where different parcels are sold to different persons, either one or several affidavits may be made, and one affi- davit will do for all these things where the same person swears as to all. A printed copy of the notice of sale must be annexed to each affidavit, and a like copy of each notice of postponement to the affidavits of publication and sale. But one notice will do for a number of affidavits if they are all fast- 684 SALE UNDEE A POWER. [OH. XXVIII. ened together. Co. Civ. Proc. §§ 3396 and 3397, as amended by Laws of 1882, ch. 899. Record Under the Revised Statutes.— R. S, § 11. They were to be filed and recorded by the clerk in the book of mortgages, and such original affidavits, the record thereof, and certified copies of such record were to be presumptive evidence of the facts therein contained. The clerk was directed to make a minute opposite the record of the mortgage when such affidavits were recorded. The affidavits must also have stated the service of the notice on the mortgagor, if made since the amendment of 1844. 20 Barb. 559. Where no notice appeared by the affidavits to have been served on the mortgagor, proceedings held void. 48 Barb. 116. Under the Code of Civil Procedure. — In counties where there is a Reg- ister the filing is to be with him ; otherwise with the County Clerk, as above. Where the property is in two or more counties, copies of the affidavits certi- fied by the officer with whom the originals are filed, may be filed in the other counties and have the efiect of originals. Co. Civ. Proc. § 3388. The officer with whom the affidavits or certified copies are filed is to make a note thereof on the record of the mortgage. i5. § 2399. Stamps. — As to the necessity of revenue stamps on such proceedings, vide Frink v. Thompson, 4 Lans. 489; ante, Ch. XXVII. The sale foreclosed the equity of redemption, and there was no time re- quired for filing the affidavits ; and the delay in making them did not extend the time for redemption. Tuthill v. Tracy, 31 N. T. 157. The affidavits were evidence of the title though unrecorded. Prink V. Thompson, 4 Lans. 489 ; Howard v. Hatch, 39 Barb. 397. The sale was not invalid as to judgment-creditors for omission to serve other parties. Hubbell v. Sibley, 5 Lans. 51. The Record Operated as a Conveyance. — R. S. § 14. The affidavits of the publication and of affixing notice of sale, and of the circumstances of such sale, were to be evidences of the sale and of the foreclosure of the equity of redemption, as herein specified, without any conveyance being executed, " in the same manner and with the like effect as a conveyance ex- ecuted by a mortgagee, upon such sale, to a third person, hath hitherto been." As amended, 1838, ch. 266, § 8 ; 4 Denio, 41 ; 13 Barb. 137 ; 16 Barb. 347; lOPai. 562. There was no transfer of title until all the necessary affidavits had been made and recorded. They operated as the statutory transfer of title. Lay- man V. Whiting, 30 Barb. 559; Bryan v. Butts, 27 Barb. 503; affirmed, 38 How. Pr. 583 ; overruling Howard v. Hatch, 29 Barb. 297. The subsequent filing of an affidavit did not establish the title back by re- lation. Layman v. Whiting, 30 Barb. 559. Where there had been a sale, the equity of redemption was foreclosed, though the affidavits were not filed for twenty years thereafter. Chapman v. The Delaware, &c. Co. 3 Lans. 361 ; Tuthill v. Tracy, 31 N. Y. 157. Under the Code of Civil Procedure. — A purchaser, other than the mort- gagee, obtains title by paying the consideration and complying with the other terms of sale, without the filing of the affidavits. But he need not pay until filing or delivery or tender to him of the affidavits. Co. Civ. Proc. § 3400. Not to apply to Mortgages to the People. — §§ 15 and 16 R. S. provided that these proceedings should, to a certain extent, not be applicable to mort- gages to the people. So now. Co. Civ. Proc. § 3409, amended by L. 1883, c. 399. Lands out of the State. — The above provisions did not apply to them. Elliott V. Wood, 45 N. Y. 71 ; Doolittle v. Lewis, 7 Johns. Ch. 45. TIT. IX.J MISCELLANEOUS. 685 Usury. — If the purchaser had notice that the mortgage was usurious, he acquired no title, nor did his grantee. Hyland v. Stafford, 10 Barb. 558. Surplus Moneys. — As to surplus moneys on such sale, vide Law of 1868, ch. 804; amended Law of 1870, ch. 706; repealed L. 1880, ch. 345. For present Law, vide Co. Civ. Proc. §§ 2404-2408. Redemption. — By Law of May 13, 1837, ch. 410, redemption was allowed within a year after any mortgage sale, by a mortgagor, his representatives, or assigns, on repayment of the amount bid and ten per cent, thereon. This act was repealed by Law of April 18, 1838, ch. 366 ; and the purchaser was allowed to take possession unless the mortgagor, his assigns, etc. , who had a right to redeem, give certain specified securities to redeem in a year. This act also g&ve certain right of redemption to creditors. Pees, Costs, etc.— Vide Co. Civ. Proc. §§ 2401, 2403. Deficiency. — In an action for a deficiency resulting from foreclosure by advertisement it is a good defense that no notice of sale was served. Dickin- son V. Auld, 38 Hun, 275. Title IX. Miscellaneous. Railroad and Plank Road Companies.— As to foreclos- ure of mortgages given by railroad or plank road com- panies, to secure the payment of any bond of such com- pany, vide Eev. Stat, part i, ch. xviii, title 13, §§ 93 to 95 ; also ante, p. 616 ; also L. 1879, c. 505. Mortgages to the People.— As to foreclosure of mort- gages to the People of this State, vide Rev. Stat, part i, ch. ix, title 6. CHAPTER XXIX. MOBTGAGES TO COMMISSIONERS OF LOANS AND SALES THERE- UNDER. Title I. — Mortgages, and the Discharge thereof. Title II. — Offices of the Commissioners, and Lien of the Mortgage. Title III. — Foreclosure and Sale. Title IV. — The Earlier Acts before 1837. COMMISSIONERS OP LOANS UNDER ACT OE 1837. Title I. Mortgages, and the Discharge thereof. These offices were created under Act of January 10) 1837, ch. 2, and Act of April 4, 1837, ch. 150. This latter act provides for the loaning on mortgage of the surplus moneys of the United States, deposited with the State for safe keeping (under the Act of Congress of June 23, 18*36), through officers then created, called " Oommis- sionersfor loaning moneys of the United States^'' appointed for eact county. The substance of the mortgages taken are to be inserted in books to be kept by the commis- sioners in each county, and shall be matter of record. _ Discharge of Mortgages. — § 38. On payment of the mortgage, the com- missioners are to give a rele&se, and shall make an entry thereof on the margin of the mortgage and in the minute book. By Law of 1868, ch. 698, mortgages paid may also be discharged by these commissioners, by direction of the comptroller. Title II. Offices of the Commissioners, and Lien of THE Mortgage. Their offices are to be kept at the court houses of their respective counties, or where the courts of Common Pleas TIT. III.] POKECLOSUEB AND SALE. 687 are held (Law of 183Y, § 41), and in the city of New York, at the office of the Register. (Laws of 1851, ch. 286 ; Laws of 1882, ch. 410, § 1764.) They are to permit all persons to search any books on paying twelve and a half cents. Lien of the Mortgages. — The execution of the respect- ive mortgages, and their entry on being placed in their books of mortgages, shall have the like lien, priority, operation and effect, as if such mortgages had been duly recorded in the book of mortgages in the office of the clerk of the proper county. Laws of 1837, § 43. "Where to be Deposited. — The mortgages are to be numbered and in- dexed. The book of mortgages is to be deposited with the clerks of the respective counties. lb. § 55. By Law of 1851, ch. 386, and Laws of 1883, ch. 410 (" Consolidation Act"), § 1764, all mortgages on lands in the county of New York, are to be deposited with the register, and also the indexes relating thereto. Proceedings to be Minuted. — lb. § 46. The commissioners are to insert the minutes of their proceedings in a minute book in detail, mz.: whose mortgages are foreclosed, and the names and numbers, the orders for and copies of the advertisements for sale, and places at which they are set up, etc., the names of purchasers on sales, and also the cause of all suits, and the information they have received in relation thereto. The omission to make all proper entries does not vitiate the sale as against a bona Jide pur- chaser. See Wood v. Terry, 4 Lans. 80, where these provisions are consid- ered directory merely; also White v. Lester, 34 How. Pr. 137; 1 Keyes, 316 ; Powell v. Tuttle, 3 Corns. 396. Sale of Mortgages, etc. — Such commissioners cannot sell (or assign) mortgages taken by them. Woodgate v. Fleet, 44 N. T. 1 ; Pell v. Ulmer, 18 N. Y. 139. Nor can one be the borrower, so as that a valid mortgage can be executed to the other. N. Y. L. & T. Co. v. Staats, 31 Barb. 570. Title III. Foeeolosuee and Sale. The law (§ 31) makes provision for the sale by the commissioners of the premises mortgaged. The object of the -sale is to foreclose all equity of redemption. 8 Cow. 47 ; 7 Hill, 431 ; 5 N. Y. 144. Default. — § 30 of Law of 1837. — On default of the mortgagor to pay the yearly interest on the first Tuesday of October, or within twenty-three days thereafter, and also the principal when due, the commissioners of the county and their successors, etc., shall be adzed of an absolute and indefeas- ible estate in fee in the said lands, and the mortgagor, his heirs or assigns, shall be utterly foreclosed and barred of all equity of redemption of the mortgaged premises. It is supposed under this section that if the borrower 688 FORECLOSURE AND SALE. [OH. XXIX. fails to pay the interest on the first Tuesday of October, or within twenty- three days thereafter, the mortgage becomes ipso facto foreclosed, and the commissioners are seized ic fee, subject to the right of redemption pro- vided. See as to this provision, Fellows v. The Commissioners, 36 Barb. 655 ; Olmstead v. Elder, 1 Seld. 144. This latter case was overruled in Pell V. Ulmer, 18 N. Y. 139; reversing 21 Barb. 500. See also, Thompson v. Commissioners, 79 N. Y. 54. Redemption. — But the mortgagor, his heirs, etc., may retain possession until the first Tuesday of February thereafter, and may redeem the same as subsequently provided. Under this section, although, on default, the commissioners are stated to have an absolute estate, the right of redemption is held not to be barred until after a sale, as provided. 3 Sandf. 325 ; 1 Seld. 144 ; Sherwood v. Eeade, 7 Hill, 433 ; Jackson v. Rhoades, 8 Cow. 47 ; York V. Allen, 30 N. Y. 104. But it is only a right, and gives no interest in the land. Pell v. Ulmer, 18 N. Y. 139; White v. Lester, 34 How. Pr. 136; 1 Keyes, 316; Thompson v. Commissioners, 79 N. Y. 54. Provision for redemption is made by Laws of 1878, ch. 333, amending § 33 of the Act of 1837, which also provides that the sale shall take place on the third Tuesday in September. Act of 1844.— By Act of May 7, 1844, ch. 336, the Act of April 4, 1837, was modified so as to allow forfeited mortgages to be delivered to the comptroller, certified copies whereof may be recorded and read in evidence. This act directs the commissioner to give certificates of their proceedings, which may be recorded and read in evidence, or a transcript thereof. Advertisement and Notice. — § 31. The commissioners are to advertise the lands for sale in three public places of the county, to be sold at auction in the county court house, and advertise in one county paper, once a week, for six weeks successively, prior to the day of sale, which is to be on the first Tuesday of February. [Now the third Tuesday of September. Laws of 1878, ch. 333]. If no paper in the county, then in the nearest paper. Wood V. Terry, 4 Lans. 80. By Laws of 1863, ch. 78, the advertisement must be served on the mortgagor or Ms rept'esentatives, executors, etc., if any, fourteen days before the sale, and also upon all his grantees, or lessees, mortgagees of record, and on all incumbrancers, of record subsequent to the mortgage. The notice to be served personally, or by leaving the same at the dwelling-house with a person of full age, or through the post office ; if the latter, on twenty- eight days' notice. Vide 3 Pai. 390. The advertisement must correctly in- dicate the mortgagors and mortgagees. Thompson v. Commissioners, 79 N. Y. 54. Sale by one Commissioner. — The notice of the sale must be given by lofh commissioners, or it is void (30 N. Y. 104), and a sale by one is held void, even if both unite in the deed. 3 Coms. 396 ; overruling 6 Johns. Ch. 323; also, 1 Seld. 144; 18 N. Y. 139. But by Laws of 1863, ch. 73, sales thereto- fore made by one commissioner are, if deed is executed by both, made valid; and if there is a vacancy, one commissioner may convey. By Law of 1867, ch. 704, a sale by one is made valid if the proceedings are otherwise correct, the purchase-money has been paid, and the deed is signed by both. This applies to past and future sales. The Papers Given. — The commissioners are to give the purchaser a cer- tified copy of the mortgage, together with the affidavits, and the deed. Law of 1837, SM^ras, §19; 1863, ch. 73. The statute must be strictly pur- sued as to the sale. 7 Hill, 431; 3 Coms. 396; 4 Hill, 99; 1 Hill, 141; 6 Wheat. 119. It may be postponed. § 33. Amended by Laws of 1878, ch. 383. Effect of Sale. — The law provides that the purchaser shall hold the land tiT!. IV.] ACTS OP 1786, 1792 AND 1808. 689 free from all equity of redemption, and all other liens or incumbrances aris- ing after the execution of such mortgage. § 32 of Laws of 1837, as amended by La-w of 1856, ch. 3; 1863, ch. 73. Void Sales.— § 33, Act of 1837. Amended Laws of 1878, ch. 333. Com- missioners not to become purchasers, or the sale is void ; also, all sales made contrary to the provisions of the act. Vide White v. Lester, 34 How. 136, as to irregularities on such sales, and how far the statutory provisions are directory merely ; and 8 Pai. 633 ; 7 Hill, 431. If any of the lands have been sold by the mortgagor, they are to be sold by the commissioners in the in- verse order of alienation, beginning with those expressly charged. Law of 1856, ch. 3. As to a sale when the mortgagor repurchased, and there was an immediate judgment, vide Commrs. v. Chase, 6 Barb. 37. Presumption. — Presumption is in favor of the purchaser that all pro- ceedings were correct. Wood v. Terry, 4 Lans. 80. Under the former law, the deed was conclusive at law. Any remedy by the party entitled to re- demption was in equity. Brown v. Wilbur, 8 Wend. 657. Code of Civil Procedure. — By § 2409, as amended by Laws of 1883, ch. 399, the provisions of the Code of Civil Procedure as to foreclosure by adver- tisement do not apply to the Loan Commissioners. Title IV. The Foemer Acts op 1786, 1792, ajstd 1808. The above Act of April 4, 1837, is in lieu of the Acts of 1786, 1792, 1797, 1808, 1819 and of the Revised Stat- utes of 1830, and all the duties of the former "Loan Com- missioners" are by the Act of 1850 (infra) transferred to the above mentioned commissioners of the United States deposit fund. Loan officers for each county were created under the above acts. Their offices were to be kept in the court houses of each respective county ; and the entry of the.respective mortgages in the books of said commissioners were to have the like priority, operation and effect, as if such mortgage were regis- tered in the office of the clerk of the county. Provision was made for the sale of land on default, and conveyances fo purchasers, and the barring of the equity of redemption thereby. Laws of 1797 and 1819. The loan officers were by subsequent acts directed to furnish minutes of all mortgages, held by them to the county clerks of their counties, who were to file the same i and they would thereupon be matters of record as a mortgage. For the earlier laws on the subject, vide, also, Laws of 1815, p. 61; 1818, p. SI- 1819, p. 37; 1830, p. 346; 1831, p. 17; 1833, p. 265; 1833, p. 305; 1824! p. 341; 1825, p. 442; 1829, ch. 91; 1832, ch. 118. By Law of April 31, 1825, one commissioner might execute a deed on sales under foreclosure where there was a vacancy. By Act of April 13, 1833, ch. 118, the loan officers in the several counties, under the Laws of 1786 and 1792, were di- rected to transfer all their books and minutes and papers to the " Commis- sioners of Loans" for their respective counties. Books of mortgages were to be deposited in the clerks' offices of their respective counties. Transfer of Mortgages under Acts of 1792 and 1808. —By Law of April 10, 1850, ch. 337, the loan commissioners in the several counties of this 44 690 ACTS OF 1786, 1792 and 1808. [CH. xxrs. State are directed to transfer to " the Commissioners for Loans of the United States" in the county, all mortgages then in their hands, and books, papers, etc., under the Laws of 1792 and 1808, and the United States loan officers are to have the same authority over them as if taken under the Act of 1837; and after settlement of their accounts, the offices of loan commissioners, under the Acts of 1792 and 1808, are to cease. By Act of February 4, 1856, p. 10, the provisions of the Act of 1837 are made to apply to all mortgages taken under the loams of 1793 and 1808. CHAPTER XXX. TITLE THROUGH PA.RTITION PROCEEDINGS. Title I. — Courts having Jurisdiction, Title II. — Proceedings under the Revised Statutes and Codes. Title III. — Partition of the Interests of Infants without Action. Title IV. — Partition op Lands of Idiots and Lunatics. Title V. — Miscellaneous. The title to land frequently passes under judgments in actions for the partition or severance of interests of those holding lands in common. At common law there was no remedy by compulsory partition. The proceed- ings in this State are now special and statutory, and have to be strictly pursued. For the history of the law of England, and of the State of New York, respecting the partition of lands, mde Mead v. Mitchell, 5 Abb. Pr. R. 92 ; affirmed, 17 N. Y. 310. A suit in partition is a proceeding in rem, and the jurisdiction of the court is confined to the subject-matter described in the petition. If other land is adjudged upon, the whole judgment is void. Corwithe v. Griffing, 21 Barb. 9. A mining interest may also be partitioned. Canfleld v. Ford, 28 Barb. 336. It was held before the Code of Civil Procedure that there could be no compulsory partition under our statute, unless the owners were in possession of the land as joint tenants or tenants in common. Boyd v. Dowie, 65 Barb. 237. The question is finally settled in this way by Co. Civ. Proc. § 1532. An outstanding power of sale in executors does not always prevent par- tition. Purdy V. Wright, 44 Hun, 239. Title I. Cofets having Jtjeisdictiou". Courts of equity originally had an inherent jurisdic- tion to decree partition, independent of statute ; but their action and jurisdiction since the Revised Statutes are con- fined to the statutory provisions. Wood V. Clute, 1 Sand. Ch. 199; Poltey v. Kain, 4 Sand. Ch. 508. But it was held that where the provisions of the Revised Statutes were not 692 COUETS HAVING JURISDICTION. [CH. XXX. broad enough to cover cases where partition was sought, the Supreme Court had power to divide estates that were certain. Canfield v. Ford, 28 Barb. 336; see Smith v. Smith, 10 Pai. 470; Van Arsdale v. Drake, 3 Barb. 599; Danvers v. Dorrity, 14 Abb. 306. The objection that a court of this State cannot partition lands in another State is not available to one who has consented to the proceeding. Bowers V. Durant, 43 Hun, 348. The Court of Chancery had formerly jurisdiction of such actions co- ordinate with the actions by petition, as provided by Revised Statutes. The proceedings in said court were by bill or petition. 2 Rev. Stat. p. 329 ; 3 Pai. 342. As to the transfer of the powers of the former Court of Chan- cery to the Supreme Oourt, vide " Foreclosure of Mortgages," ante, p. 665 ; Co. Civ. Pro. I 217. The Superior Court of New Tork city and Court of Common Pleas have also jurisdiction of such actions, if the lands are in the county (Co. Proc. §§ 33, 123 ; Co. Civ. Proc. § 263 ; Varian v. Stevens, 2 Duer, 635 ; 9 How. 512 ; 3 Daly, 185) ; also Oiti/ Court of Brooklyn. Laws of 1863, ch. 66 (repealed by Laws of 1877, ch. 417). Co. Civ. Proc. § 263, as to partition of real estate of infants; also infra; also County Courts. Co. Proc. § 30, sub. 4 ; Co. Civ. Proc. § 340. It had been questioned whether county courts had jurisdiction under the Constitution, but it was finally decided they had, in Doubleday v. Heath, 16 N. T. 80; also 18 N. Y. 57. "When brought in the latter courts, jurisdiction extends by the Code only to real property situated within the county. See also Law 1847, chs. 280, 470. The provisions of these acts which afEect the jurisdiction of the various courts were repealed by Laws of 1877, ch. 417. The Tritmnal of Conciliation of the Sixth judicial district had jurisdiction (Laws of 1862, April 23), but that court was abolished by Law of 1865, ch. 336. By Law of 1873, ch. 239, the jurisdiction of the courts of New York Com. Pleas and Superior of New York and Buffalo, and the City Court of Brooklyn, were made concurrent with that of the Supreme Court in civil actions and proceedings, but this act was declared unconstitutional in Landers v. Staten Island R. R. Co. 53 N. Y. 450. Action under the Code of Procedure. — By the Code of Procedure, § 448, the provisions of the Revised Statutes relating to the partition of land, were made to apply to actions for such partition brought under the act, so far as the same could be so applied to the subject-matter of the action without re- gard to its form. St. John v. Pierce, 22 Barb. 367 ; affi'd, 4 Abb. Ap. Ca. 140. Under that Code, the proceedings, it was held, must be by summons and complaint, and not by petition. 17 N. Y. 318 ; 6 Abb. 350 ; 33 How. 358 ; 25 Barb. 336 ; 7 Lans. 486 ; 37 Barb. 22, overruling other cases. By Law of 1857, ch. 679, the provisions of the amendments of the Code made in § 173, of Laws of 1852, ch. 392, were also made applicable as to amendments herein. This applied to process and pleading, adding or striking out parties, correcting mistakes, etc. The Code of Procedure was wholly repealed by Laws of 1880, ch. 245. Action under the Code of Civil Procedure. — The Code of Civil Procedure completely supersedes all other statutes upon the subject. It follows largely the Eevised Statutes, and its provisions are given below in connection with those formerly in force. The decisions under the Revised Statutes have, in some cases, been incorporated into the Code by express provisions, and in many other cases are TIT. U.] PROCEEDINGS UNDER THE CODES. 693 as applicable now as formerly, owing to the similarity of the present law to that before in force. Title II. Proceedings under the Codes and Revised Statutes. A summary of the proceedings for partition under the Codes and the Revised Statutes is here given. Proceedings under the Revised Statutes will be found at length in title 3, ch. 5, part 3, of the Revised Statutes, vol. 3, p. 316. These provisions were mainly founded upon the Law of April 7, 1801 ; 1 Web. 542, and the Law of 1813; 1 Rev. Laws, 507. On January 8, 1763, a colonial act was passed reg- ulating partition of lands. 1 Van. S. 403; amended, pp. 416, 417. For proceedings and titles under said act, vide Munroe v. Merchant, 36 Barb. 383 ; reversed, 38 N. Y. 9. On March 16, 1785, was passed the first act for the partition of lands under the State government (1 J. & V. 303) ; and the system was altered and amended Feb. 6, 1788; Feb. 10, 1791 ; Apr. 3, 1793; Feb. 37, 1793 ; March 35, 1794 ; April 1, 1797, and Apr. 7, 1801, providing for partition by petition to the Supreme Court. The act was amended by the introduction of other provisions, on Apr. 9, 1804; Apr. 3, 1806; March 37, 1807; Apr. 6, 1807; March 8, 1811; Apr. 12, 1813 (vide 1 Rev. Laws of 1813, p. 506), embracing most of the provisions of the Revised Statutes of 1830, below given. This Act of April 12, 1813, was repealed in the repealing clause of the Revised Statutes, passed Dec. 10, 1828; videZ Rev. Stat. 1st edition, p. 779. Acts were also passed amending the Laws of 1813, on Apr. 15, 1814; Apr. 9, 1814; March 23, 1831. This Act of March 23, 1821, was also repealed by Law of Dec. 10, 1828, establishing the Revised Statutes (3 Rev. Stat. 1st edition, p. 779), also repealing an act passed Apr. 18, 1826. The proceedings in partition actions were also regulated by Laws of 1830, c. 330; 1831, c. 200; 1883, c. 227; 1840, c. 177 and 379; 1843, c. 277; 1846, c. 183; 1847, c. 430; 1849, c. 430. This part of the Revised Statutes and the other acts named were all repealed by Laws of 1880, ch. 345. Notice of Lis Pendens. — It will be necessary to see that a notice of lis pendens has been filed according to § 133 of the Code of Procedure, §§ 1670 to 1674 of the Code of Civil Procedure. Vide " Lis Pendens, " infra, Oh. XLV. Vide Waring v. Waring, 7 Abb. 472, as to Us pendens in partition suits and the effect of irregularities in filing. • The Application for Partition, When and by Whom Made.— When two or more persons hold and are in pos- session of real property, as joint tenants, or as tenants in common, in which either of them has an estate of inherit- ance, or for life, or for years, any one or more of them may maintain an action for the partition of the property according to the rights of the persons interested therein and for a sale thereof, if it appears that a partition thereof cannot be made without great prejudice to the owners. Co. Civ. Proc. § 1532. 694 PEOOEEDINGS UNBBK THE CODES. [CH. XXX. The former procedure was by petition. 3 Kev. Stat. § 1, p. 317, 1st edit. The application must be now by summons and complaint. Supra. No one but a joint tenant or tenant in common can be plaintiflf. Co. Civ. Proc. § 1538. But this does not prevent the wife of a tenant in common from being a co-plaintiff with him. Foster v. Foster, 38 Hun, 365. When Possession Necessary. — Before the Code of Civil Procedure the plaintiff must in all cases have had possession, actual or constructive. Flor- ence V. Hopkins, 46 N. Y. 183; Sullivan v. Sullivan, 66 N. T. 37; Boyd v. Dowie, 65 Barb. 237 ; Gaillie v. Eagle, 65 Barb. 583. A contingent interest not sufficient. 5 Denio, 385; 3 Paige, 387; Brownell v. Brownell, 19 "Wend. 367. Adverse possession a bar to the partition proceedings. 46 N. T. 183; 2 B. Ch. 398 ; 3 ici. 608 ; 9 Cow. 530. Compare 5 Barb. 51 ; 9 id. 516 ; where parties have equitable claims and the court has jurisdiction over the matter as such. Boyd v. Dowie, 65 Barb. 337. The objection must be taken by answer or demurrer. It cannot be raised on appeal for the first time. Howell v. Mills, 56 N. T. 336. Constructive possession of one tenant in common enough. lUd. Beebee v. Griffing, 14 N. Y. 338. Beversiouer. — It is held in England that a reversioner cannot institute the suit. So held in Striker v. Mott, 3 Pai. 387 ; Fleet v. Dorland, 11 How. 489. But now he may do so. Co. Civ. Proc. § 1533, infra. Remaindermen, it was held, could not institute th6 action. Brownell v. Brownell, 19 Wend. 367. But a judgment in such a case would not have invalidated a sale, and it was held that since the Rev. Stat, a person with a vested remainder could be plaintiff. Blakeley v. Calder, 15 N. Y. 617 ; Mc- Glone V. Goodwin, 3 Daly, 185. Blakeley v. Calder, was, however, distin- guished and limited in Sullivan v. Sullivan, 66 N. Y. 37, which, by implica- tion, overruled Howell v. Mills, 7 Lans. 193, distinguishing the farther decision of that case in 56 N. Y. 336, and holding that a remainderman could not bring the action. Now by Co. Civ. Proc. § 1533, as amended by L. 1887, c. 683, remainder- men or reversioners who have vested interests may bring the action. But no sale can be had except with the consent in writing and acknowledgment of the owners of the present estate, and if, at any stage of the proceeding, it appears that the partition or sale, as the case may be, cannot be made without great prejudice to the owners, the complaint must be dismissed. Hughes v. Hughes, 11 Abb. N. C. 37; affi'd, 30 Hun, 349. Married Woman. — A married woman formerly could not bring it with- out her husband. Spring v. Sandford, 7 Paige, 550. Nor a mere dowress. 1 Sand. Ch. 199. , A married woman may, since the Code of Procedure, bring partition against her husband. Moore v. Moore, 47 N. Y. 467; Co. Proc. § 114; Co. Civ. Proc. §450. The wife of a tenant in common need not join as plaintiff, but may be made a defendant. Rosekrans v. Rosekrans, 7 Lans. 486. In other cases a court of equity will not entertain a partition suit where the legal title is disputed or doubtful, nor where there is an action pending. 9 Cow. 530; 3 Barb. Ch. 398; 3 id. 608 ; 7 Barb. 331; 14 Abb. 306. Nor by a widow claiming merely under a dower right. 15 Johns. 319. Even after assignment. 1 Sand. Ch. 199. Nor between tenant in fee and his landlord. 4 Pai. 639. A tenant by the curtesy of an undivided interest may bring partition. Tilton V. Vail, 43 Hun, 638. Heirs out of Possession. — By Laws of 1853 (ch. 238, § 1), heirs claiming TIX. II.] PROCEEDINGS IJSDEE XHE CODES. 695 lands by descent from an ancestor dying in possession, whether such heirs be in possession or not, might prosecute for the partition thereof, not- withstanding any apparent devise by such ancestor, and might establish the invalidity of such devise. Repealed by Laws of 1880, ch. 245, but substan- tially re-enacted in Co. Civ. Proc. § 1537. This act was held constitutional in Ward v. Ward, 33 Hun, 481. As to review of judgment on appeal in such a case see Hewlett v. Wood, 55 N. Y. 634. Under § 1537, Co. Civ. Proc. partition may be brought to try the validity of a devise. Maloney v. Cronin, 44 Hun, 370 ; Henderson v. Henderson, ii. 420. Infant Plaintiff. — Formerly an infant could not be a plaintiff. Postley V. Kain, 4 Sand. Ch. 508. By Laws of 1853, ch. 277 (repealed by Laws of 1880, ch. 245), an infant might be plaintiff in partition through a next friend. The action could be brought only by order of the court. 14 Abb. 399 ; 21 How. 479; 26 How. 350 ; 13 id. 104; 15 ib. 883. The non-appointment of a guardian ad Utem or next friend, for an infant plaintiff, was an irregularity that might be waived or cured. Rutter v. Puckhover, 9 Bos. 638. The written authority of the surrogate of the county in which the prop- erty or a part of it is situated is necessary now to enable an infant to bring the action. The surrogate in granting the authority must be satisfied by aflBdavit or otherwise that it is for the infant's interests, and the court must be satisfied of the same thing before entering judgment. This fact must be recited in the judgment. Co. Civ. Proc. § 1534. See Co. Civ. Proc. § 469, as to appointment of guardian before issue of summons. Other parties who may bring the action. — Assignees for creditors. Rutherford v. Hervey, 59 How. Pr. 331 ; 3 Barb. 599. Tenant by curtesy initiate. 4 Edw. 668. A devisee. 33 Barl. 176. Trustees. Gaillie v. Eagle, 65 Barb. 583. Tenants for life in possession. Jenkins v. Fahey, 73 N. Y. 355. But see Cromwell v. Hull, 97 N. Y. 309. Tenants for life pur autre me of an undivided portion, with a contingent remainder. Brevoort v. Brevoort, 70 N. Y. 136. Receivers. Powelson v. Reeve, 2 Week. Dig. 375. Dictnim to the contrary, Dubois V. Cassidy, 75 N. Y. 398. A cestui que trust cannot bring partition, and no title can be made in an action brought by him. Harris v. Larkins, 22 Hun, 488. Parties Defendant.— As to jurisdiction over parties defendant, it may be observed, that when the defendant has never been served according to law nor appeared, and there is consequently a defect of jurisdiction, it is fatal, and can be taken advantage of by any person affected by or interested in the proceedings. stone V. Miller, 63 Barb. 430. Who must be Defendants. — "Every person having an undivided share in possession or otherwise in the property, as tenant in fee, for life, by the curtesy, or for years ; every person entitled to the reversion, remainder, or inheritance of an undivided share after the determination of a particular estate therein ; every person who, by any contingency contained in a devise, or grant, or otherwise, is or may become entitled to a beneficial interest in an un- divided share thereof," and every person who has an inchoate right of dower 696 PEOCEEDINGS UNDEK THE CODES. [OH. XXX. or a complete but not admeasured right of dower, must be parties. Co. Civ, Proc. § 1538. An assignee in bankruptcy is a necessary party. Smith v. Long, 12 Abb. N. C. 113. Who may be Defendants. — The plaintiff may, if he choose, make a tenant for life, for years, in dower or by the curtesy of the whole property, or any one who has a lien on or interest in the whole a defendant. If he do so the final judgment may award them their rights or leave them unaffected. If not parties they are not bound by the judgment. Co. Civ. Proc. § 1539. Infant Defendants. — By the Code of Procedure, § 134, if the infant was under 14, a summons had to be served not only on the infant personally, but also on his father, mother or guardian, or if none in the State, on the person having the care or control of the minor, or with whom he resided or was em- ployed. This is re-enacted in Co. Civ. Proc. § 426. Sections 3, 3 and 4 of the Revised Statutes related to the appointment of guardians " ad litem" for minors, who, on being appointed ty the court, were to give bonds in such penalty and with such surety as.the court should direct, to the People of this State, conditioned for the faithful discharge of their trust, and to render an account when required. On their so doing, their acts in relation to the parti- tion " shall be binding" on such minors. Repealed, Laws of 1880, ch. 245. A similar bond is required by Co. Civ. Proc. § 1536, as amended by Laws of 1884, ch. 404. As to publication against non-resident minors, under Act of 1831, ch. 237, according to the practice of the old Court of Chancery, vide Clemens v. Clemens, 37 N. Y. 59 ; affirming 60 Barb. 366. Service of summons may be made upon the guardian ad litem of a non- resident or absent infant with like effect as upon an adult without the State when an order for that purpose has been obtained, except that the time to answer is twenty days. Co. Civ. Proc. § 478. Guardian, How Appointed. — By the Code of Procedure, § 115 (amended in 1865), when an infant was a party to a suit, he must appear by gua/rdvm. A guardian might be appointed even before service of summons on the infant. 2 Duer, 635; contra, 19 Abb. 161. By the same Code, § 116, as amended in 1865, 1862 and 1863, the guardian was appointed where an infant was defendant, on application of the infant, if fourteen, and he applied in twenty days after service of summons ; if under that age, or he did not apply within twenty days, then on application of any party to the action, or a relative or friend of the infant, after notice to general or testamentary guardian, if any in the State; if none, then to the infant himself, if over fourteen, and he resided in the State ; if under fourteen and within the State, to the per- son with whom such infant resided. In partition or Joreclosure suits, where the infant resided out of the State, or was temporarily absent, on application of plaintiff, a guardian was appointed by order of the court at special term, unless the infant, or one in his behalf, within a certain time after service of the order, to be specified in the order, procured the appointment of a guard- ian. The court directed how the order was to be served. In case the infant resided in a State with which there was no regular mail, the court might appoint a guardian. Similar provisions are contained in the Code of Civil Procedure, except that it is expressly provided that the guardian "must be a competent and responsible person;" that the provision as to States with which there is no regular mail is omitted ; and that provision is made for service of summons upon the guardian of a non-resident or absent infant. Co. Civ. Proc. §§471,473. The omission to have a guardian prevents the court from having jurisdic- tion. 41 How. 41 ; 60 Barb. 117; 42 Barb. 636. The plaintiff cannot apply until twenty days after service of summons on infant. 1 Barb. Ch. 73. TIT. II.] PEOOBBDINaS UNDEK THB CODBS. 697 The appointment of the guardian in partition suits must have been ac- cording to the Revised Statutes. Althause v. Eadde, 3 Bos. 410. A minor cannot waive the omission of the appointment of a guardian as to his rights. Fairweather v. Satterly, 7 Rob. 546. As to guardians under the Law of 1813, vide Fowler v. Griffin, 3 Sandf. 385. The guardian may be served as soon as his bond is filed. 8 Bos. 410. The infant need not be served with summons before appointment of the guardian ad litem. Gotendorf v. Goldschmidt, 83 N. Y. 110, distinguishing Glover v. Hawes, 19 Abb. 161. So if the guardian be appointed on the infant's application, and he is over fourteen. Varian v. Stevens, 2 Duer, 635. Under Act of 1831, as regards non-resident infant defendants, it was not necessary to appoint a guardian unless they appeared. Clemens v. Clemens, 60 Barb. 366; affirmed, 37 N. Y. 59. Where a guardian is not appointed the judgment is voidable not void. McMurray v. McMurray, 66 N. Y. 175. The presumption in proceedings nearly twenty years old is of regularity in appointment, but irregularity would not hurt. Wood v. Martin, 66 Barb. 241. The Guardian's Bond. — The bond may be amended (14 How. 94), even after judgment. 7 Abb. 473 ; 25 Barb. 336 ; 17 N. Y. 218. See Laws of 1833, p. 311, as to appointment of clerk of court, register or assistant register, without security (f Paige, 596), for an infant defendant absentee. Laws of 1833, ch. 227 (repealed by Laws of 1880, ch. 245). The clerk must act if appointed, by § 473, Co. Civ. Proc. The omission to file the bond is a mere irregularity that is amendable, and does not afEect the validity of the sale. 6 Abb. 350; 35 Barb. 336; Croghan v. Livingston, 17 N. Y. 218. But where the infant is plaintifif under Laws of 1852, ch. 377, if the bond be not filed, the sale will be set aside, and purchaser released. 31 How. 479. By Laws of 1853, ch. 277, the court might order the bond to be filed " nunc pro tunc," ii before judgment, in any case, or after judgment and actual partition. (Repealed by Laws of 1880, ch. 345.) 6 Abb. 350; 17 N. Y. 318; 25 Barb. 336. The bond should be executed by the guardian himself, as well as by his sureties. Jennings v. Jennings, 3 Abb. Pr. 6 ; Clark v. Clark, 14 Abb. 399. Security cannot now be in any case dispensed with. Co. Civ. Proc. § 1536 ; amended by Laws of 1884, ch. 404. A Judge cannot Appoint. — In partition suits, the guardian could be ap- pointed by the court only, and the appointment by a county judge is a nullity. IJohns. 509; 10 id. 486; 13 How. 105; 2 Duer, 635; contra, Towsey V. Harrison, 25 How.' 266. It might be amended. 5 Abb. 53 ; 14 How. 94. In the first district, the appointment might be at chambers. 5 Abb. 53. A guardian cannot act if appointed in another State. 31 Barb. 305; 11 Abb. 440; 31 How. 379; 34 K. Y. 536. It is settled now that the guardian can only be appointed by the court. Co. Civ. Proc. § 1535. The Act of 1813. — Under the Act of 1813 the appointment of a guard- ian for an infant was not a necessary preliminary to the acquisition of jurisdiction by the court. Fowler v. Griffin, 3 Sandf. 385 ; Croghan v. Livingston, 17 N. Y. 218. Infant Married Women. — As to appointment of guardian of infant de- fendant, if a married woman. 5 Abb. 54. Answer of Guardian. — A guardian ad litem's appearance or answer may be filed nunc pro tune. 3 Bosw. 410. 698 PBOCBEDINGS UNDER THE CODES. [CH. XXX. The guardian need not necessarily answer. Bogart v. Bogart, 45 Barb. 131. Presumption of Regularity. — In the absence of evidence to the contrary, the regularity of the appointment of the guardian is to be presumed. 17 Wend. 483 ; 21 ib. 184. See also Bosworth v. Vandewalker, 53 IST. T. 597. Settlement by Guardian. — A guardian cannot of his own action, with- out direction of the court, make a settlement. Edsall v. Vandemark, 39 Barb. 589. Infant Lunatics or Idiots. — The guardian or committee out of the State can apply lor the guardian ad litem. Rogers v. McLean, 84 N. Y. 536 ; reversing 31 Barb. 304; affirming Rogers v. McLean, 11 Abb. 440. Infant's Laches. — If infants do not object to irregularities for a length of time after coming of age, innocent parties will be protected, and the non- appointment of a guardian, etc.. cannot be objected to by a purchaser. Mc- Murray v. McMurray, 41 How. 41 ; same case, 00 Barb. 117, and another pro- ceeding in 66 N. Y. 175; Clemens v. Clemens, 60 Barb. 866; afBrmed, 37 N. Y. 59. ■What Complaint to State, and Who to be Parties.— Co. Civ. Proc. § 1543. The complaint must describe the property with common certainty, and specify the rights, shares, and interests of all persons in the lands, so far as known to the plaintiff. If any party or his interest is unknown, or if any interest is contingent, or if the ownership of an inheritance depends upon an executory devise, or if a remainder is contingent so that the party cannot be named, this must be stated. For contents of petition or complaint under the Revised Statutes, vide R. S. §§ 5, 6, 7. A complaint is not demurrable for failure to state as required by Rule 65, that the parties hold no other lands in common in this State. Pritchard v. Dratt, 33 Hun, 417. Parties Defendant. — No decree can be made unless all the tenants in common are before the court. 3 Barb. Ch. R. 397, 407; Co. Civ. Proc. § 1588. If one die, the action must be revived, or the judgment is void. 36 N. Y. 338; 37 How. 289; 16 N. Y. 193; 13 How. 405; 7 Abb. 473. Insane Persons, not judicially declared so, may be parties and are bound by the judgment. Prentiss v. Cornell, 81 Hun, 167. Dower. — It is not necessary, although it is advisable, to make parties having an inchoate right of dower in the whole premises parties. 1 Barb. 500 ; ib. 560; 8 How. 456; 1 Sandf. Ch. 119 ; 8 Johns. 558; 15 Johns. 319. But those entitled to dower in an undivided share must be. Ib. ; Co. Civ. Proc. § 1538. See, also. Ripple v. G-ilborn, 9 How. 456 ; Brownson v. Gifford, iJ. 389. The widow of one purchasing during suit, has dower. Church v. Church, 3 Sandf. Oh. 434. If a male defendant marry, pendente lite, his wife should be made a party. 7 Pai. 887. If not a party, the woman's dower attaches to the share set off to her husband, when divided, if no sale is made. Wilkinson v. Parish, 3 Paige, 653; Matthews v. Matthews, 1 Edw. 565. See further, as to provision for dower, under the judgment, post. Remaindermen.— Remaindermen, though the present estate be in trus- tees, are necessary parties. Moore v. Appleby, 36 Hun, 368. Incumbrancers.— By § 8 R. S. as amended 1830, ch. 830, §§ 40, 41, it was made unnecessary to make creditors having a lien by judgment, decree, mort- TIT. II.J PK0CEEBING8 UNDER THE CODES. G99 gage or otherwise, parties to the proceedings in the first instance ; but if on an undivided interest, the lien attached to that interest only, after parti- tion; but such incumbrancers having specific liens on undivided interests might be made parties if desired, §§ 9, 10; repealed by Laws of 1880, ch. 345 ; and to make a clear title they should be joined. Bogardus v. Bogar- dus, 7 How. Pr. 305. They are now not necessary, but are proper parties. Co. Civ. Proc. §§ 1539, 1540, and vide post, p. 704. If judgment-creditors are made parties within ten years from the date of the judgment they will not be barred by the lapse of the ten years pending the action. Caswell v. Bigelow, &c. Co., 41 Hun, 484. Compare ib. 306. If persona having a lien on the whole property are not made parties they are not affected by the judgment. Leinan v. Blten, 43 Hun, 349. Incumbrancers need not be made parties. 7 Johns. Ch. 140; 9 Cow. 344; 3 Abb. 346; 1 Paige, 469. Nor formerly reoermners always. 3 Paige, 387 ; 38 Barb. 336. But the rule is otherwise now by Co. Civ. Proc. § 1538. Nor lien holders. 7 How. 305 ; 3 Barb. 599 ; 7 Barb. 331. If the lands are divided, the lien will be confined to the share of the party against whom the incumbrance is held. 1 Paige, 469. Nor the owner of a lyrust estate, unless the trust is void (8 Paige, 513) ; but the trustee should be a party (id-.) ; and a substituted trustee. 5 Pai. 46. Contingent Interests. — Future contingent interests of persons not in esse , and though not claiming under parties to the suit, are barred by the pro- ceedings. They are bound by the action, as virtually represented by those in whom the present estate is vested. Mead v. Mitchell 17 N. Y. 310; 5 Abb. 93; Law of 1840, ch. 177 (repealed by Laws of 1880, ch. 345); Co. Civ. Proc. §§ 1557, 1577; 37 N. Y. 59; Cheesman v. Tichbome, 1 Ed. 639; Brevoort v. Brevoort, 70 N. Y. 136. Since the Acts of 1848 and 1849 relative to married women, a husband, it was supposed, was not a necessary party where she took an interest in land subsequent to those statutes. 23 Barb. 372; 18 id. 159-164; 17 Barb. 663; 38 Barb. 343 ; but see 18 Barb. 556, and 39 id. 683. It was considered more judicious, however, to make him a party. But now it has been held that he is not a proper party under Co. Civ. Proc. §§ 450, 1539. Mapes v. Brown, 14 Ab. N. C. 94. Persons Having Future Interests. — It was formerly not necessary to make every person having a future and contingent interest in the premises a party. It was sufficient if the person who had the first vested estate of inherit- ance, and all other persons having or claiming prior rights or interests in the premises, and intermediate remaindermen, were brought before the court. Nodine v. Greenfield, 7 Paige, 544 ; Mead v. Mitchell, 17 N. Y. 310 ; Bowman V. Tallman, 37 How. 313 ; Monarque v. Monarque, 80 N. Y, 330. Now such persons must be parties. Co. Civ. Proc. § 1538. Service of the Summons and Other Proceedings. — The summons is to be personally served to put the parties in default. In case any are unknown, absent from, or cannot be found in the State, they are to be proceeded against by publication, as provided in the statute. R. S. § 13 ; Code of Procedure, § 135 ; Co. Civ. Proc. §§ 438 to 444 inclusive, 451 and 1541. The Revised Statutes provided for a publication once a week for three months in a county and also in the State paper; if none printed in the county, then in one in the city of New York ; or it might be served on a known absent party out of the State, personally, forty days previous to its presentation, without publication. See, also, as to unknown and absent owners. Law of 1843, ch. 377, and Law of 1831, ch. 300 (both repealed by Laws of 1880, ch. 345) ; Co. Civ. Proc. § 451 ; Bloom V. Burdick, 11 Wend. 647; overruled, 1 Hill, 131 ; Cole v. Hall, 3 Hill, 635 ; Van Wyck v. Hardy, 4 Abb. Ap. Ca. 496. 700 PKOCEBDINGS UNDEE THE CODES. [OH. XXX. The publication is now to be for six weeks in two papers selected by the judge as most likely to give notice. To known defendants a copy of sum- mons, complaint and order must be mailed. A defendant over fourteen years of age may be, in the alternative, served personally without the State. Co. Civ. Proc. § 440, as amended by L. 1879, ch. 543. Unknown Owners must be served with notice of the application by pub- lication as provided. 23 Barb. 303; 11 How. Pr. 277; 31 Barb. 307 ; 2 R. S. 319, § 12; id. 339, § 84 (repealed by Laws of 1880, ch. 345); Co. Civ. Proc. §§ 451 and 1541. This notice may be given even after the report on title. Hyatt v. Pugsley, 23 Barb. 385 ; same case, 33 Barb. 373. It must appear by affidavit that they were unknown, and that the notice was given, otherwise the judgment is void as to them. Denning v. Corwin, 11 Wend. 647 ; compare Cole v. Hall, 3 Hill, 625. It was held, before the Code of Civil Procedure, that they must be pro- ceeded against bv publication under the Revised Statutes, supra, and not under Co. Proc. §'l35. Sanford v. "White, 56 N. Y. 359. Proof of Title and Abstract. — § 23 of the Revised Statutes was as fol- lows: "If the default of any of the defendants be entered, the petitioners are to exhibit proof of their title before the court or a referee, and an dbeiract of the conveyances by Which the same is held." The proof given and the abstract furnished were to be filed with the clerk. This provision has not been retained in the Code of Civil Procedure. Vide Co. Civ. Proc. § 1545. Death of Parties, Plaintiff or Defendant. — Provision was made by the Revised Statutes for the substitution of parties in interest, on the decease of parties to the action. Part 3, ch. 7, title 1 ; repealed, L. 1880, ch. 345 ; see also, Code of Procedure, § 131, and Co. Civ. Proc. §§ 758, 1588, and the following cases, as to the death of parties before the sale, and its effect: Gordon v. Sterling, 18 How. Pr. 405; Sharp v. Pratt, 15 Wend. 610 ; Wilde V. Jenkins, 4 Pai. 481 ; Reynolds v. Reynolds, 5 Pai. 161 ; Gardner v. Luke, 12 Wend. 369 : Requa v. Holmes, 16 K. T. 193 ; 36 ib. 338 ; Waring v. War- ing, 7 Abb. 472; Gordon v. Sterling, 13 How. Pr. 405 ; see also, 9 Abb. 323; 18 How. Pr. 458. Receivers of Estate of Deceased Persons. — As to partition by, vide ante, p. 441. Interlocutory Judgment. — ^The court ascertains the rights of the parties (generally by a reference) where there is a default or there are infant parties, and gives judgment of partition according to such rights, or for a sale if the lands cannot be fairly divided, as infra, p. 701. Issues of fact are triable by a jury and upon the pleadings unless the court directs the framing of issues under § 970 of the Code. Co. Civ. Proc. §§ 1544, 1545, 1546. Compensation for improvements may be allowed. Ford v. Knapp, 102 N. Y. 135. Where the rights of some parties have been ascertained and those of others have not, the interlocutory judgment must set off the shares of those whose rights have been ascertained. As the rights of others are ascertained other interlocutory judgments maybe rendered. The court may, however, TIT. II.] PEOCEBDINGS UNDEE THE CODES. 701 sever the action and enter a final judgment as to the shares set oflE. Co. Civ. Proc. § 1547. A sale subject to an estate of curtesy in the whole property will not be ordered unless all parties consent. Hughes v. Hughes, 11 Abb. N. 0. 37; affi'd, 30 Hun, 349. Sale is forbidden in an action by reversioners unless tenant consent. Co. Civ. Proc. § 1533, as amended by L. 1887, c. 683 ; Scheu v. Lehning, 31 Hun, 183. Contingent Rights, etc. — Provision was made by Law of 1 847, ch. 430, §§ 1, 2, 3, 4, and 5 ; relative to actual partition or a sale, and when and how made ; as to shares or proceeds being temporarily assigned or set ofE in common ; of amendments by suggestion, and where new parties arose, of allotting to tenants in dower, by the curtesy or for life, their shares, without reference to the duration of the estate ; and of allotting the shares to parties entitled in remainder. If there were rights belonging to unknown owners that could not be ascertained, there might be a reservation of lands from the judgment sufficient for such interests. § 34. This act is repealed by Laws of 1880, ch. 245. An error in the judgment as tq protecting contingent interests of remain- dermen wUl not affect title. Eockwell v. Decker, 33 Hun, 343 ; distinguish- ing Monarque v. Monarque, 80 N. T. 320. Judgment takes effect from the order confirming the report. Van Orman V. Phelps, 9 Barb. 500 ; Lynch v. Rome Gas Co. 42 Barb. 591. Judgment must be for the lands described in the complaint, and for none others. Corwithe v. Griffin, 21 Barb. 9. It is a matter of discretion to direct a sale or partition. Scott v. Guern- sey, 48 N. Y. 106; see Fleet v. Dorland, 11 How. 489. Two or more parties may elect to take their shares in common, and the court may, in that case, so partition them. Co. Civ. Proc. § 1548. Commissioners Appointed. — The Code furtlier provides^ where the interlocutory judgments directs a partition, for the appointment of the commissioners to make partition, and for their oath, and that they shall proceed to make actual partition, and allot the several portions and shares to the respective parties according to their interests as ad- judged. Others may be appointed to fill vacancies. The court may at any time remove any of them. Co. Civ. Proc. §§ 1549, 1550. Duties. — The commissioners are to report if the land or any part of it cannot be actually partitioned without great prejudice to the owners. Co. Civ. Proc. § 1551. They must divide the land into distinct parcels and allot them to the respective parties according to their rights as fixed by the interlocutory judgment, considering quantity and quality. They may employ a surveyor and must mark out the parcels by permanent monuments. § 1552. To any one who has estate of dower not admeasured, in the whole or a part of an estate, by the curtesy, for life, or years, in an undivided share, they may allot the full share, and partition the remainder among the remainder- men. § 1553. Report. — They, or any two of them, are to make a full report of their proceedings, describing the land and shares allotted to each party, which re- 702 PKOOBEDINGS UNDER THE CODES. [CH. XXX. port is to be acknowledged and filed with the clerk. K. S. § 33 ; Co. Ciy. Proc. § 1554. , r. ..,. The report should be signed by all, or show why it is not, and that they all met. 1 Barb. Ch. 73. All must meet (37 Barb. 350; 3 Hill, 635), but the acts of a majority are valid. B. S. § 31 ; Co. Civ. Proc. § 1554. Where only two were present, the proceedings were held void under the Act of March, 1785. The statute further provides that on good cause shown, the court may set aside the report, and appoint new commissioners to pro- ceed as above. K. S. § 34; Co. Civ. Proc. § 1556. Final Judgment of Partition.— § 1557. Under the con. iirmation by the court of the report of the commissioners ^nal jitdgment that the partition he firm and effectual for- ever, must be rendered, which shall be binding and con- clusive upon all parties and their legal representatives, any person claiming from, through, or under them by title accruing after lis pendens filed, and all persons not then in being, who afterwards become entitled, if the party first entitled or other virtual representative of such person was a party. Vide Monarque v. Monarque, 80 N. Y. 320 ; Rockwell v. Decker, 33 Hun, 343. The Revised Statutes made the judgment binding: 1. On all parties and their legal representatives, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance ; or who may become en- titled to any contingent beneficial interest ; or who shall have any interest in any undivided share, as tenants for years, for life, by the curtesy, or in dower. 3. On all persons interested in the premises, who may be unknown, to whom notice shall have been given of the application for partition, by such publication as is hereinbefore directed. 3. On all other persons claiming from such parties, or persons, or either of them. It will bar the futwre con- tingent interest o/ persons not in esse. Vide s/upra, p. 699. As to what questions are finally settled by the judgment, vide Jordan v. Van Epps, 85 N. Y. 437; Barnard v. Onderdonk, 98 N. Y. 158; Home Ins. Co. V. Dunham, 33 Hun, 415. Compelling Possession. — The judgment may direct the delivery of pos- session of the shares to the persons to whom they are allotted. If a party or his representative or successor, being bound by the judgment, withhold pos- session, he may be punished for contempt, and the ^erifi may be ordered to put the proper person in possession. Co. Civ. Proc. § 1675. Effect of Judgments on Tenants in Dower, etc. — Such judgment and partition was not to affect any tenants in dower, by the curtesy or for life, in the whole premises, nor any other persons except those above enumerated. 11. S, § 36. See provisions as to dower, etc., pp. 698, 704. Vide Co. Civ. I 'roc. §1539, leaving the effect of the judgment on these estates with the court. Ouster by Paramount Title. — If one of the parties is subsequently evicted from his part by paramount title, it is supposed that equity might order a re-partition of the rest. This principle is established by statute in Massachusetts. TIT. II.] PEOOEEDINGS UNDER THE CODES. 703 Interests in Common.— By Law of 1847, ch. 430 (repealed by Laws of 1880, ell. 246j ; Co. Civ. Proc. § 1547, where there are conflicting claims, portions of the land must be set off in common for further adjustment. Also if parties desire, tracts may be set off in common. Co. Civ. Proc. § 1548. See Haywood v. Judson, 4 Barb. 228 ; McWhorter v. Gibson, 2 Wend. 443 ; Northrop v. Anderson, 8 How. 351. Errors in Judgment. — Irregularities in the statement of the interest of the parties in the judgment will not vitiate the proceedings. Noble v. Cromwell, 26 Barb. 475; affirmed, 27 How. 289. The Sale.— If it appears to the court, or is found by verdict, decision or report before the interlocutory judg- ment, or if a majority of the commissioners report that the premises, or any part thereof, are so situated that a p(wti- tion cannot be made without great prejudice to the owners, the interlocutory judgment must direct, or the court may, by amendment, or by a supplemental interlocu- tory judgment, direct the lands to be sold at public auction to the highest bidder, by a referee named in the judgment or by the sheriff. The terms of credit are to be fixed by the court in the interlocutory judgment. Co. Civ. Proc. §§ 1546, 1560, 1578, 1678, as amended by Laws of 1881, ch. 682. The judgment must be entered in the county where the property is situated before the purchaser can be required to pay or take a deed. Co. Civ. Proc. § 1677. The terms of sale are to be made known at the time of sale, and if the premises are in parcels they are to be sold separately. The sales are to be noticed and made in the same manner as for land under execution. Co. Civ. Proc. § 1678; amended Laws of 1881, ch. 682; R. S. §§ 56, 57 ; 22 Barb. 167 see, as to correction where the time was short, Alvord. v. Beach, 5 Abb. 451 as to Hamilton Co. vide Laws of 1860, ch. 297 ; 1866, ch. 396 ; 1807, ch. 163 1870, ch. 663. Where credit is allowed for any part of the purchase-money it must be secured by the bond of the purchaser, and a mortgage upon the property sold. Separate mortgages may be taken to the county treasurer or to any owner of full age for his share. The court may require additional security. Co. Civ. Proc. §§ 1574, 1575. Fees, etc., on Sales in the City of New York.— FiW« L. 1869, c. 569; 1874, c. 192; 1880, ch. 245, repealing § 4 of the Act of 1869; 1881, ch. 537, repealing § 3 of the Act of 1869 : Laws of 1882, ch. 410 (" Consolidation Act ") ; §1088. Irregularities. — Irregularities in a judgment for sale, which do not affect ike jurisdietion of the court, or the parties, or the subject-matter, do not affect the title taken under the sale. If any necessary parties were not brought before the court, the judgment is void as to them. ' Alvord v. Beach 6 Abb. 451. If the plaintiff omits to file any of the papers necessary to the regularity of the judgment, the court may allow them to be filed nunepro tunc. 7 Abb 473 ; 6 Abb. 350 ; 17 N. Y. 318 ; 36 Barb. 475 ; 45 Barb. 131 ; 34 N. Y. 536 ■ 21 How. 479. ' 704 PKOCBEDINGS UNDEE THE CODES. [CH. XXX. Even the summons may be amended as to parties after judgment and sale. 11 Abb. 473; affirmed, 4 Abb. Ap. Ca. 496 ; 20 How. 323. Irregularities in the proceedings may be amended nunc pro tunc. 45 Barb. 12] ; 37 How. 289; 31 How. 279. The judgment-roll need not be enrolled, signed or docketed, to make title. 42 Barb. 591. The statutory provision as to selling in parcels, is directory merely. 1 Johns. Oh. 503; 7 Abb. 183; 17 N. Y. 276. The omission to give notice of sale shall not affect the title of a bona fide purchaser. 22 Barb. 167. By § 58, K. S., as now by Co. Civ. Proc. § 1679, if a commissioner or a guardian of an infant purchased except for the infant's benefit, the sale was void. 22 Barb. 171. As to when purchaser need not complete, vide Shriver v. Shriver, 86 N. T. 575 ; Rice v. Barrett, 99 N. Y. 403 ; Prentiss v. Cornell, 31 Hun, 167. Taxes, etc. — Taxes, assessments, etc., are to be paid by the officer making the sale, unless the judgment otherwise direct, and are to be considered ex- penses of the sale. Co. Civ. Proc. § 1676. Vide Weseman v. Wingrove, 85 N. Y. 353. Specific and General Liens. — Formerly before a ^ale was ordered, if those having specific liens on an undivided interest, were not made parties, the court might order them to be made parties, and ascertain the incum- brances through the clerk or a referee. Laws of 1880, ch. 340 ; and of 1847, ch. 280; repealed by Laws of 1880, ch. 245. Now the court must, before interlocutory judgment, direct a reference to ascertain liens unlesstheparty by clerk's and register's searches and affidavits shows that there are none. Co. Civ. Proc. § 1561. The referee or a clerk is to publish a notice once a week, for six weeks in a newspaper, designated by the court, printed in the county in which the place of trial is designated, and also in a newspaper published in each county wherein the property is situated, requiring all persons, not parties, having any lien or incurnbrance, at the date of the order, on any undivided interest or share in the property, by judgment or decree, to produce proof of all of such liens and incumbrances. Co. Civ. Proc. § 1562, as amended by L. 1887, c. 686. Advertising was formerly only a method pf cutting off certain general liens, if any were in existence. 5 Abb. 451 ; 10 How. 188 ; Noble v. Cromwell, 27 How. 289 ; s. c. 8 Abb. Ap. Ca. 382; affirming 26 Barb. 475. Nor is it necessary for the referee to annex to his report any searches for liens. Ih. His statement of the liens and incumbrances is sufficient. As to allowing creditors to establish their liens after the time for doing so has expired, vide Horton v. Buskirk, 1 Barb. 421. Payment of Incumbrances. — Subsequent sections of the Revised Statutes provided for the payment of the incumbrances on the interest of any party to the suit out of his proportion of the proceeds of sale, and for the satisfaction or cancellation of such incumbrances. Provision is now made for payment of the proceeds of sale belonging to the party against whom the lien exists into court, and for distribution on application of lienors by §§ 1563, 1564 and 1565, Co. Civ. Proc. Estates in Dower or by Curtesy. — When any person entitled to such an estate, in the whole or any part of the premises, has been made a party to the proceedings, the ^dourt shall determine whether it is for the interest of the parties that such estate be excepted from the sale, or sold. If a sale thereof be ordered, a sale shall pass the title thereto, whether the estate be on an un- divided share or on the whole premises. The court shall direct the payment of such sum in gross out of the proceeds to the person entitled to the estate as shall be deemed a reasonable satisfaction, and which the person so entitled TIT. II.] PEOOEBDINGS TJNDBE THE CODES. 705 shall consent to accept in lieu thereof, by an instrument under seal, duly acknowledged or proved, as are deeds. If no consent be given, the court, whether the persons are known or unknown, shall determine what shall be a reasonable sum, and shall order it to be brought into court, according to cer- tain proportions of value. The same course is to be adopted as to unknown parties having such estates. Co. Civ. Proc. §§ 1567, 1568, 1569. Before the Code of Civil Procedure it was held that acceptance by a widow of a sum in gross extinguished dower. Bond v. McNifE, 88 Super. 83 ; affl'd, without opinion, in 41 Super. 543. Inchoate Dower or other future interests. — By Laws of 1840, ch. 177, § 1, where there is an inchoate dower right, or any vested or contingent future right or estate, the court shall ascertain and settle the value thereof, and direct the same to be invested, secured, or paid over. § 3 provides that " any married woman may release such right, interest, or estate, to her husband, and duly acknowledge the same before the master or a commissioner making the sale separate and apart from her husband. The proceeds were to be paid to him. Substantially the same provision^ are now contained in Co. Civ. Proc. §§ 1570, 1571, the peculiar provision as to the acknowledgment of the re- lease being omitted. The release must now, moreover, be filed with the clerk. By Laws of 1840, oh. 879, she might also acknowledge it before other persons who are entitled to take acknowledgments. By Law of 1840, ch. 177, such release was made a bar to any claim ; as was also any payment or in- vestment as above provided. If a wife is a party, her inchoate right of dower is divested by the sale. Jackson v. Edwards, 7 Paige, 886; affirmed, 23 Wend. 498. The widow of a purchaser who has paid a part of the purchase-money, has dower. Church v. Church, 3 Sand. Ch. 434. By Laws of 1847, ch. 480 (now Co. Civ. Proc. § 1553), parties admitted to have estates in dower, curtesy, or for life, may have shares allotted to them, without regard to the duration of such estate, and may allot the remainders thereon to those entitled. All the above acts which were passed before the Code of Civil Proced- ure were repealed by Laws of 1880, ch. 345. See also, as to dower interests, Post V. Post, 65 Barb. 193. The amount payable to a dowress was regulated by the Revised Statutes and not by the rules of court. Banks v. Banks, 3 N. Y. S. C. 483. If the dowress were made a party it was enough. Jordan v. Van Epps, 19 Hun, 526; afB'd, 85 N. Y. 437. As to effect of execution sale on inchoate dower, vide Ford v. Knapp, 103 K. Y. 135. Parties holding over after Sale. — They may be removed by an order made in the action, and are also guilty of contempt. Co. Civ. Proc. § 1675. Resale. — As to when a resale will be ordered, vide Jackson v. Edwards, 7 Pai. 387; afB'd, 32 Wend. 498 ; Lefevre v. Laraway, 33 Barb. 167. Confirmation of the Sale and Conveyances.— After com- pleting the sale, the person making it shall report the par- ticulars of the same to the court on his oath. The report must contain a description of each parcel sold, the name of the purchaser and the price. If such sale be approved and confirmed by the court, a final judgment shall be entered confirming it accordingly, and directing the officer making it to execute conveyances 45 706 PEOOBEDINGS UNDER THE CODES. [OH. XXX. and take the proper securities pursuant to the sale, and also directing concerning the application of the proceeds. Co. Civ. Proc. §§ 1576, 1577. Formerly confirmation was by order. R. S. §§ 39, 60. Parties to the judgment can only attack it by appeal. They cannot im- peach it collaterally. Jordan v. Van Epps, 85 N. Y. 427. Effect of the Judgment or Conveyance. — The Revised Statutes provided that such conveyances should be recorded in the county where the premises were situated ; and should be a bar, both in law and equity, against all parties to the action, and those proceeded against by publication as unknown and against all persons claiming under them. Ih. \ 61. By the Code of Civil Procedure the judgment is a bar against the same persons, and to the same extent as the judgment of actual partition. § 1577. See also Woodhull v. Little, 102 N. Y. 165. The deed and record establish a, prima facie case in ejectment. Greenleaf V. Brooklyn, &c. Co. 37 Hun, 435. Effect of Conveyance on those having Liens. — § 61, R. S. (first enacted. Laws of 1830, ch. 45), provided that such conveyances should also be a bar against all persons having general liens or incumbrances by judgment or decree on any undivided share or interest in the premises sold, in all cases where the notice to such creditors hereinbefore prescribed had been given ; and also against all persons having specific liens on any undivided share or interest therein, who had hem, made parties to the proceedings. § 1570, Co. Civ. Proc. as amended by Laws of 1 883, ch. 393, contains a similar provision. The amendment of 1883 consisted of a proviso expressly saving the rights of specific lienors of record, when the lis pendens was filed, who are not made parties. Distribution of Proceeds.— Fide Co. Civ. Proc. § 1580; Hibbard v. Day- ton, 32 Hun, 220 ; Ford v. Knapp, 102 N. Y. 135; Piatt v. Piatt, 105 N. Y. 488. Partition under proceedings in Chancery. — When the proceedings were by bill or petition in chancery, there were further provisions for sales by ■masters, in the same manner as by commissioners, and deeds to be given by them (Laws of 1826, p. 146), for taking judgment by default in said court of chancery, and for decreeing compensation for equality of partition. 1 R. L. 514, §§ 16 and 17. The decree of said court was made as binding on all parties as in the proceedings by petition. § 79, ib. The powers of the Court of Chancery are now vested in the Supreme Court. Vide supra, p. 665. Infants, unknown parties, etc. — Shares of infants are to be paid to gen- eral guardians or invested as directed. Co. Civ. Proc. § 1581, amended by Laws of 1887, ch. 483. Unknown owners' shares are to be invested for their benefit ; also, those of tenants in dower, curtesy or for life. B. S. §§ 64 to 66, substantially covered by Co. Civ. Proc. §§ 1582, 1583. There are further directions as to investments, costs, and the practice in the proceedings, and as to writs of error and appeals. General Efficacy of a Judicial Sale.— Ficie post, Ch. XXXVHL Defects in the proceedings. — Courts have power to add parties to the summons, to add verifications, etc. Alvord v. Beach, 5 Abb. 451 ; and mpra, Van Wyck v. Hardy, 89 How. 393 ; and Herbert v. Smith, 6 Lans. 493. See also, ante, p. 697. TIT. ni.] DIVISION OF IKFANT'S INTERESTS. 707 Security to Refund. — The court may require security from any person before he receives his share of the proceeds to refund it if it appears that he was not entitled to it. As to the security and actions upon it, vide Co. Civ. Proc. §§ 1584, 1585, 1586. Compensation for Equality of Partition. — Vide Co. Civ. Proc. § 1587. Apportionment of Rents. — Co. Civ. Proc. § 1589. Title III. Division or Partition op Infant's Inter- ests wiTHOiTT Action. Where an infant holds real property in joint tenancy or in common his general guardian may apply to the Supreme Court, the County Court of the county or a Su- perior City Court of a city wherein the property lies, for authority to agree to a partition of it. Co. Civ. Proc. § 1590; Laws of 1882, ch. 410 (" Consolidation Act"), § 1154 (as to New York). Petition. — The petition must be verified by affidavit and must describe the property and state the rights of the various owners and the particular partition proposed. The court may order notice to be given to such persons as it thinks fit. Co. Civ. Proc. § 1591. Order. — The court must inquire into the merits by reference or otherwise, and if it thinks best for the infant may make an order authorizing the par- tition, and the execution by the guardian of releases of the infant's interest in the parts set off to other persons. It may direct such partition as will give the infant his share in common with others if they consent in writing. The releases are as effectual as if the infant being of full age had executed them. Co. Civ. Proc. §§ 1592 (amended by L. 1886, c. 208) and 1593. Former Law. — Whenever it appeared satisfactorily to the Supreme Court, that any infant held real estate in any manner which would authorize his being made party to a suit in partition, and that the interests of such infant, or of any other person concerned therein, required that partition Of such estate should be made, such court might direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale thereof, or of such part of the said estate as in the opinion of the court should be in- capable of partition, as should be most for the interest of the infant, to be sold. Laws of 1814, 129 ; 2 fi. S. 1st edit, part iii, ch. v, tit. 3, § 86 (as amended by ch. 320, of 1880, § 46, and modified by substituting "referee to the Supreme Court," in place of "master to the Court of Chancery"). On the sale by such guardian being approved and confirmed by the court, it shall direct him to make conveyances to purchasers, or releases of the shares that fall to the other joint tenants or tenants in common ; which deeds shall be valid and effectual. The husband of a married infant might be appointed her guardian. §§ 87, 88, 89, ib. Repealed by Laws of 1880, ch. 245 ; 3 Paige, 566 ; 27 How. Pr. 179. 708 PARTITION MISCELLANEOUS. [CH. XXX. Title IV. Partitioit of Lands oe Idiots, Lunatics, and Habitual Drunkards. Partition by committees of idiots, lunatics, or habitual drunkards, may be made under direction of the court, in a similar manner as in the Case of infants, swpra. The effect of the releases to be executed by the committee shall be the same as if they were executed by the person in whose behalf they are exe- cuted, and as if the idiot, etc., were of sound mind. Co. Civ. Proc. § 1593. For the former law which differed from the present law only in details, and in not including habitual drunkards, mde 1 R. L. 148, § 4 ; 3 R. S. 330, §§ 88 to 91. Title V. Partition, Miscellaneous. Partition against and by the People. — Co. Civ. Proc. § 1594, provides that proceedings for partition may be had against the people of the State in the Supreme Court in the same manner as against individuals, service of sum- mons being made upon the Attorney-General; and in ch. ix, part 2, title 5, of the Revised Statutes, the Com- missioners of the Land OflBce are to make partition of lands held by the State in common with others. a R. S. 381, § 93; Laws of 1814, p. 349, §§ 3 and 3; ®wfo Laws of 1883, ch. 470. Partition by Arbitration.— Partition may also be made under the statutes by " m'litratdonP Vide 3 Rev. Stat. p. 541 (repealed by Laws of 1880, ch. 246), for the former law; Co. Civ. Proc. § 3365, et seq., for the law now in force. Pre-emption Rights.— Where several persons are, or claim to be, owners of any real estate or chattels real in the city of New York, having different estates therein, and they claim, by reason of such ownership, a pre-emptive right to a grant or lease of any other land or easement from the mayor, aldermen, and commonalty, the Supreme Court is authorized to sell the rights of pre-emption to real estate and chattels real in the city of New York, where there are several owners, and to distribute the net proceeds among them. Consolidation Act (Laws of 1882, ch. 410), §§ 1119 to 1133 inclusive, TIT. v.] PARTITION, MISCELLANEOUS. 709 giving details of the proceedings. This takes the place of Laws of 1847, oh. 391 (which only applied where infants and non-residents were concerned), and Laws of 1848, ch. 32, amending the Act of 1847. Parol Partition.— A fwrol partition of lands by tenants in common may also be made, and if followed up by pos- session, is valid and sufficient to sever tbe possession. Jackson v. Harder, 4 Johns. 302; Same v. Vosburgh, 9 Johns. 370; Same v. Livingston, 7 Wend. 136 ; Corbin v. Jackson, 14 iA. 619 ; Bool v. Mix, 17 id. 119 ; Ryers v. Wheeler, 35 iA. 484 ; Morton v. Morton, 30 Barb. 138. This, however, cannot prejudice the rights of third parties, but is binding on the heirs. Wood v. Fleet, 36 N. Y. 499. A parol partition may be made by those having a contract for lands. Taylor v. Taylor, 43 N. Y. 578. In the case of Towlin v. Hilyard,;reported in 43 Illinois, it is held, that although the legal title to the individual allotment between two tenants in common may not be considered to have passed, unless after a possession suf- ficiently long to justify the presumption of a deed, yet each co-tenant would stand seized of the legal title of one-half of his allotment, and the equitable title to the other half, and could compel from his co-tenant a conveyance ac- cording to the terms of the partition. Limitation. — By § 94, R. S. supra, the statute of limitations was not to be affected by the above provisions of the Revised Statutes, Repealed by Laws of 1880, ch. 245. Recording the Judgment.— An exemplification of a judg- ment record or decree in partition may be recorded in the office for recording deeds, and indexed in the deeds, in any county where any of the lands are. Co. Civ. Proc. § 1595. For the former law see Laws of 1846, ch. 183. It might also be recorded with register of N. Y. county (1851, ch. 277). Both these acts were repealed by Laws of 1880, ch. 345. CHAPTER XXXI. INSOLVENT ASSIGNMENTS. Title I. — Assignments on Application op the Insolvent or of Ckkd- ITORS, UNDER THE REVISED STATUTES. Title II. — General Assignments in Trust for Creditors. Title I. Assignments on Application of an Insolv- ent OE Oeeditors. Assignments on Application of the Insolvent.— Volwn- ta/ry assignments may be made pursuant to the application of an insolvent, on notice to his creditors. The insolvent is discharged from his debts, upon executing an assign- ment of all his estate for the benefit of his creditors, on the provisions of law being complied vpith. Co. Civ. Proc. ch. xvii, tit. 1, art. 1, §§ 2149 to 3187 inclusive; Laws of 1883, ch. 402, amending § 2182. For the former law vide Rev. Stat, part 2, chap. 5, title 1, art. iii. Eepealed by Laws of 1880, ch. 245. As to what matters were necessary to give the oflScer jurisdiction, mde 28 Barb. 416; 2 Abb. Pr. 175; 12 N. Y. 575. The first grereeyasZ act for the relief of insolvents was passed July 5, 1755; amended May 19, 1761. This system continued in force by different subse- quent acts till Jan. 1, 1770, when it expired by its own limitation. No general system was adopted after Jan. 1, 1770, until the Act of April 17, 1784, and that having been amended at different times, the Act of March 31, 1788 (2 Greenl. 304), was passed, commonly called the three-fourths act," which was revised April 3, 1801. 1 Web. 428. All former insolvent acts were repealed by Law of April 8, 1811. The Act of April 3, 1811, was itself repealed, and the three-fourths Act of 1801 revised by an Act of Feb. 14, 1812. The three-fourths act continued till April 12, 1813, when the system requiring two-thirds only of the creditors to petition, etc., was adopted. Under these various laws, assignees were appointed and a conveyance made to them by the insolvent ; and they were empowered to sell and execute deeds of his real estate. The laws as amended are found in Revised Laws of 1813, vol. 1, p. 460. The Revised Statutes contain the provisions next in force, as amended by Laws of 1849, ch. 176. Laws of 1850, ch. 310; repealed by TIT. I.] INSOLVENT ASSIGNMENTS. 711 Laws of 1880, ch. 245. The Code of Civil Procedure has superseded all these acts and the Revised Statutes. The title of an insolvent was not affected by his proceedings in insolvency until actual assignment under the statute, so that it may be divested by process of law, or by act of the debtor meanwhile. Bailey v. Burton, 8 Wend. 339. Assignment of the Estate. — On compliance with the provisions of the law, the court or judge directs a grant or assignment of the insolvent's es- tate, real and personal, both in law and equity, in possession, reversion or remainder, to be made by such insolvent to trustees. No contingent in- terest passes unless the same shall become vested within three years after the making of the assignment. The assignment is to be recorded in the county clerk's office. Co. Civ. Proc. §§ 2174, 2175, 3177; 3 R. S. 1st ed. p. 30. No title passed by the assignment if the proceedings were defective. Rockwell V. McGovem, 69 N. T. 294. Compulsory Assignment. — Art. 4. The Revised Statutes also provided for the procurement of a compulsory assignment of a similar nature as the above by a creditor of a debtor imprisoned for sixty days for a debt of $25 and upwards. These provisions have been repealed and no such proceeding can now be had. The assignment had the same eflfect as the above mentioned, and all prop- erty acquired by the debtor after the first publication to creditors vested in the assignees. Part 2, ch. 5, title 1, art. 4, Rev. Stat. Repealed by Laws of 1880, ch. 245. Execution of the Assignment by the Officer on Refusal of the Debtor. — If the imprisoned debtor refused to execute the assignment, the officer before whom the proceedings were had might execute it for him, which was equally valid on the real and personal property of the debtor, which he had on the first day of the publication of notice to ' creditors (therein required), as if executed by the debtor. On such assignment being executed by the officer, the property acquired by the debtor during his imprisonment, and after the first publication of notice to creditors, was deemed to vest in the assignees. Assignment to Exempt or Discharge Persons from Im- prisonment. — Co. Civ. Proc. ch. xvii, tit. 1, art. 2, §§ 2188 to 2199. An insolvent debtor may make an assignment similar to the above, for the purpose of exonerating his person from imprisonment on compliance with certain provisions. The judge appoints the assignee, and the assignment has the same effect as that above mentioned. For former law vide part 3, ch. 5, title 1, art. 5, Rev. Stat. Repealed by Laws of 1880, ch. 345. No debts or judgments, however, or the lien there- of, are affected by the discharge. § 3198, Co. Civ. Proc. Assignments to procure Discharge from Imprisonment. —Co. Civ. Proc. ch. xvii, tit. 1, art. 3, §§ 2200 to 2218. Voluntary assignments by a debtor may also be made to procure his discharge from imprisonment on execution in civil causes. 712 INSOLVENT ASSIGNMENTS. [OH. XXXI. The assignment vests in the trustees all the estate, right and interest of the applicant in all the property, real and personal, 'directed to be assigned. §2311. For former law wde part 3, ch. 5, title 1, art. 6, Rev, Stat. Re- pealed by Law of 1880, ch. 345. Discharges to be Recorded. — By § 19, p. 38, R. 8. all discharges granted under the first three articles {vide 3d, 4th, and 5th articles above recited), were to be recorded by the clerk of the county where granted. The petition, affidavits, etc., on which the discharge was granted, were to be filed with the county clerk within three months after the discharge. As amended, Law of March 9, 1860, ch. 116. If discharge not filed as above, other rights might intervene. Barnes V. Gill, 13 Abb. N. S. 169. Vide Co. Civ. Proc. §§'2181, 3196. No provision is made for record of discharges in cases arising under art. 3 of the Code. Assignments to be Recorded. — All of the assignments under the above four several provisions of the Revised Statutes (arts. 3, 4, 5, and 6), were to be recorded by the clerk of the county in which they were executed respect- ively, upon being acknowledged and proved in the same manner as deeds of real estate. Rev. Stat. vol. 3, p. 38, § 19. Also certificates of revocation of assignments were to be recorded. Ih. §§ 30, 35. By Co. Civ. Proc. §§ 3175, 3194 and 2311, where real property passes by the assignment in either case it is to be recorded as a deed in the proper office for recording deeds in the county where the real estate is situated. In any case it must be acknowledged and certified as a deed and be recorded in the clerk's office of the county. Assignments, When to take Effect. — The trustee or trustees under the above provisions shall be deemed vested with all the estate, real and per- sonal, of the debtor (excepting legal exemptions) in these proceedings from the time of the execution of the assignment. Co. Civ. Proc. §§ 3177, 3194. There is no specification as to when the assignment takes effect in proceed- ings under art. 3 of the Code, § 3211. Under the Revised Statutes, 3d, 5th and 6th articles, the assignment took effect from the time of its execution. Under the 4th article, when the assignment was voluntary, from the time of its execution ; when executed by an officer as therein directed, from the time of the first publication of the notice required. Title to property does not pass until the assignment. Bailey v. Burton, 8 Wend. 339. Trust powers. — All beneficial powers and rights to compel the exer- cise of trust powers passed under the Revised Statutes by the above assign- ments. 1 Rev. Stat. p. 735, § 104. The assignment passed all the estate of the debtor, whether in the inven- tory or not. Roseboom v. Mosher, 3 Den. 61. Powers. — As to the powers, authority, right of survivorship, acts of major- ity, etc., of said assignees (and trustees, infra), vide 3 Rev. Stat. p. 40, 1st ed. ; Co. Civ. Proc. §§ 3176, 3194. Property theretofore fraudulently transferred passed to the assignee. Ward V. Van Bokkelen, 2 Pai. 289. Decease of Assignees appointed before Jan. 1, 1830. — By Law of 1830, ch. 258, others might be appointed. Assignments under Law of April 26, 1831, ch. 300 (repealed by Laws of 1880, ch. 245). Assignments were also to be made under this act (non- imprisonment act), subject to the general provisions of art. 8, title 1, ch. 5, 3d part. Rev. Stat. TIT. II.] GEKEBAL ASSIGNMENTS. 713 Removal of Assignees. — As to appointment of substitutes when assignees leave the State, vide Law of 1846, ch. 158. This act is probably no longer in force, the provisions of the Revised Statutes to which it refers having been repealed. What the Deed or Assignment is to state to pass Real Estate. — It should recite the proceedings. Rockwell v. Brown, 1 1 Abb. N. S. 400. The words, " all my estate," would pass lands, although not in the in- ventory. Roseboom v. Mosher, 2 Den. 61. Redemption by Trustees or Assignees. — Vide Phyfe v. Riley, 15 Wend. 348. Foreign Insolvent proceedings. — As to the efEect of a foreign proceed- ing or one in another State, on property in this State, vide Story's Conflict of Laws; Oakey v. Bennet, 11 How. U. S. 33; Johnson v. Hunt, 23 Wend. 87. The Code of Procedure.— By the Code of Procedure, § 471, all the above provisions were maintained in force. Trustees of Absent, Concealed, Absconding, and Imprisoned Debtors. — These trustees had the same powers as the above assignees. Transfers and sales by the debtor after notice of attachment were void. The trustees were to cause their appointment to be recorded with the county clerk. Their appointment vested in them the estate of the debtor from the first publication of notice in the case of absent, etc., debtors, and in case of im- prisoned debtor from their appointment. 1 Rev. Laws, 157 ; Laws of 1822, p. 239 ; Arts. 1 and 2 of ch. 5, title 1, part 3, Rev. Stat. Repealed by L. 1877, ch. 417, and Laws of 1880, ch. 245. The special provisions of this act were considered directory merely, and a deed from trustees would not be invalid by omissions. Wood v. Chapin, 13 N. Y. 509. The trustees had a title to the debtor's land and not a mere power to convey. lb. Title II. Gteiteeal Assignments eoe the Benefit op Ceeditoes. It has been seen above (p. 260) that among the classes of trusts permitted to be created by the Eevised Statutes, is one authorizing the selling of lands for the benefit of creditors. A special act relative to assignments for the benefit of creditors, was passed April 13, 1860. (Laws of 1860, ch. 348, p. 594.) This act, after undergoing various amendments, was finally wholly superseded and repealed by an Act passed June'16, 1 877. (Laws of 1877, ch. 466, p. 543.) This act provides that every conveyance or as- signment made by debtors of their estate, in trust to as- signees for their creditors, shall be in writing and shall be duly acknowledged before an officer authorized to taket he acknowledgment of deeds, and • must contain or have appended or endorsed the duly acknowledged con- 714 GBNEEAIi ASSIGNMENTS. [CH. XXXI. sent of the assignee. By Laws of 1888, ch. 295, it must state the residence of the assignor, his business and where it was carried on. Rennie v. Bean, 34 Hun, 123. The Act of 1860 required an indorsement of the acknowledgment upon the assignment. If only proved by the subscribing witness, and not acknowledged, it is void. 14 Abb. 466; 16 i6. 33; 31 a. 23. All the assignors must acknowledge in person, and not by attorney. 14 Abb. 466; 3 Abb. N. S. 46; 30 N. Y. 344; 50 Barb. 440. Where a partner is absent, there must be an authorization or ratification. 43 Barb. 88; 36 How. 479; Lowenstein v. Flauraud, 11 Hun, 399; affi'd, 82 N. Y. 494. If one absconds, his assent is not necessary. 43 Barb. 509. A purchaser from assignees under a fraudulent assignment will be pro- tected if he had no knowledge of the fraud. 43 Barb. 284. A surviving partner may make the assignment. Loeschigk v. Addison, 4 Abb. N. S. 310. And his individual creditors cannot set it aside. Haynes v. Brooks, 42 Hun, 528. Vide also, as to assignments by a surviving partner, Beste v. Burger, 17 Abb. N. C. 163. The assignment is now held void if not acknowledged as provided by statute. Briton v. Lorenz, 45 N. Y. 51 ; Hardmann v. Bowen, 3*9 N. Y. 196, In Baldwin v. Tynes, an acknowledgment by one partner had been held sufficient. 19 Abb. Pr. 32. The Act of 1860, only applied to resident debtors. Ockerman v. Cross, 54 N. Y. 35, disting'd in Warner v. Jaffray, 96 N. Y. 348. Under the Act of 1877, a consent by the assignee subscribed, acknowl- edged, and recorded after the assignment, is ineffectual. Schwartz v. Sont- ter, 41 Hun, 333. But if the assignee join in the assignment it is sufficient. Scott V. Mills, 18 Abb. N. C. 330. Recording. — The assignment must be recorded in the office of the clerk of the county where the place of business or residence of the debtor, or (in case of partners) where the principal place of business is. In New York city, in the office of the clerk of the Court of Common Pleas. If lands pass by it ■which are in other counties a certified copy must be filed and recorded in each of such counties. Laws of 1887, ch. 466, § 3. As to recording under the Act of 1860, vide Scott v. Guthrie, 35 How. Pr. 313. The assignee is not a purchaser for value. Griffin v. Marquardt, 17 N. Y. 38. Inventory Schedules and Bond. — The Act of 1860 provided for a sworn inventory of the assets and of the creditors, to be made and delivered to the county judge of the county in which the debtor resided, within twenty days after the execution of the assignment, and a bond to be filed within thirty days by the assignee. Amended, as to the bond, by Laws of 1875, ch. 56, and as to the filing of schedules, by Laws of 1874 ch. 600. Similar provisions as to the schedule are found in the Act of 1877, § 3, amended by Laws of 1878, ch. 818. The same act provides for the bond. § 5. These provisions were at first held directory merely. 14 Barb. 298 ; 23 ib. 318; 36 ib. 586; 34 Barb. 630; 45 Barb. 317. The Court of Appeals, in Juliand v. Rathbone, (1868) 39 N. Y. 369, so far reversed the same case, in 39 Barb. 97, as to hold that these requirements must be strictly complied with in order to vest title. So also Pairchild v. Gwynne, 16 Abb. 23 ; revers- ing 14 id. 131. The Act of 1874, was held, in Produce Bk. v. Morton, infra, to have abrogated the rule laid down in Juliand v. Eathbone. An omission of a debt will not vitiate. 4 Robt. 161. TIT. II.J GENERAL ASSIGNMENTS. 715 Nor failure to acknowledge the schedule separately. 10 Bos. 408. As to the bond, vide Thrasher v. Bentley, 3 N. Y. S. C. 309; affirmed, 59 N. Y. 649; s. C. 1 Abb. N. 0. S9; overruling Hedges v. Bungay, 3 Hun, 594, which held approval of the bond absolutely necessary. To the same effect, Plume, &c. Co. v. Strauss, 17 Hun, 586, and Brennan v. Wilson, 71 N. Y. 502; s. c. 4 Abb. N. C. 379, holding failure to give a bond not to be a fatal defect. See also Worthy v. Benham, 18 Hun, 176; Van Hein v. Elkus, 8 Hun, 516; Bost-wick V. Burnet, 74 N. Y. 317. Under the Act of 1877, title vests in the assignee upon assignment and is not divested by failure to give a bond. Ryan v. Webb, 39 Hun, 435. Unless the schedules were annexed to the assignment before it was sworn to it was formerly held void. Kercheis v. Schloss, 49 How. Pr. 284. But by Laws of 1874, ch. 600, provision was made for filing schedules by the assignee where the debtor did not furnish them, and under this act it has been held that they need not be annexed to the assignment. Produce Bk. V. Morton, 67 N. Y. 199. In the city of New York, filing in the office of the Clerk of the Court of Common Pleas was not enough under the Act of 1860. Produce Bk. v. Baldwin, 49 How. Pr. 377. An intentional omission from the schedules proves fraud, but not if the item omitted be valueless. Shultz v. Hoagland, 85 N. Y. 464. Miscellaneous. — An assignment in trust, with a reservation in favor of grantor, would be void, but an assignment to creditors themselves, with a reservation to the assignor would not be. That operates as a mortgage, and any surplus might be reached. Leitch v. HoUister, 4 N. Y. 211. As regards sales made by assignees of insolvent debtors, under assign- ments which are subsequently declared fraudulent, the "opinion is that such sales would be void only as to the creditors hindered, delayed, etc. There- fore such sales would be good as against the assignor, unless the creditors had actually taken proceedings to set them aside. A general assignee takes subject to equities in favor of the creditors of the assignor. Standard, &c. Co. v. Nichols, 41 Hun, 261. A general assignment under the Act of 1877, takes effect from delivery and not from record. Nichol v. Spowers, 105 N. Y. 1. A conveyance in trust to pay creditors and pay back surplus to the gran- tor is valid. Knapp v. McGowan, 96 N. Y. 75. Assignments before the Statute. — Before these statutory provisions were enacted, general assignments in favor of creditors were frequently made. When real estate was transferred under them, the rules regulating their validity were the general provisions regulating the transfer of land by deed, and the creation of trusts. When Void. — Care is to be taken in all cases to see that their provisions do not render them fraudulent as against creditors, otherwise they are void. If fraudulent in fact they are also void. Vide ante, " Fraudulent Convey- ances," pp. 561, 565, and Scott v. Guthrie, 10 Bos. 408.; O'Neil v. Salmon, 25 How. Pr. 246; Kavanagh v. Beckwith, 44 Barb. 193; Terry v. Butler, 43 Barb. 395 ; Dunham v. Waterman, 17 N. Y. 9 ; Jessup v. Hulse, 21 N. Y. 168 ; Russell V. Lasher, 4 Barb. 232; Curtis v. Leavitt, 19 N. Y. 9; Haydock v. Cooper, 53 N. Y. 68, among many other cases, as to fraud appearing on their face or by the facts, Coftditions as to management and disposition of assigned property make the assignment void ; but not mere superfiuous directions, which in them- selves would be legal. Dunham v. Waterman, 17 N. Y. 7 ; overruling Cun- ningham v. Freeborn, 11 Wend. 340. See also, Jessup v. Hulse, 21 N. Y. 161. Authority given to the assignee to compromise debts does not invalidate the assignment. Baglee v. Bowe, 105 N. Y. 171. 716 GBlfERAL ASSIGNMENTS. [OH. XXXI. Nor does a failure to prefer wages due. Johnston v. Kelly, 43 Hun, 379. An assignment is not a fraud on one creditor though it operate to give all the assignor's property to another. Hauselt v. Vilmar, 2 Abb. N. 0. 332 ; affi'd in 43 Super. 574, and that afH'd in 76 N. Y. 630. Fraud in one provision invalidates all. Nat'l B'k, &c. v. Cohn, 42 Hun, 381. As to evidences of fraud, vide Brown v. Halstead, 17 Abb. N. C. 197. Fraud will never be presumed and the mere fact of the omission of assets will not, under the Act of 1877, ipso facto, make the assignment void. Shultz V. Hoagland, 85 N. T. 464. When Notice to Purchasers. — It has been held by the Superior Court of N. Y. city (Simon v. Kaliske, 6 Abb. N. 8. p. 234), that these assignments to be notice to lonaflde purchasers, should be also recorded in the register's (or county clerk's, where there is no register's) office, among conveyances. By Infants. — If one of several partners is an infant, the assignment was held void. Fox v. Heath, 16 Abb. Pr. 163 ; 31 How. Pr. 184. But the con- trary has been decided to be law. Yates v. Lyon, 61 N. Y. 344. Effect of Setting Aside Assignment. — Where an assignment is set aside the lien of judgments attaches to lands in the order of priority. N. Y. Life Ins. Co. V. Mayer, 19 Abb. N. C. 93. Vide, as to general rights of creditors, Claflin V. Gordon, 39 Hun, 54. Effect of Bankrupt Laws o:a..— Vide post, Ch. XXXII. Impeachment of Assignments, Transfers, etc., for fraud. — Vide ante, Ch. XXI. Assignments by Corporations. — Vide ante, p. 613. Manufacturing cor- porations cannot make them. Harris v. Thompson, 15 Barb. 62 ; Sibel v. Remsen, 38 N. Y. 95. Nor Banking Companies. Robinson v. Bank of Attica, 21 N. Y. 406. Mortgage by Assignor after Assignment. — This may operate as an equitable mortgage of his residuary interest. Briggs v. Palmer, 20 Barb. 393 ; modified as Briggs v. Davis, 30 N. Y. 15.- Accounting by such Assignees. — Vide Laws April 13, 1860, ch. 348; 1870, ch. 92 ; 1872, ch. 888 ; 1875, ch. 56 ; 1877, ch. 466, repealing all these prior acts; 1878, ch. 818. Prosecution of Bond.— Laws of 1873, ch. 363 ; 1875, ch. 56 ; repealed and superseded by Laws of 1877, ch. 466, § 9. Conveyance by Assignees. — All the assignees must join in a conveyance. Brennan v. Willson, 71 N. Y. 502. End of the Trust. — In default of other limitation the trust ends at the end of twenty-five years, and the estate then remaining in the assignee re- verts to the assignor, his heirs or privies in estate or interest. Laws of 1875, ch. 545. This act was held not retrospective. McCahill v. Hamilton, 30 Hun, 388. But that decision was distinguished and questioned in Kip v. Hirsch, 108 N. Y. 565, holding that the act applied to prior assignments and was a statute of limitation. U. S. Bankrupt Law. — The bankruptcy act did not make these assign- ments void. Von Hein v. Blkus, 8 Hun, 516 ; Haas v. O'Brien, 66 N. Y. 597 ; Bostwick v. Burnet, 74 N. Y. 317; Boese v. King, 78 N. Y. 471 ; Boese V. King, 108 U. S. 379. CHAPTEH XXXII. ASSIGNMENTS AND TRANSFERS UNDER UNITED STATES BANK- RUPT ACT, MARCH 2, 1867, AND TITLE XLI, U. S. REVISED STATUTES. The Act of 18BY was superseded upon the enactment of the Revised Statutes of the United States, which con- tained the laws in force on December 1, 1873, and re- pealed all prior laws. Title xli, which contained the bankruptcy law, was repealed September 1, 1878. Refer- ences below are given with the provisions of the Act of 1867 and of the Revised Statutes. By the said act (§§ 14, 15, R. S. §§ 5044, 5045, 5046), as soon as the assignee in bankruptcy was appointed, the judge or register, by an instrument, was to assign and con- vey to the assignee all the estate, real and personal, of the bankrupt; and such assignment related back to the com- mencement of such proceedings in bankruptcy, and there- upon, hy operation of law, the title to all such property and estate (except what was exempt by the law of the State, certain personal property exempted by the act, and trust property) vested in the assignee ; and any attach- ment thereon, issued within four months next preceding the commencement of said proceedings, was dissolved. The assignment related back to the commencement of the proceedings, notwithstanding any amendments to the petition, etc. In re Patterson, 1 Ben. 500; 6 Int. Rev. R. 27; Chapman v. Brewer, 114 U. S. 158. Record of the Assignment. — The assignee was, within six months, to cause the assignment to be recorded in every registry of deeds or other office within the United States where a conveyance of any lands owned by the bankrupt ought by law to be recorded. What passed under the Assignment. — Leases with covenants did not pass, unless the assignee adopted them. 6 Bing. 321 ; 1 B. & A. 93. It did not divest prior legal or equitable liens. 5 Gilm. 346 ; 2 Story, 360, 630; Cook v. Whipple, 55 N. Y. 150. Nor the wife's right of dower. 1 Glynn & J. 232 ; In re Wilbur, 1 Ben. 327 ; In re Schepf, 3 Ben. 72. 718 ASSIGNMENTS IN BANKRUPTCY. [CH. XXXII. All property that came to the bankrupt before adjudication passed. 2 Story, 360, 327 ; 7 Tenn. R. 396. Equities of redemption passed under the decree. 5 Humph. 389. Also contingent estates. 3 P. Williams, 132. After filing petition, no interest could be acquired under proceedings in a State court (8 Blatch. 153) ; and the sheriff was liable for proceeds to the assignee. Miller v. O'Brien, 9 Blatch. 370. But commencement of bankruptcy proceedings against a mortgagee did not prevent his foreclosing. Lenihan t. Hamann, 55 N. Y. 653. Exemptions. —Assignees did not acquire title to the exempt property of a bankrupt under homestead laws, etc. Be Hurst, 5 Bank. Reg. 498 ; and other cases, 2 ih. 85, 180 ; 3 ih. 38 ; ib. 60 ; 4 iJ. 59 ; 2 tS. 63 ; ii. 158 ; 8 ib. 21. A mortgage upon a homestead for a debt not proved in the proceedings nor released, is not affected by the discharge. Long v. Bullard, 117 U. S. 617. Possession. — The bankrupt's possession became that of the assignee, from date of appointment. Re Rosenberg, 3 Ben. 366. Title. — The assignee took the property as held by the bankrupt, and no greater interest than creditors take under adverse statutory proceedings. Ap- pold's Estate, 7 Am. L. Reg. N. S. 634; iB« Fuller, 4 Bank. Reg. 29. His grantee is barred where under the act the assignee would be. Wis- ner v. Brown, 123 TJ. S. 314. Sales by the Assignee.— By § 15, of the Act of 1867 (R. S. § 5063), the assignee was to sell all the unincumlDered estate, real and personal, on such terras as he thought best for creditors. The court might make orders con- cerning the time, place and manner of sale. But mortgagees not regularly made parties were not bound by such sales. Factors & Traders' Ins. Co. v. Murphy, 111 U. S. 738. Under the Act of 1841 there could be no sale without an order of court, which must fix the time of sale or the sale was void. Smith v. Long, 12 Abb. N. CUB. Bistinguished as applying only to public sales, in Gignoux v. Staf- ford, 42 Hun, 426. . Improper, irregular or frauaulent assignee's deeds might be set aside and ordered cancelled, while the property was in the hands of the grantee, by summary order, even after the discharge of the bankrupt and the end of all proceedings. Matter of Hyde, 11 Blatch. 115. If the assignee purchased the sale would be set aside. 8 Vesey, 351 ; 1 Glynn & J. 113 ; 4 Madd. 459. The purchaser was entitled to a marketable title. The deed should recite the decree in bankruptcy and order appointing the assignee, and the convey- ance must have been made in the manner directed by the court. § 18, of the Act of 1867 (R. S. §§ 5040 to 5043), provided for the appoint- ment of a new assignee when necessary, and the former assignee was to con- vey to the one appointed all the estate held by him. No title to property sold was to be affected by reason of the ineligibility of the assignee. Preference by Insolvents Void.— By § 35, of the Act of 1867 (R. S. §§ 5138, 5139, 5130), if any person being insolvent, or in contemplation of insolvency, within four months before the filing of the petition for or against him, with a view to give a prefm-ence, etc., procured any part of his property to be attached , sequestered, or seized on execution, or made any assignment, transfer, or conveyance, etc., thereof, directly or indirectly, absolutely or con- ditionally, the grantee, transferee, etc., having reasonable cause to believe such person to be insoh>ent, and that such attachment, conveyance, transfer, etc., was made in fraud of the provisions of this act, the same was void ; and the assignee might recover the property, or the value of it, from the person so re- OH. XXXII.] ASSIGNMENTS IN BANKRUPTCT. 719 ceiving it or to be so benefited. And if any person being inmhent, or in con- templation thereof or of bankruptcy, within six months before the filing of the petition for or against him, made any sale, transfer, 'conveyance, etc., or other disposition of his property, to any person who then had reasonable cause to Re- lieve him to he insohent, or to be acting in contemplation of insolyency, and that such sale, conveyance, transfer, etc., was made with a view to prevent his property coming into the hands of his assignee in bankruptcy, or to otherwise evade the act, etc., the same was void; and the assignee might recover the same or the value thereof. This applied to mortgages. Blennerhassett v. Sherman, 15 Otto, 100. Also all contracts, securities or covenants, made with intent to prevent the opposition of a creditor, were void. Whether the transfer was to be deemed fraudulent or not depended upon the circumstances of each par- ticular case. Under the former bankrupt law, it was held that the transfer, etc., was onlv void as against an assignee properly appointed. Bee 3 Barb. Ch. 344 ; 8 Met. 400. A general assignment made within three months of the petition in bank- ruptcy would be set aside regardless of fraud. Harding v. Crosby, 17 Blatch. 348. A Bona Fide Sale would be held valid unless the purchaser had reason- able grounds to believe that it was made for the purpose of defrauding cred- itors under the act. 9 B. & 0. 45 ; 3 B. & C. 415 ; 3 Bing. N. C. 400. So of a mortgage. Barbour v. Priest, 13 Otto, 398. By § 37, of the Act of 1867 (R. S. § 5123), these provisions and those re- lating to assignments referred to joint-stock companies and corporations also. It was decided in the case of Sedgwick v. Place, by Judge Nelson, 1 Am. L. T. Bankr. 97, that the assignee in bankruptcy could not take the property assigned to the general assignee for creditors transferred before the petition, where there was no fraud. Nor could he take the property in the hands of a receiver under a judgment-creditor's bill to set aside a general assignment. Sedgwick v. Menck, per Nelson, Judge, 6 Blatch. 156. But see Hardy v. Binninger, 7 Blatch. 363, modifying the above views. Assignees were authorized under the direction of the court to redeem the property from liens. § 14, Act of 1867 (B. S. § 5066) ; General Order 17. The beginning of a creditor's suit did not so operate as a lien as to pre- vent the assignee in bankruptcy from taking. Stewart v. Isidor, 5 Abb. Pr. N. S. 68. The decisions on the above section in the bankrupt courts of the State are numerous, and reference is made for them to the various treatises on the bank- rupt law. Attachments under the State laws became dissolved by the assignment. Pennington v. Lowenstein, 1 Bank. R. 157. So of levies on execution, even if made before assignment, if they were subsequent to the beginning of proceedings. Chapman v. Brewer, 114 TJ. S. 158. Nature of the Assignment. — An assignee in bankruptcy did not acquire the beneficial interest, but merely the title and control ot the assets. Hence the assignment was not within a condition in a contract restricting aliena- tion of the beneficial interest. Starkweather v. Cleveland Ins. Co. 3 Abb. N. S. 67; 4 Bank. Reg. 110. Assignees in Bankruptcy as to Foreclosure. — Need not be made parties to a foreclosure, where the mortgagor was declared bankrupt during the fore- closure. Cleveland v. Boerum, 33 Barb. 301 ; 23 N. Y. 20. If made a party individually and not in his official capacity he is cut oflf where his only inter- est was an assignee. Landon v. Townsend, 44 Hun, 561. See also ante, p. 669. 720 ASSIGNMENTS IN BANKEUPTOY. [OH. XXXII. As to power to prevent a foreclosure in United States Courts, vide In re Iron Mountain Co. 9 Blatch. 320. Proceedings by Assignee to set Aside Fraudulent Deeds. — Tide Cook- ingham v. Ferguson, 8 Blatch. 488. The State courts hold jurisdiction. Cook v. Whipple, 55 N. Y. 150; Kidder v. Horrobin, 72 N. Y. 159. A conveyance by the bankrupt without consideration cannot be set aside at the suit of the assignee without proof of fraud. Warren v. Moody, 132 TJ. S. 132 ; Adams v. Collins, i&. 383. After the appointment of an assignee in bankruptcy a previously ap- pointed receiver in supplementary proceedings cannot bring an action to set aside as fraudulent a general assignment by the bankrupt. Olney v. Tanner, 21 Blatch. 541. ■ Discharge. — The discharge in bankruptcy will bar execution on a judg- ment recovered in a State court pending the proceedings, though no stay was had, as it might have been under § 5106, R. S. U. S; Boynton v. Ball, 131 U. S. 457. Constitutionality of the Act. — Vide Bump on Bankruptcy (5th ed.), 539, where the cases are collected ; and Holyoke v. Adams, 59 N. Y. 333 : affirm- ing 2 N. Y. S. 0. 1. CHAPTER XXXIII. TITLE BY ESCHEAT AND FORFEITURE. Title I. — ^Title by Escheat. Title II. — Title through Forfeiture by the State. TrriiE I. — Title by Escheat. Title by escheat was, under the common law, a result of feudal tenure ; the land reverting to the lord, on failure of heirs of the feudatory. In this State, the State itself, by its right of sovereignty, is the original and ultimate proprietor of land within its jurisdiction, to whom it re- verts on default of lawful owners. Article 1, sec. 11, Constitution of 1846 ; 1 R. S. 718. At common law, in cases of intestacy where there was no heir or where there was a failure of competent heirs by reason of alienism, the lands vested immediately in the State, as no title or estate whatever could pass to an alien by operation of law. When the ancestor died, if the persons who would otherwise inherit were aliens, it passed by them, and not through them, and vested at once in the State. A '^purchase'''' by an alien, however, did not necessarily create a forfeiture, but the government might interfere and de- prive him of his title. In the meantime the estate was deemed vested in him until ofiBce found, or until his death ; in which case, as he could have no heirs, and the title could not descend, it immediately reverted to the people without office found. A trust created by an alien in order to evade the law, would also escheat. See fully as to the above principles, and as to the rights of aliens, and the various changes of the common law by the statute law of this State, ante, pp. 81 to 95. Lands that have escheated may be c(mveyed by the State before entry, even if they be held adversely. McCaughal v. Ryan, 27 Barb. 376, but see below. The provisions of the Revised Statutes were based upon those of Rev. Laws of 1813, which were repealed by the general repealing Act of 1838, as also the Law of Ap. 14, 1820. What Estate is Taken. — The State takes the estate in the condition in which the party held it, subject to all liens, remainders, etc. Foster's Crown Law, 96 ; Borland v. Dean, 4 Mason, 74. British. Subjects. — As to the rights of British subjects under the treaties of 1783 and 1794, vide ante, pp. 9, 10. Trusts in Escheated Lands.— The Revised Statutes declare that all escheated lands when held by the State or its grantee, are to be subject to the same trusts, incumbrances, charges, rents and services, to which they would 46 722 TITLE THROUGH FORFEITURE. [OH. XXXIII. have been subject if they had descended ; and the attorney-genera,! is to con- vey them to any person equitably entitled thereto. 1 E. S. 1st ed. 718. Proceedings of Escheat.— By the Code of Civil Procedure, §§ 1977, 1978, 1979, as formerly by the Revised Statutes, the attorney-general shall cause an action of ejectment to be brought for the recovery of escheated lands, and may proceed by publication against unknown owners — and must publish a notice for three months of his intention to escheat. Vol. 1, p. 383, § 1 ; Laws of 1818, 293 ; 1830, 348 ; 1830, ch. 330; see 8 Barb. 195, and see the above acts and the Code of Procedure for former laws. Unknown Owners may contest within five years after sale and conveyamce, and until any disability removed, if infants, insane, imprisoned, or married women. Co. Civ. Proc. § 1980. Bounty Lands. — As to lots on " milita/ry bounty lands" escheating on death of patentee to be sold by commissioners of the land oflSce, vide §§ 6, 7, 8, B. S. Contracts for Sale. — The commissioners of the land oflSce are to fulfil all contracts existing relative to escheated lands, with tenants and others, under certain conditions. Law of 1831, ch. 116. Actions by the People. — By the Code of Civil Procedure, § 362, as formerly by the Code of Procedure, ch. 3, §§ 75-77, the People of the State will not sue any person with respect to real property unless their right has accrued within forty years, before any other proceeding commenced, or imless they or those under whom theiy claim shall have received any rents thereof within forty years. The limitation also was made by Laws of 1788, 3 Greenl. 98 ; and of 1801, 1 Web. 619 ; People v. Clarke, 5 Selden, 349 ; People v. Liv- ingston, 8 Barb. 353 ; People v. Arnold, 4 Corns. 508 ; Wendell v. The People, 8 Wend. 183 ; People v. Dennison, 17 id. 313; People v. Van Rensselaer, 5 Seld. 319, approved 23 N. T. 44; Champlain Co. v. Valentine, 19 Barb. 484. Taking Possession. — The State cannot take possession until the alienism and escheat have been judicially established. Larreau v. Davignon, 5 Abb. N. S. 367. Nor is the escheat complete until the entry of judgment. Goodrich V. Russell, 42 N. Y. 177 ; Maynard v, Maynard, 86 Hun, 227. Suspension of Proceedings by the People against lands escheated, or interests therein. — As to proceedings for this, vide Law of 1845, ch. 115, re- pealing Law of Ap. 29, 1833, ch. 300; which latter act had repealed Act of Ap. 36, 1833. The Law of 1845 also repealed Act of Ap. 26, 1832, and vir- tually repealed Act of Mch. ] 8, 1834, ch. 37. The Act of 1 845 was extended by Act of Ap. 15, 1857, ch. 576. See more fully as to said acts, ante, pp. 88 to 92. As to the interpretation of the above acts of 1833 and 1884, vide Eng- lishbe V. Helmuth, 3 Coms. 294. Title II. Title THEorGH Forfeiture to the State. This is a title created by act of the owner whereby he forfeits to the State all land owned at the time of the offense, or at any time afterward. In New Yorlj, forfeit- ure to the State for crime is confined to cases of out- lawry on conviction for treason, and to the life-time of the convict. 1 R. L. 495 ; 2 R. S. p. 701, § 22, 1st ed. (repealed by Laws of 1886, ch. 513); Penal Code, § 710; Co. Crim. Proc. § 819. TIT. II.] TITLE THROUGH FORFEITURE. 723 Under the common law, it tainted the blood of the party forfeiting, so that others could not inherit through him. This provision is abolished by the Constitution of the United States. After the successful termination of the Revolutionary war with Great Britain, the legislature passed an act (22d October, 1779, 1 Greenleaf, p. 25 ; 13 Nov. 1781; also 12th May, 1784, ib., 127) declaring certain persons nomin- atim and others thereafter designated, attainted of treason and felony against the United States, banishing them from the State and forfeiting all their property, and all conveyances by them since the 9th July, 1776, were held fraudulent. " Commissioners of forfeiture were appointed for the sale of «aid estates ; no sales to be made before 1st October, 1780, and deeds to be given which shall operate as warranties by the people ; the land to be sold in their respective counties ; and not over 500 acres to be included in one sale ; the commissioners are not to purchase themselves." Books of these convey- ances were made by the commissioners of forfeiture for the great districts of the State. Such a book is to be found in the office of the registers and clerks of many counties in the State. These acta have been held retrospective, so as to affect prior titles. Col. & 0. Cases, 88. Acts were also passed as to the above forfeited estates, Nov. 27, 1784, March 31, 1785, May 1, 1786. By Law of 2d of March, 1788, 2 Greenleaf, 200, the office of commissioner of forfeiture was abolished after September 1st, 1788, and their duties shall be executed by the surveyor-general. By Law of March 28, 1797, after five years from the date of the act or accruing of an interest in a forfeited estate, all right to an action to recover the estate was barred ; with exceptions in favor of feme coverts, insane persons and infants. As to limitation of ac- tions by the people for forfeited estates, vide ante, p. 722, and also The People V. Clarke, 5 Seld. 349. Estates in Remainder. — These estates are not .lost by forfeiture of the particular estate. Foster's Crown Law, 95 ; 4 Mason, 174. Forfeiture before 1783. — Treaty with Great Britain. See as to forfeiture before 1783, as to British subjects, ante, p. 9, and McGregor v. Comstock, 16 Barb. 427; affl'd, 17 N. Y. 162. Recovery by the People. — By Revised Statutes real estate forfeited to the People of this State upon any conviction or outlawry for treason might be re- covered in the same manner as escheated lands. Ante, p. 722, 1 R. S. 1st ed. p. 284 ; 1 R. L. 382. And the proceedings might be had in any court of rec- ord. 2 R. 8. 586, § 53. By the Code of Procedure, § 447, the action was to be in the Supreme Court. These provisions are now repealed and proceed- ings may be brought in any court having jurisdiction. Co. Oiv. Proc. § 1962. Forfeiture of Lands held under letters patent, when there has been Fraud, Mistake, etc. — See ante, p. 18. CHAPTER XXXIV. TITLE BY POSSESSION. Title I. — Limitation of Real Actions. Title II. — Adverse Possession. Title III. — Possession as Notice. Title IV. — Squatters or Intruders. Possession gives title through continued occupation, that so far infers ownership or right as to exclude the recovery by others claiming title, unless under certain exceptions established by law. Title I. LmiTATioN op Real Actions. The statutes .of this State have prescribed certain limits as to time, to the recovery of land, even by the true owner, against parties who have the possession; which possession in time ripens into an indefeasible legal title. These provisions, as now in force, are found in the Code of Civil Procedure. The statute of limitations, with reference to real property, was revised in 1801, and again under the Revised Statutes, and subsequently by the Code of Procedure. That Code, § 73, repealed the chapter of the Revised Statutes, entitled " Of actions, and the times of commencing them" and was itself repealed as to this by Laws of 1877, ch. 417. The provisions of that Code upon this subject are now superseded by those of the Code of Civil Pro- cedure. These provisions for limitations contained in the Revised Statutes did not affect causes of action or defenses accruing before their enactment. Prindle V. Beveridge, 7 Lans. 235. Electric Wires and Cables. — No presumption of right arises from attach- ing electric wires and cables to or stretching them over any land or build- ing, no matter how long continued. L. 1886, ch. 40. Grants from the People. — §§ 363 and 364, Co. Civ. Proc. make pro- vision for actions based upon grants irom the People, and for suits after the patents are declared void. Formerly covered by Co. Proc. §§ 76, 77, TIT. I.] LIMITATION OF REAL ACTIONS. 725 By the Code, § 365, an action for the recovery of real property, or the possession thereof, cannot be maintained by a' party other than the People unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of the action. Corresponding to Co. Proc. § 78. By § 366, ib., a seizin within twenty years of the act on which the action or defense is based by the party, or his privies in estate, is also necessary in any action or defense founded on title to real estate. § 78 of the Code of Procedure was held to apply only to actions which, prior to the Code, were actions at law, for recovery of real property, or its possession. Miner v. Beekman, 50 N. Y., 337, distinguished in Shriver v. Shriver, 86 N. T. 575 ; Hubbel v. Sibley, ib. 468 ; distinguished in Trimm v. Marsh, 54 N. T. 599 ; and vide ante, "Foreclosure," p. 665. By Co. Civ. Proc. I 367 (Co. Proc. § 80), action must be commenced within a year after entry, to make it valid, and within twenty years from the time the right accrued. As to when actions are deemed commenced, vide Code, § 398 (Co. Proc. I 99) ; and as to absence of a person from the State, § 401 (Co. Proc. § 100) ; as to actions by representatives after death of party entitled, § 403 (Co. Proc. •§ 103). The former statutes of 1798 and 1801 may operate as a bar to an action by the people to recover lands held under patents in 1685 and 1704. The People V. Van Rensselaer, 9 N. T. 391. In an action of ejectment brought as a substitute for a writ of right, to enforce a claim accruing before the Revised Statutes, an adverse possession «f twenty-five years is necessary to bar the action, e. g., as in a case where a right to realty existed, and the party died leaving heirs. Their right does not accrue until the death of the ancestor. See also, as to claims by writ of right, Fosgate V. The Herkimer, &c. Co., 9 Barb. 387; affirmed, 13 N. T. 580 ; see also ib. 13 Barb. 353 ; see also, as to adverse possession before the Revised Statutes, Cahill v. Palmer, 45 N. Y. 478. As to reversal of judgment and time for new action, § 405 (Co. Proc. § 104) ; as to the time not being staid by injunction or statutory prohibition, I 406 (Co. Proc. § 105). Persons under Disabilities. — Persons who are infants, insane, or impris- oned for criminal charges for less than life have the time of disability ex- cluded. They cannot, however, have more than ten years after the dis- ability may cease, or after the death of the person dying under disability. § 375 (Co. Proc. § 88). Ten years after death of person under disability his heirs must have brought the action under the Revised Statutes, and had only that time, even if some were under disability. Carpenter v. Schermerhom, 2 Barb. Ch. 333. " Married women " were originaUy among the persons named in Co. Proc. § 88, but the words were struck out. Laws of 1870, ch. 741. As to the exact computation of the ten years, BM^e Phelan v. Douglass, 11 How. 193. The disability must exist when the right accrues ; if two or more exist when the right accrues, limitation does not begin until all are removed. §§ 408, 409 (Co. Proc. §§ 106* 107). See fully, as to disabilities and the early cases re- Tiewed, Jackson v. Johnson, 5 Cow. 74. Where the time has begun to run, a subsequently accruing disability will not suspend it ; and cumulative dis- abilities are not allowed. Bradstreet v. Clark, 13 Wend. 603. Successive disabilities cannot operate to enlarge the time. 2 Barb. Ch. 314 : 3 Hill 85 • 15 Johns. 369 ; 3 Johns. Ch. 139 ; 13 Johns. 513. ' ' 726 ADVERSE POSSESSION. [OH. XXXIV. When Limitation Begins.— The statute of limitations does not begin to run from the time of occupancy, but from the commencement of the ad- verse possession. 3 Johns. Ch. 124 ; 16 Johns. 293; 18 id. 355; Minor v. Mayor, 37 Super. 171 ; Fleming v. Bumham, 100 N. Y. 1. Reversioner. — As against a reversioner, there can be no adverse posses- sion. It can only exist against one entitled to possession. Clark v. Hughes, 13 Barb. 147. As against Remaindermen. — The statute does not begin to run till thes determination of the precedent estate. Fogal v. Pirro, 10 Bos. 100. See also, as to reversioners and remaindermen, 5 Cow. 74 ; 4 Johns. 390 ; 4 Wend. 58 ; 2 Barb. Cb. 314. Coverture. — By the former rule, a married wqman has only ten years, after the coverture ceases, and twenty years in all. Wilson v. Betts, 4 Den. 201. Aliens may plead the statute as a defense, although they may not ac- quire title by an adverse possession, against the State. Overing v. Russel, 82 Barb. 263. As to alien enemies, the period of hostility is to be deducted from the time the statute runs. Code, § 404 (Co. Proc. § 103). Vide Bor- mean v. Dinsmore, 23 How. 397; Sanderson v. Morgan, 25 id. 444; affirmed, 39 N. T. 231 ; U. S. v. Victor, 16 Abb. 153. Land formerly part of a Street. — Vide Miner v. Mayor, &c., 37 Super. 171. Title II. Adverse Possession. Adverse Possession Superior to Legal Right.— By the Code of Civil Procedure, § 368, a person establishing a legal rigJit to premises, in every action for the recovery of real property, shall be presumed to have heen possessed thereof within the time required by law ; and the occupa- tion of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appears that such premises have been held a/nd possessed adversely to such legal title for twenty years before the commencement of an action for the re- covery tbereof. Co. Proc. § 81. Corporations may hold adversely (Robie v. Sedgwick, 35 Barb. 319 f Sherman v. Kane, 86 N. Y. 57), but semile, possession by a railroad corpora- tion of an easement of a tract does not make an adverse possession. Watson V. N. Y. C. R. 6 Abb. N. 8. 91. Possession under a tax lease is not adverse. Bedell v. Shaw, 59 N. Y. 46. Title by adverse possession is as good as by grant. Sherman v. Eane- 86N.Y. 57. The State can acquire by forty years adverse possession. Birdsall v. Cary, 66 How. Pr. 358; Eldredge v. Binghamton, 42 Hun, 302. TIT. II.] ADVERSE POSSESSION. 727 When Land Deemed to be held Adversely under a Con- veyance, Judgment, etc.— By § 369, lands are deemed to be held adversely, where the occupant, or those under whom he claims, entered into the possession of the prem- ises under a claim of title, exclusive of aty other right, founding the claim upon a written instrwnent as being a conveyance of the premises in question, or upon the decree or judgment of a competent court; and there has been a continued occv/pation and possession of the premises in- cluded in the instrument, decree or judgment, or of some part thereof for twenty years under the same claim.* Possession of one lot of a tract is not to be deemed posses- sion of any other lot of a tract divided into lots. Substantially a re-enactment of Co. Proc. § 83. The deed must include in its boundaries the exact land claimed as a gen- eral rule. Jackson v. Camp, 1 Cow. 605; Jackson v. Woodruff, id. 386; Same V. Richards. 6 id. 617; Sharp v. Brandon, 15 Wend. 597; Hallas v. Bell, 53 Barb. 347; Robinson v. Phillips, 65 Barb. 418; affi'd, 56 N. T. 634. To constitute adverse possession, it must be not under a general claim, but under claim of some specific title. Crary v. Goodman, 33 N. Y. 170 ; Hallas V. Bell, 53 Barb. 347. The title need only be prima facie good (1 Cow. 376 ; 5 Wend. 533) ; and must not be a void or fraudulent one, e. g., as by a deed fraudulently obtained. Jackson v. Case, 7 Wend. 153; Livingston v. Peru Co. 9 Wend. 511. The lands claimed must be fully identified or described in the instrument. Lane v. Gould, 10 Barb. 354 ; Jackson v. Woodruff, 1 Cow. 376 ; Jackson v. Camp, lb. 605. The occupant need not have declared that he held adversely. Christie V. Gage, 3 N. Y. S. C. 344. Apparently affirmed, 71 N. Y. 189. Adverse possession against the public cannot be set up by a deed which recognizes the public right. Bridger v. Wyckoff, 67 N. Y. 130. No possession can be adverse to one who has not at the time the right of entry and possession. Devyr v. Schaeflfer, 55 N. Y. 446, An invalid assessment lease will not support it. Hilton v. Bender, 69 N. Y. 75. An ancient deed, even if in some respects not perfectly regular, will do. Hoopes v. Auburn, &c. Co., 37 Hun, 568. A mortgagee in possession as such cannot set up adverse possession. Gross V. Welwood, 90 N. Y. 638. Adverse possession established against trustees who have a fee cuts off cestuis qui trustent and remaindermen. Bennett v. Gar- lock, 79 N. Y. 802. An acknowledgment of an easement in the opponent is fatal to adverse possession. It must be exclicsive. Ogden v. Jennings, 66 Barb. 301, affi'd 63 N. Y. 536. ' Adverse possession begun by one religious corporation may be continued by another organized by the same religious society on lapse of the first. First Soc. of the M. E. Church, &c. v. Brownell, 5 Hun, 464. Adverse possession for sixty-one years without any record title whatever is good, and specific performance will be decreed. Ottinger v. Strasburger 33 Hun, 466. ' 728 ADTERSE POSSESSION. [CH. XXXIV. § 370. — To constitute adverse possession by any person claiming a title founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in the following cases : 1. Where it has been usually cultivated or improved. 3. Where it has been protected by a sub- stantial inchswre. 3. Where, although not inclosed, it has been used for the supply otfuel, or for fencing timber, either for the purposes of husbandry, or for the wdina/ry use of the occupants. Where a known farm or single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not inclosed, according to the usual course and custom of the ad- joining country, is deemed to have been occupied for the same length of time as the part improved and cultivated. Substantially, Co. Proc. § 83; vide Price V. Brown, 101 N. T. 669; Bolton v. Schriever, 49 Super. Ct. 168. Adverse possession may be acquired under a sherifE's deed on a void sale. Van Voorhis v. Kelly, 31 Hun, 393. A certificate under a tax sale does not transfer a title under which adverse I possession may be set up. Bedell v. Shaw, 59 N. Y. 46 ; Bensel v. Gray, 63 N. T. 633; Fish v. Fish, 89 Barb. 513. Nor does a lease under an assessment sale. Hilton v. Bender, 69 N. Y. 75. See fully as to such constructive possession under § 83, Co. Proc. and a sub- constructive possession, Finlay v. Cook, 54 Barb. 9 ; Jackson v. Vermilyea, 6 Cow. 677. The doctrine of constructive adverse possession under a deed, etc., held not applicable to large tracts of land not bought for cultivation, but only to single farms or tracts. Jackson v. Woodruff, 1 Cow. 376 ; Thompson v. Bur- hans, 61 N. Y. 52. A grantee of a purchaser at tax sale may acquire under a deed in fee, by adverse possession. Sands v. Hughes, 53 N. Y. 387. Mere occupancy of a lot in virtue and under claim of a grant which does not embrace it, is not adverse possession sufficient to defeat a transfer of title. Laverty v. Moore, 83 N. Y. 658; Pope v. Hammer, 74 N. Y. 340. The payment of taxes and State rents under a nominal grant, and the hir- ing of men to protect timber, was held sufficient in The People v. Van Rensselaer, 9 N. Y. (5 Seld.) 391 ; approved, 33 N. Y. 44, but on another point. See Thompson v. Burhans, 61 N. Y. 53, holding surveying, paying taxes, etc., not enough of itself. Planting trees along a highway will not suffice as against the owner of the land on which the highway is. Bliss v. Johnson, 94 N. Y. 335. There can be no adverse possession of vacant, unoccupied, uninclosed and unimproved land. Merely taking a deed from one not the owner, going upon the land and there asserting title, and occasionally taking grass and sand, will not do. Price v. Brown, 101 N. Y. 669. Lands held under a Contract. — A possession by a purchaser under a con- tract cannot be adverse against the grantor, until he pay the purchase- money. Fosgate v. Herkimer M. Co. 13 Barb. 353; Matter of Dept. of Parks, 73 N. Y. 560. But it may be adverse as to strangers. Vroman v. Shepperd, 14 Barb. 441 ; Howland v. Newark Cem'y Ass'n, 66 Barb. 866. After a full performance by a vendee, a conveyance may be presumed, after twenty years. lb. See also Clapp v. Bromagham, 9 Cow. 530 ; partially overruling Jackson v. Johnson, 5 Cow. 74. The possession will be adverse from time of entry as to all the world but his grantor. Howland v. Newark Cem. Ass. 66 Barb. 366. Possession under a deed from holder of determinable fee is not adverse , until that estate has ended. Fleming v. Burnham, 100 N. Y. 1. Compare Christie v. Gage, 71 N. Y. 189. Possession must be Hostile, etc. — Adverse possession to constitute a bar to the assertion of a legal title must be actual and fwstile, and not a mere TIT. II.] ADVERSE P0SSE8PI0N. 729 trespass. Fosgate v. Herkimer, &c. Co. 13 Barb. 353 ; McGregor v. Comstock. 16 Barb. 427; affi'd, 17 N. Y. 162; Humbert v. Trinity Ch. 24 Wend. 587 Kent V. Harcourt, 33 Barb. 91 ; Sturges v. Parkhurst, 50 Super. 306. It must not recognize the rightful title. Jackson v. Croy, 12 Johns. 437 Jackson v. Britten, 4 Wend. 507. But the occupant may take a release. Northrop v. Wright, 7 Hill, 476 Stevens v. Khinelander, 5 Robt. 385. It cannot be adverse if held under a lease or tenancy of any kind or assign- ment by a tenant. Corning v. Troy, &c. Factory, 40 N. Y. 191 ; another pro- ceeding, 34 Barb. 485 ; Tompkins v. Snow, 66 Barb. 525. It must be hostile in its inception or there must have been a surrender of a holding not hostile. Enolls v. Bamhart, 71 N. Y. 474 ; Bradt v. Church, 39 Hun, 363. As to when the occupation of a tenant may be adverse to his landlord, vide Church v. Schoonmaker, 42 Hun, 325 ; Hasbrouok v. Burhans, id. 876. Visible, Distinct, etc. — The possession also must be visible, continuous, notorious and distinct, or definite, and inconsistent with the claim of others. Burhans v. Van Zandt, 7 Barb. 91 ; rev'd, on other grounds, 7 N. Y. 533 ; Humbert v. Trinity Ch. 24 Wend. 587; Cahill v. Palmer, 45 N. Y. 479; Becker v. Van Valkenburgh, 29 Barb. 319. A person holding adversely is a freeholder de facto. Roseboom v. Van Vechten, 5 Den. 414. Not, however, if he hold under an assessment lease. Sands v. Hughes, 53 N. T. 287. As to subterranean rights not embraced in deed, see Patten v. N. Y. Elev. R. R. Co. 3 Abb. N. C. 806. Presumption against Adverse Holding. — A seizin is presumed continu- ous, and another entering without claim, is presumed as of that seizin and subservient to it, unless the contrary is proved. Jackson v. Thomas, 16 Johns. 298 ; Fosgate v. The Herkimer, &c. Co. 9 Barb. 387 ; affirmed, 13 N. Y. 580 ; see also same title, 13 Barb. 352 ; Bogardus v. Trinity Ch. 4 Sand. Ch. 633. When Party Estopped. — A party is not estopped from setting up ad- verse possession by purchase of a right from the legal owners. Jackson v. Vanderlyn, 18 Johns. 355 ; see also Burhans v. Van Zandt, 7 N. Y. 523 ; Fish V. Fish, 39 Barb. 513; Kent v. Harcourt, 33 Barb. 491, as to estoppel gener- ally in cases of adverse possession. Water-courses. — Water-courses are also the subject of adverse possession. Townsend v. McDonald, 13 N. Y. 381; Law v. McDonald, 9 Hun, 33. But non-user during twenty years will not impair title. lb.; Olmstead v Loomis, 9 N^ Y. 423 ; modifying 6 Barb. 153 ; and see post, " Prescription ; " and Corning v. Troy Co. 40 N. Y. 191. Conveyance of Land held Adversely. — As to such conveyances, vide mpra, p. 547 ; and Crooked Lake, &c. Co. v. Keuka, &c. Co. 37 Hun, 9 ; Wil- lis V. Gehlert, 34 Hun, 566; Dawley v. Brown, 79 N. Y. 390; Swettenham v. Leary, 18 Hun, 284. Also Co. Civ. Proc. § 1501 ; am'd Laws 1882, ch. 399. Indians. — The possession of lands in this State by Indians is not such an adverse possession as will avoid conveyances by patentees of the State. Jack- son V. Hudson, 3 Johns. 375. Grants from the State. — The statute as to conveyances under adverse possession does not apply to grants from the State. 34 Barb. 349 ; 36 i6. 533. Adverse Possession Under Claim of Title not Written. — §§ 371, 372. lb. When it shall appear that there has been an actual continued occv/pation of premises., imder 730 ADVEBSE POSSESSION. [CH. XXXIV. a claim of title excluswe of any other rights but not founded upon a written instrument, or a judgment or de- cree, only the premises so actually occupied shall be deemed held adversely. Substantially, Co. Proc. §§ 84, 85. What Constitutes the Possession. — For the purpose of constituting' such adverse possession, land is deemed to have been possessed and occupied in either of the following cases and in no others : 1. Where it has been pro- tected by a substantial enclosure. 2. Where it has been usually cultivated or improved. § 374 (Co. Proc. § 87). The right of a person to the possession of any real estate, cannot be impaired or affected by a descent being cast in con- sequence of the death of a person in possession of such property. In considering acts of an adverse character, reference should be had to the character of the land and the uses to which it is ordinarily applied; for the purpose of ascertaining with what mind it was so possessed on the one side, and such possession was permitted on the other. Coming v. Troy Fac- tory, 44 N. y. 577. Possession of a small portion of a large body of land, too large to be used as one body, is held insufficient. Thompson v. Burhans, 61 N. T. 52. So payment of taxes on land is held insuflScient. Ih. As to efficacy of other acts see, also. Miller v. Downing, 54 N. T. 631. Whole Title. — The claim must be for the entire title, and not subservient to another, or acknowledged title in another. Howard v. Howard, 17 Barb. 663 ; Jackson v. Johnson, 5 Cow. 74 ; Stevens v. Rhinelander, 5 Robt. 285, and see ante, p. 727. Enclosure. — The enclosure, under the 85th section of the Code of Pro- cedure meant not a fence far away embracing the lands, but an enclosure of the lot alone, upon lines claimed. The enclosure may be by a natural bar- rier, as of rocks, etc. Doolittle v. Tice, 41 Barb. 181 ; Becker v. Valken- burgh, 29 Barb. 319. See also 2 Johns. 230 ; 5 Cow. 316 ; 7 Wend. 62. But a highway or marked trees will not do. Pope v. Hannier, 74 N. T. 240. It must be a substantial enclosure, not merely enough to give notice of ownership. Bolton v. Schriever, 49 Super. 168; Kip v. Hirsch, 53 Super. 1 ; Yates v. Van de Bogert, 56 N. Y. 536. Cultivated and Improved. — The land must not only be cultivated but improved. Reaping alone is not sufficient, nor keeping up an old fence, mowing grass or cutting brush ; there must be sowing, ploughing, etc., or the erection of buildings. Jackson v. Woodmfif, 1 Cow. 376 ; Jackson v. Camp, 1 id. 605 ; Doolittle v. Tice, 41 Barb. 481 ; Munro v. Merchant, 38 K Y. 4 ; Ein- lay V. Cook, 54 Barb. 9 ; Bliss v. Johnson, 94 N. Y. 285 ; Price v. Brown, 101 N. Y. 669. Occasional taking of sea-weed is not enough. Trustees v. Kirk, 68 N. Y. 460. Nor entering and cutting thatch once a year. Wheeler v. Spinola, 54 N. Y. 377. Contiuuity. — An interruption is fatal. Cleveland v. Crawford, 7 Hun, 616. Actual Occupancy. — Occasional resort to or temporary occupation of open lands, is not sufficient without a paper title distinctly describing the lands. Lane v. Goold, 10 Barb. 254; Trustees v. Kirk; Wheeler v. Spinola, supra. There must be actual occupancy measured by a distinct, visible and TIT. II.] ADVERSE POSSESSION. 731 marked, and not a presumptive or constructive possession. Coming v. The Troy, &c. Factory, 44 N. Y. 577 ; affirming, 34 Barb. 529. Actual occupancy of the bank of a stream will not carry constructively to the centre. There must be actual occupancy of the land under water. ll. The Claim. — To found title under a claim of title, and actual occupation, it is immaterial whether the deed be valid in form ; and there need be no deed or written evidence of title; and the party may even know his title to be bad. Bogardus v. Trinity Church, 4 Sand. Ch. 683 ; Jackson v. Wheat, 18 Johns. 40 ; Burhans v. Van Zandt, 7 N. Y. 538, rev'g 7 Barb. 91 ; Jackson v. Camp, 1 Cow. 605 ; Kent v. Harcourt, 33 Bsrb. 491. But it must be a claim of title, even if oral, and exclusive of the claim of all others. Humbert v. Trinity Church, 24 Wend. 587, and ante, p. 729 and infra. And it must be a claim of a specific title and not a mere general assertion. Higginbotham v. Stoddard, 73 N. Y. 94. Loose, verbal claims are rarely sufficient. Bobinson v. Phillips, 56 N. Y. 634. Possession of a Tenant. — The possession of a tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the ter- mination of the tenancy, or where there is no written lease from the time of last payment of rent. Co. Civ. Proc. § 378 (Co. Proc. § 86). See also Whit- ing v. Edmunds, 94 N. Y. 309. The limitation does not run from the time of the tenant's possession but from his adverse claim. Jackson v. Thomas, 16 Johns. 293. Naked Possession without Claim. — Any possession to be adverse must be accompanied with a claim of right or title: a mere naked possession or intru- sion without claim of right will enure to the benefit of the owner. Humbert V. Trinity Church, 34 Wend. 587 ; Jackson v. Frost, 5 Cow. 346 ; Howard v. Howard, 17 Barb. 663 ; Burbank v. Fay, 65 N. Y. 57; Bridger v. Wyckoflf, 67 N. Y. 130. As to tenancy under a lease in fee, vide Tyler v. Heidorn, 46 Barb. 438. Tenants in Common. — The possession of one tenant in common will he held the possession of all (no matter how long continued), and not adverse , to them, unless he claim for the entire title, or has ousted them. And if a tenant in common of part convey the whole, the grantee holds adverse pos- session to the others. Clapp v. Bromagham, 9 Cow. 530; Town v. Keedham, 3 Pai. 545; 9 Johns. 174; Sigler v. Van Riper, 10 Wend. 414; Humbert v. Trinity Church, 24 Wend. 587; Florence v. Hopkins, 46 N. Y. 182; Kathan V. Rockwell, 16 Hun, 90; Millard v. McMuUin, 68 K. Y. 345; Woolsey v. Morss, 19 Hun, 273. See the above case of Clapp v. Bromagham, as to va- rious acts which may constitute an adverse tenancy against co-tenants in common. Licensee. — Possession of is not adverse. St. Vincent Orphan Asylum v. City of Troy, 76 K. Y. 108. As to Wharf Property. — ^Under a claim that a party had appropriated to himself the whole wharfage or wharf property for thirty years, when he was entitled only to wharfage of half the pier, a corporation having annually demised the other half to lessees from time to time, it was held that there should be proof, knowledge by, ,or notice to the corporation of an adverse claim and enjoyment to establish title by prescription against it. Thompson V. The Mayor, 1 Keman (11 N. Y.), 155. Public rights are not affected by adverse possession. St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 108; Miner v. Mayor, &c. of N. Y. 37 Super. 171. As to Water Lots. — Where a municipal corporation has a title to land be- tween high and low water, an adverse title cannot be established against it 732 SQUATTERS. [CH. XXXIV. by reason of lateral fences running below the tide-way on either side, nor by the building of a bulkhead and filling in of a portion of it, or cutting sedge thereon, nor by reason of the claimant having paid taxes and assessments thereon, the property having been assessed to him on the city maps. McFar- lane v. Kerr, 10 Bos. 349. See also Stevehs v. Rhinelander, 5 Kobt. 285 ; Towle v. Palmer, 1 Abb. N. S. 81 ; Wheeler v. Spinola, 54 N. T. 377. Also see, as to land between high and low water mark, Roberts v. Baum- garten, 51 Super. Ct. 483; Beach v. Mayor, &c. of New York, 45 How. Pr. 357, 368; Towle v. Remsen, 70 N. T. 303, 316. Easements cannot be acquired by user under a license. Cronkhite V. Cronkhite, 94 N. T. 333. Actual knowledge of the owner is not required. Ward V. Warren, 83 N.Y. 265. See also, post, Ch. XLIII, as to Perry Slips. Also Laws of 1886, ch. 40, as to telegraph and other wires. Title III. Possession as Notice. The possession of real estate is notice of the claim or right of the occupant to all subsequent mortgagees, pur- chasers and others. It is prima facie evidence also, of the highest estate in the property, namely : a seizin in fee. See fully, as to possession as notice, cmte, p. 659, and cases cited. Title IV. Squatters or Intruders. Squatters or intruders may be removed by summary proceedings. Co. Civ. Proc. §§ 3233, etc. By Statutes of 1857, chap. 396, any person who should " intrude " or '' aqmt upon " any lands within the bounds of any incorporated city or vil- lage, or put any hut, house, shanty, hovel or other structure thereon, without license or authority from the owner, or in the streets thereof, was guilty of a misdemeanor, and the owner might give him ten days notice to quit his land on a day specified, by leaving the same on the premises. If the squatter or his successor did not remove he was guilty of a misde- meanor, and the owner might remove any hut, hovel or shanty, or other structure thereon, and cause the squatter to be removed. The process for so doing was not specified. This act was repealed by Laws of 1886, ch. 593, the misdemeanor having been provided for by the Penal Code, and the removal by the Code of Civil Procedure. CHAPTER XXXV. TITLE BY DEDICATION. Title I. — Dedication, how made. Title II. — Dedication of Streets and Ways. Title III. — Dedication op Public Places. Title I. Dedicatioit, how made. The right to hereditaments incorporeal and corporeal may pass to the public by such acts or permission of the owner, as may be tantamount in law to a transfer by ded- icatdon,SinA operate as an estoppel against him. Although the statute of frauds requires lands to be transferred by writing, exception is made where the transfer is by operation of law. The owner need not part with the title which he has; but the effect of the dedication is that, while it is in force, it estops, or prevents, in law, a party from exercising the right of exclusive possession and enjoyment of property which is generally incident to ownership. The doctrine of dedication extends to all realty, and particularly ways, streets, highways and places both of a public and private nature, and to ease- ments generally. A dedication may, of course, be made through a direct grant, as well as by acts which have the effect and force of a grant, and the grant may be made subject to conditions, which may determine the estate. Vide ante, " Conditional Estates,'' p. 116. Distinction between a Dedication and a Reservation of Land. — There is a distinction between a dedication and a reservation of land. The former is generally irre- vocable. The latter imposes no obligation on the owner ; 734 DEDICATION, HOW MADE. [OH. XXXV. his control over the property continues as fully as before, especially if there has been no adoption of the act by the persons claiming. There must be a renunciation of a right, and an acquisition of it by others, before title and estate in land can be varied by estoppel. The actual application to public use, therefore, of land, as, for example, the site of a market, court-house, etc., especially when the reservation is by a municipal cor- poration, does not deprive the owners of the right of resuming the entire control and disposition of the property when it is no longer wanted for the purpose to which it was originally applied. Woodyear v. Hadden, 5 Taunt. 137; Pitcher v. N. Y. & Erie K. R. 5 Sandf. 587; Gowan v. Phila. Exchange, 5 W. & S. 141; Irwin v. Dixion, 9 How. U. S. 10. General Principles of Dedication. — There is no par- ticular form or act necessary in the dedication of land to the public ; all that is required is the action or assent of the owners of the land, and the fact of its being used for the public purposes intended by the appropriation. The right to land dedicated need not be vested in any corporate or other body. It may exist in the public generally, and have no other limitation than the wants of the community at large. A dedication of a street or a part of a street to the public will be presumed and established from acts of the owner, although no pro- ceedings have been taken to divest his title. None but the owner of the fee can make a dedication that is absolute and final. The presumption of dedication will be created in law by a twenty years' uninterrupted use by the public. A lesser time will not raise the pre- sumption or be suflBcient evidence of dedication unless accompanied by some act of dedication. The act of the owner from which the dedication is inferred must be clear and unequivocal, and intended to he irrevocable, and accompanied or immediately followed by public use, or acceptance in order to prevent a revocation. Acts are TIT. I.] DEDICATION, HOW MADE. 735 more strongly construed as effecting a dedication if pur- chases have been made on the faith the act was meant to induce. The Trustees, &c. v. Merryweather, 11 East, 375; Regina v. Petrie, 30 Eng. L. & Eq. 207 ; Denning v. Roome, 6 Wend. 651 ; The President, &c., of Cincinnati v. Lessee of White, 6 Peters, 437; Ward v. Davis, 3 Sandf. S. C. 503; Carpenter v. Gwynn, 35 Barb. 395; McMannis v.- Butler, 51 Barb. 436; Wiggins v. Talmadge, 11 Barb. 457; Curtis v. Koeler, 14 Barb. 511 ; see ib. 328 ; Bissell v. The N. Y. Central R R. Co. 33 N. Y. 61 ; Barclay V. Howell, 6 Peters, 498 ; The Mayor of New Orleans v. The United States, 10 Peters, 662; Hunter v. Trustees, &c., 6 Hill, 407; Niagara Falls Bridge Co. V. Bachman, 66 N. Y. 261 ; People v. Loehfelm, 103 N. Y. 1. The intent to dedicate irrevocably is important between vendor and purchaser as well as with regard to the public. Grinnell v. Kirtland, 2 Abb. N. C. 387. Before a street can be deemed public from five years user, under Laws of 1862, ch. 63, there must be clear intention of the owner, evinced by an affirm- ative act, that his land should be permanently subject to such use. Strong V. City of Brooklyn, 68 N. Y. 1. The title may pass without any specific grantee in esse at the time. Town of Paulet v. Clarke, 9 Cranch, 393 ; McOonnell v. Town of Lexington, 13 Wheat. 584 ; Mayor v. U. S. 10 Peters, 662 ; Cincinnati v. White, 6 Pet. 481; Watertown v. Cowen, 4 Pai. 510; Pearsall v. Post, 20 Wend. Ill; aflBrmed, 33 Wend. 435 ; Hobbs v. Lowell, 9 Pick. 405. The dedication must be to a public use, but not necessarily to the advan- tage of the public at large. Ward v. Davis, 3 Sandf. 502; Tallmadge v. East River Bank, 26 N. Y. 105 ; Irwin v. Dixion, 9 How. U. S. 10. Only clear and unequivocal acts may make a dedication immediate. Carpenter v. Gwynn, 35 Barb. 395 ; Holdane v. Trustees, &c., 21 N. Y. 475. There must be acts, as well as words of intention. Pitts v. Hall, 3 Blatch. 239. No certain period of time is necessary, if the acts of the parties make the intention manifest (but see Laws of 1862, ch. 63) ; user, alone, however, is not in itself sufficient, except perhaps in the case of streets and ways. Pear- sall V. Post, srwpra; Hunter v. Trustees, &c., 6 Hill, 407; Munson v. Hunger- ford, 6 Barb. 265 ; Curtis v. Keesler, 14 Barb. 511. User, however, may be taken in connection with other evidence to prove actual dedication. People v. Loehfelm, 102 N. Y. 1 ; Pomfrey v. Village of Saratoga Springs, 34 Hun, 607. Non-user will not make a dedication. City of Boston v. Lecraw, 17 How. U. S. 426; «i(Z« also ib. 188. What are acts of dedication ? See further, Matter of Cooper, 6 Weekly Dig. 144 ; Matter of Ingraham, 4 Hun, 495 ; affl'd, 64 N. Y. 310. The mere bounding of lots by the centre line of a street laid out through grantor's land upon city map, but never opened, does not amount to a dedica- tion. Grinnell v. Kirtland, 6 Daly, 356. See also Avery v. N. Y. C. &c. R R. Co., 106 N. Y. 142. By a City.— A city may dedicate. Story v. N. Y. E. R. R. Co., 90 N. Y. 132. By the State. — A dedication may be made by a State, through its legislature, the same as by an individual. City of Oswego v. Oswego Can Co., a Beld. 357. Special Dedication.— There may be a partial or special dedication, as for foot passengers, or for horses, and not 736 DEDICATION OP STREETS. [CH, XXXV. for carts, or for special vehicles. The dedication may be defined both as to time and as to the mode of use, Pethbridge v. Winter, 1 Camp. 263 ; Marquis of Stafford v. Coyney, 7 B. & C. 259 ; Gowen v. Phil. Ex. Co. 5 Watts & Serg. 141 ; Poole v. Husk- inson, 11 Mees. & W. 827 ; Agate v. Lowenbein, 4 Daly, 62. Revocation. — Vide infra, Title II. Rivers, Streams and Wharves. — As to those vide post, Ch. XXXVI, "Prescription"; and Ch. XLin, "Land under Water." Religious and Charitable Uses. — Land may be dedicated to the public for pious and charitable purposes as well as for ways, commons, etc. Vide ante, p. 287. And as to dedication for burial grounds, ante, p. 617, and Hunter v. Trustees, &c., 6 Hill, 407. Title II, Dedication of Streets and Ways. The doctrine of dedication is frequently applied in cases where lots are sold with reference to contiguous streets and places, designated on a map to which refer- ence is made, . and by which streets, etc., the lots are bounded or access is given. In such cases, all pur- chasers, buying with reference to the map, are held to have such a right, by dedication of the land, as will con- clude the owner of the street bed, etc., from asserting his former title ; and a covenant will be implied that the purchasers are to have an easement over such streets or places. This easement becomes appurtenant to, and a servitude on all the land conveyed or so located ; and, for that purpose, no acceptance of the street, etc., as a highway, by the public, is necessary. Bissell V. N. Y. C. R. R. 23 N. Y. 61, reversing 26 Barb. 630; Holdane V. Trustees, &c., 21 N. Y. 174; Cox v. James, 45 N. Y. 557; Smiles v. Hast- ings, 24 Barb. 44; affi'd, 22 N. Y. 217; Irwin v. Dixion, 9 How. U. S. 10; Fonda v. Borst, 2 Keyes, 43 ; Bridges v. Wyckoff, 67 N. Y. 130 ; Story v. N. Y. E. R. R. Co., 90 N. Y. 122; Matter of Eleventh Avenue, 81 N. Y. 436; Tibbitts V. Cumberson, 39 Hun, 456, and the cases hereafter cited in this title. This, however, would only apply to streets which were necessary to give access to the highway, and would not apply to distant projected streets. Badeau v. Mead, 14 Barb. 328; Cox v. James, 59 Barb. 144 (affi'd, 45 N. Y. 557-) ; Hier v. N. Y. W. S. & B. R. W. Co. 46 Hun, 310. Nor to a mere survey, without sale of the contiguous lots. Irwin v. Dixion, 9 How, U. S. 10. The above rule applies, also, to an alley-way. Cox v. .Tames, supra. Each lot-owner and grantee is bound by the map, and their lots become subject to the streets laid out as a servitude, which becomes appurtenant TIT. II.J DEDICATION OP STKEETS. 737 to all the land. Smiles v. Hastings, 34 Barb. 44; affl'd, 33 N. Y. 217; and see poit, Ch. XXXVI, " Prescription. » Dedication for purposes of streets binds the parties, though made by- commissioners in partition ; and lots conveyed by the map and streets take title to the centre. The People v. City of Brooklyn, 48 Barb. 311. The publishing of a map by the owner of ground proposed to be made the site of a town, does not conclude him to any extent. It is only when lots are sold with reference to such plan that other rights intervene. Logans- port V. Dunn, 8 Ind. 378. A grantee whose deed bounds his land by a proposed road over other land of his grantor has a right of way over such land. Public formal acceptance or user fs necessary to have the road opened. Fonda v. Borst, 3 Abb. Ap. Ca! 135 ; Bridger v. Pierson, 45 N. Y. 601 ; Grinnell v. Kirtland, 3 Abb. N. C. 386. See also DeWitt v. Ithaca, 15 Hun, 568. A bam on a street laid out on a map by which lots were sold must be removed, although shown on the map. Taylor v. Hopper, 63 N. Y. 649. No record of dedication is required. Driggs v. Phillips, 103 N. Y. 77. As to removal of fence not creating a presumption of dedication, see KoseUe v. Andrews, 103 N. Y. 150. In order to make the street a public higliway, how- ever, there must be either an acceptance of the dedicated strip, or public user of the street as a highway ; and the mere surveying and mapping of the street, and opening and selling lots on it, does not make it a public highway. These acts show an incipient dedication, but until the lots are sold, or some of them, the owner can recall the pro- posed dedication, and extinguish the claims of purchasers by release or otherwise. There must be either an express acceptance by a positive act, such as opening the street, etc., or a distinct and unequivocal user for at least a short time to effectuate the dedication. Niagara Falls Susp. Br. Co. v. Bachman, 66 N. Y. 361. If there be dedication and acceptance the length of time during which there has been use is immaterial. Cook v. Harris, 61 N. Y. 448. Until the acceptance, the street remains the property of the original proprietor, subject to the easement of right of way in purchasers of lots adjoining the street. Holdane v. Trustees, &c. 31 N. Y. 474, reversing 33 Barb. 103 ; McMan- nis V. Butler, 49 Barb. 176; further decision, 51 Barb. 436; Fonda v. Borst, 3 Keyes, 8 ; Clements v. The Village of West Troy, 16 Barb. 351 ; City of Oswego V. The Oswego Canal Co. 3 Seld. 357; Willoughby v. Jenks, 30 Wend. 96 ; Wohlee v. The Buffalo, &c. R. R. 46 N. Y. 686 ; Carpenter v, Gwynn, 35 Barb. 395; Chapman v. Swan, 65 Barb. 311 ; DeWitt v. Ithaca, 15 Hun, 568; Grinnell v. Kirtland, 3 Abb. N. C. 386; affl'd, 68 N. Y. 629. Acceptance must be proved and is subject to all existing burdens, e. g., a railroad in the street. City of Cohoes v. Morrison, 42 Hun, 316. Removing obstructions or improving a street by the public authorities will make an acceptance. McMannis v. Butler, 51 Barb. 436 ; Vandemark V. Porter, 40 Him, 396. 47 738 DEDICATION OF STREETS. [CH. XXXV. By user for twenty years or oyer an acceptance is implied. Wiggins v. Tallmadge, 11 Barb. 457; Gould v. Glass, 19 id. 175. An acceptance and use of the thing dedicated is necessary to make a com- plete and irrevocable dedication. Bridges v. WyckofE, 67 N. Y. 130; Clements v. Village of "West Troy, 16 Barb. 361 ; contrary, s. c. 10 How. 199. It is held, also, that positive acts of dedication, accompanied by an open public user, will make the dedication complete and irrevocable, without other acts of acceptance. McMannis v. Butler, 51 Barb. 436 ; Denning v. Roome, 6 Wend. 651 ; Cook v. Harris, 61 N. Y. 448. Until acceptance, the dedication may be revoked so far as the public is concerned, and the land is subject to the control and enjoyment of 'he pro- prietors. Lee v. Village of Sandy Hill, 40 N. Y. 443; In re Brooklvn Heights, 48 Barb. 388; The City of Oswego v. Oswego Canal Co. 3 Seld. 357 ; Clements v. Village of West Troy, 16 Barb. 351 ; Bissell v. N. Y. C. R. Co. 36 Barb. 630 ; reversed 33 N. Y. 61 ; and see, infra '' Revocation." Where an owner dedicates land for a street, and then grants the land in fee, and the public takes no step as to the same for twenty-five years, all their right will be deemed to have ceased. Baldwin v. City of Buffalo, 39 Barb. 396 ; Hook v. Harris, 61 N. Y. 448. See also, Grinnell v. Kirtland, 3 Abb. N. C. 386. Streets laid down on a Public Map.— So far as relates to streets laid down on a puWic city, etc., map, it does not seem that tlie public bodies are to do anything, either by way of immediate ratification or acceptance, to complete the dedication to the public of a right of way where land is conveyed bounded upon streets designated on such a map. Any act of the proprietor amounting to a dedica- tion of the easement, which the city, etc., has shown its desire to obtain, by planning the map with the street on, is sufficient, and no affirmative action is necessary to give effect to the dedication, further than the use by the pub- lic, when they choose to use it, who, together with the purchasers, acquire a perpetual right of way over such street. On a subsequent opening of the street and taking the street bed by municipal proceedings, when the public officials see fit to take them, the easement is enlarged into a fee held by the municipal body as trustee for the public. Vide the above cases and the cases cited, infra. Effect of Boundaries by Streets and Dedication under a Public Law and Map.— The general tenor of the decisions as to lots so sold is, that if lots are sold by descriptions bounding them by public streets and avenues laid down TIT. II.] DEDICATION OF STREETS. 739 on a public map, or if the owners of lots have by deed adopted or recognized such map, the land in the street or avenue laid over the land of such owners is considered dedicated to the public use. If the grant runs up to the center line, the grantee takes subject and with reference to the map lines, but takes the legal title to the street-bed, subject to a perpetual public easement, with a right only to nominal damages on the street opening ; and with a further right to have the street permanently kept open. The damage, however nominal, should be paid to vest the title in the public under the proceedings subsequently to be taken to open the street. If the grantor had not conveyed so as to transfer land to the center to the grantee, then he, and not the grantee, would be entitled to the damages as owner of the fee taken. Prior to the actual proceedings opening the street, therefore, any dedication transfers immediately the easement w right of way to the surrounding lot-owners and the public — the mere naked fee remaining in the owner of the soil, or his grantees, which subsequently becomes transferred to the public, on compensation being made under the acts opening the street and taking the street-bed, if that is done. The fol- lowing cases sustain the above views and establish other points of interest bearing upon them : Where one bounds by a space called a street laid down on a public map, he dedicates his land in the site of the street to the public use, of the width as specified, so that he would be entitled only to nominal damages therefor on the street being opened. Matter of 39th Street, 1 Hill, 191 ; Wyman v. Mayor, 11 Wend. 486; Matter of Lewis Street, 3 Wend. 473; Matter of Pur- man Street, 17 Wend. 649. He is still held to have the actual fee, however, until divested by the proceedings ; an easement being implied in the lot-owners in the vicinity as well as in those immediately bounded on the street, until the street becomes a public one. Coe v. Bearup, 14 Weekly Dig. 346 ; Smith v. Hastings, 24 Barb. 44; Matter of 17th Street, 1 Wend. 363 ; Wyman v. Mayor, 11 Wend 486; Matter of 33d Street, 19 Wend. 138. The value of that fee, however, on the street being opened, is hel-d merely nominal, whether vested in the former owner or a purchaser, as it is subject to a perpetual right of way in the public, and the, interest is a mere reverten, dependent upon tlie contingency of that public use ceasing. See the cases above, and Livingston v. Th« Mayor, 8 Wend. 85 ; Matter of 33d Street, 19 Wend. 138 ; Matter of 29th Street, 1 Hill, 189 ; 16 Abb. 66 ; Wetmore v. Story, 22 Barb. 414 ; Cox v. James, 45 N. Y. 557 : Matter of Brooklvn. 73 N. Y. 179. 740 DEDICATION OF STKBBTS. [CH. XXXV. As to whether bounding on a designated street, but one not opened, would convey to the centre, it was held, in Bissell v. N. Y. Cen. R. E., that it would. 33 N. Y. 61. To the contrary were Matter of 17th Street, 1 "Wend. 352 ; Livingston v. The Mayor, 8 Wend. 85 ; Willoughby v. Jenks, 30 Wend. 95 ; Bartow v. Draper, 5 Duer, 730. Executors cannot thus dedicate by virtue of a power of sale. Bloomfleld V. Ketcham, 35 Hun, 318. See also Matter of 67th Street, 60 How. Pr. 264. And see ante, p. 518, as to boundaries by a street or highway. Where no Dedication has been Made under a Public Map.— Where there has been no dedication of any land laid down as a street or place on a public map, or adop- tion of the map by an abutting land-owner, doubtless both the right of way and the fee remain undisturbed in him or his grantee, and he would be entitled to full com- pensation for the land when taken for the public use. Revocation.— As a general rule, where a dedication has been accepted and acted on by the public, it cannot be revoked by the owner so long as the land remains in pub- lic use as a street. If a tract, however, is laid out into lots and streets, but the plan is not accepted by a munici- pal corporation, but other streets are adopted by them sufficient for adjoining lot-owners, the owner is not obliged to keep his original streets open, but may close them if the act does not disturb any private rights or interests that may have arisen, based on the proposed dedication. Underwood v. Stuyvesant, 19 Johnson, 181; In the Matter of Mercer Street, 4 Cowen, 542. Filing of a map of a parade-ground within which the act under which the map was filed provides that all streets shall be closed, will not affect dedicated streets within the area. Matter of Munson, 29 Hun, 325. Therefore, where the acceptance has never been made, or no rights raised, nor private interests concerned, nor a common user established, or acted on by the public for a sufficient time, the dedication may be revoked and the streets closed. See above, remarks as to lots sold by a public map, and Badeau v. Mead, 14 Barb. 328 ; Baldwin v. City of Bufialo, 29 Barb. 396 ; Holdane v. Trus- tees of Cold Spring, 21 N. Y. 474; Lee v. Village of Sandy Hill, 40 N. Y. 443 ; Williams v. N. Y. 0. R. 16 N. Y. 97; The City of Oswego v. Oswego Canal Co. 3 Seld. 257; Clements v. Village of West Troy, 16 Barb. 351; Bissell V. N. Y. C. R. R. 33 N. Y. 61; reversing .36 Barb. 630; Niagara Bridge Co. v. Bachman, 66 N. Y. 261. The question of revocation is one of fact. McMannis v. Butler. 51 Baib. 436. ' TIT. II.] DEDICATION OF STREETS. 741 The owner cannot revoke, so long as the street continues in use. Adams V. Saratoga, &c. 11 Barb. 414; Newman v. Nellis, 97 N. Y. 385. But he may revoke by satisfying private claims to the easement, if the dedication has not been accepted by the public. Bissell v. N. T. 0. R. R. 26 Barb. 630 ; reversed on other grounds, 23 N. Y. 61 : Holdane v. Trustees, &c. 21 N. Y. 474. No one can have adverse possession against the public where his deed expressly recognizes the public right. Bridges v. Wyckoflf, 67 N. Y. 180. Fee of Streets where Dedication has been Made. — Where a municipal corporation has acquired title by a mere dedication of the original owner, they have no right to the streets except for improving and regulating. The owner who dedicates his land to the public use for a street or highway, does not give to the public an unlimited use, and the nature of the public easement cannot be materially enlarged or changed. In cases, therefore, where the fee of the land was vested in the State, and by charter or legislation has been transferred to a city, or where a city has acquired title to the fee by proceedings to open, or by cession or other legal means, the city may devote the streets to such purposes as would be unjustifiable and illegal in cases where the streets merely existed by dedication, the original or contiguous owners or their successors in title still holding the fee. In cases of dedicated streets, a municipal corporation could erect no structure thereon, their title being limited to the controlling and enjoyment of the easement according to the intentions of the dedica- tion. And neither the Legislature nor a municipal body, could create an obstruction nor authorize any appropria- tion of the street bed of a dedicated street, except for the ordinary purposes of a street, without obtaining the con- sent of, or making due legal compensation to, the owners thereof The public acquire by a dedication only such interest in land appropriated by dedication to the uses and purposes of a highway, as will entitle them to use it for that object, and subject to the right of easement; the persons making th^ dedication and their representatives having the fee of the land may cause those obstructing or 742 PUBLIC PLACES. [CH. XXXV. appropriating the streets otherwise than for the ordinary- uses and purposes of streets, to respond in damages. Williams v. N. T. Cen. E. R. Co. 16 N. Y. 97; reversing, 18 Barb. 332; Knox V. The Mayor, 55 Barb. 406 ; Kelsey v. King, 33 Barb. 411 ; affi'd, 33 How. Pp. 40 (Court of Appeals, 1866) ; Wendell v. Mayor, 89 Barb. 339 ; affi'd, 4 Keyes, 361. Therefore it seems that where land has been dedicated and not opened, it can only be used for a street easement ; but when it has been opened and paid for, the corporation may construct sewers, and otherwise use the road- bed for municipal purposes. Kelsey v. King, 33 Barb. 410 ; affi'd, Court of Appeals, 1866, June 7, 33 How. 40; Trenor v. Jackson, 15 Abb. N. S. 115 ; Chapman v. Swan, 65 Barb. 314. See also, ante, Ch. n, " Eminent Domain." See fully on this subject, Story v. N. Y. Elevated R. R. Co. 90 N. Y. 123. Dedicated streets cannot be closed without condemnation and compensa- tion. Matter of Munson, 29 Hun, 325. Use of Dedicated Streets for Kailroads. — In accordance with the above principles, the authorizing of a street railroad, with cars drawn by horses, to be constructed over a dedicated street, was at first held illegal and invalid, without provision for compensation to the owners of the street-bed. The following later cases, however, take a contrary view, holding that the construction and operation of a street railroad is only another way of using the easement. Drake v. Hudson R. R. 7 Barb. 508 ; Wetmore v. Story, 22 Barb. 414; see Pratt v. Buffalo, &c. Co. 19 Hun, 30. A party not owning the road-bed could not claim compensation for use of the road by a steam railway, if the usefulness of the road was not impaired. Corey v. Buff. &c. R. R. 33 Barb. 483. But it was held, in Williams v. N. Y. C. R. R. Co. 16 N. Y. 97, that the owner of a fee of a dedicated street has a right to compensation. This case has been often distinguished, but not directly overruled. See fully as to railroads over public streets and highways, ante, Ch. H, pp. 44 to 48. High-ways.— Fi(?« Chap. XXXVI, Title HI, ^os*. Title III. Public Places. The principles above laid down as to streets apply equally to public places. The following cases may also be desirable for reference, as to public squares or places, and the rights of adjoining owners or the public therein. The Trustees v. Cowen, 4 Pai. 510 ; City of Cincinnati v. White, 6 Pet. 431 ; The Mayor of New Orleans v. The U. S. 10 Pet. 663 ; Mayor v. Stuyve- sant, 17 N. Y. 34; Green v. N. Y. Cen. R. R. Co. 13 Abb. N. C. 124. A law authorizing land, which had been dedicated by its owner for the purpose of a public square, to be used for a different purpose, impairs the obligation of a contract, and is void. Warren v. Lyons City, 22 Iowa, 351. It has been seen heretofore that where lots are bounded by a space giving access to them which is called a "pari," grantees of lots bordering thereon would take to the centre, ante, p. 520. Perrin v. N. Y. 0. R. R. 36 N. Y. 121 ; reversing 40 Barb. 165. In 41 N. Y. 619, this case is said to be affirmed, but no comment or report is made. The principle of the decision appears to be, that if the space allotted is a " park," in the proper and full sense of the term, abutting grantees would not take to the center by construction. TIT. III.] PUBLIC PLA0B8. 743 The appropriation of public ground for a certain time for a public use does not make a dedication of it. Pitcher v. Ni Y. & E. R. R. 5 Sand. 587. As to the dedication and appropriation of a strip of ground in front of a row of dwellings, vide Maxwell y. E. Riv. Bank, 3 Bos. 124. As to dedication of a "Village Gieen," vide Oady v. Cruger, 19 N. Y. 256. One adjoining owner cannot enjoin another from planting and enclosing a public place, not needed for a highway, by permission of the city authorities, unless it be done for a private purpose. Burnett v. Bagg, 67 Barb. 154. CHAPTEE XXXVI. TITLE BY PEESCETPTION, EASEMENTS, LICENSES, SERVITUDES, AND OTHER INCORPOREAL HEREDITAMENTS. Title I. — Prescription. Title II. — Rights of Wat. Title HI. — Highways. Title TV. — Eights of Common. Title V. — Licenses. Title VI. — Party Walls and Division Fences. Title VII. — Other Rights and Servitudes. Title I. Peescedption. {For title to Land ly Prescription, see Ohap. XXXIV, Ante.) A title may, by the common law, be made to incorpo- real hereditaments through prescription, that is, such a con- tinued peaceful occwpancy or iis&r as causes a legal infer- ence of title or right. The period adopted in this State is twenty years (formerly twenty-fi\re years). Immemorial usage was requisite by the English law. The prescription may be a personal right, or one annexed to a particular estate. Title by prescription is restricted to such rights as might have been created by grant. If by law, no grant of a right could be rightfully made, no presumption of grant arises from user, and the right cannot vest in pre- scription. Prescription is a right annexed to the person, while dedication is a public right. The public cannot ac- quire a right by prescription. The doctrine is inapplica- ble to the public, for it supposes a grant, and in the case of the public there can be no grantee. The occupancy or user must be open, continuous, peaceable and wnder claim, of a right, and not by permission or indulgence, to make TIT. I.] PEESOKIPTION. 745 it effectual as a prescriptive interest. It must be a lawful continuation for the required time of the possession from one to another, and any interruption of the enjoyment by an adverse claim and possession destroys the prescription. The investigation of these rights involves curious and intricate law that cannot be here but generally reviewed. In connection with this subject, the preceding chapter on Title by Dedication is to be considered. Munson v. Hungerford, 6 Barb. 365 ; Stiles v. Hooker, 7 Cow. 366 ; Com- ing V. Gould, 16 Wend. 531; Hoyt v. Carter, 16 Barb. 313; Oolvin v. Bur- nett, 17 Wend. 568; Miller v. Garlock, 8 Barb. 153; Kose v. Bunn, 31 N. Y. 375. As prescription supposes a grant, it is not applicable to a case where there can be no grantee. Munson v. Hungerford, 6 Barb. 365. The occupation or user, too, to be valid, must have been with the acquies- cence and knowledge of the owner. Parker v. Poote, 39 Wend. 313 ; Flora V. Carbean, 38 N. T. Ill; Miller v. Garlock, 8 Barb. 153. As to degree of knowledge, see Ward v. Warren, 83 N. Y. 265. No prescription can operate against a public right. Pierson v. Edgar, Cranch C. C. 454 ; Patton v. N. Y. B. R. R. Co. 3 Abb. N. C. 307 ; St. Vin- cent Asylum v. Troy, 76 N. Y. 108. A license even for thirty years, unless irrevocable, confers no prescription. Boyce v. Brown, 7 Barb. 80; St. Vincent Asylum v. Troy, 76 N. Y. 108. The enjoyment must be for twenty years adverse, and with the owner's knowledge. Sweeney v. St. John, 28 Hun, 634 ; see, also, 94 N. Y. 323. Prescription only applies to incorporeal hereditaments. Ferris v. Brown, 3 Barb. 105. Uninterrupted possession is prima facie evidence that it is adverse. The prescription, also, must be certain and reasonable; and an easement es- tablished by prescription or inferred from user, is limited to the actual user. Gayetta v. Bethune, 14 Mass. 49 ; Hart v. Vose, 19 Wend. 365 ; Brooks v. Cur- tis, 4 Lans. 383; afR'd, 50 N. Y. 639 ; Miller v. Garlock, 8 Barb. 153. See, as to the public not acquiring a right by prescription, Curtis v. Kees- ler, 14 Barb. 511. There can be no prescriptive right to use what it would be illegal to have obtained a grant of — e. g., as waters of the Erie canal. Burbank v. Fay, 65 N. Y. 57. Nor to commit a legal nuisance. Campbell v. Seaman, 2 N. Y. S. C. 331. Prescription cannot run against the public in land used for a highway. Driggs v. PhilUps, 103 N. Y. 77. The doctrine of prescription is most usually applied to certain rights, which are not, strictly speaking, land or real estate ; although they are, from their very nature, or usual appropriation, rights attached to or flowing out of land or corporeal inheritances, such as easements gen- erally, rights of way, rights of common and piscary, ripa- rian rights and privileges, and ancient air and lights. Among these rights '■'■ Frcmohises'''' have been adverted to, 746 PEESCRIPTIOK. [CH. XXXVI. in a previous chapter. The right to '^pewa " has been con- sidered under the subjects "Descent" and "Title by Deed ; " the right of pisca/ry will be briefly reviewed in a subsequent chapter, as, also, prescriptive rights over waters, and in water-courses. Easements are annexed to the estate of the dominant tenement, and pass with such estate, and are a charge upon the estate of the owner of the servient tenement, and follow such estate. Vide above cases and Hills v. Miller, 3 Pai. 354. Easements are not estates in land. Nellis v. Munson, 34 Hun, 575. The various classes of easements are fully discussed in Parsons v. Johnson, 68 N. Y. 63. Easement, how Extinguished or Lost.— An easement created by deed cannot be lost by mere disuser. In gen- eral, it may be lost by an abandonment for twenty years continuously, or an actual adverse user by the owner of the servient land for that period. Jewett V. Jewett, 16 Barb. 150 ; Smiles v. Hastings, 34 Barb. 49 ; affi'd, 33 N. Y. 317 ; Coming v. Gould, 16 Wend. 531 ; Miller v. Garlock, 8 Barb. 153 ; Wiggins v. McCleary, 49 N. Y. 346; Snell v. Levitt, 39 Hun, 337;, White's B'k of Buffalo v. Nichols, 64 N. Y. 65. A non-user for twenty years, accompanied by some act inconsistent with the right, will raise the presumption of a release or surrender. Reg. v. Chor- ley, 13 Jurist R. p. 833; Ward v. Ward, 14 Eng. L. & B. 413; Hofi&nan V.' Savage, 3 Mass. 130; Miller v. Garlock, 8 Barb. 153; Moore v. Rawson, 3 Bam. & C. 333. Abandonment, also, may be inferred by acts in pais at any time. Grain v. Fox, 16 Barb. 184 ; Taylor v. Hampdon, 4 McCord, 96 ; Farrar v. Cooper, 34 Maine, 394; Zimmerman v. Wingert, 31 Penn. 401. It may be inferred from failure to reserve. Scrymser v. Phelps, 33 Hun, 474. An easement is not destroyed by a division or sale of part of the estate to which it is appurtenant. Hills v. Miller, 3 Pai. 354. But will enure to all the parts if the burden on the servient estate be not thereby increased. Out- erbridge v. Phelps, 13 Abb. N. 0. 117; and see post, Title II, as to loss of right of way. Foreclosure of a mortgage preceding the instrument creating the easement is held in certain cases not to cut off the easement. Rector, &c., Christ Church V. Mack, 35 Hun, 418. But permission to do some act inconsistent with the continued enjoy- ment of the easement will extinguish. Cartwright v. Maplesden, 53 N. Y. 633. An easement created by grant cannot be lost by mere non-user. A writ- ing under seal affecting it is within the recording acts and does not bind a purchaser (without notice) of the dominant tenant, unless recorded. Adverse possession not hostile will not extinguish the easement. Snell v. Levitt, 39 Hun, 337. See further as to easements under the more particular TIT. II.] RIGHTS OF WAT. 747 heads of " Rights of Way " and " Other Rights and Servi- tudes " (Titles II and VII), post. Title II. Rights of Way. The most usual class of easements to which the doc- trine of prescription is applied, is rights of way. The easement of a right of way, or of private passage over the ground of another, may arise either by a grcmt of the owner of the soil, by reservation from a former grant, or hj prescription, which supposes a grant, or from necessity. Such rights, when arising by prescription, are strioti juris. A right of way for one purpose, does not necessarily include a right of way for another purpose ; and it cannot, by implication, be enlarged or extended to adjoining lands ; nor can the way be enlarged, varied or changed at the option of the one having the right. These rights can be created only by the owner of the land ; and one tenant in common cannot establish them upon the common prop- erty, without the consent of his co-tenant. They may be attached to a house, lot, gate, or city lot, as well as to a rural tract of land. As to instance of an easement created by reservation, vide Rose v. Bunn, 21 N. T. 375 ; Rexford v. Marquis, 7 Lans. 350. Assignment. — If the right be a mere personal one, it cannot be assigned or transmitted by descent ; but if the right is appendant or annexed to an estate, it may pass by assignment when the land is sold. Child v. Chappell, 5 Seld. 346 ; Smiles v. Hastings, 34 Barb. 44 ; affl'd, 33 N. Y. 317 ; Huttemeier V. Albro, 18 N. Y. 48. It may be created by reference to a map. Huttemeier v. Albro, 18 N. Y. 48. It will enure to the benefit of a landlord if acquired by a tenant. Demp- sey V. Kipp, 61 N. Y. 463. And vide infra, " Highways," and ante, '' Dedication,'' and Cox v. James, 59 Barb. 144 ; affl'd, 45 N. Y. 557. Limitation.— The exercise of these and other easements and servitudes may be general or limited to certain times. The right of using a well, or a right of passage, may be confined to certain hours as well as to a certain place. Repairs to the Way may be made if no unnecessary inconvenience be caused to the owner of the fee. McMillan v. Cronin, 13 Hun, 68 (appeal dism'd, 75 N. T. 474). When and How the Prescription Arises and How Lost. — The right of way may be established through a prescription, or through its existence from 748 EIGHTS OP WAY. [CH. XXXVI. time immemorial. Parol evidence of twenty years' uninterrupted continu- ous use, adverse or in hostility to the owner of the land, will authorize the inference of a grant. Hamilton v. White, 4 Barb. 61 ; afll'd, 5 N. Y. 9 ; Lan- sing V. Wiswall, 5 Den. 213; Williams v. Safford, 7 Barb. 313; Coming V. Gould, 16 Wend. 531 ; Miller v. Garlock, 8 Barb. 153 ; Chapman v. Swan, 65 Barb. 210; Combs v. Vigotty, 12 Weekly Dig. 433. ' A right of way to one plot is not good for another plot adjoining. Rex- ford V. Marquis, 7 Lans. 350. Nor will a right of way to a plot be construed to extend any further than will give such access. Spencer v. Weaver, 20 Hun, 450. The burden of the easement must be the same during the whole time that the right by prescription is being gained; if increased, the right to the increased burden must be gained by the full prescriptive period. Prentice v. Geiger, 74 N. Y. 341. All agreements with reference to easements, as conferring interests in lands, should be in writing. Wolfe v. Frost, 4 Sandf. Ch. 73 ; Pitkin v. Long Island R. R. Co. 3 Barb. Ch. 231 ; Day v. N. Y. C. R. R. 31 Barb. 548. They cannot be created by parol. Cayuga R. R. Co. v. Mies, 13 Hun, 170. The owner of land cannot close a new passage where there is a prescrip- tive right of way without restoring the old one. Hamilton v. White, 1 Seld. 9. The locality of a right of way may be established by usage and length of time, and changed in the same manner. Wynkoop v. Burger, 13 Johns. 333. Right of way over grantor's lands will be retained without express grant only in cases of necessity and consequent implied intention. Mere conven- ience is insufficient. Dales v. Ceas, 5 Weekly Dig. 400 ; Ogden v. Jennings, 62 N. Y. 536. The purchaser of a servient tenement does not take it subject to an ease- ment not disclosed by deeds oi* apparent use. Taylor v. Millard, 43 Hun, 363. Where an owner of two lots has been accustomed to use a way first cre- ated by himself over one to the other, no reservation of the easement is im- plied in a grant of the servient lot. Shoemaker v. Shoemaker. 11 Abb. N. C. 80. Nothing but a reservation or clear marks of its existence will create the easement. Outerbridge v. Phelps, 45 Super. 555. An easement may exist over a highway. Irwin v. Fowler, 5 Rob. 483, but such an easement cannot arise by prescription. Burbank v. Fay, 65 N. Y. 57. A right of way by prescription can never be inferred in a person to any part of his own land ; but when he sells a part the right of way may continue over the part sold in favor of the remainder, if it be necessary for ingress, but not for convenience. Wheeler v. Gilsey, 35 How. 139; Huttemeier v. Albro, 3 Bos. 546 ; affl'd, 18 N. Y. 48. A right of way appurtenant to land attaches to every part of it, although it may go into the possession of several persons. Underwood v. Carney, 1 Cush. 385; Lansing v. Wiswall, 5 Den. 213; Child v. Chappell, 5 Seld. 246; Lampman v. Wilks, 31 N. Y. 505: Huttemeier v. Albro, 3 Bos. 546; affl'd, 18 N. Y. 48. A right of way created by deed cannot be extinguished by non-user ; but a parol agreement therefor, if partially performed, may be efEectual as an es- toppel. Pope V. O'Hara, 48 N. Y. 447. Neither can a right of way acquired by dedication be lost by non-user, although this may be evidence of extinguishment. Wiggins v. McCleary, 49 N. Y. 346. A right of way claimed over lands once used as a highway, by prescrip- tion, cannot depend on user previous to the closing of the highway. Whee- ler V. Clark, 58 N. Y. 267. TIT. II.] RIGHTS OF WAT. 749 A right of way over a proposed avenue, upon which lots are sold, granted in the deed, is appurtenant and not in gross and passes, though some of the subsequent deeds omit reference to it with a view to extinguishment. Pot- ter V. Iselin, 31 Hun, 134. Tenants in Common. — One tenant in common cannot acquire or grant an easement over the common property. Lampman v. Wilks, 31 N. Y. 505 ; Crippin v. Morss, 49 N. Y. 63. A covenant of warranty is broken by the existence of an easement. Rea V. Minkler, 5 Lans. 196. Obstructions. — The owner of a right of way has a right to remove all ob- structions placed on it, and to repair it. Williams v. Stafford, 7 Barb. 309; Boyce v. Brown, 7 id. 80; Taylor v. Whitehead, 2 Doug. 748; McMillan V. Cronin, 75 N. Y. 474 ; Denning v. Sipperly, 17 Hun, 69 ; Loefller v. Fox, 11 Weekly Dig. 217; s. c. 23 Hun, 149. But an obstruction put up by the owner of the easement permanently ex- tinguishes it. 3 Kent, 448. Bars or gates may be put up for protection, in a proper case, by the owner of the servient estate. The necessity is to be decided by a jury. Bakeman V. Talbot, 31 N. Y. 366 ; Huson v. Young, 4 Lans. 64. See, also, Rose V. Bunn, 31 N. Y. 275; and seejposS, "Highways." Temporary Right of Way.— A temporary right of way- would also exist over adjoining land, if the highway be out of repair, or be otherwise impassable, as by a flood. This right would not arise by the impeding of a mere private way, unless the private way were one of necessity. Williams v. Safford, 7 Barb. 309 ; Boyce v. Boyce, 7 id. 80 ; Taylor v. Whitehead, 2 Doug. 748; 3 Kent, 424. Way by Necessity.— A grantee of land without access to the highway may have a right of way, by necessity, over the grantor's or a tenant in common's remaining land to the highway. The latter persons may designate the way in the first instance. The way is considered a necessary incident to the grant, without which the grant would be useless, and passes with the land. The right to such a way exists as well where there is a mere equitable grant of the title with the right of possession, as where the fee is granted. If a road is designated on a map, it is to be considered as the easement. Smiles v. Seely, 9 Wend. 507 ; N. Y. Life Ins. Co. v. Milnor, 1 Barb. Ch. 853; Holmes v. Seely, 19 Wend. 507; Smiles v. Hastings, 34 Barb. 44; ib. 33 N. Y. 217; Wheeler v. Gilsey, 35 How. Pr. 139; Huttemeier v. Albro, 2 Bos. 546 ; affi'd, 18 N. Y. 48 ; Simmons v. Lines, 4 Abb. Ap. Oa. 246 ; Bloomfield v. Ketcham, 25 Hun, 218. 750 EIGHTS OP WAY. [CH. XXXVI. A right of way of necessity only exists where the way is absolutely necessary. That it cannot be dispensed with without great inconvenience is not enough. Outerbridge v. Phelps, 45 Super. 555 ; Ogden v. Jennings, 62 3Sr. T. 526. A right of way by necessity, however, is considered terminated with the necessity. N. Y. Life Ins. Co. v. MUnor, 1 Barb. Ch. 354 ; Viall v. Carpen- ter, 14 Gray, 126; Holmes v. Goring, 2 Bing. 76. A right of way which has long existed as a convenience is not a way of necessity. Huttemeier v. Albro, 2 Bosw. 546 ; affl'd, 18 N. Y. 48 ; Proctor v. Hodgson, 29 Eng. L. & Eq. 453 ; 3 Kent, 823. Rights of way of necessity may exist temporarily, as if a structure, pipes, etc., have been erected on another's lands by license or other right, there is a presumed right of entry for repairs or other purpose incident to the full en- joyment of the license. Pompel v. Ricroft, 1 Sandf. 321 ; Doty v. Gorham, 5 Pick. 487; Chambers v. Furry, 1 Yeates, 167; Cooper v. Smith, 9 Serg. & Rawle, 26", Roberts v. Roberts, 55 N. Y. 275. Such rights are not lost or extinguished by mere non-user, but only by a holding strictly adverse for the period of twenty years. Smiles v. Hastings, an/pra. In a conveyance of a pier the word " appurtenances" includes reasonable access over land under water of grantor, and so if the land under water be afterward granted it passes subject to the servitude. Knick. Ice Co. v. 42d St. &c. R. R. Co., 48, Super. 489. Private Roads under the Constitution. — The Constitution of 1846, provides that private roads may be opened in a manner to be prescribed by law; damages to be assessed by a jury, and paid by the person to be benefited. The Law of 1801, re-enacted in 1813, 3 R. L. 376, provided for laying out private roads, damages to be assessed and paid as above. The present laws on the subject were passed in 1848, ch. 77, 1853, ch. 174, repealing the Act of 1848, amended by Laws of 1859, ch. 378, and Laws of 1860, ch. 468, for the details of which these acts will have to be consulted; also 1 R. S. 1st ed. p. 517. As to proceedings under the Act of 1853, tide Satterly v. Winne, 101 N. Y. 318. As to the fencing such roads, vide Herrick v. Stover, 5 Wend. 580 ; Lam- bert V. Hoke, 14 Johns. 383 ; Brout v. Becker, 17 Wend. 320, 323, and Laws of 1853, ch. 174. If a private road is laid over a person's lands without consent, or due pro- cess of law, he may obstruct it. Dempsey v. Kipp, 63 Barb. Sll ; reversed on the facts, 61 N. Y. 463. See also provisions as to private roads, post, Title IH, "Highways," and law. Extinguishment. — Rights of way, as well as all other subordinate rights and easements, are extinguished by the unity of possession, both the servient land and the easement being owned by the same person. But a right of way existing from necessity would not be extinguished by the unity of possession ; such as a right of way to a church or market, or a right to a gutter carried through an adjoining tenement ; or to a water-course running over TIT. III.] HIGHWAYS. 751 adjoining lands to a highway ; such a right would be revived by a severance. Proctor V. Hodgson, 29 Eng. L. & Eq. 453; 1 Saund. 323, note 6; Hazard v. Robinson, 3 Mason, 376 ; 3 Kent, 433 ; Buckby v. Coles, 5 Taunt. 311; Cruise's Digest, title 34, Ways; Huttemeier v. Albro, 2 Bos. 546; affi'd, 18 N. y. 48 ; Parsons v. Johnson, 68 N. Y. 63. As to what will support an inference of abandonment, see Crain v. Fox, 16 Barb. 184. The right is not lost by a union of the two estates unless there is an intent to abandon it. White v. Nichols, 64 N. Y. 65; Mott v. Mott, 8 Hun, 474; modified in 68 N. Y. 346. Rights of way created by deed are not lost by mere non-user. Wiggins V. McCleary, 49 N. Y. 346. Rights ofWay and Prescription in Streams and over Water. — Vide post, Ch. XLIII, and Meyer v. Phillips, 97 N. Y. 485 ; Law v. McDonald, 9 Hun, 23. Title III, Highways. It is a general principle of law that the Legislature has the right to establish and improve public highways as it pleases. People V. Plagg, 46 N. Y. 401. Highways are referred to herein, as distinguished from " streets" opened under acts by which the land for the streets is in terms transferred to the city. High- ways were established, both in the cities and in the State generally, under a system of laws different from that which laid out and regulated streets; and the title to and rights in the same are regulated by different prin- ciples. The sea-shore though open to all is not a highway. Murphy v. Brooklyn, 98 N. Y. 643. General Principles of Law applicable to Highways.— By the rules of the common law, when a highway is laid out over the land of a private person, the public acquires no more than a right of way or easement, and the powers and privileges incident to such right. The title of the original proprietor is not divested, but still continues. He may use the land, above or below, in any manner not inconsistent with the public right, and may maintain 752 HIGHWAYS. ^ ' [OH. XXXVT. trespass or ejectment in relation to it ; and while it is used as a highway, he is entitled to any productions which may grow .upon the surface, and to all minerals, and to damages for any interference of the road-bed. If the road should be vacated by the public, he resumes the exclusive possession and ownership of the ground, and he may have damages for any use or occupation of the land (other than the easement) inconsistent with his right to the soil. Dovaston 7. Payne, 24 Blacks. 527; In re John St. 19 Wend. 659; 12 Wend. 371; Sidney v. Earl, 12 Wend. 98; People v. Law, 34 Barb. 494; Dygart v. Schenck, 23 Wend. 446; Congreve v. Smith, 18 N. Y. 79; Jackson v. Yates, 15 Johns. 447 ; The Trustees of Presbyterian Ch. v. The Auburn, &c. R. R. Co. 3 Hill, 567 ; Pearsall v. Post, 20 Wend. 181 ; Barclay V. Howell's Lessee, 6 Peters, 498 ; The People v. The Board, &c. of West'r Co. 4 Barb. 64; Etz v. Daily, 20 Barb. 32; Kelsey v. King, 33 How. 39; McCarthy V. City of Syracuse, 46 N. Y. 194. Gas-pipes cannot be laid in a highway without additional compensation. Bloomfleld, &c. Co. v. Calkins, 64 N. Y. 65. As to what obstruction of a highway is liable to abatement, see Strick- land V. Woodworth, 3 N. Y. S. C. 286. A conveyance of land to a municipal corporation for a highway conveys the fee; not a mere easement. Vail v. L. I. R. R. Co., 106 N. Y. 288. As to railways over highways, vide ante, Ch. II. As to compensation for highways taken under the law of eminent domain, vide ante, Ch. 11. Transfer of Title in Highways. — Land in a highway may pass not only by special description in a convey- ance, but constructively. It has been seen above (Ch. XX), that if a person over whose land a highway is laid out, convey the land on either side of it, but de- scribing the land by such special boundaiies as not to include the road or any part of it, the property in the road would not pass to the grantee by the deed, nor would it pass as an incident or appurtenance. If, how- ever, lots are conveyed by descriptions, bounding them " by" or " along" roads or streets, in which the grantor has an interest or estate, the respective grantees will take the fee of the land in front of their respective lots to the centre of the streets. This applies equally to city lots as to rural property. The rule is otherwise when the land is so bounded by feet, etc., as to exclude the street, or is bounded by a specific line or side of the TIT. III.] \ HIGHWAYS. 753 street. Or probably if a municipal corporation were to grant land bounded by a public street. So also if a strip of land were the only means of access to lots, and they were bounded on that, they would be considered as bounded to the centre, unless words were used showing an intention to restrict the grant. Perrin v. The N. Y. 0. E. R. Co., 36 N. Y. 120, affirming 20 Barb. 65; Herring v. Fisher, 1 Sandf. S. C. 344 ; Sherman v. McKeon, 38 N. Y. 266 ; Jackson v. Yates, 15 Johns. 447 ; Jones v. Cowman, 2 Sandf. S. C. 234 ; Ham- mond V. McLachlan, 1 Bandf . S. 0. 323 ; 28 N. Y. 68 ; Adams v. Saratoga & Wash. R. R. 11 Barb. 414 ; rev'd, 10 N. Y. 328; The People v. Law, 34 Barb. 494 ; Wetmore v. Story, 22 Barb. 486 ; Anderson v. James, 4 Rob'n, 35 ; Wetmore v. Law, 34 Barb. 515; Dunham v. Williams, 36 Barb. 136, and 37 N. Y. 251 ; see also, cmte, p. 518, and the cases cited. The Presumption as to Ownership. — The legal presump- tion both as to grantor and grantee, as respects a high- way or road, is that one who owns both sides of a highway is presumed entitled to the fee of the road, subject to the public easement. Upon the discontinu- ance of a road, therefore, the fee is not in the public, but presumptively in the owners of the adjoining land, until proof is made showing other ownership. Matter of Jobn, i&c. Street, 19 Wend. 659 ; Van Amringe v. Barnett, 8 Bos. 358 ; Mott t. Mayor, 2 Hilton, 358 ; Herring v. Fisher, 1 Sandf. 344- 350; Wetmore v. Story, 22 Barb. 487; Bissell v. N. Y. 0. R. R. 23 N. Y. 61; The People v. Law, 34 Barb. 494; Dunham v. Williams, 37 N. Y. 251; Williams v. N. Y. G. R. R. 16 N. Y. 97. Turnpike Compauies. — A turnpike company, also, has merely authority to obtain land for the purpose of its road, i. e. the easement; and on closing the road, the land would revert to the original owner, in whom or his privies the title might be. Dunham v. Williams, 36 Barb. 136; reversed on other grounds, 37 N. Y. 251 ; but see, infra, the statutes relative thereto. Abandonment of a Highway. — An abandonment of a highway can only be done by the public by some act of obstruction or other unequivocal act, or by non-user for twenty years. Amsbey v. Hinds, 46 Barb. 622 ; affi'd, 48 N. Y. 57 ; but see, infra, the statutes relative thereto. The owner of the highway-bed may build drains connecting with sewers. Barton v. City of Syracuse, 37 Barb. 292 ; affirmed, 36 N. Y. 54. See this case as to the obligations of a municipality in constructing, and repairing sewers. As to user of a highway making a dedication, vide ante, " Dedication ; " also, Barclay v. Howell, 6 Pet. 498. No user by the public of land adjoining a navigable stream will raise presumption of a grant. Post v. Pearsall, 23 Wend. 425. Abandonment of Parks. — Owners of land fronting on a park will be protected. Foster v. City of Buffalo, 64 How. Pr. 127. Dist'g'd as to land not directly fronting. Greene v. N. Y. Cen. R. R. Co., 65 How. Pr. 154. 48 754 HIGH WATS. [OH. XXXVI. Roads Opened under the Dutch Government. — The civil laws prevailing under the Dutch government established a different rule as to the taking and ov^nership of land used for highway. The title to the bed of highvpays laid out, under that dominion, is in the public, and not in the original or adjoining owners or their privies. See Dunham v. Williams, 37 N. T. 251 ; reversing 36 Barb. 136; Wetmore v. Story, 33 Barb. 433; Rewthorp v. Bourgh, 4 Martin (La.), 97-137. Acts establishing Public Highways. — At an early period of the Colonial rule ordinances were made and acts passed laying out and regulating high- ways in the Province, and in the cities. In 1691, May 6 (1 S. & L. 3, 1 Y. S. 3), an act was passed regulating and laying them out in the towns in the province, through overseers, on agreement and direction by freeholders, to be registered in the town books, and subject to approval of the next court of sessions of the peace. On the 11th May, 1697, an act was also passed au- thorizing laying out, regulating, and amending the highways. On June 19, 1703, an act was passed for laying out public highways in the colony. Renewal of the Act of 1703. — The above Act of 1703 was renewed in 1707 and 1708, 1713, 1720, and 1773. Local acts were also passed from time to time. Law of March 19, 1813.— The Law of March 19, 1813 (2 R. L. 270, § 47), in repealing other acts relative to highways, states that those relating to the city and county of New York shall not be repealed by the act, and pro- vides generally as to laying out highways. By the Revised ' Statutes, commissioners of highways of towns are to regulate and alter highways, and to cause those laid out, and those used for twenty years as such to be described and recorded in the town clerk's office, and to lay out new and to discontinue old roads, if deemed unneces- sary, on the oath of twelve freeholders. Surveys are to be made of discon- tinued or new roads, and recorded. Provision is made against laying out private or public roads (without the consent of owners) through orchards or gardens (of four years' growth), or through buildings or fixtures or erec- tions for trade or manufacture, or yards or enclosures necessary for use or enjoyment ; and no highway is to be laid out through improved or culti- vated ground, unless certified as necessary by twelve town freeholders. The law further provides that the highway is to be laid out on application and assessment Of damages. 1 R. S. 1st ed. 509 to 521, based on Laws of 1813, p. 283; Laws of 1826, 228. See, also, as to the above, 20 N. T. 252; 1 Cow. 23; 10 How. Pr. 209; 6 Barb. 607; 19 *. 179; 5 N. T. 573; 6 Barb. 607; 3 Hill, 460; 6 Pai. 86; 4 ». 519; 4 Cow. 190; 2 Hill, 443. The Revised Statutes were amended by Law of May 3, 1834, ch. 367; Ap. 11, 1836, ch. 132; 1845, ch. 180; 1847, ch. 455; 1853, ch. 174; 1865, ch. 235; 1857, ch. 491 ; 1857, ch. 615; 1858, ch. 103; 1859, ch. 368 and 273; 1802, ch. 243 ; 1868, ch. 507 ; 1869, ch. 24 and 397 ; 1870, ch. 125 ; 1873, ch. 315, 395, and 773; 1874, ch. 615 ; 1875, ch. 431, also repealing ch. 315, of 1873, and ch. 615, of 1874; 1876, ch. 271 ; 1877, ch. 465, also repealing the Act of 1876; 1880, ch. 114; 1881, ch. 696; 1883, ch. 99, in various details of the proceedings, and as to powers of commissioners of highways, and repairs thereof, and encroachments thereon. As to laying out a village street under Laws of 1870, ch. 291, as amended by Laws of 1871, ch. 870, vide People v. President, &c. of Whitney's Point, 103 N. Y. 81. As to opening highways under Laws of 1881, ch. 696, vide Buckley v. Drake, 41 Hun, 384. Apart from the statute, a mere dedication would not make a public high- way. It becomes so on being legally laid out as such. Trustees of Jordan V. Otis, 37 Barb. 50. Nor a mere use when the road has not been accepted and opened ; and the commissioners cannot proceed for an encroachment. Doughty v. Brill, TIT. III.] HIGHWAYS. 755 36 Barb. 488; affi'd, 3 Keyes, 612. See as to acceptance by the public authorities, fully, ante, p. 737, ''Dedication." The above Act of 1813, 2 R. L. p. 277, as, also, the Revised Statutes (amended Law of 1861, ch. 311), provided that highways and private roads then laid out and dedicated to public use not opened and worked within six years from the time it was or should be laid out, should cease to be a road, for any purpose. The time of any suit, certiorari, etc., is to be no part of the six years. Also, 1 Bev. Stat. p. 520, § 99. The Act of 1813 has been held not to have any relation to highways ded- icated by the owners. McMannis v. Butler, 51 Barb. 436. By Law of 1861, ch. 311, highways disused for six years, cease to be high- ways. The Act of 1861 is to apply to highways or private roads laid out and dedicated to the public within six years of the act (Ap. 17, 1861), and to every highway thereafter laid out (vide the law). This act applies, also, to highways created by twenty years' user. The law is not retroactive. Amsbey v. Hinds, 48 N. T. 57. See also, 2 Cow. 436; 31 N. Y. 62; 46 Barb. 317, 622, as to above pro- visions. As to sidewalks over highways, vide Law of 1860, ch. 61; 1876, ch. 340; 1881, ch. 398, repealing part of § 1 of each act. As to carrying wild leasts over highways. Law of 1862, ch. 112; repealed by Laws of 1886, ch. 593. As to animals at large thereon. 1862, ch. 459; 1867, ch. 814; 1869, ch. 434; 1872, ch. 776; 1880, ch. 245, repealing all these acts. Co. Civ. Proc. ch. XXX, title 10. As to roads through vineyards, vide Law of 1869, ch. 34 ; 1883, ch. 99. Through grwoeycurds. Law of 1868, ch. 843; 1869, ch. 708. Turnpike Roads and Toll-Bridges. — When the corporation owning such is dissolved, the road or bridge is to be a highway. Law of 1838, ch. 263. See, as to the ownership of such roads after abandonment. People v. Newburgh, &c. Co. 86 N. Y. 1 ; Kings Co. &c. Co. v. Stevens, 101 N. Y. 411 ; and ante, p. 753. Trees on Highways. — Trees belong to the owners of the highway-bed, and they may remove them at pleasure, but cannot plant so as to obstruct the highway. The Village of Lancaster v. Richardson, 4 Lans. 137. Vide, as to shade trees and their 'removal for repairing the highway or bridges, 1 R. S. 525, §§ 126, 137; Laws of 1853, ch. 573; Laws of 1863, ch. 93; 1869, ch. 833; also, as to planting trees, Law of 1869, ch. 323; 1870, ch. 59^; 1874, ch. 570. Partly repealed by Laws of 1886, ch. 593, 595; vide also, 31 N. Y. 156. Pipes in Highways.— Laws of 1873, ch. 63; 1886, ch. 452. Discontinuance.— Laws of 1873, ch. 69 ; 1878, ch. 114; vide supra, p. 754 as to city of New York. ' Obstructions. — Neither the owner nor any one else may obstruct by excavation or obstacle. Wright v. Saunders, 65 Barb. 214 ; affi'd, 36 How Pr. 136; Trenor v. Jackson, 15 Abb. N. 8. 116. Private Roads. — Vide, ante, Title II. The use of Highways for Railroads.— As to this, vide fully, ante, Ch. II, pp. 42 to 48. See, also, Law of 1864, ch. 583. Railroads may cross highways by con- sent of the commissioners of highways. Laws of 1835, ch. 300 ; see 14 N. Y. 530. As to highways over railroad tracks, vide Laws 1853, ch. 63. A fee in the street is not necessary to entitle an abutting owner to dam- ages for injury by a railroad in a street. Pond v. Met. E. R. R. Co. 42 Han 567. 756 LICENSES. [CH. XXXVI. Title IV. Right op Common. This is a right of infrequent occurrence in this State. It is a right that persons have in the lands of another, generally existing for purposes of pasturage or piscary, or for obtaining wood for fuel or otherwise. It may exist by prescription. Lands may also be dedicated or appro- priated in common. Common appendant is a right an- nexed to the ownership of arable land as such. Common appurtenant arises by grant or prescription ; common in gross is annexed to the person, and not the land. There are a few cases among the early reports in this State on the subject, viz.: Watts V. Coffin, 11 Johns. 495; Livingston v. Ten Broek, 16 Johns. 14; Layman v. Abeel, 16 Johns. 30 ; Van Rensselaer v. Radcllfif, 10 Wend. 639 ; Livingston v. Ketcham, 1 Barb. 593. The general principles established by the above cases are that common of pasture is apportionable, but that common of estovers cannot be, and be- comes extinguished if apportioned or divided. That common in gross may be aliened and descends, but that it must be exercised or transferred jointly by the various grantees or heirs, and cannot be separately used by them. The right of rural residents to pasturage on the public highway, under regulation of the town authorities, has been a matter of some discussion in the State. Prior to the highway acts, under the Revised Statutes, the right was held not to exist. Vide Hallady v. March, 8 Wend. 147 ; Jackson v. Hathaway, 15 Johns. 458; Gedney v. Earle, 12 Wend. 98; Tonawanda R. R. Co. V. Hunger, 5 Den. 364. Under the more recent highway acts, where the use of the entire highway- bed is taken from the owner, the right is held to exist. Grriffin v. Martin, 7 Barb. 397 ; Hardenburgh v. Lockwood, 35 Barb. 9 ; contra, White v. Scott, 4 Barb. 56. Extinguishment of Right of Common. — This may be done by release, by unity of possession, or by a severance of the right. If a part is released, it is considered that the whole right is extinguished. The unity of possession necessary to extinguish the right requires the union of an estate equal in duration and right with that to which the right belongs. The right is extin- guished by severance, when the estate is conveyed free from the right. Title V. Licenses. A license is an authority to do a particular act or series of acts upon another's land, without possessing any estate therein. A license by parol to enjoy a special privilege is not an interest in land, within the statute of frauds requiring a writing. It is founded on personal confidence, and not assignable. If an actual interest in TIT. V.J LIOElifSBS. 757 land is transferred, however, it is no longer a mere license, but comes within the statute of frauds, and requires a writing. Prince v. Case, 10 Conn. 375; Kerr v. Connell, Birton (N. B.), 133; Woodbury v. Parshley, 7 N. H. 237; Mumford v. Whitney, 15 Wend. 380; Cook V. Stearns, 11 Mass. 583; Ricker v. Kelly, 1 Greenl. 117; Clement v. Durgin, 5 Greenl. 9; Wedenhall v. Klinck, 51 N. Y. 246; Cayuga R. R. Co. V. Niles, 13 Hun, 170. An instrument giving a right to enter and take oil on payment of a royalty is a license, and does not convey title to the oil. Shepherd v. Mc- Calmont Oil Co. 38 Hun, 37. A license by parol to use a way is revocable ; also, any licenses which, if given by deed, would create an easement. Foster v. Browning, 4 R. I. 47 ; Cocker v. Cowper, 1 Cromp. Mees. & Ros. 418 ; Wallis v. Harrison, 4 Mees. & W. 538 ; Morse v. Copeland, 3 Gray, 302 ; Jamieson v. Milleman, 3 Duer, 25S ; Coleman v. Forster, 37 Eng. L. & Eq. 489 ; Eckerson v. Crippen, 39 Hun, 419. And no right bv prescription can be gained. Cronkhite v. Cronkhite, 94 N. y. 333 ; White v. Sheldon, 35 Hun, 193; Wiseman v. Lucksinger, 84 N. y. 31 ; Eckerson v. Crippen, s-upra. But a license to do some act which has been acted on, and rights of prop- erty created under it, would be sustained, in equity, as an estoppel, and would not be revocable, if, when revoked, the licensee would not be in statu quo. Wilson v. Chalfant, 15 Ohio, 348; Collins v. Marcy, 25 Conn. 339 Winter v. Brockwell, 8 East, 308 ; Le Fevre v. Same, 4 Serg. & R. 241 Resick v. Kern, 14 ib. 267; Bridges v. Blanchard, 3 Nev. & Marm. 691 Wood V. Manley, 11 Adol. & BU. 34; Ameriscoggin Bridge v. Bragg, UN. H. 103 ; Liggins v. Inge, 7 Bing. 683 ; Addison v. Hack, 3 Gill, 231 ; Brown V. Bowen, 80 N. Y. 519; and see the New York cases fully reviewed in note to Babcock v. Utter, 1 Abb. Ap. Ca. 38. This case also holds that adverse possession cannot arise under a license, and even after twenty years it may be revoked. See also Burhans v. Van Zandt, 7 N. Y. 533 ; Troup v. Hurl- burt, 10 Barb. 354; Vrooman v. Shepherd, 15 Barb. 441 ; Cronkhite v. Cronk- hite, 94 N. Y. 333. If land to which water is conveyed by pipes from land of another, under a license, be sold, no right to the water passes to the grantee. Root v. Wad- hams, 107 N. Y. 384. But such license, even if granted for a valuable consideration, is revo- cable. Cronkhite v. Cronkhite, 94 N. Y. 393. The English cases on the subject were extensively reviewed in the case of Wood V. Leadbitter, 13 Mees. & W. 838 ; and the court held that a right to enter and remain on land of another for a certain time could be created only by deed, and that a parol license to do so was revocable at any time ; and that a right of common or right of way, or right in the nature of an easement, could only be granted (when tbe subject of a grant) by deed. That a mere license passed no interest ; but that a license, coupled with an interest, was not revocable. The courts of this State also holi that a license is revocable by parol ; although an interest in land cannot be so revoked or transferred, nor can a license, when it is annexed to and a part of the grant. Vide Jamieson v. Milleman, 3 Duer, 355 ; People v. Fields, 1 Lans. 324, and cases infra. A parol license of right of way to a railroad company, even when acted on, can be revoked at pleasure. Murdock v. Prospect Park & Coney Is. R. R. Co. 73 N. Y. 579. If a license has been granted for a temporary purpose, it terminates when the purpose of the license has been fulfilled. Hepburn v. McDowell, 17 Serg & Rawle, 383. 758 PARTY WALLS. [CH. XXXVI. An agreement to set a house at a given distance from the street, is an interest in lands and Toid, unless in writing. Wolfe v. Frost, 4 Sand. Ch. 72. A parol license may be given to enter land and remove the soil. Syron V. Blakeman, 33 Barb. 836. A person giving a parol license, when it should be in writing, cannot object to acts done under it, before revocation. Pierrepoint v. Barnard, 3 Seld. 379. A parol license to a tenant to remove buildings is valid. Dubois v. Kelly, 10 Barb. 496. Or to divert a water-course. Rathbone v. McCoimell, 30 Barb. 311 ; affi'd, 31 N. T. 466. A license to do a thing is to do it with all its natural consequences. Winchester v. Osborne, 63 Barb. 338 ; rev'd on the facts, 61 N. T. 555 ; Ryckman v. Gillis, 57 N. Y. 68. A parol license to cut trees is not valid. McGregor v. Brown, 6 Seld. 114 ; Torrey v. Black, 65 Barb. 414 ; rev'd on another point, 58 N. Y. 185 ; see Car- penter V. Otley, 3 Lans. 451 ; see also 6 Hill, 61, as to license by parol. A grant of a license is not retrospective. Calkins v. Bloomfleld & Rochester Natl. Gas Lt. Co. 1 Supm. Ct. 541. A parol license to erect sheds on wharves in New York city is invalid. People V. Macy, 23 Hun, 577. Revocation.— A license while executory is revoeaWe. Until notice of revocation, a party may act under it. As a general tule, a transfer of the land, as to which a license has been given, is a revocation. Dubois V. Kelly, 10 Barb. 496 ; Winne v. Ulster Co. Savgs. Inst. 37 Hun, 349; Shepherd v. McCalmont Oil Co. 38 Hun, 37. A license, coupled with and forming part of a grant, would be irrevo- cable. Winchester v. Osbom, 63 Barb. 338 ; rev'd on the facts, 61 N. Y. 555 ; Jamieson v. Milleman, 3 Duer, 355. The fact that it was given for a consideration does not make it irrevo- cable. Cronkhite v. Cronkhite, 94 N. Y. 333 ; Wiseman v. Lucksinger, 84 N. Y.31. Nor that the time fixed was indefinite. Duryee v. Mayor, &c. of N. Y. 96 N. Y. 477. As to revocation of license to lay gas pipes, vide Po'keepsie Gas Co. v. Citizens Gas Co. 89 N. Y. 493. Title VI. Paett Walls and Division Fences. The following is a brief summary of the views of the courts of this State on the rights and obligations of parties with reference to party walls. As a general rule, adjoin- ing proprietors have each an easement in the land of the other covered by a party wall ; and the title of each owner is qualified by the easement to which the other is entitled. This right to the mutual easement is an ap- purtenance passing with the title to the land. The right TIT. VI.] PABTY WALLS, 759 exists so long as the wall continues sufficient for the pur- pose, and the respective buildings remain in condition to need and enjoy the support. It has been held in England, that the owners of a party wall built at joint expense and standing partly on the lands of each, are not tenants in common, but each party continues owner of his land, and has a right to the use of the wall, and a remedy for the disturbance of that right. But com- mon use of a wall separating adjoining lots belonging to different owners is prima facie evidence that the wall, and the land on which it stands, belong equally to the different owners in equal undivided moieties, as tenants in common. Watts v. Hawkins, 5 Taunt. 30; Cubitt v. Porter, 8 Barn. & Cress. 357. In this State it is held that there is no obligation in the owners of ad- jacent lots to unite in building a party wall. If one owner place half the wall on an adjoining lot, the owner of the lot is not liable to contribute on subsequently using the wall on his own land. The respective owners of a party wall are not tenants in common ; each owns in severalty the portion of the wall on his own land, though neither has the right to pull it down with- out the other's consent. Sherred v. Cisco, 4 Sand. 480^; Potter v. White, 6 Bos. 644; Brown v. McKee, 57 N. T. 684. A party wall is not an inewmbrance under the covenant against incum- brances. Hendricks v. Stark, 37 N. T. 106; Mohr v. Parmelee, 43 Super. 330. A party wall may be so constituted bv long acquiescence or by parol. Maxwell v. E. R. Bk. 3 Bos. 134; Schile v. Brokhahus, 80 N. T. 614. A right to use a part of a lot for a party wall is an incorporeal heredita- ment, and a covenant thereof runs with and binds the lands. Kettletas v. Penfold, 3 E. D. Smith, 132; Brown v. McKee, 57 N. T. 684. But an agreement to contribute to the cost of a party wall when used does not run with the land though the party assume to bind his grantee. Cole V. Hughes, 54 N. Y. 444 ; Scott v. McMillan, 76 N. Y. 141 ; Hart v. Lyon, 90 N. Y. 663; Weeks v. McMillan, 13 Baly, 139. As to what use of the wall will create a liability under such a contract, vide Kingsland v. Tucker, 44 Hun, 91. It is a servitude on both lots, irrespective of their ownership. Rogers v. Sinsheimer, 50 N. Y. 646 ; Hendricks v. Stark, 37 N. Y. 106 ; Partridge v. Gilbert. 15 N. Y. 601 ; Eno v. Del Vecchio, 4 Duer, 53. A party wall in common between two houses is of common property, and if taken down by one must be reinstated by him as before in a reasonable time. Partridge v. Gilbert, 15 N. Y. 601. It cannot be taken down except by mutual consent if sound. Potter v. White, 6 Bos. 644 ; Sherred v. Cisco, 4 Sand. 480. Nor can either adjoining owner do anything which will weaken it per- pendicularly. Earl V. Beadleston, 43 Super. 394. It can be used for no other purpose than the one agreed on, nor in any other way. Eettretch v. Leamy, 9 Bos. 510. He is liable for damages caused by any different use. Brooks v. Curtis, 50 N. Y. 639 ; affirming 4 Lans. 384. He may not cover more than his half of the wall with facing stone, if he can properly secure it thus. Nash v. Kemp, 13 Hun, 593. Either party may increase the height of the wall, if done without detri- ment to the strength of the wall, or to the adjoining property, or so as to make a different use of the wall. A change of beams, if safe in se, may be made, and the owner is not liable for negligence of a contractor. Keller v. Abrahams, 13 Daly, 188. If either party refuse to carry out the agreement the other may build the wall alone and recover half the cost. Rindge v. Baker, 57 N. Y. 309. 760 PAETT WALLS. [CH. XXXVI. Windows cannot be cut unless agreed upon. People ex rel. Ward v. Ward, 59 How. Pr. 175. Specific performance of a parol contract to build a party wall may be de- creed if the contract be sufficiently certain as to particulars, or one party may build and hold the other for Ms share. Eindge v. Baker, 57 N. T. 209. Rebuilding and Repairs. — Repairs must be contributed ratably, but extra expense for the advantage of one must be borne by him alone. Potter V. White, 6 Bosw. 644; Campbell v. Meiser, 4 Johns. Oh. 334; 6 ib. 21. There is no right in either party to compel the other to rebuild in case ot destruction of the wall, or to claim half compensation should one rebuild. Sherred v. Cisco, 4 Sand. 480 ; limiting Campbell v. Meiser, supra ; Par- tridge V. Gilbert, 15 N. Y. 600. If the wall becomes dilapidated, either may take it down, and he is not responsible in damages for injury or loss to the other, if done on reasonable notice, and with proper diligence and skill. Ib.; also Schile v. Brokhahus, 80 N. T. 614. Taking land subject to a party wall agreement is like assuming a mort- gage. Stewart v. Aldrich, 8 Hun, 341. The covenant to repair runs with the land. Hart v. Lyon, 90 N. Y. 663. See also contracts for sale of land, ante, p. 486. City of New York. — By Law of April 1, 1857, ch. 325, provision was made as to making an increase of thickness of party walls erected prior to the building act of April 15, 1846. Fic^ said acts. Repealed, Laws of 1881, ch. 537. See the Consolidation Act of the city of New York (Laws of 1882, ch. 410, § 476) and various building acts relative to said city. Division Fences. — At common law the owner of a close was not bound to erect a division fence, unless by force of prescription. He was bound, how- ever, to keep his cattle on his own grounds, and prevent them from escaping, and was liable in trespass for their migration elsewhere. Any legal obliga- tion to fence arises either from special prescription or statutory enactment. See as to the necessity of maintaining fences in this State, and damages for not so doing, Wells v. Howell, 19 Johns. 385 ; HoUoday v. Marsh, 3 Wend. 143; Clark v. Brown, 18 Wend. 313; also Laws of 1838, ch. 361; 18 N. Y. 310 ; 5 Den. 360; 4 Den. 101; 3 Hill, 88. By the Rev. Stat., adjoining owners are bound to maintain each a fair pro- portion of a division fence, where one-half or more of each adjoining farm is cleared or improved. The same rule applies to all adjoining owners unless one chooses to let his land lie open to the public. If he afterwards enclose it, he is to refund a just proportion of the cost of the fence erected by the other. If one-half his farm lies open, one half being cleared or improved, he shall refund one-half, or else build his proportion. Disputes are to be set- tled by " Fence Viewers," as provided. 1 R. S. 1st ed. p. 353, as amended Laws of 1866, ch. 540, which contains other provisions as to valuation and ownership of the fence on a sale of lands and as to removal of fences, etc. ; further amended by Laws of 1871, ch. 635 ; see also, 22 Barb. 579 ; 18 ib. 400; 11 *. 41 2 ; 9 How. Pr. 455 ; 17 Wend. 330 ; 35 Barb. 16 ; 41 ib. 159 ; 44 ib. 136 ; 3 N. Y. S. C. 638; Laws of 1860, ch. 267. As to fences by railroad companies, and as to " Virginia or crooked fence,'' vide Ferris v. Van Buskirk, 15 Barb. 397; Davis v. Townsend, 10 Barb. 333. There may be valid prescription binding a party to maintain a division fence. In such cases, fence viewers have no jurisdiction. No such prescrip- tion arises presumptively since the statutes requiring fencing. Adams V. Van Alstyne, 35 N. Y. 332 ; affirming 85 Barb. 9. See also Laws of 1873, ch. 377, as to fences on lands bounded by a stream. TIT. VII.] OTHEB EIGHTS. 761 As to what constitutes a division fence, see Kowland v. Baird, 18 Abb. N. C. 356. Fences in New York City. — By statute of March 19, 1813, eh. 35, which appears still in force, the corporation are authorized to make regulations for partition and other fences. An ordinance was passed in 1833 relative to the subject, and see Laws of 1882, ch. 410 (Consolidation Act), § 86. Title VII. Othbb Eights and Seevitudes. There are other rights in the nature of easements, which allow one person certain advantages or rights in the land of another, and which arise hy grant or the pre- scription which presumes a grant. Rights of Support. — Among incorporeal and prescriptive rights are those falling under the technical head of " servitudes," or rights to the use of another's land under certain circumstances, as the right that one has to rest the timbers of his house in an adjoining wall of another. This may arise by grant or prescription, and if a new wall is built the right is restored and con- tinued. Vide Hyde v. Thornborough, 3 Carr. & P. 350 ; Bonomi v. Back- house, 1 BU. B. &. EU. 633. A license to insert beams for support may be held not an interest in lands required to be in writing. McLarney v. Pettigrew, 3 E. D. Smith, 111. Also where one erects two or more houses adjoining, and so constructed as to mutually support each other, a right is created which continues after division of ownership. Eichards v. Rose, 34 Eng. L. & Eq. 406 ; Eno v. Del Vecchio, 4 Duer, 53 ; same case, ib. 17. And neither can remove the support without the consent of the other. Ib. and Webster v. Stevens, 5 Duer, 553. Reversioners, however, are not bound by such constructions. Ib. See further as to " Rights of support," supra, "Party Walls." If a building be sold having one wall upon land of the grantor not cov- ered by the deed the grantee has a right to have the wall remain there. Rein- ers V. Young, 38 Hun, 335. See also post, p. 764. Excavations. — It has been held in this State, following the English rule, that a person may dig on his own land, but not so near that of one adjoining as to cause the land of the latter to fall into the pit dug, and lose its support. Farrand v. Marshall, 31 Barb. 410; former decision, 19 Barb. 380 ; Lasala v. Holbrook, 4 Pai. 169; Ludlow v. H. R. R. Co. 6 Lans. 138; but see further decision, 4 Hun, 339. This view, however, does not clearly appear to be sustained by the gen- eral current of opinions in this State, and it is held in other cases that a man may dig so near his neighbor's land as to unsettle his foundations and pre- cipitate his soil, provided he uses ordinary care ; and that no person is enti- tled by law to a lateral support of his land. Radcliffs Ex'rs v. The Mayor, 4 Coms. 195 ; Panton v. Holland, 17 Johns. 93; Gardner v. Heart, 1 Coms. 538; reversing 3 Barb. 165 ; Auburn, &c. Co. v. Douglass, 5 Seld. 444. He is not bound to support the additional weight of buildings. Trans. Co. V. Chicago, 9 Otto, 635; Ryckman v. Gillis, 57 N. Y. 68; Schile v. Brok- hahus, 80 N. Y. 614. As to a use of land which is injurious to another, vide Cogswell v. N. Y. & N. H. R. R. Co. 103 N. Y. 10. A landlord is not bound to protect his tenant from the effects of an ex- cavation adjoining. Sherwood v. Seaman, 3 Bos. 137. 762 OTHER EIGHTS. [CH. XXXVI. If the owner of a house finds it necessary to pull it down, he must give due notice to adjacent owners, and remove his walls with reasonable and ordi- nary care. People ex rel. Barlow v. Can. Board (No. 3.), 2 Supm. Ct. 275. The same rule would apply to the digging and grading of a street. Jones v. Bird, 5 B. & Aid. 837; Richard v. Scott, 7 "Watts, 460; 4 Paige, 169; Rad- clifE's Exec'rs v. The Mayor, 4 Coma. 195. One who " reserves " the right to dig clay upon a part of land granted need not protect the adjacent soil. Ryckman v. Gtillis, 57 N. T. 68. Although by law each may remove his own foundations for a reasonable excavation, after due notice to another contiguous, by law of the State, April 10, 1818, ch. 106, foundations in the city of New York must be at least six feet below the street. Repealed by Laws of 1881, ch. 537 ; also by Law of 1855, ch. 6, relative to the cities of New York and Brooklyn, parties exca- vating below ten feet below the curb must support a contiguous or party wall. A similar provision is found in § 474, of the "Consolidation Act" (Laws of 1882, ch. 410; amended by Laws of 1885, ch. 456. Under these laws a person is not bound to protect the adjoining building unless he have full explicit license to enter on the land. Sherwood v. Sea- man, 2 Bos. 127 ; Johnson v. Oppenheim, 55 N. Y. 280. In the case of Dorrity v. Rapp, the Supreme Court held (11 Hun), that in order to compel the excavator to support a contiguous wall a license must be tendered him without demand, but the Court of Appeals reversed this and held the excavator bound to request a license (72 N. Y. 807). Vaults Under a Street. — See, as to these in the city of New York, Carter V. Peters, 5 Robn. 192. As to rights of a tenant, Spies v. Damm, 54 How. Pr. 293. Right of Deposit.~A right to use another's ground for deposit may be gained by prescription, e. g., to deposit logs for a saw-mill. It would pass by a conveyance of the mill as an appurtenance, even though there might be the parol evidence of a contrary intent. Voorhees v. Burchard, 6 Lans. 176; affl'd, 55 N. Y. 98. This decision was distinguished in Parsons v. Johnson, 68 N. Y. 69. Right of Drain, etc. — Another servitude is the right of drainage over another's land. This gives no right to the owner of the land to use the drain. It may arise where an owner conveys to different parties two houses with a drain under each leading into a common sewer. The grant of such a right is the grant of an easement and not of a title to land. Pyer v. Carter, 40 Eng. L. & E. 410; Lea v. Stevenson, 1 Ell. B. & Ell. 512; Butterworth v. Craw- ford, 3 Dal. 57. It cannot be granted by parol. Wiseman v. Lucksinger, 84 N. Y. 31. As to conveyance subject to this right, vide Flint v. Bacon, 13 Hun, 454. As to drainage commissioners under Laws of 1869, ch. 888, see Olmsted v. Dennis, 77 N. Y. 378 ; Laws of 1880, ch. 360; Laws of 1882, ch. 326; Laws of 1886, ch. 636. Further as to drains see Chap. XLIII ; as to procedure, see Burk v. Ayers, 19 Hun, 17, also 5 Hun, 116; 55 N. Y. 604; 77 N. Y. 378. The existence of a right of drain is an " incumbrance '' but not a breach of covenant for quiet enjoyment. McMuUin v. Wooley, 3 Lans. 394. The rule of law giving the easement where an owner sells adjoining houses, is confined to cases where there is an apparent sign of servitude. So held in the case of a drain. Butterworth v. Crawford, 46 N. Y. 349. As to right to repair drain, vide Roberts v. Roberts, 7 Lans. 55 ; affi'd, 55 N. Y. 275. Surface water may be drained into a stream which is a natural outlet, though the stream be swollen and do damage to lands below. Waffie v. N. Y. 0. R. R. Co. 53 N. Y. 11. See also post, p. 763. TIT. VII.] OTHER EIGHTS. 763 Increase in the use not beyond the capacity of the drain will not work a forfeiture. Flint v. Bacon, 13 Hun, 454. If one lays pipes from a spring on one lot to another lot of his own, and sells the latter with the water on it, it carries no easement to use it, and a sub- sequent grantee of the spring lot may cut it oflf. Root v. Wadhams, 107 N. T. 384. Bight of Drip. — There is also a servitude of drip, by which falling water from the house or land of one is allowed to drip over on another's land. See as to an action for damages for injuries by " drip," Bellows v. Sackett, 15 Barb. 96. It has been held in Maryland, that the owner of land the eaves of whose house extend over the adjoining lot without objection, for twenty years, ac- quires an easement in such lot. Cherry v. Stein, 11 Md. 1. Such easements and servitudes as the above, may be created by reservation but not by parol, although they may arise by prescription or dedication. Hills V. Miller, 3 Pai. 256; Child v. Chappell, 5 Seld. 246 ; Rose v. Bunn, 21 N. Y. 275 ; Day v. N. Y. C. R. R. 81 Barb. 549. Except in case of a water-course no man is bound to let water falling on adjacent land run through a natural depression on his own land. Barkley v. Wilcox, 86 N. Y. 140. One is not bound to prevent the drip of his house from running upon the sidewalk. Moore v. Gadsden, 87 N. Y. 84 ; Wenzlick v. McCotter, 87 N. Y. 122. To so alter a highway as to throw surface water upon the land of another is a trespass for which damages may be recovered. Mairs v. Manhattan, &c., Ass'n, 89 N. Y. 498. So of erecting a dam which sets water back upon another's land. Roth- ery v. N. Y. Rubber Co. 90 N. Y. 80. So of a sewer. Seifert v. Brooklyn, 101 N. Y. 136. Vide post, "Water-courses," as to the running of surface water. And see ante. Agreements as to Building. — Owners of lots on a block may be mutually bound in equity by a plan, established by parol and acted on, as to setting back buildings from the street line, if they purchase with notice. Tallmadge V. E. Riv. B'k, 26 N. Y. 105. See also, as to agreements as to buildings, Clark v. N. Y. Life, &c. Co. 64 N. Y. 33 ; rev'g 7 Lane. 323. As to occupation, Trustees v. Lynch, 70 N. Y. 440. Air and Light. — Neither light, air nor prospect can be the subject of a direct grant. They can only be secured by covenant, agreement or condition. The doctrine of prescription is also often invoked on questions of " air and light " to edifices. The law has been here, and still in a measure elsewhere exists, that ancient lights of twenty years' standing cannot be obstructed by the erection of another, even on his own land. The Supreme Court of the State, however, have decided that the law was not applicable to the condition of the cities and villages of this country. Parker v. Foote, 19 Wend. 309. See also, 10 Barb. 537; Mahan v. Brown, 13 Wend. 363; Banks v. The Am. Tract So. 4 Sand. Ch. 464 ; 9 Alb. L. J. 403 ; 10 id. 65 ; although a prescrip- tive title may be established. The views of the courts in the above cases are that no grant of such right may be presumed, but that it may exist if found as a fact; and that to authorize the presumption of a grant there must not only have been uninterrupted en- joyment of the easement of air or light for twenty years, but that it must have been adverse, under claim and assumption of right, and with the knowl- edge and acquiescence of ^he owner. Rights of the above and the like nature are not lost, but continue after severance or division of the estate, 764 OTHER EIGHTS. [CH. XXXVI. if necessary to the enjoyment of the severed portions. Kieffer v. Imhoflf, 26 Penn. 438 ; Burwell v. Hobson, 12 Gratt. 322. They may be implied from circumstances connected with a lease. Doyle V. Lord, 64 N. Y. 433. As to enforcement by action, vide Applegate v. Morse, 7 Lans. 59. Foreclosure of a prior mortgage will cut off an easement of light and air reserved in a subsequent deed. Rector v. Mack, 98 N. Y. 488. As to damages on cutting off light and air in streets, see Glover v. Manhat- tan Ry. Co. 51 Super. Ct. 1, and ante, p. 47. As to obstruction of light, see also 6 Alb. L. J. 284. Burdens may be implied from acts of owner of the whole land. Where a common owner builds and the wall encroaches a little on adjoining lot, sale of the first lot carries with it to the purchaser the right to have the support of the wall upon the adjoining land. Rogers v. Sinsheimer, 50 N. Y. 646 ; Reiners v. Young, 88 Hun, 335. A five-foot encroachment has been held to be stretching the rule too far. Griffith V. Morrison, 106 N. Y. 165. Same rule applied as to easements of room to swing shutters, light, air, etc. Havens v. Klein, 51 How. Pr. 83 ; Hamel v. Griffith, 49 How. Pr. 305; dist'g'd in Shipman v. Beers, 2 Abb. N. C. 435. On this subject see also Trustees of Columbia College v. Lynch, 70 N. Y. 440 ; 10 Abb. N. C. 235, as to notice of the easement to grantee. Pipes. — Creation of right to lay pipes over land, see Nellis v. Munson, 24 Hun, 575; Hamel v. Griffith, 49 How. Pr. 805. As to increasing size of pipe later, see Outhank v. L. S. R. R. Co. 71 N. Y. 194. CHAPTEE XXXVII. THE LIEN OF JUDGMENTS. Title I. — The Lien or Judgments of the Courts of this State. Title II. — Satisfaction and Discharge of Judgments. Title III. — Judgments in the United States Courts. Title IV. — Judgments Miscellaneous. Title I. The Lien oe Judgments oe the Couets oe THIS State. The existing statutory provisions creating the lien of judgments, are founded upon those of the Laws of 1813 (1 Eev. Laws, p. 500), the Revised Statutes of 1830, the Law of 1840, ch. 386, the Code of Procedure, and the Code of Civil Procedure. Only the Code of Civil Pto- cedwre and the acts amendatory thereof are now in force. The provisions of the Revised Statutes and of the Codes are given separately, as a distinct reference may be desir- able to be made to each. The provisions of the Revised Statutes were not repealed directly by any provisions of the Code of Procedure but were repealed by Laws of 1877, ch. 417. Judgments a Lien.— The Code of Civil Procedure enacts that except as otherwise specially prescribed by law, a judgment thereafter rendered, which is docketted in a county clerk's office as prescribed, binds and is a charge upon, for ten years after filing the judgment-roll and no longer, the real property and chattels real, in that county, which the judgment-debtor has at the time of so docket- 766 lilEN OP JUDGMENTS. [CH. XXXTIT. mg such judgment, or which he acquires at any time after- wards within the ten years. Co. Civ. Proc. § 1351. The former provisions, which are substantially similar, are found in 2 R. S. 1st ed. p. 358, § 3. The statute also provided that such real estate and chattels real should be subject to be sold upon execution to be issued on such judgment. Filing Necessary. — Time of Filing Eecord to be Noted. — No judgment shall be deemed valid so as to authorize any proceedings thereon, until the record thereof shall be signed and filed. The time of filing is to be in- dorsed by the clerk. R. S. § 11 ; Co. Civ. Proc. § 1339. Unless Record is Filed and Docketed, it is not to Affect Lands, etc., or have preference as against other judgment-creditors, purchasers, or mort- gagees. R. S. § 13; Co. Civ. Proc. § 1350. Until the judgment-roll is made up and filed and docketed, there is no judgment or lien under it ; and the docketing, until the judgment is made up and filed, is void, and creates no lien. Townsend v. Wesson, 4 Duer, 342; Blydenburgh v. Northrop, 13 How. Pr. 389. Assignments. — Assignments are to be filed and noted in the docket. Co. Civ. Proc. § 1370. Foreign Corporations. — A judgment against a foreign corporation en- tered in accordance with §§ 433 and 1780, of the Code of Civil Procedure, is valid and binding on property in the State. Pope v. Terre Haute, &c. Co. 87 N. T. 137. Surviving Partner. — A judgment against a surviving partner does not bindj-eal estate which belonged to the deceased partner. Bennett v. Grain, 41 Hun, 183. Lien on Trust Estate. — The lien of a judgment does not in equity at- tach on the mere legal title to lands existing in the defendant, when the equitable title is in another. Lounsbury v. Purdy, 18 N. T. 515; aff'g 16 Barb. 376 ; which aflfirmed 11 Barb. 490 ;.Averill v. Loucks, 6 Barb. 30. On Leases. — Judgments are a lien on all estates for years or chattels real, ante, p. 765, but do not become liens on leasehold premises unless or until the judgment-debtor, the lessee, is entitled to possession. Crane v. O'Connor, 4 Edw. C. R. 409. See, also, Mason v. Lord, 40 N. Y. 477, and post, " Sales on Execution.'' On Estates for Life. — The lien is lost if the estate determines on breach of condition. Moore v. Pitts, 53 N. Y. 85. On Vested Remainders. — Where there is a power of sale by the life- tenant the lien of the judgment is divested by the exercise of the power and attaches to the proceeds. Ackerman v. Gorton, 67 N. Y. 63. Transient Seizin. — Where there is merely transient seizin in the judg- ment-debtor the lien does not attach. O'Donnell v. Kerr, 50 How. Pr. 334. Conveyance before Judgment. — Even an unrecorded deed, if executed before the judgment, will, in the absence of fraud, prevent the lien from attaching. Trenton, &c. Co. v. Duncan, 86 N. Y. 321. Revival. — The revival of a judgment by scire fadas under the old prac- tice did not create a new lien so as to operate against purchasers or incum- brancers subsequent to the original judgment. Mower v. Kip, 3 Edw. 165; partly reversed in 6 Pai. 88; 7 Cow. 540; Tufts v. Tufts, 18 Wend. 621. Extinguishment. — One judgment recovered on another extinguishes the lien of the first. 1 Pai. 558. TIT. I.] LIEN OP JUDGMENTS. 767 If a judgment-debtor proves his debt in bankruptcy be loses his lien against real estate of his bankrupt debtor. Briggs v. Stevens, 7 Law R. 381. A judgment does not lose its lien on realty because an execution lies dor- mant in the sherifi's hands. Muir v. Leitch, 7 Barb. 341. A judgment lien was not an incumbrance within the meaning of § 133 of the Code of Procedure as to Us pendens. Proceedings under the right of eminent domain supersede the lien of a judgment. Watson v. N. Y. C. R. R. 47 N. Y. 157. A stay of proceedings does not take away the lien of a judgment. Cow- drey V. Carpenter, 17 Abb. 107; s. c. 3 Rob. 601. The lien is general, not specific, and the judgment-creditor cannot bring an action of waste, and he is subject to all prior liens or claims. Lansing v. Carpenter, 48 N. Y. 408; Rodgers v. Bonner, 45 N. Y. 879. A statute depriving a party of the benefit of his judgment on a contract, is unconstitutional. Hadfield v. The Mayor, 6 Rob, 501. Tender of payment, if not accepted, does not discharge the lien. People v. Beebe, 1 Barb. 379. Transcripts in other Counties. — By Law of May 14, 1840, ch. 386, after the act took effect, when a judgment had been perfected in the Supreme Court, or within five years thereafter, a transcript might be filed with any comity clerk who was to docket the judgment. If not docketed within ten days from when it was perfected, it was to be a lien from when docketed. If docketed within ten days, it was to be a lien from the time it was perfected, except as against tonajide purchasers and mortgagees. This act was repealed by Laws of 1880, ch. 345. The provisions as to transcripts and docketing now in force do not contain these limitations as to time. See Co. Civ. Proc. §§ 1347, 1351. Superior Court of New York City, and Mayor's Court. — By Law of 1840, ch. 386, § 38, judgments in said courts had to be docketed witlT the county clerk where rendered, in order to be a lien. Repealed by Laws of 1880, ch. 345. Docketing with County Clerk.— By Law of May 14, 1840, ch. 386, § 35, it was also provided that no judgment or decree which should be entered after the act took effect, should be a lien on real estate, unless the same were docketed in books to be provided and kept for that purpose by the county clerk of the county where the lands were situated. Repealed by Laws of 1880, ch. 345. A similar provision is contained in Co. Civ. Proc. § 1350. As to the provisions affecting judgments theretofore recovered, vide Clark V. Dakin, 3 Barb. Ch. 36. This provision, it was held, did not dispense with the provision of the Revised Statutes requiring clerks of the Supreme Court to docket judgments therein in order to make them liens. Corey v. Cornelius, 1 Barb. Ch. 573. See, however, Johnson v. Pitzhugh, 3 Barb. Ch. 360, to the contrary. The above provisions do not apply to judgments in rem, which are settled by the judgment, e. g., in a partition suit. Van Orman v. Phelps, 9 Barb. 500; Lynch v. The Rome Co., 43 Barb. 591. Nor to a suit to recover real property. Sheridan v. Andrews, 49 N. Y. 478. They prevent the common law lien of a judgment from attaching until the docketing. Buchan v. Sumner, 3 Barb. Ch. 165. Docketing is not notice to a mortgagee under a previously recorded mort- gage for future advances. Ackerman v. Hunsicker, 85 N. Y. 43. Forfeited Recognizances. — By Law of May 7, 1844, ch. 315, art. 4, for- feited recognizances (in the city of New York), filed by the district attor- ney, with a certified order of the court forfeiting the same, in the office of the county clerk, were to he of the same effect as judgment records. Such judgments were, in good faith, to be liens on the real estate of the persons 768 LIMN OF JUDGMENTS. [CH. XXXVU. entering into such recognizances, from the time of' filing and docketing the same. Executions might be issued thereon. By Laws of 1845, ch. 339, these judgments were made subject to the control of the New York Common Pleas. By Laws of 1855. ch. 303, the provisions of the Code of Procedure were made applicable to forfeited recognizances. By § 30, subd. 13, of Code of Procedure, county courts might remit forfeited recognizances, as might courts of common pleas. As to when the district attorney should prosecute them in New York county, vide Law 1839, ch. 843. The provisions of the Rev. Stat, as to recognizances, were in part 8, ch. 8, tit. 6, art. 3, §§ 48, 44 and 45, and were repealed by the Act of 1839. This Act of 1839 made the provisions of the Rev. Stat, applicable to New York county. Those statutes allowed judgments and execution to be entered on breach of the recognizance. 2 R. S. 1st ed. 485. By Law of 1861, ch. 338, they were to be filed with the clerk of any court within ten days after the same were taken. See Law of 1865, ch. 568, as to extension of powers to special sessions in New York city. See also, as to certain recognizances therein. Law of 1860, ch. 508. By Code Civ. Proc. § 1965, the entry of an order of the court, directing the prosecution of the recognizances, is sufficient forfeiture thereof; and an ac- tion must then be brought. § 1966. See also, as to recognizances in New York city. Laws of 1883, ch. 410, (" Consolidation Act'') § 1469, et seq. No action need be brought. lb. § 1480. As to vacation of judgments entered thereon. lUd. §§ 1483-1483. Priority. — Judgments have priority according to the time of filing them or docketing. Judgments filed and docketed out of ofiice hours take effect at the next office hour, and become a lien only from that time. France v. Hamilton, 36 How. 180 ; Wardell v. Mason, 10 Wend. 573. Vide Law of 1860, ch. 376, as to the time when county clerks and clerks of courts of rec- ord should keep their office open. Where the lien of a judgment is suspended by an order vacating the judgment, when such order ceases to have any validity by being vacated, the lien is revived, as though it never had been suspended, where no new rights have been acquired by others. King v. Harris, 34 N. Y. 830 ; affl'g 30 Barb. 471. Control over Dockets and Amendments. — By Law of Ap. 1, 1844, ch. 104, the Supreme Court, the Court of Chancery, the Superior Court, and Common Pleas of New York, and Mayors' Courts, were to have the same power over the dockets of their judgments, by county clerks, as the Supreme Court had over its dockets. This act was repealed by Laws of 1877, ch. 417. By Co. Civ. Proc. § 1369, a court of record has the same power over the county clerk's docket of its judgments as over that of its own clerk. It may docket the judgment nunc pro tune or amend the docket. The court may correct mistakes in the docket, and amend it. Geller v. Hoy t, 7 How. 365 ; Aylesworth v. Brown, 10 Barb. 167 ; Roth v. Schloss, 6 Barb. 308. The clerk acts ministerially, and his erroneous entries cannot conclude parties. Williams v. Wheeler, 1 Barb. 48. Indexing. — The clerk is also to index the names of all the defendants alphabetically, and note the amount and time of entry of judgment, and of docketing, with various other particulars. Co. Civ. Proc. § 1346. For the former law vide § 18, Rev. Stat, svpra. Unless properly indexed, the docket makes no lien, if a party would be prejudiced by the mistake. Buchan v. Sumner, 3 Barb. Ch. 165 ; Sears v. Burnham, 17 N. Y. 445. Judgments of New York Superior Courts and Common Pleas. — ^By the above Law of 1840, § 39, transcripts of judgments of Superior Court of New York city, and of any Common Pleas, might be docketed in any other county, so as to be a lien there, with the like effect as above provided as to judg- ments of the Supreme Court. Repealed by Laws 1880, ch. 345. Co. Civ. TIT. I.] LIEN OF JUDGMENTS. 769 Proc. §§ 1345, 1347, covers all Superior City Courts and the Marine (now City) Court of New York. Surrogates' Decrees.— By Law of 1837, May 16, ch.460, § 64, certificates of surrogates' decrees for the payment of money, had to be filed with the clerk of the Supreme Court, and were thenceforth to be a lien on the lands, etc. of the person against whom they were entered. This section was re- pealed by Law of April 1, 1844, ch. 104, and provision made for the certif- icate being filed with the county clerk. The docket was to have the same effect as a judgment of the Court of Common Pleas; the same to be a lien, from the time of docketing, on lands in the county where the certificate was filed of any person against whom the decree was entered. By the Law of Ap. 1, 1844, also, the word " decrees," as used in the Law of May 14, 1840, ch. 386, supra, was to mean surrogates' decrees for the payment of moneys by executors, administrators, or guardians, as well as decrees in chancery. All these acts were repealed by Laws of 1880, ch. 345. Now a transcript is to be filed with the county clerk and the whole proceeding as well as its efiect is assimilated to that in case of a judgment. Co. Civ. Proc. § 3553. Justices' Judgments. — The Code of Procedure § 63 (amended in 1849), provided that a transcript of a judgment rendered before a justice of the peace, for twenty five dollars and upwards, exclusive of costs, might be filed and docketed in the oflace of the clerk of the county where the judgment was rendered, and from that time it was to be a lien on real estate, and to be a judgment of the county court. A certified transcript of such judgment might be filed and docketed in the clerk's. ofiBce of any other county, and with the like effect, and was to be a lien only from the time of filing and docketing the transcript. The judgment must be docketed as are judgments of courts of record. Blossom V. Barry, 1 Lans. 190. And the judgment must have been duly entered by the justice in his docket. Stephens v. Sanborn, 51 Barb. 533. As to the law before the Code of Procedure, and sales under the judg- ment, vide Waltermire v. Westover, 4 Ker. 16; overruling Young v. Eemer, 4 Barb. 443. Since the Code of Procedure, a justice's judgment is held to stand on the same footing as a judgment in the Supreme Court, sq far as the statute of limitation is concerned. Nicholls v. Atwood, 16 How. 475. The transcript and docketing are all that is necessary to establish the judgment as a lien. Dickinson v. Smith, 35 Barb. 103. The Code pf Procedure was repealed l3y Laws of 1880, ch. 345, and its provisions as to justices' judgments have been much changed. By Co. Civ. Proc. § 3017, transcripts may be filed of any such judgments unless rendered in an action to recover a chattel. When a transcript has been filed the judg- ment becomes a judgment of the county court but execution can only be issued by the county clerk and the judgment is not a lien unless it is for more than twenty-five dollars, nor can a judgment for a less amount be en- forced against real estate. Justices' Courts of Cities, Marine Court, and Justices' Courts in New York. — By § 68, Co. Proc. (amended in 1849 and 1851), the foregoing pro- visions relative to the liens of justices' judgments were made applicable to the justices' courts of cities, to the Marine Court, and the justices^ courts in 2few TorJe city, except that in the city and county of New York, a judgment for twenty-five dollars or over, exclusive of costs, the transcript whereof was docketed with the clerk of that county, was to have the same effect as a lien, and be deemed a judgment of the Court of Common Pleas for said city. Kepealed by the Laws of 1880, ch. 345. The Code of Civil Procedure includes the Marine (now the City) Court of New York in the provisions made for judgments in the Superior City Courts. Co. Civ. Proc. §§ 1345, 1346, 1347, mjt^a. 49 770 LIEN OF JUDGMENTS. [OH. XXXVII. District Courts of New York City.— By Law of April 13, 1857, eh. 344, § 48, it was enacted that the provisions of § 55 to § 64, both inclusive, of the Code of Procedure, and of § 68, should apply to these courts, except that the transcript of judgment specified in the latter section was to be furnished by the clerk of the court in which the judgment was rendered, and also that the execution might issue as well out of the District Court in which the judg- ment was rendered as out of the Court of Common Pleas. Repealed by Laws of 1880, ch. 245. By the Code of Civil Procedure, §§ 8017 to 3022 (regulating justice's judg- ments), are to apply to the District Courts, except that the clerk is to furnish the transcript, the judgment is to be deemed a judgment of the Court of Common Pleas, and execution may be issued by the county clerk to the sheriff, or by the District Court Clerk to the Marshal. Co. Civ. Proc. § 8220. To the same effect is the " Consolidation Act " (L. 1882, c. 410), § 1392. Jury Fines. — By Laws of 1870, ch. 539, unpaid jury fines might be en- tered as judgments in the Supreme Court, in the county clerk's office, and were thereupon to be Uens on real estate. Repealed by Laws of 1877, ch. 417. The Code of Civil Procedure requires such fines to be entered as judg- ments, and makes them liens in like manner. Co. Civ. Proc. § 1117. Decrees in Chancery. — Decrees in chancery were to be docketed in the Court of Chancery, in the same manner and with like efiect as judgments of the Supreme Court. 2 R. S. p. 182, § 96 ; Laws of 1840, 886, § 27. Section 25 required them to be docketed with the county clerk where the lands lay, to be liens thereon. All repealed by Laws of 1880, ch. 245. Tribunals of Conciliation.— By Law of April 23, 1862, ch. 451, p. 813, establishing tribunals of conciliation in the sixth judicial district, the judg- ment of such tribunals are made liens on real estate when docketed in the clerk's office thereof, and the docketing of a transcript with the county clerk. This tribunal was abolished by Laws of 1865, ch. 336. City Court of Brooklyn.— By Law of 1849, which went into operation on May 1, 1849 (Laws of 1849, ch. 125), it was provided relative to " The City Court of Brooklyn," th&t every judgment of said court may be docketed, and shall be a lien in the like manner, and to the same extent, as judgments recovered in the Bwpreme Court. Repealed by Laws of 1877, ch. 417. The City Court of Brooklyn being a "Superior City Court" (Co. Civ. Proc. § 3343), its judgments as liens are governed by Co. Civ. Proc. chap, xi, art. i, title 3. Common Pleas of New York City. — By Laws of 1844, ch. 104, no judg- ment recovered in said court should be a lien on lands in said county, until a transcript thereof were filed with, and the judgment docketed by, the clerk of said county ; in which case, if such transcript were filed within ten days after the docketing in said Court of Common Pleas, it was to be a lien from the time of its rendition, except as against mortgagees and purchasers in good faith, who had become such before the filing of such transcript. If not filed within that time, it was to be a lien only from the time of filing and docketing with the clerk of the said county. § 6. This portion of this act was repealed by Laws of 1877, ch. 417. These judgments are now governed by the general provisions of the Code of Civil Procedure, chap, xi, art. i, title 3. The Lien for Ten Years only.— A judgment docketted as prescribed in the Code of Civil Procedure binds or is a TIT. I.J LIEN OF JUDGMENTS. 771 charge upon the property of the judgment-debtor for ten years after filing the judgment-roll and no longer. Co. Civ. Proc. § 1351. So formerly, 3 Bev. Stat. 1st ed. 359, § 4. Effect of Injunction or Appeal. — The time the plaintiff might be re- strained by injunction or writ of error is to be deducted from the ten years, if a notice to that effect is filed with the clerk of the court within the ten years, to be noted by him in the margin of the docket. R. S. § 5. Sub- stantially re-enacted in Co. Cir. Proc. § 1355. Law of 1840 as to Lien.— The Law of May 14, 1840, p. 335, altered the Revised Statutes, by providing that the lien of judgments and decrees should continue only Jme years from the day when judgment was perfected or the decree entered. Repeal Thereof. — This alteration, however, was repealed by Law of May 7, 1844, p. 466, and the lien restored to ten years. Provisions of the Code of Procedure. — § 383 of the Code of Procedure (amended in 1851, ch. 479, and 1867, ch. 781, and also in 1869), provided that on filing a judgment-roll upon a judgment directing in whole or in part the payment of money, it might be docketed with the clerk of the county where the judgment-roll was filed, (1867, — formerly "where it was rendered,") and in any other county, upon the filing with the clerk thereof, a transcript of the original " docket ; " and should be a lien on the real property in the county where the same is docketed of every person against whom such judg- ment had been rendered, and which he might have at the time of the docket- ing thereof in the county in which such real property was situated, or which he acquired at any time thereafter for ten years from the time of docketing the same in the county where the judgment-roll was filed (1867, — formerly " where it was rendered"). Repealed by Laws of 1877, ch. 417. Effect of Appeal or Injunction. — But the time during which the party recovering or owning such judgment shall be or shall have been restrained from proceeding thereon by any order of injunction, or ether order, or by the operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders, or making such appeal, or any other person who is not a pur- chaser, creditor or mortgagee, in good faith. Amendment of 1867, | 283. This is § 1355, Co. Civ. Proc, except that the present law also excludes time of a stay "by express provision of law." Suspension of Lien on Appeal. — Where an undertaking to stay execu- tion had been given on an appeal from the judgment, the court might direct an entry on the docket that the judgment is secured on appeal, and there- upon it shall cease, during the pending of the appeal, to be a lien on the real property of the judgment-debtors (or a portion thereof, to be specified), as against purchasers and mortgagees in good faith. Co. Proc. § 383. This is now much more fully regulated by Co. Civ. Proc. §§ 1356-1359, which provide also for restoring the liens. The provisions of the Codes make the docketing of a judgment with a county clerk necessary in all cases to make it a lien on lands in the county. It was supposed that the provisions of the Code of Procedure would con- trol those of the Revised Statutes where there was any difference. According to the general principle of constru- 772 DISCHARGE OF JUDGMENTS. [OH. XXXVII. ing statutes, such interpretation should be given to diverse statutes on the same subject as that they should, if pos- sible, stand together. No such question arises as to the Code of Civil Procedure since the Code of Procedure, and this part of the Revised Statutes are both repealed. Effect of Judgments after the Ten Years. — The judgment after ten years ceases to be a lien as against subsequent purchasers and subsequent in- cumbrancers, although the land was taken with full knowledge of the judg- ment. 4 Kern. 16 ; Little v. Harvey, 9 Wend. 157 ; Tufts v. Tufts, 18 Wend. 631 ; Lansing v. Vischer, 1 Cow. 431 ; Scott v. Howard, 3 Barb. 319 ; Muir v. Leitch, 7 Barb. 341 ; Chosier v. Archer, 7 Pai. 137. Except where there was actual fraudulent intent. It. ; Scott v. Howard, 3 Barb. 319. Lands purchased in good faith during the ten years are held free of the lien, if there be no sale within that time, even if the party had knowledge. Tufts V. Tufts, supra. The ten years run from the original docket, and the lien is not saved by subsequent revivals. Ih. And the title of a purchaser in good faith is not affected by a sheriff's sale upon an execution issued after the ten years. Kerce v. Puller, 36 Hun, 179. A purchaser from a judgment-debtor more than ten years after docketing the judgment is deemed a purchaser in good faith, unless he purchased with fraudulent intent. Notice of the judgment will not render the purchase mala fide. Reynolds v. Darling, 43 Barb. 418. The judgment continues a lien after ten years as against the judgment- debtor and his heirs and grantees without value. Scott v. Howard, 3 Barb. 319; Ex pa/rU Peru Co. 7 Cow. 540; Mower v. Kip, 3 Edw. 165; Pettit v. Shepherd, 5 Pai. 498 ; Mohawk Bank v. Atwater, 3 Pai. 54. The above § 383 of the Code of Procedure did not apply to judgments rendered and docketed before it took effect. 4 Sand. 713 ; 17 Abb. 107, 109 ; 3 Rob. 601. Title II. Discharge and Satisfaction of Judgments. The judgment may be discharged by filing with the clerk an acknowledgment of satisfaction. A satisfaction- piece should be entitled in the cause, and state that satis- faction is acknowledged between the parties therein for the amount of the judgment. It is signed and acknowl- edged by the judgment-creditor or his assignees or execu- tors or administrators, or, if within two years of judgment, it may be made by the attorney. On payment of the judgment, satisfaction " must be " acknowledged by the person entitled to enforce the judgment on payment of the sum due upon the judgment and of fees by the de- TIT. II.] DISCHARGE OF JUDGMENTS. 773 fendant, or a person interested in property bound by the judgment. Co. Civ. Proc. §§ 1260, 1361. For former law, vide 3 Rev. Stat. p. 363, §§ 33, 35 : repealed by Laws of 1877, ch. 417. By Attorney. — It may be acknowledged by the attorney of record within two years from the time the record was filed, but then it is not conclusive against the plaintiff if actual notice was given of revocation of the authority of the attorney. § 34, R. S. The same provision is contained in Co. Civ. Proc. § 1260. An attorney, where the judgment is secured by levy, cannot discharge it without payment in full. Benedict v. Smith, 10 Pai. 136. He has only authority to satisfy on payment of the judgment in full, as between plaintiff and defendant. Lewis v. Woodruff, 15 How. 539 ; Oarstens V. Barnstorff, 11 Abb. N. S. 442; Beers v. Hendrickson, 45 N. T. 665. The owners of the judgment could of course discharge it on the payment of any amount. To be Acknowledged. — It must be acknowledged before the clerk of the court or a judge of the court or of a county court, or commissioner of deeds who shall certify that the party was known or was made known to such officer by competent proof. As amended, 1834, ch. 263. Officers with the powers of commissioners may of course also act. R. S. § 23. Repealed by Laws of 1877, ch. 417. By Co. Civ. Proc. § 1360, it must be acknowledged before the clerk, deputy clerk, or, as a deed must be, to be recorded in the county where it is filed. Transcript filed in other counties. — The clerk cancels the judgment of record ; and by giving a transcript or certificate of the satisfaction, or the reversal or vacation of a judgment, any other clerk where the judgment is docketed is required to satisfy or cancel it. Laws of 1844, ch. 104. Re- pealed by Laws of 1877, ch. 417. A similar provision is now contained in Co. Civ. Proc. § 1367. If Party out of the State. — By Law of 1834, oh. 262, if the party reside out of the State, the certificate may be acknowledged before any person authorized to take acknowledgments out of the State. Repealed by Laws of 1877, ch. 417. Such a case is now covered by the last clause in | 1360, Co. Civ. Proc. By one Party. — A judgment in favor of several may be discharged by a satisfaction-piece executed by one. People v. Keyser, 38 N. Y. 226 ; 17 Abb. 214; reversing 39 Barb. 587. By Power of Attorney. — If acknowledgment was through a power of attorney, it had to be acknowledged or proved before the clerk of the court or an officer before whom conveyances are acknowledged, and in the same manner, and filed with the satisfaction-piece. Law of 1834, ch. 262. Re- pealed by Laws of 1877, ch. 417. Now the power need not be filed if it has been recorded as a deed in another county, but the satisfaction-piece must sefer to it, and the clerk may require evidence of record. Co. Civ. Proc. § 1260. In Another County.— By Laws of 1860, ch. 6, a copy of a satisfied exe- cution on a judgment entered in another county, may be filed with the clerk of a county where the judgment had been docketed and paid, and he shall enter satisfaction of said judgment, and give transcripts to be filed in other counties. Repealed by Laws of 1877, ch. 417. Now provided for by Co. Civ. Proc. §§ 1266, 1367. 774 DISCHARGE OF JUDGMENTS. [OH. XXXVII. Vacation of the Satisfaction. — If the satisfaction is vacated, inter- mediate Imafide purchasers are protected. Taylor v. Renney, 4 Hill, 619. It will be vacated by order of the court when there is fraud, mistake or collusion. McGregor v. Comstock, 38 N. Y. 237. Duty of Clerks. — On a judgment in the Supreme Court being discharged, the clerk, where the record was filed, was to transmit a certificate of discharge to the other clerks of the court, who shall enter it in their dockets. 3 R. S. 1st edit. § 37, p. 363. Repealed by Laws of 1877, ch. 417. Unauthorized Discharge. — A discharge by the clerk, without the satis- faction-piece as required by law being filed, is void, and the parties must see as to the clerk's authority to make an entry of satisfaction. Booth v. Farmers, &c. Bank, 4 Lans. 301. This case was reversed in 50 N. Y. 396, on the ground that a satisfaction-piece by a corporation, which shows that it was executed by the president in his official capacity, was binding on the corporation, although not executed in the name of nor under the seal of the corporation. Surrogate's Decrees. — By Law of April 35. 1867, ch. 783, § 9, any decree or order of a surrogate for the payment of money may be discharged by filing with him a release of the amount, acknowledged or proved as deeds are required to be ; and a surrogate's certificate of discharge may be filed with a county clerk, who shall enter it in his docket. Repealed by Laws of 1880, ch. 345. Vide Co. Civ. Proc. § 3553, which assimilates the practice to that on judgments of the Supreme Court. Other Discharges. — A judgment is also discharged by being satisfied under execution or otherwise, or released ; or by valid discharge under bank- rupt or insolvent laws. Where the judgment has been paid, the court may, on motion, quash the execution, and enter satisfaction of record. U. S. v. McLennore, 4 How. U. S. 86. A judgment is also satisfied by return of execution satisfied (Co. Civ. Proc. § 1364 ; 3 Rev. Stat. 863), and the clerk is to satisfy it, and also any reversal or vacating is to be entered on the docket (Co. Civ. Proc. § 1267; Laws of 1844, ch. 104), which removes the lien of the judgment on a certificate thereof being presented. 4 Corns. 417. A mere levy does not operate as satisfaction unless it was defeated by the act or fault of plaintiff or his assignee. People v. Hopson, 1 Den. 574 ; Mc- Cain V. Dufiy, 3 Duer, 645 ; Denvrey v. Pox, 33 Barb. 533 ; Ostrander v. Walter, 3 HiU, 339. A levy on real estate is no satisfaction. Shepard v. Rowe, 14 Wend. 360. But if personal property is taken and lost or destroyed by the sheriff, it is satisfaction. Peck v. Tiffany, 3 Corns. 451. The lien of the judgment is also removed by the body of the defendant being taken in execution. Dininny v. Pay, 38 Barb. 18 ; Cooper v. Searls, 1 Cow. 56. Release of security by the judgment-creditor may remove the Hen from lands held by another. Barnes v. Mott, 64 N. Y. 397. Discharge in Bankruptcy. — ^A valid discharge in bankruj)tcy also extin- guishes a judgment. Ruckman v. Cowell, 1 Coms. 505. Even if the judgment was recovered on a prior debt after petition filed. Clark V. Rowling, 8 Coms. 316. By Laws of 1875, ch. 53, a court of record might direct satisfaction of record two years after the discharge. Repealed by Laws of 1877, ch. 417. A similar provision is made by Co. Civ. Proc. g 1368, which also regulates the proceedings. See as to the effect of the discharge in bankruptcy upon a judgment, Boynton v. Ball, 131 U. S. 457. Effect of the Discharge. — When a judgment has been once paid, and the TIT. III.] JUDGMENTS IN TJ. S. COCBTS. 775 lien discharged, the parties cannot restore the lien to the prejudice of third persons who are then incumbrancers. Angel v. Bonner, 38 Barb. 435. An execution cannot issue upon a judgment discharged of record. If wrongfully discharged, the discharge must be first vacated. Ackerman v. Ackerman, 14 Abb. 239. Presumption of Payment. — Every judgment and decree hereafter ren- dered in any court of this State, or of the United States, or of any other State or territory within the United States, shall be presumed to be paid and satisfied after the expiration of twenty years from the time of signing and filing such judgment or decree. Such presumption may be repelled by proof of pay- ment, or of written acknowledgment of indebtedness made within twenty years, or of some part of the amount. In all other cases it shall be conclu- sive. Eev. Stat, part 3, ch. iv, title ii; repealed by Laws of 1880, ch. 245, but substantially re-enacted as to this, in Co. Civ. Proc. § 876. As to the rebuttal of the presumption, vide 3 Sandf. 23 ; 14 Barb. 15 ; 2 Duer, 1 ; 14 Wend. 190; 16 id. 430. Also the Code of Procedure, §§ 90, 110, as to actions on judgments, and new promises, while that Code was in force; and the Code of Civil Procedure, §§ 376, 377, 378, upon both thpse points. Title III. Judgments in United States Couets. These judgments became liens under the judiciary act of 1789. By a law of the United States, passed July 4, 1840 (5 U. S. Stat. p. 393, repealing the A.ct of March 3, 1839), which was re-enacted in the United States Revised Statutes (§ 967), it is provided that judgments and de- crees thereafter rendered in the Circuit and District Courts of the United States, within any State, shall cease to be liens on real estate or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such State now cease by law to be liens thereon, and the respective clerks of the United States courts in such State shall receive the like fees for making searches and certificates respecting such liens as are now allowed for like services to the clerks of the Supreme Court of such State. Although judgments are now a lien against real estate in this State for ten years, at the time the said statute was passed, and until May 7, 1844, judg- ments and decrees were liens on real estate in this State only for the period of five years from the time of their being docketed. State Law of 1840, May 14, ch. 386. From the strict reading of the law of the United States, sup%a, therefore, the lien would only be in force iorfive years. The Revised Statu±ps, supra, having been enacted in 1873, the lien of the United States judgnKnia is now for ten years, as other judgments in the State are. As regards judgments where the United States are plaintiffs, it has been questioned whether the lien would likewise cease as above provided. 776 JUB&MENTS, MISCELLANEOUS. [CH. XXXVll. although as a general rule, a sovereignty is privileged against any statute of limitations. Vide People v. Van Rensselaer, 8 Barb. 189. Inasmuch, how- ever, as there is no exception made in favor of judgments obtained by the United States, it is possible that the lien equally ceases in judgments ob- tained by the United States, as it would in judgments where others are plaintiffs. Extent and Nature of the Lien. — A judgment of a court of the United States is a lien upon real estate of the debtor, in accordance with the local law of the place where the land lies. 8 How. U. S. 107 ; 2 Pa. 252 ; 2 Bl. C. C. 341 ; 2 Bl. 430. It is co-extensive with the district of the court in which it is recovered. Taylor v. Thompson, 5 Pet. 858 ; vide 7 How. U. S. 760 ; Lellan v. Corwin, 5 Ohio, 898 ; Crandell v. Cropsey, 10 N. T. Leg. Obs. 1 ; 2 Blatch. C. C, R. 341 ; 2 McL. 78; 9 How. U. S. 580 ; 4 McL. 607 ; Manhattan Co. v. Bvertson, 6 Pai. 457. No Transcript need be Filed. — No transcript need be filed with the clerk of any county of the district ; nor is any compliance with the statutory requirements of the State necessary. Cropsey v. Crandall, 2 Bl. C. C. R. 841 ; Lombard v. Bayard, Wall. Jr. 196 ; Carroll v. Watkins, 1 Abb. U. S. Ca. 476. It seems that a judgment recovered in a Federal court out of the State is not a lien upon lands within it. 6 Pai. 457, supra. State Laws may not Impair the Lien. — Where a lien has attached in the courts of the United States, a State has no power by legislation or other- wise to modify or impair it. 7 How. U. S. 760 ; § 382 of Code of Procedure- was held to apply to U. S. judgments. Massinger v. Downs, 10 N. Y. L. Obs. 1 ; Carroll v. Watkins, 1 Abb. U. S. Cases, 474. Admiralty. — An admiralty decree for payment of money is a lien. 2 McL. 78 ; Ward v. Chamberlain, 2 Black. 480. Might Formerly be Docketed in other Counties. — By Laws of 1832, ch. 210, and 1847, ch. 470, § 89, transcripts of judgments rendered in this State, in any court of the United States, duly certified by the clerk of such court, may be filed and docketed by the clerk of any county in this State, in the same manner as judgments rendered in the Supreme Court of this State. By the Revised Statutes (2 R. S. p. 557, §§ 38 to 45), direction was given to the clerks of the Supreme Court at New York city, Albany and Utica, to pro- cure certified copies of dockets of judgments from the United States Courts in the State, since Jan. 1, 1880, and to enter them in books as also transcripts of future judgments. §§ 48, 46, were repealed by Law of 1882, ch. 210. The above section of the Act of 1847 and this part of the Revised Statutes were repealed by Laws of 1877, ch. 417. Provision for docketing these judgments was then made by Co. Civ. Proc. § 1271, but this section was repealed by Laws of 1879, ch. 542. Suspension of Lien on Appeal. — United States Courts have no power to suspend the lien on appeal. Myers v. Tyson, 18 Blatch. 242. Title IV. JucaMENTS, Miscellaneous. The following miscellaneous provisions and decisions with reference to the lien or discharge of judgments, it may be desirable to notice : Judgment after Decease of Defendant. — A judgment filed and docketed after the decease of the defendant does not bind real estate. Co. Civ. Proc. § 1310 ; Nichols v. Chapman, 9 Wend. 452; Clark's Case, 15 Abb. 227; Bors- dorfi v. Dayton, 17 Abb. 36. TIT. IV.] JUDGMENTS, MISOELLANBOUS. 777 Verdict before Decease of Defendant. —By 3 R. S. p. 359, § 8, if a ver- dict had been rendered before the death of a defendant, upon which proceed- ings were stayed, the court might authorize the filing and docketing a record of judgment within one year after the death of such party, subject to the power of the court to vacate the same. Repealed by Laws of 1877, ch. 417. The Code of Civil Procedure (§ 763), authorizes a judgment where a party dies after verdict, accepted offer of judgment, report, decision, or interlocu- tory judgment, which are not vacated. Where the Record is Docketed within One Year of the Decease of the Defendant.— The Revised Statutes also provided that where a judgment had been filed and docketed, within one year after the death of the defend- ant, a suggestion of such death, if it happened before judgment, should be entered on the record, and if after judgment rendered, the fact should be certified on the back of such record by the attorney filing the same. Such judgment did not bind the real estate which such party had at the time of his death, but was to be considered as a debt to be paid in the usual course of administration. 2 Rev. Stat. p. 372, § 7 ; repealed by Laws of 1877, ch. 417. p Similar provision for such a case is now made by Co. Civ. Proc. | 1310. Judgments against Executors, etc. — Real estate of any deceased person was not bound by, or sold under, any judgment against his executors or ad- ministrators under 3 Rev. Stat. p. 449, § 13, 1st ed. (repealed by Laws of 1880, ch. 345). By § 1833, Co. Civ. Proc. such judgment is not a lien upon decedent's lands unless by its terms expressly made so. Nor upon lands acquired by foreclosure of a mortgage held by testator. Cook V. Ryan, 33 Hun, 349. Judgment against a Surviving Partner does not bind the real estate of the deceased partner. Burnett v. Grain, 41 Hun, 183. Consideration Money Mortgages. — As to the lien of such mortgages having preference over judgments, vide ante, pp. 599, 650. Unrecorded Mortgage. — Preference of, over a judgment, vide ante, p. 650. Equitable Interests. — Equitable interests are not bound by a judgment. Jackson v. Chapin, 5 Cow. 485 ; and see ante, p. 308. Equitable Claims. — An equitable claim on land, which existed prior to the recovery of a judgment, is preferred over a judgment docketed after- wards. Cook V. Kraft, 41 How. Pr. 379. The general lien of a judgment is subject to all equities existing against the real property of a debtor in favor of a third person, at the time of recov- ery of the judgment. White v. Carpenter, 3 Pai. 317 ; 3 Barb. Ch. 338 ; 7 Batb. 341 ; Buchan v. Sumner, 3 Barb. Oh. 165; Matter of Howe, 1 Pai. 135; Kersted v. Avery, 4 Pai. 9. Judgment-creditors are entitled to only such rights in the premises as the judgment-debtor rightfully possessed. Voluntary Insolvent Assignments, under art. v, ch. v, part ii, tit. i. Rev. Stat, did not destroy the lien of judgments. 3 R. S. 5th ed. p. 30 (re- pealed by Laws of 1880, ch. 345). A similar provision is in force as to assignments under Co. Civ. Proc. ch. xvii, title i, art. 3, which corresponds to the proceedings in the Revised Statutes. Co. Civ. Proc. § 3198. Nor under art. iii, R. S. where the judgment-creditor did not petition. Kelly V. Thayer, 34 How. Pr. 163. Article iii, having been repealed by Laws of 1880, ch. 245, its place was taken by ch. xvii, title i, article iii, of the Code of Civil Procedure, which introduced great changes. This provision, however, is retained by § 3313. No petition by the creditor is now allowed. 778 JUDGMENTS, MlSOBIiLANBOUS. [OH. XXXVII. Judgments for Moneys advanced to pay Taxes.— Judgments for moneys advanced to pay taxes on the lands of the plaintiff and another, shall not be entitled to the priority conferred by title 3, ch. 13, of part 1, Rev. Stat, unless at the time of docketing the plaintiff cause an entry to be made by the clerk in the docket thereof, specifying that such judgment has priority as a lien on certain lands over mortgages and other judgments. 2 R. S. 1st ed. p. 361, § 14. This provision was repealed by Laws of 1877, ch. 417, but the same enactment is contained in title iii, ch. 13, part 1, of the Revised Statutes, supra, and this has never been repealed. The provisions of said title are to the effect that when lands shall be sold for taxes, assessed conjointly on the lands of another, who shall not pay his proportion of the taxes, the person whose lands may be sold may redeem and recover from the other person a joint proportion of the redemption money and interest. And if the land should not be redeemed, but conveyed to the comptroller, such owner may recover from such other person the same proportion of the land conveyed that he ought to have paid of the tax, interest and charges, for which the land shall have been sold. It is provided that every judgment ob- tained under the last two sections shall have priority as against the. lands of the defendant therein on which the tax was assessed, to all mortgages exe- ^ cuted and all judgments recovered since April 33d, 1823. Laws of 1855, p. 793, ch. 427. Covenants in Deeds for Benefit of Creditor. — Where property of de- fendant passes during suit by a deed in which the grantee covenants to pay liabilities of grantor, the creditor after judgment may avail himself thereof. Schmid v. N. Y. L. B. &c. R. R. Co. 33 Hun, 335. Mortgage for Advances. — Lien of judgment is postponed to subsequent payments under a previously recorded mortgage for future advances, and docketing is not notice to the mortgagee. Ackerman v. Hunsicker, 85 N. T.43. Foreclosure Suits. — Between May 14, 1840, and May, 1844, it was not nec- essary to make judgment-creditors subsequent to the mortgage, parties to foreclose suits. Laws of 1840, p. 289 ; Laws of 1844, p. 531. It is now nec- essary in order to bar their right to redeem. Vide arite, p. 669. Lands under Contract. — It has been seen above, p. 498, that tbe interest of a person holding a contract for the purchase of lands is not bound by the docketing of a judgment or decree. As to executions against such person affecting such contract, vide post, Ch. XXXVIII. As to the effect of a judg- ment against the vendor, vide ante, p. 498. Heirs and Devisees. — As to the effect and lien of judgments against them, vide ante, p. 386 ; and as to the practice of their being made parties, De Agreda v. Mantel, 1 Abb. 130. Lien of Judgment on Land Descended, vide ante, p. 385, Judgments against Stockholders in Banking Corporations and Asso- ciations. — As to the lien, compromise and discharge of such judgments, vide Act of April 5, 1849, amended by Act of May 3, 1863, ch. 372, and repealed by Laws of 1882, ch. 403, being superseded by Laws of 1882, ch. 409, which provides (§ 185) for the docketing and lien of these judgments. Judgments against Husband and Wife for a cause accruing after mar- riage, do not bind the wife's separate estate. Tisdale v. Jones, 38 Barb. 523. By Laws of 1853, ch. 576, a judgment against husband and wife, for debts of the wife contracted before marriage, binds the separate estate of the wife only, and not that of the husband, except to the extent of the property he has acquired from her, A judgment against husband and wife, for damages, etc, in ejectment, is a lien on the real estate of the wife. Morris v, Wheeler, 45 N, Y. 708. See also, ante, pp. 75 to 81, as to actions against husband and wife. TIT. IV.] JUDGMENTS, MISCELLANEOUS. 779 Judgments for Future Advances.— Fiie Truscott v. King, 3 Seld. 147; reversing Barb. 146 ; Hammond v. Bush, 8 Abb. 162 ; Averill v. Loucks, 6 Barb. 19 ; and ante, p. 568. Actions on a Judgment of any court in any of the States or the United States, are to be brought within twenty years. 3 E. S. p. 396, § 90, 1st edit. ; repealed by Laws of 1877, ch. 417 ; Co. Civ. Proc. §§ 376-378. Judgments and Liens in favor of Department of Health in the City of New York. — These are made liens, as the judgment states. They may be discharged by the court on motion. A lien is also created for expenses incurred in executing any order of said Board, on the lien being filed as are mechanics' liens. Law of May 35th, 1867, ch. 956. The powers of the Metro- politan Board transferred to the Health Department. 1870, ch. 383. These acts were repealed by Laws of 1881, oh. 537, but similar provisions are con- tained in ch. xii, title 6, of the " Consolidation Act " (Laws of 1883, ch, 410). Judgments against the City or County of New York. — As to such judgments and how enforced, vide Laws of 1865, ch. 646; 1866, ch. 887; 1867, ch. 586; 1868, ch. 854; 1869, ch. 873; 1870, ch. 383; 1871, ch. 683. This last law held constitutional. Lowenthal v. The Mayor, 5 Lans. 532. The Act of 1865 was partly and the Acts ol 1867 and 1871 were wholly re- pealed by Laws of 1881, ch. 537. Vide Laws of 1882, ch. 410, for the pres- ent law on this subject. Validity as Affected by Subsequent Statutes. — The lien is purely statu- tory and may be abolished at any time before rights become vested. Watson V. N. Y. C. R. R. 47 N. Y. 157. See also Gunn v. Barry, 15 Wall. 610. CHAPTER XXXVIII. t TITLE THROUGH SALE ON EXECUTION. Title I. — General Principles as to Judicial Sales. Title II. — The Execution. Title III. — What PROPERTr Liable to Sale. Title IV.— The Sale. Title V. — Redemption. Title VI. — The Deed. Title VII. — Remedy on Failure of Title to Lands Sold. Title to real estate through execution arises by statute authorizing the sale of a defendant's lands on the recovery of judgment. Former Laws. — ^In 1733, the statute of 5 George II, ch. 7, was passed, making houses, lands, negroes, real estate, and other hereditaments, within any of the English plantations, subject to the like process of execution as per- sonal estate. The law a^s it stood in 1813, by the statutes of this State, will be found in Revised Laws of 1813, p. 500. This made real estate of a judg- ment-debtor liable to be sold on execution, and declared the judgment a lien for ten years from docketing. Subsequent acts were passed in 1820 (p. 167), 1828 (Rev. Stat.), 1836 and 1847, relating to the subject, that are all incorpo- rated in the present fifth edition of the Revised Statutes. Title I. General Principles as to Jttdicial Sales. It may be stated, as a general principle regulating judicial sales, that rights acquired thereunder, while the judgment is in force and unreversed, will be protected, even if the judgment or process be subsequently declared erroneous. But purchasers under such sales are only pro- tected where the power to make the sale is clearly given, and the court has jurisdiction over the subject-matter and the parties, and the rule does not apply to sales made under interlocutory or conditional orders. Purchasers also would in any case be protected, unless there were prompt action to set aside the sales. TIT. I.] PRINCIPLES AS TO SALES. 781 Vide Gray v. Brignardello, 1 Wallace, 627 ; Voorhees v. Bank of U. 8. 10 Peters, 449 ; Grignon v. Astor, 3 How. U. S. 319 ; Bigelow v. Forrest, 9 Wall. 351; Holden v. Sacket, 13 Abb. 473; Wood v. Jackson, 8 Wend. 9; Wood- cock V. Bennet, 1 Cow. 734 ; Dater v. Troy T. & R. R. 3 Hill, 639 ; Blakely v. Calder, 15 N. Y. 617; Kissock v. Grant, 34 Barb. 144; McGoon v. Scales, 9 Wall. 33: Thorn v. Shiel, 15 Abb. N. S. 81. Unless a purchaser have previous notice of defect he may insist on a good title. Fryer v. Rockfeller, 63 N. Y. 368. But he gets no better title than the judgment-creditor would if he bought. Frost V. Yonkers B'k, 70 N. Y. 553. If there be no stay his title is not affected by reversal of judgment. Hen- ing V. Pudnett, 4 Daly, 543. A valid deed prior to the judgment will defeat title by execution sale, though it be unrecorded. Lamont v. Cheshire, 65 N. Y. 30. Only the interest which the judgment-debtor had at the time of docket- ing will pass. Snedeker v. Snedeker, 18 Hun, 355. This decision was re- versed as Bergen v. Carman, in 79 N. Y. 146, on the ground that where the debtor has made a fraudulent deed the judgment-creditor may go on and sell under his execution, and the purchaser at such a sale may proceed to set aside the deed. The judgment-creditor is not bound first to bring a creditor's ac- tion. The sale will not be set aside for mere inadequacy of price unless so gross as to shock the conscience, but where the price is inadequate slight evidence of fraud will do. Graffam v. Burgess, 117 U. S. 180. See the case of Darwin v. Hatfield, 4 Sand. 468 (reversed Seld. Notes, 86), as to how far and when a purchaser may object to the regularity and validity of a judgment of sale ; and also the above cases. Irregularities, etc. — It is a principle, also, that if the court rendering judgment had jurisdiction, and the officer who sold had authority to sell, the sale will not be void by reason of errors in the judgment or irregularities in the officer's proceedings, which do not reach the jurisdiction of the one or the authority of the other. The title of a ionajide purchaser without notice, will not be affected by irregularities, if the execution and judgment are regu- lar and subsisting. 1 Cow. 633; 4 Barb. 180; 4 Den. 480; 17 Abb. 137; Wood V. Morehouse, 1 Lans. 405 ; affirmed, 49 N. Y. 160 ; McGoon v. Scales, 9 Wall. 33. Questions of irregularity cannot be raised by strangers. Smith v. McGowan, 3 Barb. 404. If a judgment, however, is entirely void, or has been satisfied before a sale on execution, it is held, that even a lonafide purchaser would derive no title from the sale, whether he had notice of the payment or not. Wood v. Col- vin, 3 Hill, 566 ; Jackson v. Anderson, 4 Wend. 474 ; Swan v. Saddlemire, 8 Wend. 676; Stafford v. Williams, 13 Barb. 340; Neilson v. Neilson, 5 Barb. 565 ; Craft v. Merril, 14 N. Y. C4 Kern.) 456 ; Jackson v. Roberts, 11 Wend. 433; Stilwell v. Carpenter, 59 N. Y. 414. So if the execution issued after the death of the judgment-debtor. Wal- lace V. Swinton, 64 N. Y. 188. Or is satisfied in effect. Terrett v. Insp. Co. 18 Hun, 6; Ten Eyck v. Craig, 63 N. Y. 406. A purchaser is protected, if anything is due or the execution has only been satisfied in part. Peet v. Cowenhoven, 14 Abb. 56; Peck v. Tiffany, 3 Coms. 451. Declarations by a sheriff, even if deceased, to prove payment, will not be allowed. Woodgate v. Fleet, 44 N. Y. 1. If the process is void the sale will be invalid, but not so if the process were merely erroneously issued. Jackson v. Bartlett, 8 Johns. 361 ; Same v. Delancey, 13 id. 537. 782 THE EXEOUTIOK. [CH. XXXVIII. There must have been a judgment duly entered and docketed. Towns- held V. Wesson, 4 Duer, 342. No formal entry or levy on the land is necessary. Wood v. Colvin, 5 Hill, 228. After a tender of the amount of the execution and fees, a sale to one with notice is void. 2 Johns. Ch. 173. 8o if the sheriff had no jurisdiction or authority to sell, or there had been redemption. Harris v. Murray, 28 N. Y. 574 ; Staflord v. Williams, 13 Barb. 240. Real property may be sold though the judgment be no lien on it. Palmer V. Clark, 4 Abb. N. C. 25. A purchaser in good faith under a void execution may recover the money paid. Schwinger v. Hickock, ^3 N. Y. 380. Title II. The Execution. The statutory regulations for selling real estate under execution, and the redemption thereof, are too minute and extended to be particularly here detailed. They are con- tained in chap, xiii, titles i and ii, sections 1362 to 1404 inclusive, and 1430 to 1486 inclusive, of the Code of Civil Procedure. Before the enactment of this Code the pro- visions of the Kevised Statutes, as modified by the Code of Procedure, regulated these proceedings. These provis- ions were repealed by chapter 417, of the Laws of 1877. But since the former provisions of law affect titles made under them reference is made to them below. These former provisions will be found in part iii, ch. 6, title 5, of the Revised Statutes, vol. 2, p. 363 (Ist ed.), to which the sections below indicated refer, where not otherwise speci- fied. The Code of Procedure.— The Code of Procedure provided (§ 289) that then existing provisions as to execution, sale and redemption, except where in conflict with any special provisions of the Code, should continue in force. The prominent features of the proceedings, so far as title to real estate was made under them, were as follows : Execution to Issue. — After judgment filed, an execution might be issued against the goods and chattels, lams, tenements, and chattels real, of the de- fendant. 2 R. S. p. 865, § 12. Before an execution could be levied on real estate, the personal property was to be first levied on and exhausted (§ 289). The Code of Procedure (§ 289) directed the execution to be satisfied out of the real property belonging to the debtor on the dmy when judgment was dock- eted in the county, or at any time thereafter. On a justice's judgment entered in one county and transcript filed in another, after ten years the judge of the county where it was entered may order execution to the other county. The clerk of either may issue it Vedder v. Lansing, 44 Hun, 590. TIX. II.] THE EXEOUTIOiT. 783 Time during which execution was stayed is not included as part of the sixty days in which to make levy. Ansonia B. & C. Co. v. Conner, 103 N. T. 503. Variance. — A slight variance between the judgment and the execution will not vitiate. 4 Wend. 462. A neglect first to exhaust the personalty will not avoid the sale. Neilson V. Neilson, Barb. 565. The regularity of the execution cannot be questioned. Jackson v. Cald- well, 1 Cow. 623 ; Neilson v. Neilson, 5 Barb. 565 ; Chautauqua Co. B'k v. Risley, 4 Den. 480 ; Averill v. Wilson, 4 Barb. 180 ; and see ante, Title I. The Revised Statutes provided that, on the filing the record and within two years thereafter, execution might issue. The Code of Procedure (§§ 384, 385) provided that execution could only be issued within five years after entry of judgment, except by leave of the court. The leave was not neces- sary if the execution had been returned unsatisfied within five years. A similar provision is contained in Co. Oiv. Proc. § 1377, as amended by Laws ' of 1879, ch. 543. Under the Code of Procedure it was held that the time during which the judgment stood reversed was not to be included within the five years. Un- derwood V. Green, 56 N. Y. 347. So now by Co. Oiv. Proc. § 1383, which covers any action of the court preventing issue of execution. Wrong Name. — A judgment and execution against one by a wrong name will not authorize the sale of his property. Parnham v. Hildreth, 33 Barb. 377. ■ Remaiuiug Property after Conveyance. — Where part of the judgment- debtor's real estate has been conveyed to a bona, fide purchaser, and enough remains to satisfy the execution, the court will direct the execution to be levied on what remains. Welch v. James, 33 How. Pr. 474. Decease of Defendant. — Under the Revised Statutes, if a party died after judgment and before execution, the remedy was not suspended by reason of non-age of any heir ; but no execution could issue until one year after death of the party. 2 R. S. ist ed. p. 808, § 37 ; 19 Wend. 644 ; 9 Wend. 455 ; 5 Cow. 440 ; repealed by Laws of 1877, ch. 417. New executions might be issued against lands where a party died under execution against his body, but not against lands sold after judgment by him, in good faith nor under other judgments against said party. §§ 38, 29, 30. The Code of Civil Procedure contains similar provisions in §§ 1493 and 1495. By the Revised Statutes, whenever execution had not been issued within the time allowed by law, the plaintiff might have proceedings by scire facias, to cause one to be issued ; also to revive a judgment for or against personal representatives, or continue a suit by the representatives of a deceased party, and for other purposes. The proceedings under the writ of scire facias, are found in art. 1, tit. 3, ch. ix, part 3, of the Rev. Stat. The writ of scire facias was abolished by the Code of Procedure, and under that Code it was questioned whether proceedings against heirs and terre-tenants were not still necessary, unless the Law of 1850, injra, was to be considered as a substitute. Vide Finck v. Morrison, 13 Abb. 80; Wilgus v. Bloodgood, 33 How. Pr. 389. By Law of Ap. 10, 1850, ch. 395, execution might be issued, on the death of a party after judgment, against his lands, etc., on which the judgment was a lien, either in law or equity ; except that it could not issue within a year after his decease, nor in any case without permission of the surrogate of the county, who had jurisdiction over the estate, and who on cause shown might make an order granting permission for the execution. The act was to apply as well to past judgments. It was repealed by Laws of 1877, ch. 417. The Code of Civil Procedure has fully covered all these points. Leave of the court in which the judgment was obtained as well as of the Surrogate is required. It must be the Surrogate who granted letters. If no letters are granted for three years, leave of the court where judgment was obtained is 784 THE EXECUTION. [OH. XXXVIII. enough. If letters were granted execution cannot be issued until three years have elapsed. Co. Civ. Proc. §§ 1379 and 1380, as amended by. Laws of 1885, ch. 514; Execution on a judgment obtained before defendant's death cannot, after his death, be issued until three years have elapsed from the issue of letters testamentary under § 1380, Co. Civ. Proc. Duel v. Alvord, 41 Hun, 196. By the Code of Procedure, § 376, provision was made for summoning heirs, devisees, legatees, and tenants of realty owned by a defendant dying after judgment, but not until three years after letters granted. Repealed by Laws of 1880, ch. 345. This section of this Code did not apply where the judgment was only for- mally entered against a defendant. Poster v. Wood, 30 How, Pr. 384. The above Act of 1850, was held not to take away the power of the Su- preme Court over its judgments. A motion was also to be made in said court, for leave to issue execution against the estate of a deceased judgment-debtor. Marine B'k v. Van Brunt, 61 Barb. 361 ; affirmed, 49 N. T. 160. This case approves of Alden v. Clarke, 11 How. 309 ; Finck v. Morrison, 13 Abb. 80 ; and disapproves of Wilgus v. Bloodgood, 38 How. Pr. 389 ; Flanagan v. Finin, 58 Barb. 587, which were directly overruled by Wallace v. Swinton, 64 N. T. 188. If no execution had issued at all, there had to be a scire facias or a revival for which the application to the surrogate was a substitute. Such applica- tion must be on notice to heirs and terre-tenants, and to the claimants of the property and personal representatives in case of leasehold premises; and without such notice the jurisdiction of the surrogate was improperly exercised. Wood v. Moorehouse, 45 N. T. 369; affirming 1 Lans. 405; Marine Bk. v. Van Brunt, 49 N. Y. 160 ; affirming 61 Barb. 861. Executions issued without a scire facias, or an order of a court where it is required, are not void, but irregular, and cannot be questioned collaterally. Jackson V. Delancey, 13 Johns. 587; Jackson v. Robins, 16 iJ. 537; Finck V. Morrison, 13 Abb. 80; Alden v. Clarke, 11 How. Pr. 309; Jackson v. Bartlett, 8 Johns. 363 ; Bank of Genesee v. Spencer, 18 N. Y. 150 ; Wine- brenner v. Johnson, 7 Abb. 303. The above more recent cases however seem to have required the notice of revival to heirs, etc., to be made in order to make the execution valid. As to when an execution will be set aside for having been issued after the death of the judgment-debtor, contrary to the above statutes, vide Finck V. Morrison, 13 Abb. 80, and the various cases above cited. Marine Court V. Van Brunt, 49 N. Y. 160, supra ; Wallace v. Swinton, supra. As to proceedings to obtain leave now, vide Co. Civ. Proc. § 1381. Heirs, Devisees, and Terrs -ten ants. — As to execution against them for debts of the ancestor, vide 3 Rev. Stat. p. 367, § 39 ; repealed by Laws of 1877, ch. 417; Co. Civ. Proc. § 1371 ; also Wood v. Wood, 36 Barb. 856, and ante, p. 383. Death of Plaintiff. — A revival without notice to the defendant did not make the execution void but voidable. . Nims v. Sabine, 44 How. Pr. 353. See also. Beard v. Sinnott, 38 Super. 536. Such case is now covered by Co. Civ. Proc. § 1376, as amended by Laws of 1885, ch. 515, and Laws of 1887, ch. 682. Recitals. — As to how far the execution may be proved by recitals in the deed vide post. Return. — If the sale be regular, neglect of the sheriff to return the execu- tion vrill not affect a purchaser's title. Phillips v. Schiffer, 7 Lans. 847. Ezecutors, etc. — Lands of decedent cannot be sold on deficiency judg- ment against his executors. James v. Beesley, 4 Redf. 336. As to form of execution against executors, etc., vide Co. Civ. Proc. § 1371. TIT. III.] PKOPEBTT MABLB TO SALE. 785 A judgment against executors or administrators, in an action wherein- they are not described in their representative capacity, cannot be enforced against decedent's real estate unless it contains a special direction to that effect. li. § 1814. Levy. — A levy upon real estate is good though made more than one hun- dred and twenty days after issue of execution. Mclntyre v. Sanford, 9 Daly, 21. Attachment. — A general execution against attached property is void. The execution must follow the directions of Co. Civ. Proc. § 1370. Place v. Biley, 33 Hun, 17; affi'd, 98 N. Y. 1. Execution against Stranger. — A sale of property on execution against a stranger will not be enjoined on application of the apparent owner, for it cannot affect him. Lehman v. Roberts, 86 K. Y. 333. Non-residents. — A sale under execution against a non-resident served by publication upon a money judgment, where there was no attachment, is void.. McKinney v. Collins, 88 N. Y. 316. Title III. What Propeett is liable to Sale'. Our statutes exempt certain lands from liability to sale under execution. Burying Gronnd. — Land not over a quarter of an acre, set apart, and a portion of which has been actually used for a family or private burying^ ground, if the owner have recorded a certificate with the county clerk at least three days before sale. Co. Civ. Proc. §§ 1395, 1396. For former law see Laws of 1847, ch. 85 ; repealed, Laws of 1877, ch. 417 ; 3 Duer, 537 ; see also, Laws of 1869, ch. 708, and Laws of 1879, ch. 310, exempting rural ceme- teries, and also, ante, p. 617. A Reservation in a deed of oils, minerals, etc., constitutes an estate- which may be sold on execution. First Nat. Bk. &c. v. Dow, 41 Hun, 138. Homestead. — ^By Laws of 1850, ch. 360, the residence occupied and owned by the debtor, being a householder, and having a family, to the value of one thousand dollars, might be exempted from sale on execution as a homestead. This exemption continued until the death of the widow of the owner, and until the youngest child came of age. No release or waiver of the exemption was valid unless subscribed and acknowledged by the house- holder, as are conveyances. A description of the lands to be recorded with the county clerk in a book known as " The Homestead Hxemption Book^ This exemption did not run with the land, on its transfer ; and it might be waived ; and a judgment would take precedence of a mortgage subsequently- executed on the land. Smith v. Brackett, 30 Barb. 571 ; Bobinson v. Wiley, 15 N. Y. 489 ; Allen v. Cook, 26 Barb. 3T4. This act did not exempt from executions on judgments for torts; nor for costs therein. Lathrop v. Singer, 39 Barb. 396 ; Robinson v. Wiley, 15 N. Y. 489; Schouton v. Kilmer, 8 How. 537; Cook v. Newman, id. 533. The land was not to be exempt, however, from sale for taxes and assessments, nor for a debt contracted for the purchase thereof, nor prior to the recording of the notice. § 3; 15 N. Y. 489. If the land were worth over one thousand dollars, the sheriff might sell the residue over that value, or the debtor was to pay the surplus value to the sheriff, or the land was to be sold. lb. §§ 3, 4, 5. This act was repealed by Laws of 1877, ch. 417. The whole subject is now elaborately regulated by Co. Civ. Proc. §§ 1897 50 786 PROPERTY lilABIiE TO SALE. [OH. XXXVIIl. (amended Laws 1883, eh. 156) to 1404, inclusive. The chief changes from the Act of 1850, are that provision is made for a married woman's home- stead (§ 1399); vacating the premises for not more than one year in conse- quence of destruction of or damage to the house does not affect the exemp- tion (§ 1401) ; if the property be worth more than a thousand dollars it can- not be sold on execution but only by a judgment-creditor's action (§ 1403), though the lien attaches at onpe to the surplus (§ 1403) ; releases of exemp- tion must be acknowledged like deeds, and releases under former acts are hereafter void, unless so made. No mortgage, except a purchase-money mortgage, is valid until the release is recorded (§ 1404). This act did not prevent creditors from redeeming from execution sales on judgments docketted before record of exemption. Rice v. Davis, 7 Lane, 893. A homestead exemption is good against the United States as against a private party. Fink v. Neil, 16 Otto, 273. Exemptions are Personal. — These exemptions are penonal, and may be waived, but not transferred to another. 36 Barb. 374; 16 Wend. 562; 33 Barb. 656. By Co. Civ. Proc. § 1400, the exemption survives, in the case of a woman, to her children and continues until the youngest child attains majority. In the case of a man it continues, after his death, during the life of his widow and until his youngest child attains majority. But it may be ended sooner by a change in the use of the property. Land in another State cannot be sold under a judgment in this State. Bunk V. St. John, 29 Barb. 585. The following lands and interests in land are subject to sale as specified. Rent charges and rights of entry cannot be sold on execution. Thomp- son V. Trustees, &c., 3 Pet. 131, 177; Jackson v. Varick, 7 Cow. 338; Payn V. Beal, 4 Den. 405; overruling People v. Haskins, 7 Wend. 463; Hunting- ton v. Forkson, 6 Hill, 149. Equity of Redemption. — As to the sale thereof, wde ante, p. 581. Leasehold property is subject to the provisions relative to the sale and redemption of real estate where there is an unexpired term of five years. Co. Civ. Proc. § 1430. Formerly contained in Laws of 1837, ch. 463, which was repealed by Laws of 1877, ch. 417 This means five years from the time of sale. 7 HiU, 150; see also, 1 Hill, 324 ; Westervelt v. The People, 30 Wend. 416. Tenancy by the curtesy. — Initiate may be sold on execution. Ante, p. 167. Contingent Remainders cannot be sold under execution. So held as to a sale in 1851. Jackson v. Middleton, 53 Barb. 9. Reversion. — A reversionary interest may be sold although contingent. Woodgate v. Fleet, 44 N. Y. 1 ; Burton v. Smith, 13 Pet. 464. Married "Women.— By the Code of Procedure, § 287, which was repealed by Laws of 1877, ch. 417, an execution against a married woman had to direct the levy and collection against her, from her separate property and not other- wise. See Charles v. Lowenstein, 36 How. 29; see also. Laws of 1860, ch. 90, and 1862, ch. 172, as fully set forth, ante, pp. 73-77, as to judgments against married women. These acts were also repealed by Laws of 1877, ch. 417. By Co. Civ. Proc. § 450, married women, as parties to actions, stand in the same position as other persons. Estates at Will or Sufferance, or a mere possession, cannot be sold on execution, but a tenancy from year to year may be. The purchaser takes nothing however, if the tenancy expires before he gets his deed. Bigelow TIT. IV.] THE SALE. 787 V. Finch, 17 Barb. 394 ; to the contrary was Talbot v. Chamberlain, 3 Pai. 219. A certain possession, e. g. of five years, however, is suflBcient to raise the presumption of a legal estate, upon which the judgment would attach as a lien. Dickinson v. Smith, 25 Barb. 103. See also as to the sale of a posses- sory interest, 6 Hill, 525; 9 Cow. 78; 6 Barb. 116. Tmst Estates. — Vide ante, p. 808; as to liability of trust estates, also ante, p. 766, and as to resulting trust, p. 274. Land is not liable on a judg- ment against a trustee. As to how a trust estate is to be reached by a cred- itor. Mallory v. Clark, 20 How. 418; 9 Abb. 858; Co. Civ. Proc. § 1481. Contracts for the Sale of Land. — By the Code of Civil Procedure as by the Rev. Stat, the interest of a person holding a contract for the sale of land cannot be sold on execution, and this is so even if he has paid the full pur- chase-money. Co. Civ. Proc. § 1353, and ante, p. 497; Watson v. Le Row, 3 Barb. 481 ; Brewster v. Power, 10 Pai. 563 ; Griffln v. Spencer, 6 Hill, 525 ; Brighton v. The Bank of Orleans, 2 Barb. Oh. 458 ; id. 423 ; Bigelow v. Finch 17 Barb. 394, A sale on execution against the grantee of one holding a contract gives no title. Sage v. Cartwright, 5 Seld. 40. When an execution has been returned wholly or partially unsatisfied against a party holding a contract for the purchase of lands, a suit may be instituted against the defendants and the party bound to perform the con- tract, to prevent the transfer of the contract, and to obtain satisfaction out of the interest of the defendant in the contract, which interest may be sold or transferred to the plaintiff by the court; and the court may decree a specific performance, and apply the interest of the defendant to satisiy the judgment. 1 R. S. 1st edit. p. 743 (repealed by Laws of 1880, ch. 245) ; Co. Civ. Proo. §§ 1874, 1875; 3 Barb. 206; 9 N. Y. 51; 13 Barb. 658; 6 Barb. 116, 137; 9 Pai. 76; 3 Pai. 230; see also ante, pp. 496, 497. Partnership Property. — A sale of partnership property on execution for a partnership debt is superior to a prior judgment against an individual partner for a prior debt. Martin v. Wagner, 1 N. Y. S. C. 509. A sale of real estate of a deceased partner under execution upon a judg- ment against a surviving partner passes no title, nor will a surrogate's decree for the payment of the judgment authorize the sheriff to sell. Bennett v. Crain, 41 Hun, 183. Title IV. The Sale. The Advertisement and Notice of Sale.— Advertisement of the sale of real estate shall be made, giving time and place of sale, for forty-two days successively, as follows : 1. A written or printed notice thereof must be conspicuously fastened up in three public places in the town or city where the sale is to take place and also in three public places in the town or city in which the property is situated, if the sale is to take place in another town or city. 2. A copy shall be printed once in each week in a newspaper of the county, if there be one. 3. If there be none, and the premises are not occupied by any person against whom the execution is issued, or by a tenant or purchaser under such person, then such notice shall be published in the State paper once in each week. Co. Civ. Proc. § 1484, which practically re-enacts the former law contained in 2 Rev. Stat. p. 368, § 48. As to sales in Hamilton county, vide Laws of 1860; am'd, 1870, ch. 662. 788 THE SALE. [OH. XXXVIII. The notice need not be published six full weeks prior to the sale, if it is published weekly for six weeks. Olcott v. Kobinson, 21 N. T. 150 ; revers- ing 20 Barb. 140; Wood v. Moorhouse, 45 N. Y. 369; affirming 1 Lans. 405. Second Sale and New Notices. — If the time for selling pursuant to notice has passed, or a new sale becomes necessary by default of purchaser, the sale must be readvertised in full, unless there be an order of the court. Bicknell v. Byrnes, 23 How. 486. So held as to mortgage sales. How Described in the Notice. — The real estate must be described in the name of township or tract, number of lot, or other appropriate description, and with common certainty. Co. Civ. Proc. § 1485 ; 4 Barb. 159; 11 Barb. 178; 13 J. R. 97. Including in the notice more land than is sold will not hurt. Co. Civ. Proc. § 1435. Time of Sale. — The sale must be at ^wWic »ewii«e, between 9 a. m. and sunset. Co. Civ. Proc. § 1384. A sale after sunset would be void (14 Barb. 9), or before sunrise. Wood v. Moorhouse, 1 Lans. 405 ; affi'd, 45 N. T. 369. A sale on election day is not necessarily void. King v. Piatt, 37 N. T. 155. See also 21 N. T. 151 ; 14 Barb. 10. Irregularities and Lots Sold Separately. — T?ie sheriff' if required is to expose lots for sale separately, and no more is to be sold than sufficient to satisfy the execution. Co. Civ. Proc. § 1437. So formerly by Rev. Stats. §38. This is directory only, and non-compliance would only render the sale voidable. 1 Johns. Ch. R. 503; 7 Abb. 183; 18 Johns. 355; 17 N. Y. 276; 17 Abb. 137. The irregularity may be ratified or waived. 7 Abb. 183. See also 5 Barb. 568; 6 Wend. 523; 9 Pai. 262. By the Code of Civil Procedure also, the omission to give the proper notice of or the taking down or defacing such notice, shall not affect the validity of any sale made to a purchaser in good faith without notice. Co. Civ. Proc. § 1386. So formerly by 2 R. S. p. 368, § 34 ; vide also, 13 N. T. 189; 22 Barb. 171; 3 Barb. 409; Wood v. Moorhouse, 1 Lans. 405; affi'd, 45 N. T. 369. A failure on the part of the sheriff to comply with the statutory directions as to the sale, wdll not invalidate it. Goffv. Jones, 6 Wend. 532; Neilson V. Neilson, 5 Barb. 565 ; 5 Cow. 369, 629 ; Cunningham v. Cassidy, 17 N. T. 276. The purchaser cannot be affected by any matter subsequent to the sale, arising between the parties to the judgment to which he is a stranger. Jack- son V. Bartlett, 8 John. 861. One defendant may be purchaser of the land of his co-defendant. Neil- son V. Neilson, 5 Barb. 568. See also Hill & D. 265. A sheriff is liable for loss to the judgment-debtor from irregularities. Frederick v. Wheelock, 3 N. T. S. C. 210. He is bound to ascertain the situation of the property and sell according- ly. O'Donnell v. Lindsay, 89 Super. 523. Purchase by Defendant's Grantee. — The gtantee of the land from the defendant may become the purchaser at the sale, and the titles are not merged. Chantauque Co. Bank v. Risley, 19 N. Y. 369. Officer may not Purchase. — The officer or any deputy cannot purchase on such sale, directly or directly. If so, the sale is void (Co. Civ. Proc. § 1387 ; R. B. § 41), unless the deputy be plaintiff. Jackson v. Collins, 3 Cow. 89. Misnomer. — On a judgment against defendant by one name, the sale of his land under another is held void. 23 Barb. 377. TIT. IV.] THE SALE. 789 Decease of Defendant after Advertisement. — A sale where the defend- ant died after advertisement and before sale held valid. Wood v. Moorhouse, 1 Lans. 405; affl'd, 45 N. T. 368; Holman v. Holman, 66 Barb. 315. Lien not Necessary. — Though the lien have expired the sale may be good. Nims v. Sabine, 44 How. Pr. 253 ; Beard v. Sinnott, 35 Super. 51 and 38 Super. 536 (further decision). So though there never were a lien. Siegel v. Anger, 13 Abb. N. C. 362. Fraud. — A sale may be set aside for fraud though all proceedings were regular. Bruce v. Kelley, 39 Super. 37. Sherift's certificates.— On making the sale, the officer shall deliver to the purchaser or purchasers certificates containing 1. The name of the purchaser and the time of sale. 3; A particular de- scription of the property sold. 8. The price bid for each lot or parcel. 4. The whole consideration money paid. Co. Civ. Proc. § 1438. These particu- lars differ from those previously required, for which vide 3 Rev. Stat. p. 370, § 43. These provisions requiring the giving of a certificate were first enacted by Law of 1820, p. 167. The certificates must be subscribed and acknowledged like a deed. Co. Civ. Proc. § 1438. Certificates to be Filed with County Clerk.— A duplicate certificate must be filed by the officer with the clerh of the county, within ten days after the sale. Co. Civ. Proc. § 1439. So formerly R; S. § 43 ; Laws of 1830, ib. An omission to do this will not prejudice the purchaser's title. Jackson V. Young, 5 Cow. 369. " Niagara County. — As to certificates in Niagara county, vide Laws of . 1868, ch. 586. Sheriffs' Certificates.— As to when they may be amended, iMe 8 How. 79; 1 Cow. 430. As to assignments of the certificate, and further as to certificates, md^e infra, Tit. V and VI. Certificate as Evidence. — As to efiect of sheriff's certificate as evi- dence, xiids Clute v. Emmerich, 21 Hun, 123. The recitals in a sheriff's certifi- cate were made ^nma/ascie evidence in certain cases by Laws of 1884, ch. 197, but the act was repealed at the next session by Laws of 1885, ch. 113. Record of Certificates and Index.— TAe clerk or register of any county must record and index the same in the name of the defendants, in a book kept by him for that purpose. Co. Civ. Proc. § 1439, following Laws of 1857, ch. 60, which provided also for use of the record, etc., as evidence, and was repealed by Laws of 1877, eh. 417. 790 EEDEMPTION. [CH. XXXVIII. Title V. Redemption, Redemption by Defendant, or his Heirs, Devisees, etc. — Within one year, the land may be redeemed by pay- ment of the sum of money paid upon the sale and interest at ten per cent., by the judgment-debtor whose title was sold, or his devisees, or heirs, or grantees, in the mode and order specified in the statute. Co. Civ. Proc. §§ 1446, 1447, following but partly modifying 1 R. S. 1st ed. p. 370, §§ 45, 46, which were repealed by Laws of 1877, ch. 41 7. Under a sale before the Revised Statutes of 1830, the right of redemption is governed by the preyious law. 6 HUl, 149 ; overruling 7 Wend. 463. As to separate redemption of a distinct parcel, vide Co. Civ. Proc. § 1458. If one thinking erroneously that his interest cannot be sold lots the time of redemption elapse and deed pass, he cannot be in any way relieved after- ward. Weed V. Weed, 94 N. T. 248. The right follows the person, not the, land. Livingston v. Amoux, 56 N. T. 507. So the judgment-debtor may redeem, though he has made a general assignment. Ellsworth v. Muldoon, 46 How. Pr. 346. & a deputy made the sale payment to either him or the sheriff is good. Livingston v. Arnoux, 56 N. T. 507. 6|ee this case also as to evidence of pay- ment. Leases. — The above provisions apply also to the sale and redemption of leasehold property having five years or jnore unexpired, and any buildings thereon. Co. Civ. Proc. § 1430, fqllowujg.Laws of 1837, ch. 463, which was repealed by Laws of 1877, ch. 417. See also, Westervelt v. People, 20 Wend. 416 ; Huntington v. Forkson, 6 Hill, 149. As to the redemption of demised premises for five years or over by the lessee or mortgagees or judgment-creditors, when there has been dis- possession under § 38, title 10, ch. 8, part, 3,jof R. S., vide Law of April 12, 1843, ch. 240. Part Ownership. — Section 47 of the Revised Statutes provided that owners of portions might redeem the whole and enforce contribution (§48), that persons having undivided shares might redeem. This is covered now by §§ 1458, 1482, Co. Civ. Proc. Effect of Payment. — On such payment, the sale of the premises and the certificates shall be null and void. Co. Civ. Proc. § 1448 ; R. S. § 49 ; Rankin V. Arndt, 44 Barb. 251. If a deed were thereafter executed by the sheriff, it would be void. 15 Wend. 248. A grantee to redeem must have the legal estate. Lathrop v. Ferguson, 23 Wend. 116. The effect of redemption by a judgment-debtor is to restore the lien of a junior judgment under which the sale was also had. Bodine v. Moore, 18 N. T. 347. Payment within the year by the debtor, entirely extinguishes the power of the sheriff to make the sale ; but the debtor may advance money to another to take the certificate. Rankin v. Arndt, 44 Barb. 251. The purchaser and the debtor may make an agreement extending time to redeem, and it will affect other parties, without their consent. Miller v. Lewis, 4 N. T. 554. TIT. v.] REDEMPTION. 791 But a junior judgment-creditor does not acquire any interest under the agreement. lb. After redemption by the debtor, the property may be resold for the balance of the judgment. Titus v. Le*is, 3 Barb. 70. Redemption by Creditors.— If not so redeemed within the year, then redemption may be made by creditors, by judgment or decree obtained within fifteen months of the sale, or those holding as assignees, representatives, trus- tees, or otherwise. Such redemption may be made within three months after the year's expiration, according to cer- tain rights and conditions, and in an order as specified in §§ 1449 to 1470 of the Code of Civil Procedure. The details of this proceeding cannot be here given. Similar provisions are found in R. S. §§ 51 to 61. Section 51 was amended by Law of 1847, ch. 410, and the whole was repealed by Laws of 1877, ch. 417. As to redemption and payment by creditors under the Code of Civil Procedure, vide Toumans v. Terry, 32 Hun, 634. As to the aflBdavits under R. S. vide Rice v. Davis, 7 Lans. 393. Creditors with judgments over ten years old may redeem. 7 Cow. 540 ; 18 Wend. G21. The right of the judgment-creditor to redeem cannot be prevented by the purchaser paying his judgment, nor by a stranger so doing. People v. Beebe, 1 Barb. 379. As to redemption by creditors where the land was sold under two execu- tions, 'Bide Buck v. Fox, 23 Barb. 359. As to the proof of redemption by parol, and the proceedings on redemp- tion, vide Stafford v. Williams, 13 Barb. 240. A county clerk (not deputized) cannot act for the sheriff in the prq- ceedings for redemption. People v. Rathbun, 15 N. T. 528 ; affirming 23 Barb. 378. The rights of parties are strictly established at the end of the 15 months. Ex parte Raymond, 1 Den. 272. The redemption cannot be made after the 15 months. 1 Cow. 443 ; 7 id. 658. They are calendar months. Snyder v. Warren, 3 Cow. 618. The plaintiff in execution, however, shall not be entitled to acquire title of the original purchaser, or of any creditor, unless under another judgment or decree. R. S. § 68 ; now covered by Co. Civ. Proc. § 1457. An assignee of a judgment is a creditor, and may redeem. 1 Cow. 443. The three months begin to run on the day succeeding the expiration of the year, and that day is counted inclusively. 19 Wend. 87. It may be made before midnight on the last day. 7 Hill, 177. If last day is Sunday, redemption must be made the day before. People V. Luther, 1 Wend. 42. The redemption by senior judgment-creditor pays his judgment if the land is worth enough. Benton v. Hatch, 43 Hun, 143. When the last day to redeem was Saturday and a creditor redeemed on that day, redemption by another on Monday was held valid. Porter v. Pierce, 43 Hun, 11. Mortgagees. — A mortgagee or his assignee or representative may redeem if the mortgage is a lien and recorded within 15 months from the sale. § 51, 792 KEDBMPTIOK. [CH. XXXVIII. Laws of 1836, ch. 535; Laws of 1847, ch. 410; repealed by Laws of 1877, ch. 417. This matter is now regulated by Co. Civ. Proc. § 1450. Under the Act of 1830, a mortgagee could not redeem ; nor under the Act of 1886, unless the mortgage was executed by defendant. Hodger v. Oallup, 3 Den. 537. The provisions of the Revised Statutes are to apply to liens by mortgage in the same manner as they do to the liens by judgment or decree. Laws of 1847, ch. 410; repealed as to this by Laws of 1877, ch. 417. As to proceedings by the mortgagee to redeem, vide Law of 1836, ch. 525 ; and Law of 1847, ch. 410. Both repealed as above. For proceedings now, vide Co. Civ. Pro. §§ 1449-1463, and §§ 1465-1470. A mortgage on a portion of the lands will entitle a mortgagee to redeem. Neilson v. Neilson, 5 Barb. 565. To the contrary was People v. Beebe, 1 Barb. 379. Superintendents of the Poor. — As to their right to redeem on sheriffs' sales, vide Law of 1863, ch. 473. Statement of Redemption. — The law formerly in force required the officer to file an elaborate statement. Laws of 1847, ch. 410, § 3. This was repealed by Laws of 1877, ch. 417. Since the Act of 1847, a redemption by the creditor on or after the last day of redeeming must be made at the sheriff's office. Co. Civ. Proc. § 1455 ; Laws of 1847, ch. 410; Gilchrist v. Comfort, 34 N. Y. 235; Morss v. Purvis, 68 N. Y. 335. A deed shall be executed immediately after the lapse of fifteen months from the time of sale, except when there was redemption on the last day; in that case twenty-four hours after the last redemption. Co. Civ. Proc. § 1471 ; amended, L. 1886, c. 637. By its terms, the provisions of the Law of 1847 were not to apply to previous sales. Any creditor may redeem within twenty-four hours of a preceding redemption. Law of 1847, ch. 410 (repealed Laws of 1877, ch. 417); Oo. Civ. Proc. § 1454. If full payment be not made on the redemption (unless by mistake of the -sheriff), the redemption is void, and the purchaser is entitled to the deed. Hall V. Fisher, 1 Barb. Oh. 56 ; Dickinson v. Gilliland, 1 Cow. 481 ; Eas parte Peru Co. 7 id. 540 ; The People v. Rathbun, 1 Smith, 538. The law requires certain evidences of the right to redeem to be exhibited to the sheriff duly verified. It erroneous, the right to redeem is lost. See the Code of Civil Procedure, §§ 1464, 1465, 1468. For the former law see the above sections of the Revised Statutes, 59 to 61 ; also, Laws of 1847, ch. 410 ; and 35 K. Y. 619 ; 30 N. Y. 354 ; Hall v. Thomas, 27 Barb. 55 ; Griffin v. Chase, 33 Barb. 378; affl'd, 15 N. Y. 378; Rice v. Davis, 7 Lans. 393; Ells- worth V. Muldoon, 46 How. Pr. 346. As to papers to be presented to sheriff by a creditor, under Co. Civ. Proc, vide Nehrbass v. Bliss, 88 N. Y. 600. Certificate of Redemption, its Record and Effect. — A certificate is to be executed by the officer, to each party redeeming, which may be proved and acknowledged, and being duly recorded in the county clerk's office where the real estate is, " has the same effect against subsequent purchasers and incumbrancers as the recording of a con- veyance." Co. Civ. Proc. §§ 1469, 1470. TIT. VI.] THE DEED. 793 _ Formerly by Law of 184T, ch. 410 (now repealed). On redemption, the original certificate of sale becomes void, and any deed under it would be inoperative. 15 Wend. 248. _ The certificate or the record of a duly authenticated copy was ppmafade evidence of the facts therein. Laws of 1849, supra. Before the Law of 1847, there was no provision for the filing of the certif- icate of redemption as notice. It has been questioned whether, if no such certificate were filed, a iona jiAe assignee of the original certificate of sale would not be now protected against any redemption, even if fairly made. The law does not so state, but the general impression is that he would be so protected if the filing of the evidence of redemption is omitted. Butin Livingston v. Arnoux, 56 N. T. 507, it is held that failure to re- cord will not affect the right of the party redeeming or his grantee in pos- session. Title VI. The Deed. Title not Divested before Deed.— The title of the defen- dant shall not be divested by the sale until the expira- tion of fifteen months thereafter ; but if the lands are not redeemed, and a deed is executed in pursuance of the sale, the grantee shall be deemed vested with the legal estate, from the time of the sale, for the purpose of maintaining an action for any injury to such real estate. Co. Civ. Proc. § 1440, amended by Laws of 1881, ch. 681. This section as amended further provides that where, in an action, the grantee's title is found invalid, the plaintiff must pay him what he paid the sheriff with interest, and the costs of the action. TJpon his so doing the title of the grantee is divested. But if he fail to do so within twenty dm/a after judgment, the grantee's title becomes valid against him. This section does not cover invalidity arising from grantee's fraud. Mc- Intyre v. Sanford, 88 N. T. 734. For the former law, mde Eev.i Stat. § 61. It seems the deed may be executed at any time after the fifteen months, no matter how remote. Reynolds v. Darling, 43 Barb. 418. But purchasers without knowledge of the sale after more than ten years after the judgment, would be protected, even if they knew of the judgment. li. Completion of the Sale after fifteen months. — " Immedi- ately after the expiration of fifteen months from the time of sale, except where a redemption has been made on the last day of the fifteen months, and in that case immedi- ately after the expiration of twenty-four hours from the last redemption, the sheriff who made the sale must execute the proper deed or deeds in order to convey to the person or persons entitled thereto, the part or parts 794 THE DEED. [OH. XXXVIH. of the property sold which have not been redeemed by the judgment-debtor, his heir, devisee, or assignee." Co. Civ. Proc. § 1471. For former law see R. S. § 62. The changes are verbal. The deed cannot be subsequentlv altered or amended by the sherifi. Clarke v. Miller, 18 Barb. 269. A deed may be given to a third party by the creditor's direction. Merrit V. Jackson, 1 Wend. 46. Deeds, to Whom Executed.— If any part of the prop- erty remains unredeemed the sheriff must convey it to the purchaser at the sale, or, in case of assignment, to the last assignee. Parts redeemed by a creditor must be conveyed to him or, if he have assigned, to his last assignee. If a person entitled to a deed die before delivery, the deed must be to his executors or administrators in trust for his heirs or devisees, subject to dower of his widow, if there is one. Co. Civ. Proc. §§ 1472, 1473. The former law is found in Laws of 1835, ch. 189, as amended by Laws of 1867, ch. 116, which were repealed by Laws of 1877, ch. 417. Their provis- ions are practically the same as those of the Code. By Law of 1867, ch. 116, the deed was to be given to any person or persons to whom such certificate had been duly issued, or had been duly assigned, or to any person who had duly redeemed the said real estate, other than the exe- cution-debtor or his heirs and assigns, the executors br administrators of any deceased assignee, or of the person who had so redeemed the same. Assignments to be Recorded. — An assignment of the certificate must be acknowledged or proved, and filed by the county clerk, before the assignee, or his representatives, are entitled to a deed. Co. Civ. Proc. § 1474 ; formerly so by Laws of 1835, ch. 189, which was repealed by Laws of 1877, ch. 417. An omission to record the assignment will not vitiate the purchaser's (from a redeeming creditor's) title. Chautauque Bank v. Risley, 4 Den. 480 ; Bank of Vergennes v. Storrs, 7 Hill, 91 ; see People v. Muzzy, 1 Den. 239. As to assignment by a bank, vide same case. A sheriff may waive the recording of an assignment of certificate of sale, and give a deed without it. Phillips v. Schiflfer, 7 Lans. 347 ; Wood v. Moor- house, 45 N. T. 869 ; afE'g 1 Lans. 405. See this case also as to a junior judgment-creditor redeeming from the assignee of the certificate. As to form of acknowledgment of the assignment, tide Ex parte Newell, 4 Hill, 608 ; also The People v. Newell, 1 Den. 239, as to rights, in redeem- ing, of a judgment-creditor, who is also assignee of the certificate of sale. The sheriff cannot be compelled to give the deed, until the assignment has been filed. People v. Ransom, 4 Den. 145 ; aflTd, 2 N. T. 490. Assignments of sherift's certificates made prior to the Law of 1835, ch. 189, were not invalidated by that act, although they were not acknowledged, proved or filed. Phillips v. Schiffer, 64 Barb. 548. Authority of the Sheriff. — There must be an existing power in the sheriff at the time of the execution of a conveyance by him, or he can con- fer no title. Therefore, if redemption be made, a deed to the purchaser ■would be void, and it might be shown by parol. Stafford v. Williams, TIT. VI.] THE DEED. 795 13 Barb. 340 ; Livingston v. Arnoux, 56 N. Y. 507 ; distinguished in People v. Lynch, 68 N. T. 473. Execution of Deed. — If the sheriff died or was removed, the under- sheriff might conduct the proceedings and execute the deed as if done by sheriff (Law of 1818), or a person appointed by the court. 7 Cow. 739 ; 9 ib. 333 ; 10 Wend. 663; §§ 65, 66; see also. Laws of 1835, ch. 189; 1887, ch. 463; 1886, ch. 525, infra; repealed by Laws of 1877, ch. 417. By Co. Civ. Proc. § 1475, following the Law of 1867, ch. 116, the deed is to be executed by the sheriff making the sale, or in case of his death or removal, his under- gheriff, or in case of his death or disqualification, the deputy who made the sale, or the successor of the sheriff. The Act of 1867 was also repealed by Laws of 1877, ch. 417. By Revised Laws of April 13, 1813, where the sheriff died before signing the deed, his executors or administrators might sign it. Vol. 1, p. 506. A deed from the sheriff is necessary to pass the title imder the statute of frauds. 8 Johns. 530. Without a substantial compliance with the statute provisions, the redeem- ing creditor acquires no right by the sheriff's deed. 18 Wend. 598; 19 mZ. 87;30m?. 655. If Purchaser Deceased. — ^In case of death of the person entitled, the deed is to be executed and delivered to the executors or administrators of the deceased to be held in trust for the heirs, subject to the dower of the widow, but may be sold for debts by the surrogate. Co. Civ. Proc. § 1473, following § 64, Laws of 1847, ch. 410; repealed by Laws of 1877, ch. 417. Beeitals in the deed of various assignments of the certificates are not con- clusive, but those as to the executions or reservations at the sale are so. Staf- ford v. Williams, 12 Barb. 340; Jackson v. Roberts, 11 Wend. 433; Grif- fin V. Chase, 38 Barb. 378; affi'd, 15 N. T. 538. If recitals are omitted or are erroneous, the deed is not vitiated. Jackson V. Streeter, 5 Cow. 539; Jackson v. Jones, 9 Cow. 183; Jackson v. Pratt, 10 Johns. 381, also 4 Barb. 180 ; 16 N. Y. 567 ; Jackson v. Paige, 4 Wend. 585. And the recitals under certain circumstances will be presumed correct in de- fault of other proof. Phillips v. Schiffer, 54 Barb. 548. Erroneous recital of day of sale where the certificate is correct is harm- less. Holman v. Holman, 66 Barb. 315. Description. — If the land is not definitely described, no title passes. Jackson v. De Lancey, 13 Johns. 537; affi'g XX id. 365; Peck v. Mallams, 6 Seld. (10 N. Y.) 509, 583; Jackson v. Roosevelt, 13 Johns. 97. A purchaser under misrepresentation may be relieved. 15 Abb. 359. Obtaining Possession. — On obtaining the deed the purchaser has no right to enter on the premises unless they are vacant. He is left to his eject- ment suit, or to proceed under the Code of Civil Procedure to obtain posses- sion of real property by summary proceedings. Co. Civ. Proc. § 3332 (allow- ing summary proceedings) following 2 Rev. Stat. p. 513, § 38, which was re- pealed by Laws of 1880, ch. 245; Evertson v. Sawyer, 2 Wend. 507; People V. Nelson, 13 Johns. 340. To recover in ejectment, the plaintiff must show the judgment defendant in possession at the time of the recovery of the judgment against him, and a continued possession from that time to the time of the commencement of the action, and that the plaintiff acquired the title under the sheriff's sale by a conveyance. 6 Barb. 116 ; 25 Barb. 102; 17 Barb. 157. He must prove the judgment. 11 Barb. 498; 2 Corns. 373. He must prove the judgment by the production of the judgment-roll, duly filed, and must show that it was docketed. Townshend v. Wesson, 4 Duer, 342. The plaintiff also might proceed under the Revised Statutes to get posses- sion or recover rent. Spraker v. Cook, 16 N. Y. 257. 796 THE DEED. [CH. XXXVIII. Effect of the Deed. — The deed relates back to the time of the sale, although executed afterwards. But the title of the judgment-debtor is not gone until the money is paid and deed delivered. Co. Civ. Proc. § 1440 ; amended by Laws of 1881, oh. 681, following generally 3 R. S. 373, which was repealed by Laws of 1877, ch. 417 ; Jackson t. Dickinson, 15 Johns. 309 ; Jackson v. Kamsay, 3 Cow. 75 ; Wright t. Douglass, 3 Coms. 873; reversing 3 Barb. 554 ; Eich v. Baker, 3 Den. 79 ; Boyd v. Hoyt, 5 Pai. 65 ; Talbot V. Chamberlain, 3 Pai. 319; Farmers' Bank v. Merchant, 13 How. Pr. 10; Vaughn v. Ely, 4 Barb. 159; Smith v. Colvin, 17 Barb. 157; 9 Cow. 13; 1 Seld. 151 ; 3 Seld. 564 ; reversing 10 Barb. 97; Holman v. Holman, 66 Barb. 315. The purchaser's title before the deed, however, is but a lien or conditional right, the naked title being in the debtor, who has the enjoyment of the property until the expiration of a year. Evertson v. Sawyer, 3 Wend. 507. The retroactive effect is only as to recoveries for injury to the property under the sale. Schermerhorn v. Merrill, 1 Barb. 511. The deed extinguishes all junior liens. Ex parte Stevens, 4 Cow. 133. Until the expiration of a year the judgment-debtor is entitled to posses- sion, rents and profits. Evertsen v. Sawyer, supra ; Marsh v. White, 3 Barb. 518; Schermerhorn v. Merrill, 1 Barb. 511. A lease given after the sale by the debtor would be extinguished by the deed. 5 Barb. 619. By a sale of land under a judgment, the lien of the judgment and the right to redeem under it are extinguished. 4 Barb. 135; 17 Abb. 137; 5 Hill, 338. The purchaser, or one redeeming, takes all the title of the judgment- debtor, the benefit of all estoppels and covenants running with the land (Sweet V. Green, 1 Pai. 473 ; Kellog v. Wood, 4 ii. 578), and subject to all prior incumbrances or liens, and junior liens, to the extent of any surplus. Bartlett v. Gale, 4 Pai. 503. Extrinsic evidence cannot be given to explain the sheriffs deed as to his intent, but it may as to location of land, etc., or as to parcels. Mason V. White, 11 Barb. 173; «i(fo 31 N. T. 300, however, doubting this case. The Deed as Evidence. — A sheriff's deed is evidence of his authority and of the regularity of the proceedings, at any rate after the lapse of forty years. Dunham v. Townshend, 48 Hun, 580. Compare Hasbrouck v. Ber- hans, 43 Hun, 376. Record. — The recording of a sheriff's deed has been held not notice to a party who contracted with the judgment-debtor to purchase the land, and entered into possession before judgment. Moyer v. Hinman, 3 Eer. (13 N. y.) 183; also Smith v. Gage, 41 Barb. 60; overruling 17 Barb. 139. One who purchases land without notice of a prior sale under execution, is protected if he records his deed prior to the sheriff's deed. Reynolds V. Darling, 43 Barb. 418. And see ante, pp. 645 to 653. Registration is no notice except in cases where registrv is made necessary by statute. 3 Cow. 346. But if a deed from a sheriff is recorded prior to a deed from a debtor before judgment, it will prevail. 15 Wend. 588. See also Cook v. Travis, 33 Barb. 338; affi'd, 30 N. T. 400. A purchaser (without notice) at sheriff's sale will hold the same, although the defendant had previous to the judgment conveyed the lands, provided the sheriff's deed is first recorded. Jackson v. Chamberlain, 8 Wend. 630; Hetzel v. Barber, 69 N. T. 1. U. S. Marshal's Sales.— As to sales under process out of the Federal courts, vide Law of 3d March, 1797, 1 U. TIT. VII.J EBMEDIES, FAILURE OP TITLE. 797 S. Stat. 515 ; Law of 7th May, 1800, 3 U. S. Stat. 61; Law of 20th May, 1826, 4 U. S. Stat. 184; Law of 19th May, 1828, 4 U. S. Stat. 281; Law of 1st August, 1842; R. S. U.'S. §§ 985 to 989 and 994. Also the rules of U. S. courts of the Circuit and District. Vide rule 21, of Ad- miralty rules, amended 1 Black 1862. Also 9 Peters, 361 ; 3 ih. 45. Title VII. Remedies eor Failure op Title to Real Estate Sold by Execution, and to Enpoece Con- tribution. Code of Civil Procedure, Sections 1479, 1480. — ^The pur- chaser of any real estate sold by virtue of an execution, his heir, devisee, grantee or assignee, who is evicted from the possession thereof, or against whom judgment is rendered, or in an action to recover the same, may recover the purchase-money with interest from the person for whose benefit the property was sold, where the judgment was rendered or the eviction occutred in consequence either : 1. Of any irregularity in the proceedings concern- ing such sale ; or 2. Of the judgment upon which the exe- cution was issued being vacated or reversed or set aside for irregularity or error in fact ; and the latter party, if there has been irregularity as above, may have further execution on the judgment, but the execution does not affect a purchaser in good faith, or an incumbrancer by mortgage, judgment or otherwise, whose title or whose in- cumbrance accrued before the actual levy thereof Sec- tions 1481 to 1486, provide for contribution when the lands liable and levied on are owned by several persons, and the order in which lands are to contribute — and that the original judgment may be used to enforce contribution, and shall continue a lien as other judgments by §§ 1251 and 1255 on th.e lands from the time of docketing. § 1485. The lien of the original judgment may be pre- 798 EEMBDIBS, FAILURE OF TITLE. [CH. XXXVIII. served by filing in the clerk's office of the county where the real property is situated within twenty days after the payment for which contribution is claimed, an affidavit in behalf of the person aggrieved, stating the sum paid, and his claim' to use the judgment for the reimbursement thereof, with a notice requiring the clerk to make the entries specified in the next section. Bona fide holders without notice, who took before the entries was made, are affected. § 1486. " On filing the affidavit and notice the clerk must make upon the docket of such judgment an entry stating the sum paid, and that the judgment is claimed to be a lien to that amount. Similar filing and entry may be made in any number of counties where there is real estate." These provisions are founded on art. 3, title 5, chap. 6, part 3 of the Revised Statutes, which was repealed by Laws of 1877, ch. 417. See, as to these provisions, 8 Pai. 148; 5 Cow. 38; 1 Pai. 328 ; 5 J. 0. R. 235. CHAPTEE XXXIX. RECEIVERS UNDER PROCEEDINGS SUPPLEMENTARY TO EXECUTION. Order for Receiver.— After execution unsatisfied, or in a proper case before execution is returned under supple- mentary proceedings against tlie judgment-debtor, or a third person holding property of the judgment-debtor, a judge of the court may by order forbid a transfer or other disposition of the property of the judgment-debtor, may appoint a receiver of his property, or may order any "property" not exempt, to be applied on the judgment. Code of Civil Procedure, §§ 2446 to 2451 and 2464 to 2471, inclusive. These provisions are based on Co. Proc. §§ 297, 298, which contain the former law. Where, however, a receiver of the property of the same person has already been appointed the judge must make an order extending his receivership to the proceeding before him. This has the same effect as if he were originally appointed in that proceeding. There can be but one receiver. Co. Civ. Proc. § 2466. A receiver may be appointed though the property be worth nothing. Baker v. Herkimer, 43 Hun, 86. Order to be Filed and Recorded.— The order for the ap- pointment or extension of the receivership of the receiver must be filed in the office of the clerk of the county wherein the judgment-roll is filed ; or if the special proceeding is founded upon an execution issued out of a court other than that in which the judgment was rendered, in the office of the clerk of the county wherein the transcript of the judg- ment is filed. The clerk is to record the same in a special book, and note the time of filing; and the receiver is vested with the property and effects of the judgment-debtor from the time of filing and recording. §§ 2467, 2468, 2470. For the former law vide Co. Proc. § 298. The above provisions for the recording and flUng of said order were first passed by amendment to the 800 RECBIVBKS. [CH. XXXIX. Code of Procedure of April 23, 1863. By amendment of May 4, 1863, a pro- vision similar to the following was added to the section. When Real Property to Vest.— Eeal property is vested in the receiver only from the time when the order or a certified copy thereof, as the case may be, is filed with the clerh of the county where it is situated. § 2468, sub. 1. A substantially similar provision was contained in Co. Proc. § 298 (except that that section required recording as well as filing) under which the follow- ing decisions were made. Ordinarily the mere appointment of a receiver does not vest in him the real estate of the debtor. The court can compel a conveyance thereof, to pass the title. Chautauque Co. Bk. v. Risley, 19 N. Y. 370; overruling 5 Seld. 142 ; Wilson v. Wilson, 1 Barb. Ch. 592 ; Moak v. Coats, 33 Barb. 498 ; People v. Hurlburt, 5 How. 446. After the amendments of 1862-3, it was supposed that under these pro- ceedings no conveyance was necessary to the receiver. The following cases had theretofore held that no conveyance was necessary. Porter v. Williams, 5 Seld. 142 ; Beamish v. Hoyt, 2 Rob. 307. In 1877 it was held, in Scott v. Elmore, 10 Hun, 68, criticising Porter V. Williams, supra, that a conveyance was necessary, but this case was itself disapproved in Wing v. Disse, 15 Hun, 190 (decided in 1878) which held a conveyance not necessary. In Manning v. Evans, 19 Hun, 500 (decided in 1880), it was held that an order that the judgment-debtor assign his real estate was unnecessary, as the interest vested in the receiver without assign- ment. Appointment. —The receiver's appointment is not complete until his bond is filed. Conger v. Sands, 19 How. 8. The regularity of the appointment of the receiver cannot be questioned collaterally. 12 Abb. 465 ; Bright v. Nostrand, 94 N. Y. 31. His Title. — The title of the receiver relates back to, and takes effect only from, the date of the order appointing him. Becker v. Torrance, 31 N. Y. 631 [1864]. He is vested from the time of filing and recording the order. Bostwick v. Menck, 40 N. Y. 383 ; reversing 10 Abb. 197 ; Rogers v. Corning, 44 Barb. 229; Wing v. Disse, 15 Hun, 190. Where the debtor resides in the county in which the land is, filing once in that county is enough. Fredericks v. Niver, 28 Hun, 417. The lien does not date back to the time of commencing supplementary proceedings. Becker v. Torrance, 31 N. Y. 631 ; Voorhees v. Seymour, 26 Barb. 569 ; Conger v. Sands, 19 How. 8. The lien as against assigned property only begins from the time of com- mencement of action by the receiver. Field v. Sands, 8 Bos. 685 ; Conger v. Sands, 19 How. 8 ; Bostwick v. Menck, mpra, see Watson v. N. Y. C. R. R. 6 Abb. N. S. 91. His Authority. — The receiver represents only those who procured or are represented by his appointment. Bostwick v. Menck, 40 N. Y. 383 ; revers- ing 10 Abb. 197. The above and various cases also show that the receiver may bring an action to set aside all fraudulent transfers theretofore made as against, and to the extent only of the interests represented by him. As to the rights of judgment-creditors who are not parties to the pro- ceedings, i>id£ Chautauque Bk. v. Risley, 19 N. Y. 370. CH. XXXIX.] KEOEIVEES. 801 As to actions by the receiver see a full discussion of the subject in Wright V. Nostrand, 94 N. T. 31. "What Property Passes. — A -widow's right of dower may be reached under these proceedings ; and a conveyance compelled. Monk v. Coats, 33 Barb. 498 ; Stewart v. McMartin, 5 ih. 438 ; Payne v. Becker, 87 N. Y. 153. An estate by the curtesy will also pass under these proceedings. Beamish V. Hoyt, 3 Eob. 307. Property out of the State. — Such property it seems might have been reached, when the Code of Procedure was in force, under these proceedings by compelling a conveyance to a receiver. Fenner v. Sanborn, 37 Barb, 610 ; Bailey v. Ryder, 10 N. Y. 363; Bunn v. Porda, 3 Code R. 70. But cannot be under the Code of Civil Procedure. Smith v. Tozer, 42 Hun, 33. The property vested in the receiver, is only such as the debtor owned at the time of granting the order for examination. That subsequently acquired does not pass. Bostwick v. Menck, 40 N. Y. 383 ; reversing 10 Abb. 197 ; Campbell V. Genet, 3 Hilt. 390; Sands v. Roberts, 8 Abb. 848; Potter v. Low, 16 How. 549; Graff v. Bonnett, 35 How. 470; aff-d 31 N. Y. 9. The receiver would not take an interest in a trust estate that was inalien- able, by the mere force of his appointment. Genet V. Poster, 18 How. 50; Campbell v. Forster, 35 N. Y. 361; Locke v. Mabbett, 3 Keyes, 457; Graff v. Bonnett, 31 N. Y. 9; affi'g 3 Rob. 54; 35 How. 470. Such an interest can be reached only through the agency of a court of equity, vide ante, p. 376 ; and Stewart v. Foster, 1 Hilt. 505 ; Genet v. Foster, 18 How. 50; Williams v. Thorn, 70 N. Y. 370. Action of the Receiver. — Sales are made by the receiver, by order, on application to the court. By the Codes also, if there are adverse interests or claims, the court may forbid transfer by others until the interest is de- termined, in an action to be brought by the receiver. Code of Procedure, § 399 ; Code of Civil Procedure, § 3451 ; Scott v. Nevins, 6 Duer, 673; Dicker- son V. Van Tyne, 1 Sandf. 724; Wardell v. Leavenworth, 3 Ed. Ch. 344. The above § 399, Co. Proc, was held in many cases to apply merely to proceedings under the chapter as to supplementary proceedings. A delay in taking possession, — e. g., of ten months — would not postpone the lien of the receiver. Pessenden v. Woods, 3 Bos. 550. As to the form and manner of the action to be brought by the receiver to set aside other transfers, vide Coope v. Bowles, 43 Barb. 88 ; Livingston v. Staessel, 3 Bos. 19. Where the receiver's title is vested, it cannot be disturbed by any order in proceedings to which he was not a party. Rogers v. Corning, 44 Barb. 329. 51 CHAPTER XL. TITLE UNDER ATTACHMENT PROCEEDINGS. Property of foreign corporations, and of non-residents, or of absconding and concealed defendants, may be attached and sold under certain circumstances, as will be seen more particularly by reference to the provisions of the Code of Civil Procedure (§§ 635 to 712), the details of which cannot be here given. The sheriff is to levy upon enough personal and real property of the de- fendant to satisfy plaintiff's demand, with costs and expenses. He may leTy from time to time, and as often as is necessary, until he has covered property enough. He is to take into his possession aU evidences of title to land, and personal property capable of manual delivery. As to other personal property a copy of the warrant and a notice is to be served upon the person in whose charge it is, or, in case of a demand, the person against whom the demand exists, or, in case of stock in a corporation upon the oflBcers of the corpora- tion (Co. Civ. Proc. §§ 644, 649). The sheriff may maintain actions to collect debts, etc., or to obtain possession of things capable of manual delivery (§ 655). The attachment may be discharged on defendant's giving a bond (§§ 687, 696). In case of two or more warrants against the same person the rules of preference are the same as in case of executions (§ 697). Execution on the judgment must issue to the sheriff who attached even through his term of office have expired unless some other person be designated by law to complete his unfinished business, and in case of a non-resident or a foreign corporation served without the State or by publication, levy can only be made upon property under attachment at the time of the judgment (§§ 706, 707). The order in which sale is to be made is provided for by § 1370, and the pro- ceedings to satisfy the judgment are fully regulated by § 708. The Code of Procedure (§§ 237 to 343) contained the following provisions : The sheriff was to hold the property to abide the judgment in the action, and was authorized to take legal proceedings for its recovery. He was to take possession of the real estate, and proceed according to the provisions of the Revised Statutes as regards attachments against absent debtors (3 R. S. p. 8, 1st ed.). After judgment for plaintiff he might sell sufficient of the attached property to meet the judgment if so ordered by the court, unless he had theretofore sold sufficient on execution. The attachment might be dis- charged before judgment in the action on security being given. These pro- visions were repealed by Laws of 1877, ch. 417. Attachment of Real Estate. — Any interest in real prop- erty, whether vested or not, which the defendant could alien, is capable of attachment. (§ 645.) Real estate is attached " by filing with the clerk of the county where it is situated, a notice of the attachment, stating the names OH. XL.] ATTACHMENT PBOCBBDINGS. 803 of the parties to the action, the amount of the plaintiff's claim as stated in the warrant, and a description of the particular property levied upon. The notice must be sub- scribed by the plaintiff's attorney, adding his office address ; and must be recorded by the clerk, in the same book, in like manner and with like effect as a notice of the pen- dency of an action. (§ 649, sub. 1.) Attachment of Real Estate before the Code of Civil Procedure.— Real estate might be attached without the officer going on the property, or having it in view, or leaving a copy of the warrant. He need only have done some act, by way of memorandum or entry, with intent to make the property liable to the process. This constituted a seizure and created a lien against the debtor, and all claiming under him by subsequent title, except 'bona fide purchasers and incumbrancers. Rodgers v. Bonner, 55 Barb. 9 ; affi'd, 45 N. T. 379 ; Burkhardt v. McClellan, 15 Abb. 243. The sheriff may attach any property the defendant may have fraudulently disposed of. Rinchey v. Stryker, 31 N. Y. 140; Gage v. Dauchy, 34 N. Y. 393. The possessory right of a mortgagor may be attached. Hall v. Sampson, 23 How. 84; Fairbanks v. Bloomfleld, 5 Duer, 434. Sale under the attachment confers no greater title than the debtor had when judgment was docketed. Lament v. Cheshire, 6 Lans. 234 ; affi'd, 65 N. Y. 30. The attachment hen is not lost by the decease of the defendant before judgment. Thacher v. Bancroft, 15 Abb. 343. Real estate of a non-resident situated out of the State, cannot be sold under an attachment here. Runk v. St. John, 39 Barb. 585. Failure to serve summons personally, or begin publication within thirty days from attachment, is a fatal defect, and not cured by a subsequent ap- pearance. Cossit V. Winchell, 39 Hun, 439. As to sufficiency of affidavits, viie Bdick.v. Green, 38 Hun, 303; James v. Richardson, 39 Hun, 399 ; Nat. Park Bk. v. Whitmore, 40 Hun, 499. An attachment attacked collaterally will be upheld unless absolutely void for jurisdictional defects. Denman v. McGuire, ioi N. Y. 161. Lis Pendens. — The clause of § 133, Code of Procedure, by which subse- quent purchasers and incumbrancers were bound by all proceedings in the action taken after the filing of the lis pendens, to the same extent as if they were parties to the action, was not applicable to attachment cases. Lamont V. Cheshire, 6 Lans. 335; affi'd, 65 N. Y. 30. Execution. — A special execution should be issued directing a sale of debtor's interest, as of the date of the attachment. lb. Under Co. Civ. Proc. § 1370, a sale under a general execution in case of attachment passes no title. Place v. Riley, 98 N. Y. 1. Nor does a sale of lands, not attached under execution against a non- resident served by publication, and who did not appear. McKinney v. Collins, 88 N. Y. 316. After Judgment. — The power to levy under an attachment ceases with judgment. Lynch v. Crary, 53 N. Y. 181. So also, Co. Civ. Proc. § 644. New York Common Pleas. — As to the jurisdiction of this court in at- tachment cases, vide Fowler v. Covert, 15 Abb. N. S. 193. Code of Remedial Justice. — During the twenty-two days that this Code was in force proceedings were valid if according either to that Code or to the Code of Procedure. Denman v. McGuire, 101 N. Y. 161. CHAPTEE XLI. EJECTMENT AND OTHER PROCEEDINGS TO RECOVER POSSESSION OP LAND. Title. I. — The Action of Ejectment. Title II. — Summabt Proceedings. Title III. — Miscellaneous. Title I. The Action oe Ejectment. This action lies to recover the possession of land wherever a right of entry in prcesenti exists, and the in- terest is visible and tangible, or of such a character that possession of the land can be delivered in execution of a judgment for its recovery. It is defined for the purposes of the Code of Civil Procedure as being " an action to recover the immediate possession of real property." Co. Civ. Proc. § 3343, sub. 20, Rowan v. Kelsey, 18 Barb. 484; Bryan v. Butts, 27 Barb. 503 ; affi'd, 28 How. 582 ; Child v. Chappel, 5 Seld. 246 ; Trull v. Granger, 4 Seld. 115; Hunter v. Trustees, 6 Hill, 411 ; McLean v. McDonald, 2 Barb. 534; 5 Duer, 130; Thompson v. Burhans, 81 N. Y. 51; Carleton v. Darcy, 90 N. T. 566. The plaintiflE must show seizin in himself or some grantor anterior to de- fendant's possession. Roberts v. Baumgarten, 51 N. Y. 482. Limitation. — As to limitation of time as to actions for real property, vide ante, Ch. XXXIX. ' Ejectment is brought to establish through a judicial determination the title to land, and to remove therefrom those wrongfully in possession or whose title has been determined by limitation, forfeiture, or otherwise. It is regulated by chapter xiv, title 1, article 1, §§ 1496 to 1531 inclu- sive of the Code of Civil Procedure. These provisions supersede those of the Revised Statutes, which were continued in force by the Code of Procedure. By that Code, § 455, the general provisions of the Revised Statutes rela- tive to actions concerning real property were to apply to actions brought under the Code, according to the subject-matter of the action, vrtthout regard to its form. See as to the interpretation of this (§ 455, Co. Proc), in its application to ejectment suits, St. John v. Pierce, 22 Barb. 362 (affi'd, 4 Abb. Ap. Ca. 140) ; TIT. I.] ACTION OF EJECTMENT. 805 holding that where there is a right or remedy the Code virtually repealed inconsistent provisions of the Revised Statutes. By § 123, real actions were to be tried in the county where the subject of the action or some part of it was situated, subject to the power of the court to change the place of trial in the cases provided. So now by Co. Civ. Proc. § 984. By the Revised Statutes the action of ejectment was retained, and might be brought as theretofore subject to changes by the statutes. It might be brought in the cases where a writ of right might be ; and by any person claiming an estate in lands, tenements or hereditaments, as heir, devisee or purchaser, or by a widow for dower, after six months from the time her right accrued. 2 R. 8. 1st ed. p. 302, §§ 1, 2. The Revised Statutes also abolished all writs of right, writs of dower, writs of entry, and writs cTf assize, all fines and common recoveries, and all other real actions known to the common law, except as enumerated in the chapter ; and all process except as retained therein. 2 R. 8. part 3, ch 8. By Laws of 1847, ch. 337, the Revised Statutes were amended as to the pleading in the action and notice to be given. This Act was repealed by Laws of 1880, ch. 245. The question as to what parties may or should be made plaintiff or de- fendants is one of practice and does not properly come within the purview of this treatise. It is regulated by chap, xiv, title 1, of the Code of Civil Proce- dure, in most particulars. I'he question of parties, however, is closely con- nected with the question as to when the action lies, and a brief reference may be made to some important classes of parties, on both points. Married Women, by the Code of Civil Procedure (§ 450), stand in the same position as other parties to actions. Even before this Code they might bring ejectment alone for their separate estates. 14 How. 456 ; 5 Duer, 130 ; 16 N. Y. 71. But it was held that a married woman, separated from her husband, could not bring ejectment against him. Gould v. Gould, 29 How. 441. Infants after arriving at majority cannot bring ejectment for lands sold by them without some prior act of disaffirmance. 24 Barb. 150. An infant, while such, may bring ejectment, or be made a defendant therein, in his own name. Co. Civ. Proc. § 1686. Formerly an infant could not bring the action, but his guardian might, Seaton v. Davis, 1 N. T. S. C. 91. The surrogate might appoint a guardian for a non-resident infant to bring the action. Andrews v. Townshend, 53 Super. 522. The Revised Statutes provided for the appointment of a guardian. osi litem for an infant defendant. 2 R. 8. 341, § 12. The widowed mother of an infant may bring ejectment as guardian in socage. Matter of Hines, 105 N. T. 560. Tenants in Common. — One tenant- in common may bring ejectment /or the others (Co. Civ. Proc. § 1500 ; 6 Barb. 117) ; but cannot bring it against the others without showing ouster. Co. Civ. Proc. § 1515 ; R. S. § 26 ; 4 N. Y. 61. If he show ouster the action will lie. Trustees, &c. v. Johnson, 66 Barb. 119. Formerly it was held that all the tenants in common must be plaintiffs, or, if any refuse to join, they must be made defendants (Hasbrouck v. Bunce, 62 N. Y. 475), but now each may sue for himself or for all. Co. Civ. Proc. § 1500. Grantee of one out of Possession. — Where the conveyance is void because the grantor was out of possession, the grantee or his devisee or heirs, may bring the action in the name of the grantor or his heir. Co. Civ. Proc. § 1501 ; amended by Laws of 1882, ch. 399. This was so formerly under Co. Proc. §111. 806 ACTION OF BJECTMBlffT. [CH. XLI. The grantee cannot bring the action in his own name. 17 Abb. 452 ; 9 Bob. 494. That the plaintiff has conveyed while out of possession is no defense to the action. Chamberlain v. Taylor, 93 N. Y. 348. Mortgagee as Plaintiff. — A mortgagee cannot bring the action. Co. CiT. Proc. § 1498; Sahler v. Singer, 37 Barb. 329. This applies to a grantee by a deed intended as a mortgage. Murray v. Walker, 31 N. T. 899. Such a grantee cannot maintain the action agftinst anybody. Shattuck v. Bascom, 105 N. Y. 39. Mortgagee as Defendant- — The action will not lie against a mortgagee who has obtained possession in any lawful way. Bolton v. Brewster, 33 Barb. 389 ; Porter v. McGrath, 41 Super. 84 ; Madison Av. &c. Church v. Bapt. Church, &c. 73 N. Y. 83. The same rule applies to a grantee by a deed on its face absolute, but really intended as a mortgage. Berdell v. Berdell, 83 Hun, 525. And to a purchaser at a sale under a defective foreclosure before redemp- tion or tender. Lockwood v. McBride, 58 Super. 268. But if possession be unlawfully obtained the equitable rights of the mort- gagee will not be a defense to the action. Howell v. Leavitt, 95 N. Y. 617. Vendee in Possession. — Ejectment lies against a vendee in possession, after default, without demand or notice. Powers v. Ingraham, 3 Barb. 576 ; Hotaling v. Hotaling, 47 Barb. 168; Pratt v. Peckham, 44 Hun, 347. A vendee in possession under an executory contract of sale, can only de- fend by pleading his equitable rights and tendering performance. Kisley v. Rice, 40 Hun, 585. Lessee as Plaintiff. — A lessee may maintain the action before entry against a stranger. Trull v. Granger, 8 N. Y. 115 ; Spencer v. Tobey. 22 Barb. 360. A lessee may maintain the action against his lessor. Trull v. Granger, supra; Olendorf v. Cook, 1 Lans. 371. Kjectment by the People. — Ejectment will not lie by the people unless they have an interest in the subject-matter. People v. Booth, 32 N. Y. 397. As to ejectment, under the former law, in the name of the People for the benefit of an individual, vide 1 R. S. pp. 180, 181. These provisions were repealed by Laws of 1880, ch. 245. As to ejectment by the People in cases of escheat, vide Co. Civ. Proc. §§ 1977 to 1981, inclusive. The former Law (1 R. S. p. 282) was repealed by the Act of 1880, swpra. Title in Plaintiff. — The plaintiff must have the legal title. Wright v. Douglass, 3 Barb. 566 ; reversed, 7 N. Y. 564. He must show title at the time of beginning of the action. Layman v. Whiting, 20 Barb. 559. But he must allege and prove that he has not possession. Taylor v. Crane, 15 How. 358. The executors of one who has granted land mj%e cannot bring ejectment; otherwise of one who has leased for years. Van Rensselaer v. Hayes, 5 Den. 477. There cannot be several plaintiffs having distinct titles. People v. Mayor, 10 Abb. 144. It is enough if the plaintiff show title in himself by a deed good on its face. He need not explain nor account for it. Rockwell v. Brown, 54 N. Y. 210. Occupants as Defendants. — The action must be brought against all the actual occupants by their real names without the old fictions. 6 N Y. 280; 7 N. Y. 201; 8 Barb. 244; 18 Barb. 526; 35 Barb. 54; 37 Barb. 350. TIT. I.] ACTION OP EJECTMENT. 807 But it will not lie against the mere servant of the owner. It must be a tenant. Seaver v. McGraw, 12 Wend. 558. Nor can several not jointly possessed be joined as defendants. Dillaye V. Wilson, 48 Barb. 361 ; vide Co. Civ. Proc. § 1516. It will not lie against one who occupies by license and permission, Corkill V. Landers, 44 Barb. 218. If there are no occupants it must be brought against some one exercising acts of ownership or claiming title or interest at the time of the commence- ment of the action. Co. Civ. Proc. § 1502, following 2 R. S. 304, § 4. As to the claim, which must be a distinct and serious claim of title, vide Lucas V. Johnson, 8 Barb. 344; Banyer v. Empie, 5 Hill, 50; Edwards v. Farmers Co., 21 Wend. 467. The action will not lie against one not in possession — ^formerly not even if he had leased to one who is. It must be against one in possession exercis- ing ownership and claiming title. Champlain, &c. R. R. Co. v. Valentine, 19 Barb. 484; Van Buren v. Cockburn, 14 Barb. 118 ; Redfleld v. Utica R. R. Co., 28 Barb. 54; Allan v. Dunlap, 43 Barb. 585. By Co. Civ. Proc. § 1503 (following generally Co. Proc. § 118) a landlord, remainderman, reversioner or person claiming otherwise title to or the right to the possession of the property adverse to the plaintiff, may be made a defendant. But it has been held that this does not entitle a mortgagee to defend. Robert v. Ismay, 51 Super. 531. Before the Code of Civil Procedure it was held that the action would not lie against a remainderman during the continuance of the particular estate. Seaver v. McG-raw, 12 Wend. 558. Death of Parties.— By § 1521 of the Code of Civil Procedure the pro- visions of title iv, of chapter viii, of that Code, apply to actions of ejectment. These provisions regulate the continuing of actions by or against the repre- sentatives or successors in interest of a deceased party, it being expressly enacted (§ 755) that the action never abates by such death when the cause of action survives. In ejectment, however, the Code provides the qualification that the court may, in its discretion, where difierent persons succeed to the interest of the deceased in distinct parcels, direct a severance of the action. § 1523. The Revised Statutes provided that this action should not abate by death of the plaintiff or of one of several defendants. 2 R. S. 308, § 32. Under this provision the death of a sole defendant abated the action. Kissam v. Hamilton, 20 How. 369; vide also 1 Den. 57; 10 Wend. 540; 10 How. 253; 14 How. 73. By Laws of 1865, ch. 357, upon decease of a defendant the action was to be continued against his representatives in title. Both this part of the Revised Statutes and the Act of 1865, were repealed by Laws of 1880, ch. 245. Easements and Encroachments. — ^Ejectment will not lie for an ease- ment. Child V. Chappel, 9 N. Y. 246; Withlow v. Lane, 27 Barb. 244. Nor for land covered by part of an adjoining house which was erected by a common owner of both lots. Rogers v. Sinsheimer, 50 N. T. 646. Nor for a mere projection, e. g., a gutter. Aiken v. Benedict, 39 Barb. 400, criticising Sherry v. Frecking, 4 Duer, 451, which held that it lay for an overhanging wall. Nor for a projecting cornice. Vrooman v. Jackson, 6 Hun, 336. Streets. — It does not lie against a municipal corporation for the public use of a street. Cowenhoven v. Brooklyn, 38 Barb. 9. It was held not to lie against a railroad company for using an easement over streets in Redfleld v. Utica R. R. Co., 28 Barb. 54, but this case was 808 ACTION OF EJECTMENT. [CH. XLl. overruled on this point •with Adams v. Saratoga and Wash. R. B. Co., 11 Barb. 454, and 10 N. Y. 238, by Carpenter v. Oswego, &c. R. R. Co., 34 N. y. 655 ; Wager v. Troy Union R. R. Co., 25 ib. 536, and Lozier v. N. Y. C. R. R. Co., 43 Barb. 468. Reversioners. — By the Code of Civil Procedure, reversioners, remainder- men, etc., may be allowed to defend, when those having life interests are sued. Co. Civ. Proc. § 1503. Formerly so by 3 R. S. 1st ed. p. 339, which was repealed by Laws of 1880, ch. 245. But infant heirs who disclaim cannot undei this provision be made de- fendants with a tenant by the curtesy who holds wrongfully. Sisson v. Cummings, 19 Abb. N. C. 183. Highways. — We have seen, ante, p. 751, what are the rights of owners of the bed of highways, as against trespassers and others. They may main- tain ejectment for encroachments. Etz v. Daily, 30 Barb. 83. Land under Water. — ^Ejectment will lie for land under water granted by the commissioners of the land office, for erecting docks, etc. The Cham- plain, &c. R. R. V. Valentine, 19 Barb. 483; and see post, Ch. XLIII. Ejectment for Forfeiture.— Ejectment may also "be brought by a grantor or his heirs against parties in pos- session under a lease or conditional fee, to recover pos- session for forfeiture, or non-performance of a covenant or condition ; and this may be done without any clause in the deed providing for re-entry. 4 Kent, 133 ; and see ante, Ch. V. As to ejectment for forfeiture of con- ditions in a lease, vide ante, p. 138. Where there is a clause of re-entry on forfeiture, no actual entry is neces- sary before suit. Lawrence v. Williams, 1 Duer, 585, said to be reversed on other grounds in 18 N. Y. 132. Ejectment by Landlord.— It has been seen also, ante, p. 138, that a landlord may have ejectment to remove his tenant if the latter hold over after the expiration of his term, although the simpler remedy by summary pro- ceedings is generally adopted. Independent of any pro- vision of statute, however, the landlord may re-enter upon the tenant holding over, and remove him and his goods, if no force is necessary for the purpose; and the tenant would not be entitled to resist or sue him there- for. Formerly the decisions allowed a gentle force for the purpose. Our statutes have made provision against a forcible entry by a landlord ; as seen post, Title II. By the Code of Civil Procedure, also, the landlord may have ejectment for non-payment of rent under certain circum- stances. As to re-entry and ejectment for non-payment TIT. I.] AOTIOK OF EJECTMENT. 809 of rent, see ante, pp. 138, 189, 190 to 192. A demand for rent need not be first shown ; although, as has been seen, under the common law, a demand had to be first made under circumstances of great particularity; nor even under the Revised Statutes could the action be brought if there was sufficient property liable to distress. An act was passed, however, in 1846 (ch. 274), abolishing dis- tress for rent. Vide fully as to this, cmte, p. 135. See the cases reTiewed as to a demand being still necessary to authorize a re-entry and forfeiture of lease. N. Y. Acad, of Music v. Hackett, 2 Hilt. 217. It was held in a case in the Superior Court that a mere assignee of the lease and rent cannot bring ejectment or take proceedings to recover pos- session. His only remedy is on the personal covenants. Hiterstel v. Lor- illard, 6 Robt. 260. But see fully as to the rights of heirs and assignees of lessors and lessees, ante, p. 134. By the Eevised Statutes, part iii, ch. 8, art. 3, tit. 9, § 30, provision vras made for recovery of land by ejectment against a tenant when a half-year's rent or more was due. The service of the " declaration" waste stand in lieu of demand and re-entry. By § 32 the proceedings were to cease if the tenant paid the rent and costs at any time before judgment. At any time, also, within six months after possession taken under the execution by the land- lord — by paying the rent and costs, etc., the lessee was to be restored to the premises ; otherwise he was barred and the lease discharged. The mort- gagee of the lease, not in possession, had the same right to redeem on per- formance of all agreements of lessee and payment as above. §36. The lessee or other party interested, might, within such six months, also file a bill for relief, and have an action at law restrained on certain terms. § 37. The lessor is to be charged with the use of the premises. § 38. Vide 19 N. Y. 100 ; 2 id. 141 ; 27 Barb. 104 ; 19 id. 484 ; 18 id. 484. These provisions of the Revised Statutes were repealed by Laws of 1880, ch. 245, but were substantially re-enacted in Co. Civ. Proc. §§ 1504-1510, which regulate these proceedings. Re-entry on Notice. — Where the right of re-entry is reserved in default of sufficient distress, re-entry may be made after any default in payment of rent, on fifteen days' written notice, whether there is sufficient distress or not. Co. Civ. Proc. § 1505. Formerly Laws of 1846, ch. 274, which was repealed by Laws of 1880, ch. 245. This act abolished distress for rents. This rule only applies to re-entry for non-payment of rent. 6 Duer, 262. The above provision extends also where the right of re-entry was given before the Act of May 13, 1846. Williams v. Potter, 2 Barb. 316 ; Van Rens- selaer V. Snyder, 9 Barb. 302; affl'd, 13 N. Y. 299. The notice must be proved. Martin v. Rector, 43 Hun, 371. But may be waived. 2 Barb. 316, supra. Vide also ante, p. 191, fully as to the above statutes. Tenants. — Tenants served with process must give notice to the landlord under penalty of the value of three years' rent. 1 R. S. 1st ed. 748. Lis Pendens. — A notice of lis pendens was held unnecessary before the Code of Civil Procedure in an action to recover possession of real property, even as against a purchaser pendente lite; and no notice was necessary to. make the judgment effectual as against parties claiming under a party, by transfer 810 ACTION OP EJECTMENT. [CH. XLI. subsequent to the judgment. The judgment was held full notice. Sheridan V. Andrews, 49 N. Y. 478; reversing 3 Lans. 129. Under the Code of Civil Procedure a notice of Us pendens is necessary. Vide Co. Civ. Proc. §§ 1595 and 1670. Ejectment against Defendant by Purchaser on Sale under Execution. — Possession of defendant, at time of recovery of judgment continued to the time of the ejectment suit must be shown, and the judgment and filing must be proved, and that the plaintifiE acquired the title of defendant under the sale. See ante, p. 795 ; Kellogg v. Kellogg, 6 Barb. 136 ; 25 id. 102 ; 11 id. 498 ; 17 id. 157; 4 Duer, 342. No Action by a Mortgagee. — No action of ejectment can be maintained by a mortgagee or his assignees, for the recovery of the mortgaged premises. Co. Civ. Proc. § 1498; formerly R. 8. § 57, see ante, p. 581, and 37 Barb. 54; 9 Barb. 384; 13 Wend. 486; 11 Wend. 588. Lands Yielded by Default by Tenant for Life or Years. — If a tenant for life or years make default or give up lands demanded, so that judgment is obtained against him, the heir, reversioner, or remainderman may, after the decease of such tenant, have ejectment to recover the lands. Co. Civ. Proc. § 1680. Formerly so by Rev. Stat. Vol. 3, p. 339, §§ 2-8, 1st ed. Remedy of Wife on Default of Husband, and Rights of Remainder- men, Reversioners, Lessees, etc. — Provision was also made by the Revised Statutes allowing a wife to recover after a default or neglect of her right suffered by her husband, and also rendering void all recoveries by fraud or collusion as against reversioners or remaindermen, or their heirs or judgment- debtors ; and providing against " feigned recoveries." §§ 4 to 8, R. S. It is proper, therefore, in taking title under ejectment, to see that the reversion or remainder was represented in the action ; similar provisions were also made in favor of lessees for years who might falsify fraudulent recoveries for their term. § 9, ib. ; 23 N. Y. 142. These provisions were repealed by Laws of 1880, ch. 345. Landlords to be Parties. — Where ejectment is brought against a tenant, the landlord and every person having privity of estate with them may be made defendants. Co. Civ. Proc. § 1508 ; formerly § 17, R. S. And where parties recover, they have the same rights for rents, etc., as lessors had. § 10, R. S. Repealed by Laws of 1880, ch. 345. Alienation of Interest. — By § 18, R. S., the action was not to be barred or delayed by any alienation of his interest by a party in possession, either before or after suit, and the alienee was liable for meine profits. Repealed by Laws of 1 880, ch. 345, but the liability of the purchaser for the time of his tenancy if the defendant cannot pay, is retained in § 1685, Co. Civ. Proc. If one of two plaintifs die after judgment, execution may issue in the name of both. Harell v. Eldridge, 31 Wend. 678. If during the action all the right of defendant is determined or trans- ferred to another, the latter cannot be substituted. Moseley v. Albany N. R. R. 14 How. 71 ; Putnam v. "Van Buren, 7 id. 31. If right of plaintiff or defendant expires after suit brought, damages only are recovered. Co. Civ. Proc. § 1530; following R. 8. § 31. Tide 3 Barb. 163 ; 3 Duer, 171. The Verdict. — The Code of Civil Procedure contains special provisions as to what verdict shall be given. § 1519. So did the Revised Statutes, p. 307. When defendants are in possession of separate rooms in a house Me Fos- gate V. The Herkimer, &c. Co., 9 Barb. 387; 13 N. Y. 880. The verdict is to specify the estate which shall have been established on the trial. See also § 361 of the Code of Procedure; repealed L. 1880, c. 345. To recover, the TIT. I.] ACTION OF EJECTMBKT. 811 plaintiff must show, 1st, a prior actual possession, or 2d, a paramount legal title. 30 Barb. 569, § 18; 5 Seld. 346; 4 id. 115; 1 Duer, 585; 5 Duer, 130. The Judgment. — The Revised Statutes provided that judgment should be (if plaintiff recovered) that the plaintiff recover possession of the prem- ises according to the verdict ; or if by default, according to the description in the declaration. Repealed L. 1880, c. 345. The plaintiff recovering judgment is entitled to an order that the sheriff put him in possession, if the judgment award possession to him. Co. Civ. Proc. § 1675. Effect of Judgment. — Final judgment rendered after trial of an issue of fact (except where otherwise expressly provided in the Code) is conclusive as to the title established against each person against whom it is rendered, and every person claiming from, through or under him by title accruing either after filing the judgment-roll or after lis pendens is filed. A judgment without such trial is binding in like manner after three years. Co. Civ. Proa §§ 1534, 1526. Judgment in ejectment for a stranger against a tenant does not bind the landlord if not a party. Hasten v. Olcott, 101 N. Y. 153. Effect of Judgment under the Revised Statutes.— § 36. Every judg- ment on verdict, referee's report, or on a judge's decision on the facts, shall be conclusive as to the title established, upon the party against whom the same is rendered, and against all persons elcdmingfi-om, though, or •under such party hy title accruing after the commencement of such action, subject to the exceptions as to new trials. Infra. As amended, Law of 1863, p. 977, ch. 485, repealing Law of 1861, ch. 331. The Law of 1861 held not to apply to judgments prior to its passage. 36 Barb. 447. New Trials. — The court, however, on the application of the party de- feated, his heir, devisee or assignee, and upon payment of all costs and charges awarded against him except for mesne profits within three years, must vacate the judgment and grant a new trial. Within two years after the sec- ond judgment, it may vacate it and grant another new trial. Co. Civ. Proc. § 1535 ; formerly regulated by R. S. § 37 ; amended by Laws of 1878, ch. 393. It will be seen, therefore, that a party is not safe in taking title through an ejectment suit, until the expiration of at least three years from the first judg- ment and two years from a second judgment, if rendered. These provisions of the Revised Statutes remained in force under the Code of Procedure. 5 How. Pr. 50 ; 4 How. Pr. 360 ; 1 Duer, 701. The statute applies only where there has been a trial by jury and a ver- dict. The three years are to be computed from the first judgment in the ac- tion (23 N. T. 349, infra), and not within three years after its affirmance in an appellate court. When the judgment is by default, the security of the title is even more likely to be disturbed. Vide infra. The statute applies only where there has been a verdict. Chautauqua Bank v. White, 23 N. Y. 849. These new trials, however, apply strictly to possessory actions of ejectment and not to ejectment for rent. Co. Civ. Proc. § 1528; Shumway V. Shumway, 1 Lans. 474; afla'd, 42 N. Y. 143; Christie v. Bloomingdale, 18 How. Pr. 13. The orders granting them are not appealable to the Court of Appeals. Evans v. Millard, 16 N. Y. 619. See, when they will be refused, Wright v. Millbank, 9 Bos. 672. See also, as to the effect of the judgment against parties and their privies, Ainslie v. Mayor, 1 Barb. 169; Beebe v. Elliot, 4 id. 457; Briggs v. Wells, 12 id. 567; Dunckle v. Wiles, 6 id. 515; Wilson v. Davol, 5 Bosw. 619. As to the effect of a recovery before the Revised Statutes barring a pres- ent action, vide Bates v. Stearns, 28 Wend. 483. 812 ACTION OF EJECTMENT. [CH. XLI. Where the title is not in issue under notice to the landlord, or he is not a party, a judgment against a tenant is not conclusive against the landlord's title. Ryerss v. Eippey, 25 Wend. 433 ; Ryerss v. Wheeler, ih. 437. As to the judgment where there has been a change of the plaintiff's inter- est during suit, vide the provisions of the Code of Civil Procedure (formerly Rev. Statutes), and Van Rensselaer v. Owen, 48 Barb. 61. Each party cannot have two new trials. Bellinger v. Martindale, 8 How. Pr. 113. As to stay of proceedings by bills of exceptions formerly, vide Law of 1846, ch. 159 ; repealed by Laws of 1880, ch. 345. As to who is an assignee under the Code of Civil Procedure, vide Howell V. Leayitt, 90 N. Y. 338. When Judgment by Default. — A final judgment rendered otherwise than upon trial of an issue of fact after three years from the time of docketing, is conclusive upon the defendant, and upon all persons claiming from or through him by title accruing after the filing of the judgment-roll or lis pendens. But within five years after the judgment-roll is filed, on the application of the defendant, his heir, devisee or assignee, and on terms, etc., the court may vacate such judgment and grant a new trial. If, however, at the time of filing the judgment-roll the defendant be either, 1. Within the age of twen- ty-one years ; 3. Insane ; or, 3. Imprisoned on any criminal charge, or in exe- cution upon conviction of a criminal offense for a term less than for life ; any such person may bring an action for the recovery of such premises after the three years, and within three years after such disability shall be removed. Co. Civ. Proc. §§ 1536, 1537. Formerly covered by R. S. § 38. The plaintiff's possession is not to be disturbed by vacating the judgment, and if the defendant recover, he may have execution for the possession. Co. Civ. Proc. § 1529, formerly R. S. § 41. See Huntington v. Forkson, 7 Hill, 195. Ejectment for Dower. — Ejectment for dower is now abolished. § 1499, Co. Civ. Proc. It was allowed by the Revised Statutes under which the fol- lowing provisions were in force : If the recovery was for dower the court was to appoint commissioners to admeasure the dower out of the land in suit ; and on the confirmation of their report, a writ of possession put the dowress into possession. It would lie before dower was assigned. Ellicot v. Mosier, 11 Barb. 574; affl'd, 3 Seld. 301. It was to be brought against the actual occupant, and the occupant of a single floor. lb. Prior demand was not necessary. li. After admeasurement, the widow might bring ejectment, in which her claim to dower, marriage, seizin of husband, etc., might all be contested. Parks v. Hardy, 4 Brad. 15. As to ejectment for dower, vide ante, " Dower ;" Yates v. Paddock, 10 Wend. 339 ; and 3 R. S. part 3, ch. 8, tit. 7 ; also Law of 1840, ch. 289 (re- pealed by Laws of 1880, ch. 345), as to the plea of tender. As to limitation of ejectment for dower, vide Chamberlain v. Chamberlain, 43 N. Y. 424. Mesne Profits. — Provisions were also found in the Revised Statutes as to the recovery of mesne profits; and also, by Law of April 10, 1865, ch. 357 (repealed by Laws of 1880, ch. 345), as to such profits against a substituted defendant. The Code of Civil Procedure provides for such recovery in §§ 1496, 1497. TIT. II.] SUMMARY PROCEEDINGS. 813 Title II. Summary Proceedings to Recover Posses- sion OF Land. The followiag are the leading features of these pro- ceedings as to the recovery of the possession of land. They are based upon the provisions of chapter xvii, title 2, §§ 2231 to 2265, of the Code of Civil Procedure. The law formerly in force was contained in part iii, ch. 8, tit. 10, art. 3, of the Revised Statutes, which provisions were repealed by Laws of 1880, ch. 345. This repeal carried with it all the amendatory acts. As title is not made under these proceedings a particular statement of the repealed law is not given. These proceedings cannot be taken by a landlord for breach of a condition subsequent. Penoyer v. Brown, 13 Abb. N. 0. 83. Summary Proceedings, Deserted Premises. — Landlords may resume the possession of deserted premises when rent not paid, by certain proceed- ings before justice of the peace, on not more than twenty nor less than five days' notice to be affixed. Vide 33 Wend. 611 ; 16 How. Pr. 450 ; 3 Hilt. 530 ; 3Abb. 133;15 Abb.434. Removal of Tenants Holding Over, etc. — Tenants or lessees at will or at sufferance, or for any part of a year, or for one or more years, of real prop- erty including a specific or undivided portion of a house or other dwelling, their assigns, under-tenants, or legal representatives, may be removed by statutory proceedings before certain courts and officers. 1. Where they hold over and continue in possession after the expiration of the term, without per- mission of the landlord. 3. Where they hold over without permission after default in payment of rent, and a demand of the rent has been made, or three days' notice given requiring payment or possession of the premises. 3. Where the tenant holds over after sixty days default in paying taxes or assessments which he has agreed to pay and a demand or three days' notice has been served. 4. Where the tenant has been adjudged a bankrupt under the United States law, or has taken advantage of a State insolvency act. 5. Where any part of the premises are used as a bawdy-house or for any illegal business. Co. Civ. Proc. § 2331, as amended by Laws of 1885, ch. 13. These provisions follow with slight alterations, those formerly in force by the Revised Statutes. Subdivision 5 is taken from Laws of 1868, ch. 764, and Laws of 1873, ch, 583, which were repealed by Laws of 1880, ch. 345. By Laws of 1882, ch. 803, tenants from month to month in New York must have five days' notice. Failure to pay rent of a furnished house will sustain these proceedings. The rent issues from the land alone. Armstrong v. Cummings, 58 How. Pr. 331, and less fully, 30 Hun, 813. Before the Code non-payment of taxes under a covenant to do so was not cause for proceedings. Wilson v. Swayne, 15 Abb. 433. Removal of Other Persons. — After a notice served upon the person con- cerned, or posted upon the property at least ten days before the application, a person who holds over may be removed: 1. Where the property has been sold under execution against him or the person under whom he claims and a title under the sale has been perfected. 3. Where the property has been duly sold on foreclosure of a mortgage executed by him or a person under whom he claims and the title has been perfected. 3. Where he cultivates the prop- erty on shares and the term has expired. 4. Where he is a squatter without permission, or where a permission given has been revoked and he has had notice of the revocation. Co. Civ. Proc. § 3332. 814 MISCELLANEOUS. [OH. XLI. One who has entered by collusion with the tenant may be ejected as a squatter under this section. O'Donnell v. Mclntyre, 41 Hun, 100, reversing 16 Abb. N. C. 84. The details of the statutory proceedings are not appropriate to this volume. On the termination of the proceedings favorably to the applicant, a warrant is issued by the officer directing the removal of all persons on the premises, and the putting the applicant in possession thereof. The proceedings must be very strictly carried out. Luhrs v. Commors, 30 Hun, 468. Redemption. — If there is an unexpired term of five years, the leasee or a mortgagee of the lease may resume possession witliin a yea/r by paying rent, ex- penses, etc. Co. Civ. Proc. § 3256. A judgment-creditor has the same privilege, vide infra. The Trial. — Provision is made for the traverse and trial of the allega- tions of the parties. These provisions are technical, and have to be strictly pursued. They are applicable when the conventional relation of landlord and tenant exists. The Revised Statutes were amended in many particulars by Law of 1851, ch. 460; 1857, ch. 684; 1863, ch. 189; 1868, ch. 838, relative to the form of the proceedings. The amendments applied to the details of the proceedings. By the Law of 1868, a law, as to the proceedings in New York and Kings, Co. of 1866, ch. 754, was repealed. All these acts are, of course, now repealed. An expectant reversioner cannot institute summary proceedings on a lease made by him. Buck v. Binninger, 3 Barb. 391. Lessees and Mortgagees as to Redemption. — Lessees of an unexpired term of five years, or their assigns or representatives, at the time the warrant is issued, may, within a year after delivery of possession to the landlord, re- deem by payment or tender. Also any mortgagee of the lease not in possession, or any judgment-creditor within a year after execution of the warrant. Co. Civ. Proc. |§ 2356, 3357, following Law of April 12, 1842, ch. 240, repealing Law of April 25, 1840, and itself repealed by Laws of 1880, ch. 345. Under the Act of 1843, payment or tender within a year of all arrears and costs and charges is a condition precedent to restoration. Pursell v. N. T. &c. Co. 43 Super. 383. Rent Accrued. — Eviction for non-payment of rent by summary proceed- ings does not discharge the tenant from liability for rent or other obligations already accrued, but only for the future. An action for past breaches of cov- enant is still maintainable. See cases reviewed in Johnson v. Oppenheimer, 55 N. Y. 380. Title III. Miscellaneous. Squatters. — By Laws of 1857, ch. 396, squatters upon land in a city or village without authority might be compelled to quit on ten days' notice, and they and their structures removed. This act was repealed by Laws of 1880, ch. 345. See Co. Civ. Proc. § 3333, svpra, which covers this and other cases. Forcible Entry and Detainer. — By the Code of Civil Procedure, § 3333, following the Revised Statutes (part 3, ch. 8, tit. x, art. I), no entry shall be made into any lands or other possessions but in cases where entry is given by law, and in such case only in a peaceable manner, nor with strong hand, nor with multitude of people, and such persons may be removed. The Revised Statutes directed the restoration of the person evicted to possession, which is not so now. Tb. He may also have an action and recover treble damages assessed. Co. Civ. Proc. § 1669, following 3 R. 8. title vi, ch. 5, part 3. The Code of Procedure, § 471, continued the provisions of the Revised Statutes. TIT. III.] MISCELLANEOUS. 815 . The title could not be tried in these proceedings. 13 Johns. 31 ; The People V. Rickert, 8 Cow. 226; 7 How. Pr. pp. 441 and 166. Though the defendant might impeach plaintiff's title. People v. Brinck- erhoof, 13 Johns. 340. Possession is enough for the complaint. People v. Reed, 11 Wend. 157; People V. Van Nostrand, 9 Wend. 50 ; People v. Field, 52 Barb. 198. And possession of a house is possession of the land. lb. Part II of the Code of Procedure was made applicable to these proceed- ings. Co. Proc. § 471. The above cases also show that actual occupancy at the time of the entry is not necessary, and the entry ought to be accompanied by some circum- stances of actual violence or terror. An entry made by a party entitled to possession is not unlawful, although made against the will of the party in possession. Such person may enter peaceably. The People v. Fields, 1 Lans. 223. See the above case as to pro- ceedings on a trial for forcible entry and detainer, and what must be shown. In ejectment a party who has entered forcibly is not debarred from show- ing title in himself, Jackson v. Farmer, 9 Wend. 201. A mere trespasser cannot have forcible entry and detainer by those in pos- session enjoined. Littlejohn v. Attrill, 94 N. T. 619. Curtesy still exists in this State and after the wife's death the husband may have summary proceedings as tenant by the curtesy. Mack v. Roach, 13 Daly, 103. CHAPTER XLH. PROCEEDINGS TO COMPEL THE DETERMINATION OF CLAIMS TO REAL PROPERTY. By the Code of Civil Procedure, § 1638, "where a per- son has been, or he and those whose estate he has, have been for three yea/rs in the actual possession of real prop- erty, claiming it in fee or for life, or for a term of years not less than ten, he may maintain an action against any other person except a person who is when the action is commenced an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a criminal charge or in execu- tion upon conviction of a criminal offense, to compel the determination of any claim adverse to that of the plain- tiff which the defendant makes to any estate in that prop- erty in fee or for life, or for a term of years not less than ten, in possession, reversion, or remainder. But this sec- tion does not apply to a claim for dower." The whole proceeding is regulated by §§ 1638 to 1650 of this Code. It is an action and governed by the rules covering other actions, except as provided otherwise. The proceedings are assimilated in many respects to ejectment (§§ 1642 and 1646). The defendant may deny possession, in which case, if he succeed, he gets judgments, vnth cost (§1640) ; or he may allege title and demand any appropri- ate relief (§ 1641). If a reversioner be plaintiff he need not show a right to immediate possession, but the verdict, report or decision must specify the time when or contin- gency in which he will be entitled to possession. Then upon special application showing that the time has come he may afterward have execution for possession (§ 1643). CH. XLII.] DETERMINATION OP CLAIMS. 817 The proceedings in force before this Code took effect were regulated by R. S. pt. 3, ch. 5, tit. 2 ; as amended Laws of 1848, ch. 50. Vide Laws of 1855, ch. 511, as to the details of the proceedings; also the said Law of 1848, all repealed by Laws of 1880, ch. 245. The proceeding is only authorized when the claims are adverse to the party in possession, and the party instituting them must be in possession. Onderdonk v. Mott, 34 Barb. 106 ; Burnham v. Onderdonk, 41 N. T. 435. They cannot be instituted by one having a life estate against devisees in remainder. Onderdonk v. Mott, supra. The three years must be those immediately preceding the action. Co. Civ Proc. § 1689 ; Boylston v. Wheeler, 61 N. T. 521. As to evidence of possession, vide Bockes v. Lansing, 13 Hun, 38. As to the nature of the possession, vide Churchill v. Onderdonk, 59 N Y 134. These proceedings are given in detail in the Revised Statutes, vol. 2, p. 313, Ist ed. See also. Laws of 1860, ch. 173 (repealed by Laws of 1880, ch. 245), applying these proceedings to estates for ten years. Laws of 1864*, ch. 219 (repealed by Laws of 1880, ch. 245), making them applicable to mar- ried women. A judginent obtained by either party under these proceedings shall be eonchiaive against the other party " as to the title established in the action and also against every person claiming from, through or under that party by title accruing after the filing of the judgment-roll or of the notice of the pendency of the action." § 1646, Co. Civ. Proc. By the Code of Procedure, § 449, these proceedings might be prosecuted by action under that Code without regard to the forms of the proceedings as prescribed by the Revised Statutes, and it was questionable whether the pro- ceedings under the statute were not repealed, but they were held not so re- pealed in 42 Barb. p. 304, and Haynes v. Onderdonk, 5 N. T. S. C. R. 176. By Laws of 1854, ch. 116 (repealed by Laws of 1880, ch. 245, having been superseded by § 1650, Co. Civ. Proc.) these provisions were extended to cor- porations. These proceedings by notice were not abrogated by the Code of Proce- dure but were superseded by the Code of Civil Procedure. Burnham v. On- derdonk, 41 N. T. 425 ; Barnard v. Simms, 42 Barb. 304. In the case of Hammond v. Tillotson, the mode of proceeding under the Code of Proce- dure is given. 18 Barb. 332. The proceedings were subject to the same rules as other actions. lb. overruling Crane v. Sawyer, 5 How. Pr. 372. As to the pleadings, proof and judgment in such proceedings, vide Hager v. Hager, 38 Barb. 92; Tanner v. Tibbits, 18 Wend. 546; Boylston v. Wheeler 5 N. Y. S. C. 179. ' A party could, before the Code of Civil Procedure, either proceed by notice under the statutes, or by action under the old Code. Fisher v Hep- bum, 48 N. Y. 41. ^ The complaint must set up everything required by the statute. Austin V. Goodrich, 49 N. Y. 266. As to default, vide Maim v. Provost, 3 Abb. 446. Appeals, Law of 1855 ch. 511 ; repealed by Laws of 1880, ch. 245 ; Malin v. Rose, 12 Wend. 260. All persons claiming may be joined as defendants. Fisher v. Hepburn, supra. Certificates under Assessment Sales. — It is held that these proceedings may be instituted to determine the validity of certificates held under assess- ment sales. Burnham v. Onderdonk, 41 N. Y. 425. What the Judgment Effects, — The judgment is conclusive against de- fendant, and all persons claiming under him by title accruing subsequent to the service of the notice. Malonner v. Dimmick, 4 Barb. 566, and see suvra Co. Civ. Proc. § 1646. ^ ' 53 818 DETBEMINATION OF CLAIMS. [OH. XLU. Infant Defendants. — Action under the Revised Statutes would not lie against infants. Bailey v. Briggs, 56 N. T. 407. The rule is otherwise now. Co. Civ. Proc. § 1686. New Trials. — New trial may be had, where the defendant claims an ad- verse title which involves immediate possession, as in ejectment. Co. Civ. Proc. § 1646. Dower. — As to this action against one claiming dower, vide Co. Civ. Proc. 55 1647-1650. CHAPTEK XLin. TITLE TO LAND UNDER WATER AND WATER RIGHTS. Title I. — Streams above Tide- Water. Title II. — Watee-Coukses. Title III. — Tide-Water and Arms of the Sea. ' Title IV. — Fisheries. Title V. — Ferries. The subjects of the title to land under water, and to rights in water, are of great interest and importance, as part of the law of realty. They abound in curious learn- ing and nice distinctions, and have been the special topics of investigation in many special treatises. It is not pre- tended in a volume of this general character, to give more than a summary of the various general legal principles re- lating to those subjects, and the most important modifica- tions or applications of them, as embodied in the reports of the tribunals of this State, and of the United States. • Title I. Streams above Tide- Water. It has been seen above (p. 99), that a grant of water does not pass the soil beneath, but a mere right of piscary or user, and that a grant to carry the water must convey the land under it. It has been seen above, Ch. XX, that grants of land, bounded on rivers, or hy rivers, or along or iq> to rivers or streams above tide-water, even if to a cer- tain extent navigable, carry the right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river, or some local custom may override 820 STKBAMS ABOVE TIDE-WATEE. [CH. XLIII. the general principle. The proprietors of the adjoining banks are presumptively owners to the centre of the stream, and have a right to use the land under, and the water of the river in its flow, in any way not in- consistent with the rights of others, or with the jus publicum or common-law right of the public to use the stream as a highway or easement. This easement may exist not only for purposes of navigation, where the stream is sufficient for the purpose, but for any general use, such as floating logs, rafts, etc., that the stream may be adapted to. This public right to use navigable streams as high- ways is paramount to that of the riparian proprietor ; and the owner of the bed of streams of that character has no right, as such, in the waters thereof, which can authorize him to impede or obstruct navigation upon them, nor can he so use the stream as indirectly (e. g. by depositing re- fuse or other matter in it) to cause subsequent impediment or obstruction to the use of other confluent water. In the printed statutes of this State, will be observed various acts declaring, from time to time, certain inland" streams to be highways, and imposing penalties for their obstruction by dams, booms or otherwise. It is con- sidered, however, that rivers of sufficient capacity to float products to a market are subject to the general right of passage independent of legislation. As to the power of the United States and State governments to regulate streams and waters for the purposes of commerce, vide ante, p. 40. For a verification of the above general principles, see the cases cited, ante, p. 516 ; and also Canal Commissioners v. People, 5 Wend. 433; 17 i6, 571; Browne v. Ohadboume, 31 Maine, 9 ; Moore v. Sanborne, 2 Gibbs (Mich.), 519 ; Morgan v. King, 18 Barb. 377 ; further decision in 30 Barb. 9 ; which was reversed in 35 N. T. 454 ; Loman v. Benson, 8 Mich. 18 ; Barclay R. R. v. Benson, 36 Penu. St. 194; Munson v. Hungerford, 6 id, 365; Commis- sioners, «&c. V. KemshaU, 36 Wend. 404; Child v. Starr, 4 HiU, 869 ; Walton v. TefEt, 4 Barb. 316 ; Avery v. Fox, West District Mich. 1868, 1 Abb. U. S. 246; Brown v. Scofield, 8 Barb. 389; Buffalo, &c. Co. v. N. T. &c. Co. 10 Abb. N. C. 107. As to a public easement in a private stream, vide Meyer v. Phillips, 97 N. Y. 485. The State may authorize a dam on a navigable stream. Demott v. The State, 99 N. Y. 101. TIT. I.] STREAMS ABOVE TIDE- WATER. 821 The following oases show exceptions to or modifica- tions of the above general principles. The bed of a private river cannot pass as incident or appurtenant to a grant. Child v. Starr, 4 Hill, 369. An owner on a stream although not owning the bed, may construct neces- sary wharves and landings. Railroad Co. v. Schurmeir, 7 Wall. 273. The Large Lakes and Rivers as Boundaries. — The right of possession and ownership in riparian proprietors to streams above tide-water does not apply to the large navigable lalses of this country, nor to rivers constituting national boundaries. Smith v. Rochester. 93 N. Y. 463. And, by decisions in this State, the great navigable fresh water rivers of this State are held not subject to the principle of individual appropriation allowed by the common law. See ante, p. 517, and Morgan v. King, 30 Barb. 9 ; reversed on the facts, 35 N. T. 454. The same principle is held in Penn- sylvania, and riparian proprietorship does not give to the middle of the stream on the great inland rivers of that State. 3 Binn. 475 ; 14 Serg. & Rawle, 71 ; 1 Watts & Serg. 351. So also the rule has been laid down by the Supreme Court of the United States, and the ebb and flow of the tide is considered as no test of the navi- gability of rivers in a legal sense. In re Ball, 10 Wall. 557. Nor will local obstructions to navigation aflTect the legal character of the stream. Matter of State Reservation, 87 Hun, 537. See as to a river bounding the State, Kingman v. Sparrow, 13 Barb. 20. On inland navigable waters the riparian owners may possess land between high and low water mark subject to public easements for navigation. Sisson v. Cummings, 35 Hun, 31. Islands belong to the person on whose side of the dividing line they are situated or formed by accretion. If on the dividing line, they belong to each owner proportionately to their position on either side of it. See more fully ante, p. 517, as to islands, and also infra. If the stream is divided by an island, the riparian owner is entitled to the whole water flowing on his side. Crocker v. Bragg, 10 Wend. 260, Jurisdiction in this State over a River Boundary. -^By the Revised Statutes, it is declared that whenever two counties are separated from each other by a river or creek, the middle of the channel is the division line, and if the boundary line crosses an island, the whole of the island is deemed to be within the county within which the greater part of it lies ; and the officers o£ the counties bordering on Seneca lake, and of the counties of ' Kings, Richmond and New York, on the waters in Kings and Richmond, south of New York, have concurrent civil and criminal jurisdiction for the purpose of serving process. Accretion.— The general doctrine as to alluvion on waters is as follows : If a river, running between the lands of separate owners, insensibly or by imperceptible degrees, gains on one side or the other, the title to each continues to go ad filum mediwm aqucB / but if the alteration be sensibly and suddenly made, or by artificial means, the ownership remains according to the former bounds. If the river should establish its channel in the lands of the 822 STREAMS ABOVE TIBE-WATEB. [OH. XLIII. owner on one side, lie would own the whole river, so far as it is enclosed by his land. Where water is diverted by artificial means from the land of a proprietor bounded by low-water, he acquires no title to the derelict bed of the stream unless perhaps the diversion were a wrongful act. Halsey v. McCormick, 18 N. Y. 147 ; see also, as to the general principle, Chapman v. Haskins, 3 Md. Ch. 485; Municipality v. New Orleans Cotton Press, 18 Louis. 132; Child V. Starr, 4 Hill, 369 ; and the cases quoted, arete, p. 516. Imperceptible or slow accretions of islands or land on navigable tide-water rivers would belong to the sovereign. Otherwise such islands belong to the adjacent owners, according to their position on the dividing Une. Deerfield v. Arms, 17 Pick. 41 ; The King v. Tarborough, 3 Bam. & Cress. 91 ; New Orleans v. United States, 10 Pet. 663; Atty. Gen. v. Chambers, 4 De Gex & J. 55 ; People v. Lambier, 5 Den. 9. As to soil formed by natural accretion on the shore of a natural pond, ■oiSse Cook v. McClure, 58 N. T. 437. The law of accretion does not apply to the case of islands formed sep- arately and united by sudden filling of the channels between. Mulry v. Norton, 29 Hun, 660 ; affirmed in 100 N. T. 424. The Right of Eminent Domain as applied to Inland Waters.— It has been seen above, Ch. II, that where lands are appropriated or used for the public advantage by the State, under the exercise of the right of eminent domain, compensation has to be made to the owners for the lands taken or the damage caused. So also it is determined, that neither the State, nor any individual has the right so to use an inland stream, as to render it less useful to the owners of the soil. The riparian owners are entitled to the usufruct of the waters flowing in the river-bed, as ap- purtenant to the fee of the adjoining banks ; and for an interruption in the enjoyment of the owners' privileges, in that respect, in consequence of improvements made by the State, for a public purpose, they are entitled to compensa- tion for damages sustained. The Canal Appraisers v. The People, 6 Wend. 432 ; reversing 13 iA. 355 ; same case, 17 Wend. 571 ; Walton v. TefEt, O,. 816 ; The Commissioners, &c. V. Kempshall, 26 Wend. 404; approved. Child v. Starr, 4 Hill, 369. In the above case of the Canal Appraisers v. The People, all rivers in fact navigable were deemed public rivers, and subservient to public uses, and the State had, it was held, a right to erect dams for the pubUc benefit, even if it impaired individual rights. The doctrine in this case, however, and in that of others holding to the same general efiect, seems overruled in the case of the Commissioners of the Canal Fund v. Kempshall, 26 Wend. 404, which holds that although the public may have the public right of navigation in fresh water rivers, any interruption of riparian owners in their enjoyment of the flow of the waters, in consequence of public improvements, must be com- TIT. II.] WATER-COUKSBS. 823 pensated in damages. See also, Ex parte Jennings, 6 Cow. 518 ; Arnold v. Hudson K. R. R. Oo. 55 N. T. 661. The Mohawk and Hudson rivers are not within the general rule, being governed by the civil law. Smith v. Rochester, 92 N. T. 463. See fully as to the taking or interruption of such waters for a public pur- pose, ante, p. 40. If a stream is diverted by a railroad company, they are bound to restore and preserve it in its former usefulness. Oott v. Lewiston R. R. 36 N. T. 314. Adverse Possession, etc — As to an adverse possession of water lots, vide ante, p. 731. As to a prescriptive right therein, vide ante, p. 782, also ante, Ch. XXXVI. As to adverse possession, also, 45 How. Pr. 357. Title II. Watek-ooukses. The general principles regulating the use of flowing waters running naturally, as between proprietors through or over whose lands they run, are as follows: Such a proprietor has ownership of but an equal right to the use of such waters, in a reasonable manner, and without alteration or diminution or offensive contamination ; and no one proprietor can so use the water as to injure, pre- judice or annoy others whether above or below him, or impair their rights in the enjoyment of the water, unless he have some special right to divert it, or to enjoy it ex- clusively. Each opposite owner is entitled to use a moiety of the adjacent stream for power, unless there exist a pre- scriptive or other legal right to the contrary. The water must be returned to its natural channel, if temporarily detained or diverted (which may be done for a reasonable time), and it must be returned without its being polluted or poisoned by admixture with unwholesome substances, to the injury of the owner below. The use or quantity of water used may be varied as occasion may require. The above principles have been held not to apply to mere drainage water, nor to a water-course created by an owner of the land for a special purpose ; but they would apply where there is an habitual accumulation of water, from natural causes, confined in a well-deflned channel. See as to the above prin- ciples, Arkwright v. Gell, Exch. E. 7, 1889 ; Rawstron v. Taylor, 83 Eng. L. & Eq. 428; Broadbent v. Ramsbotham, 34 id. 533; Ashley v. Wolcott, 11 Cush. 192; Luther v. Winisimnick Co. 9 Cush. 171; Earl v. DeHart, 1 Beasley, 280 ; Van Bergen v. Van Bergen, 3 Johns. Ch. 282 ; Brown v. Bowen, 30 N. T. 519 ; Sackrider v. Bears, 10 Johns. 241 ; Housee v. Hammond, 39 Barb. 89; Merritt v. Brinckerhoff, 17 Johns. 306; Marshall v. Peters, 12 How. Pr. R. 223; Thomas v. Brackney, 17 Barb. 654; Pollett v. Long, 56 824 WATEK-COUESES. [CH. XLIH. N. Y. 300; Arthur v. Case, 1 Pai. 447; affl'd, 3 Wend. 633; Carhart v. The Auburn Gas Co. 32 Barb. 297; O'Reilly v. McOhesney, 49 N. Y. 672; Clin- ton V. Myers, 46 N. Y. 511 ; Crooker v. Bragg, 10 Wend. 260 ; Wagner v. L. I. R. R. Co. 5 N. Y. S. C. 163; Seaman v. Lee, 10 Hun, 607. In Hooker v. Rochester, 37 Hun, 181, it was held that a city cannot pol- lute a private stream by discharging sewage into it. The court, however, expressly reserved the case of a public stream. Where the water is used for milling purposes, if diverted, so as to injure others, damages will be awarded ; so also if unreasonably detained, and in- junctions will be granted in proper cases. Corning v. Burden, 6 How. Pr. 89; The People v. The Canal Appraisers, 17 Wend. 573; reversing, 13 id. 855; Walton v. Teflft, »i. 316 ; Van Hoesen v. Coventry, 10 Barb. 518; Brown V. Bowen, 40 N. Y. 519. Water rights pass by a conveyance of the adjacent and subjacent soil, as a necessary and inseparable incident of ownership, unless there be a legal adverse enjoyment. Corning v. Troy, &c. Fac. 39 Barb. 311 ; affl'd, 40 N. Y. 191. A party owning lands on a stream, where there is an island, has a right to all the water flowing on his side of the island, though it be twice as much as that on the side of the other owner. Crooker v. Bragg, 10 Wend. 360. The grant of a mill carries with it the use of the head water necessary to its enjoyment with all incidents and appurtenances and all rights of overflow, as far as the right to convey to this extent existed in the grantor. Voorhees V. Burchard, 6 Lans. 176 ; affl'd, 55 N. Y. 98; McTavish v. Carroll, 7 Md. 753; LeRoy v. Piatt, 4 Paige, 78; vide Russel v. Stout, 9 Cow. 379; see also, Preble v. Reed, 17 Maine, 169. The Maine reports abound with cases on this subject, also those of Massachusetts. As to rights of parties in a mill stream and dam, and obligations to repair under a special agreement, vide Jones v. Turner, 46 Barb. 537. The owner of a mill, etc., may change or improve the race-way in which he has an easement by deposit of earth on the servient estate; and the right to use a mill race includes the right to float logs thereon. Seals v. Stewart, 6 Lans. 408. A party may have a prescriptive right to use flush boards on a dam. Hall V. Augsbury, 46 N. Y. 633. A dam may be repaired, even if the water is retained more constantly at an upper level. Hynds v. Shultz, 39 Barb. 600 ; to the contrary in Stiles v. Hooker, 7 Cow. 366. Property in a stream of water is indivisible. Vandenburgh v. Van Bergen, 13 Johns. 313. A reservation in a grant of so much water as is necessary for a certain purpose does not restrict its use to that purpose, but only the quantity. Olmsted v. Loomis, 5 Seld. 433 ; Griswold v. Hodgman, 4 N. Y. S. C. 325 ; Merrill v. Calkins, 74 N. Y. 1; Groat v. Monk, 94 N. Y. 115; Canal Co. v. Hill, 15 Wall. 94. There can be no dower in an hydraulic right. Kingman v. Sparrow, 12 Barb. 301. "Reasonable use" is a question of fact for the jury. Pollitt v. Long, 3 N. Y. S. C. 333. Water may be detained by a dam to get ice as well as for milling, De- Baun v. Bean, 39 Hun, 336. The owner of land under water with a covenant giving a right to main- tain the pond is not estopped to bring an action to abate it when it has be- come so foul, etc., as to be a nuisance. Leonard y. Spencer, 34 Hun, 341. Artificial Channels- — In the absence of agreement, adjoining owners to artificial channels of streams, have the same rights to the use of the water. TIT. U.] WATEE-COUKSBS. 825 as if the artificial were the natural channel of the stream. Townsend v. McDonald, 2 Ker. 381 ; reversing 14 Barb. 460. If a stream is diverted by the owner of land who afterwards divides and sells, the channel cannot be changed back to the natural one on the portion sold. Lampman v. Milks, 31 N. T. 505: Roberts v. Roberts, 55 N. Y. 375. And if the banks of the artificial channel become broken the owner of the other lot may enter and restore them. lUd. No one can acquire an easement by adverse possession of a ditch across another's land through which he drains by the other's permission. White v. Sheldon, 35 Hun, 193. Adverse Possession. — Water-courses may be the subject of adverse posses- sion. Vide ante, p. 739. Ice. — As to an action brought for interfering with a grant to cut ice from a mill pond, vide Marshall v. Peters, 12 How, Pr. 318; Myer v. Whitaker, 5 Abb. N.X!. 173. Obstructions, Barriers, etc. — One who without legislative authority or right obstructs a running stream is responsible for all damages resulting. If he have such authority, he is only responsible for damages resulting from want of skill or care. Bellinger v. N. Y. C. R. R. 33 N. Y. 42 ; Waggoner V. Jermaine, 7 Hill, 357. A party cannot impede the usual flow by erecting machinery or dams for water greater than the stream in its ordinary course would flow, nor can he hold the water in reservoirs. Clinton v. Meyers, 46 N. Y. 511 ; Roberts v. Roberts, 55 N. Y. 375. Nor make deposits which may obstruct public channels or harbors. Og- densburgh v. Lovejoy, 3 N. Y. S. C. 83. No prescription can legalize an obstruction in a navigable stream. Crill V. City of Rome, 47 How. Pr. 398. A diversion will be restrained at the suit of a mill-owner below inde- pendent of actual damage. Smith v. Rochester, 38 Hun, 613. Depositing nibbish in a stream so that it lodges on the land of one below is unlawful. Winchester v.- Osborne, 61 N. Y. 555. But those owning the stream-bed have a right to build dams and make a necessary detention, if the flow is resumed, as of the natural course. If damages result from an overflow or percolation, liability only arises for dam- age resulting from want of care and skill. Pixley v. Clark, 82 Barb. 368 ; reversed in 35 N. Y. 530, and that decision explained in Losee v. Buchanan, 51 N. Y. 476 ; Livingston v. Adams, 8 Cow. 175 ; Roberts v. Roberts, 55 N. Y. 375. A barrier or embankment may be erected to confine the waters into an original channel, after its diversion by a flood, but a party is not under obliga- tion to erect or maintain it. Pierce v. Kinney, 59 Barb. 56. But any barrier must be so placed as to not injure a neighbor, by flooding his land. This, however, could not apply to extraordinary floods. Wallace v. Drew, 59 Barb. 413 ; vide Bailey v. The Mayor, 3 Den. 433. He may restore a bank even if the effect be to injure another. Slater v. Fox, 5 Hun, 544. Actions for obstructions to a river, if navigable, are to be brought by the People. People v. Gutchess, 48 Barb. 656. As to actions against the city of New York, for injuries caused by the Oroton Aqueduct, vide Bailey v. The Mayor, 3 Hill, 531 ; affl'd, 3 Den. 433 ; see also Blake v. Ferris, 1 Seld. 48; Floyd v. N. Y. &c., ib. 369. No one can divert a stream from his own land to the damage of another or of the public. Kellogg v. Thompson, 66 N. Y. 88 ; Vernum v. Wheeler, 5 Hun, 43. 826 WATER-COURSES. [CH. XLIII. The right to have a stream run through one's land is a corporeal not an incorporeal right, and if the land be flooded by a dam erected by an owner below under paramount right this is a breach of the covenant for quiet enjoy- ment. Scriver v. Smith, 100 N. T. 471. Drainage, etc. — Overseers of highways or the authorities of cities have no right, in making repairs, to change a natural water-course or the natural course of surface water drainage, or to increase the same on another abutting owner. Moran v. McClearns, 63 Barb. 185; Clark v. Rochester, 43 Hun, 371. Unless it merely results from proper grading of a street. Watson v. Kingston, 43 Hun, 367 ; Rutherford v. HoUey, 105 N. Y. 632, distinguishing Noonan v. Albany, infra. If they do the owner may abate the sluiceway as a nmsance. Thompson V. Allen, 7 Lans. 459. And he may recover damages for any injury resulting therefrom. Noonan V. Albany, 79 N. Y. 470. 9o where the cause was the building of too small a sewer. Seifert v. Brooklyn, 15 Abb. N. C. 97. So of the discharge of sewage. Van Rensselaer v, Albany, 15 Abb. N. C. 457 (relying upon Noonan v. Albany, supra). But not if the owner has consented. Seating v. Saratoga Springs, 39 Hun, 307. Nor may one relieve his land of standing water or prevent ac- cumulations thereon by discharging it through drains or ditches upon the land of his neighbor. Vemum v. Wheeler, 35 Hun, 53. Nor may he discharge surface water upon his neighbor's land. Clark v. Rochester, 48 Hun, 271. Nor the water from springs. Colrick v. Swinburne, 105 N. Y. 503. But it may be drained into a natural stream without regard to any injury that may follow therefrom. Foote v. Bronson, 4 Lans. 47. Owners of lands have no rights in the surface water of adjoining lands. lb. A person may drain his own land even if thereby a natural stream is in- creased and damage ensue to lands below. Waffle v. N. Y. C. R. R. 58 Barb. 413;affi'd, 53N. Y. 11. And he may withhold the surface water on hig own land so as to prevent its running on to land of another. Wagner v. L. I. R. R. Co., 5 N. Y. S. C. 163. But he is liable if by the confinement the water does damage. Bartable V. Syracuse, 8 Hun, 587. He need not alter its natural flow to prevent injury. Vanderville v. Taylor, 65 N. Y. 341. And he may restore a natural flow though it injure his neighbor. Phelps V. Nowlen, 72 N. Y. 40. If by any diversion of surface water by one upon his own land injury results to another by his negligence, he is liable. Mitchell v. N. Y., L. E. & W. R. R. Co., 36 Hun, 177 ; Bartable v. City of Syracuse, mpra; affi'd, 72 N. Y. 64 (citing 67 N. Y. 204) ; Noonan v. City of Albany, siipra ; McCormick v. Horan, 81 N. Y. 86. An exception to the alSove general principles exists in favor of parties who have so used or detained running water for a special purpose, or in special manner, as to have a prescriptive right to such peculiar use, and a grant for such use will be presumed. In this State such a continuous and uninterrupted adverse use for twenty TIT. II.J WATBR-OOUESBS. 827 years establishes a prescriptive right; that period being the time necessary to raise the presumption of a grant. In such cases the natural and common-law right of the other riparian proprietors becomes subservient to the acquired right of the party claiming and establishing the prescription, Sanders v. Newman, 1 B. & Aid. 258 ; Van Beuren v. Van Beuren, 3 Johns. Ch. 283 ; Sherwood v. Burr, 2 Day, 244 ; Haight v. Price, 31 N. T. 341; Piatt v. Johnson, 15 Johns. 213; Belknap v. Trimble, 3 Pai. 377; Smith V. Adams, 6 ib. 435 ; Baldwin v. Oalkins, 10 "Wend. 167 ; Townsend V. McDonald, 12 N. T. 381 ; PoUett v. Long, 58 Barb. 30 ; reversed on other grounds, 56 N. Y. 200 ; Van Hoesen v. Coventry, 10 Barb. 518 ; Brown v. Bowen, 30 N. T. 519; Hammond v. Zehner, 21 N. Y. 118; Parker v. Foote, 19 Wend. 309 ; Olmstead v. Loomis, 9 N. Y. 423. An undisputed assertion and claim to use, and the use of water in a peculiar manner for over twenty years, wiU establish such use as a right. Olmstead v. Loomis, 9 N. Y. 433 ; In re Water Commissioners, &c., 4 Ed. Oh. 545 ; Bel- knap V. Trimble, 3 Paige, 577 ; Smith v. Adams, 6 id. 435. The right will not be lost by non-user. Townsend v. McDonald, 12 N. Y. 381. Nor can the right be taken away by diversion of the stream nor diminishing it. Van Hoesen v. Coventry, 10 Barb. 518; Law v. McDonald, 9 Hun, 23; Arnold v. H. R. R. R. Co., 55 N. Y. 667. But the right to obstruct a harbor or navigable stream can never be so acquired. Ogdensburg v. Lovejoy, 3 N. Y. S. C. 83. Nor can the right be acquired as against the public. Kellogg v. Thomp- son, 66 N. Y. 88. The right is measured by the extent and nature of the previous enjoyment and the »noc?e of user cannot be changed. Prentice v. Geiger, 19 Hun, 350; affl'd, 74 N. Y. 341. The use of water, in a particular way, may be extinguished by unity of possession and title of both the parcels of land connected with the easements. Manning v. Smith, 6 Oonn. 389. A parol license to divert water is valid. Rathbone v. Lane, 30 Barb. 311 ; affirmed, 31 N. Y. 406. The enjoyment must be continuous, or no easement is established. Pol- lard V. Barnes, 2 Cush. 191; Branch v. Doane, 18 Conn. 333; Pierce v. Sel- leck, id. 321. The prescriptive right, although enjoyed for a less time than twenty years, may also be established through the operation of the equitable princi- ples flowing from the doctrine of estoppel. Brown v. Bowen, 30 N. Y. 520 ; Lewis V. Carstairs, 6 Whart. 193. And see fully, as to a right obtained by "prescription," ante, Ch. XXXVI. Wells and Springs.— The above principles apply, to a certain extent, to subterraneous streams. A person has a right to their reasonable but not to their exclusive use ; yet if he divert them from their natural course by lawful acts upon his own land no action will lie, even though the diversion were malicious. In this State it is held also that a party may dig a well intercepting under- 828 TIDB-WATBE STREAMS. [CH. XLIIT. ground currents of water without a distinct course, but cannot do so when the water has actually reached and become a part of a spring or stream, and is subtracted from it. Smith V. Adams, 6 Pai. 435 ; Trustees of Delhi v. Toumans, 45 N. T. 363; affirming 50 Barb. 316 ; Arnold v. Foot. 13 Wend. 330; Phelps v. Now- len, 73 N. Y. 40 ; Colrick v. Swinburne, 105 N. Y. 503. The use of a spring on one's land for twenty years will not entitle the owner to a prescriptive right to its continued exclusive use in the same manner, unless it has been a use hostile or adverse to an adjoining owner. The Trustees, &c., of Delhi v. Youmans, supra. As to interference with another's well, vide G-reenleaf v. Francis, 18 Pick. 117; Beach v. DriscoU, 36 Conn. 543 ; Ellis v. Duncan, 31 Barb. 330. The general principle was said to be that no one can maliciously divert water from his neighbor's well, but may dig one on his own land, if necessary, even though it interfere with that of another. Ellis v. Duncan, 31 Barb. 330. But in Phelps v. Nowlen, supra, this was disapproved, and it was held that malice is immaterial and that if the acts occasioning the diversion were in themselves lawful, no action will lie whatever the animus with which they were done. And springs may be subject to a necessary use, but cannot be so entirely used as to be diverted from their natural course over another's land. Arnold v. Foot, 13 Wend. 380. A party may change the form or shape of a spring on his land, or increase its flow, and vfill not be thereby deprived of his right of easement to flow it over the land of another. Waffle v. N. Y. C. R. R. 58 Barb. 413, affirmed, 58 N. Y. 11 ; Waffle v. Porter, 61 Barb. 130. The grant of a right to conduct water by pipes from a spring is the grant of an easement. The use of such an easement is no breafch of a covenant for quiet enjoyment or warranty, but it is an incumbrance. McMuUin v. Wooley, 3 Lans. 394. One may do any lawful act on his own land to his own spring and vrill not be liable if it cuts oflf the flow to the spring of another though it be maliciously done to effect such injury. Phelps v. Nowlen, 73 N. Y. 40. See also as to this, Bloodgood v. Ayers, 37 Hun, 356; Johnstown, &c. Co. v. Veghte, 69 N. Y. 16. Oil Wells. — There can be no title to the oil while in the ground. Shep- herd V. McCalmont, &c. Co., 38 Hun, 37. Title III. Tide -Water Streams and Arms of the Sea. It is a well-established principle of the common law, that the sovereign, or, in this county, the People of a State, on whose maritime border and within whose territory it lies, own the land under water of navigable streams and arms of the sea, or rivers which have the flux and reflux of the tide, and have a power of disposal TIT. III.] TIDE-WATEK STREAMS. 829 tliereof. The riparian owners on such waters, as a mat- ter of right, do not own the soil under water in front of their upland between high and low water, but only to high-water mark. The shores of such waters, and the soil under them beyond ordinary high-water mark, belong to the State in which they are situated, as sovereign. This State, deriving its title by succession from the King and Parliament of Great Britain, became, by its independence, absolute proprietor of all lands under the navigable streams within its territorial limits, and within the ebb and flow of the tide, which remained ungromted hy its predecessors. The State, therefore, is presvmied to have title in all such lands, and those who assert title thereto as against the State must show a grant or its equivalent. All arms of the sea, and streams where the tide ebbs and flows, are, by the common law, deemed '^navigaWe." For distinction of what are and what are not navigable streams reference may be made to The People v. Canal Appraisers, 33 N. Y. 461 ; reviewed, areie, p. 517; Curtis v. Kessler, 14 Barb. Sll ; Munson v. Hungerford, 6 Barb. 365 ; Morgan v. King, 35 N. Y. 454. The above principle of ownership on tide-waters is established and shown in the following cases : Lansing v. Smith, 4 Wendell, 9 ; The Champlain, &c. E. R. v. Valentine, 19 Barb. 484; Gould v. Hudson .R. E. R. Co. 6 N. Y. (3 Selden), 532; Furman v. The Mayor, 10 N. Y. 568; affirming, 5 Sand- ford, 16; People v. Tibbets, 19 N. Y. 533; The People v. Canal Appraisers, 33 N. Y. 461 ; Den v. The Association, &c. 15 How. U. S. 436 ; Smith v. The State of Maryland, 18 Howard U. S. 71; Martin v. Waddell, 16 Peters, 367 ; Barney v. Keokuk, 4 Otto, 334 ; People v. Staten Island Ferry Co. 68 N. Y. 71 ; Wheeler v. Spinola, 54 N. Y. 377, and see ante, p. 517. Intruders. — A mere intruder on land is limited to his actual possession, and whatever rigtts a riparian owner may have do not attach to him. Watkins v. Holman, 16 Pet. 26. Ejectment will lie by the people, for made land beyond high water, with- out proof of any title to the land. The People v. Health Com. 5 Den. 389 ; see also, as to ejectment for such land, ante, p. 808. As to the Title of the United States thereto.— As re- gards any conflicting claims between the respective States and the United States as to the ownership of such land within their respective borders, it has been determined that such navigable waters, and the soil under them, were not vested by the Constitution of the United States in the United States or General Government, but were re- served to the States respectively within whose boundaries 830 TIDB-WATEB STREAMS. [OH. XLIU. they were ; and any grants of such lands by the United States are void. Goodtitle v. Kibbe, 9 Howard U. S. 471 ; Pollard v. Hagan, 3 Howard U. S. 212 : The People v. The Canal Appraisers, 33 N. T. 461 ; Doe v. Beebe, 13 Howard U. S. 25. Regulation and Disposal of Land under Water.— It has been established in this State by judicial decision, that the legislature of the State has an inherent right to con- trol and regulate the navigable waters within the State, and to dispose of its title to the land under water within its jurisdiction. As a general rule this may be done ir- respective of the claims of the riparian owner adjoining, who, by a disposition of the land beyond high water, may have his riparian advantages interfered with, and be cut off from the benefits incident to the contiguity of his property to the waters. The individual right of the riparian owner was considered so far as determined by the courts of this State, in the cases below cited, as subject to the right of the State to abridge or destroy it at pleas- ure, by a construction or filling in beyond his outer line, and that, too, without compensation made. Lansing v. Smith, 4 Wend. 9; Gould v. Hudson R. R. R. Co. 6 N. T. (2 Seld.) 522; The People v. Tibbets, 19 N. T. 523; Furman v. The Mayor, 10 N. Y. 567. The same principles have been established in New Jersey. Langdon V. Mayor, 6 Abb. N. 0. 314 ; Moore v. Jackson, 2 Abb. N. C. 211 ; Stevens v. The Paterson & Newark R. R. Co. N. J. Coui-t of Errors, etc., Becember, 1870. The above had long been recognized as the established law of this State. A modification, if not a radical change, of these principles has been laid down by the Supreme Court of the United States in several cases, and par- ticularly in Yates v. The City of Milwaukee (10 Wall. 497). In that case there had been an attempt by the city of Milwaukee, under a delegated power from the State, to prevent a riparian owner on a navigable stream, from docking out over flats, belonging to the State, to the channel, and to abate his wharf as a nuisance. The court held that a riparian owner to high- water mark, whose land is bounded by a navigable stream, has a right of access to the navigable part of the river from the front of his lot, by making a landing wharf or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature might impose for the public benefit. That this riparian right cannot be arbitrarily destroyed or impaired. That it is a right of which, when once vested, the owner cannot be deprived except in accordance with existing law ; and if necessary that it be taken for the public good, then only upon due compensation. That if such an owner has built out a wharf, which does not interfere with navigation, if the authorities deem its removal necessary, in the prosecution of any general TIT. III.] TIDE-WATER STREAMS. 831 scheme of widening the channel and improving navigation, they must first make such owner compensation for his property so taken for the public use. This decision, unless a distinction is found between it and the above cases decided in this State, seems subversive of the principle that the State may destroy, at will, the aquarian right of a riparian owner by disposing of land in front of his upland, or by restricting the exercise of his rights. See also Button V. Strong, 1 Black, 25 ; St. Paul v. Schurmier, 7 Wall. 372 ; Barney v. Keokuk, 4 Otto, 334, which sustains the rule as above laid down. The prin- ciple, as laid down in the above case of Yates v. The City of Milwaukee, seems, from the tenor of the leading opinion, by Justice Miller, to hold that the owner of lands bordering on navigable waters has the common-law right to build and maintain piers and wharves from the shore, through the adjacent shallow waters, to a point where, in fact, the waters in their natural state are navigable, and that, too, without regard to the distinction whether the lands border upon fresh or tide-water. It may be remarked that the dogmas laid down in the opinion are broader than the facts before the court. It is evident that there is still a wide field of discussion open on these important ques- , tions, and it is probable that in the various States local custom or law may modify the general principles. In Barney v. Keokuk, 4 Otto, 324, the Supreme Court of the United States held that, except in States where the false doctrine that only tide- water is navigable prevails, all streams navigable in fact are navigable in law, and the public authorities may build wharves, etc. , below high-water mark, without compensation to riparian owners. In this case the plaintiff owned lots bounded by a navigable river, subject to the public easement of a street along the bank. On the river side of the street below high-water mark, the city caused wharves and warehouses to be erected. Plaintiff was held not en- titled to compensation. This seems in hopeless conflict with Yates v. Mil- waukee, supra. The following cafees uphold the right of a party owning a wharf, by grant from a municipal corporation, to recover damages for a destruction of his aquarian advantages by an addition to the wharf constructed by the same body. Van Zandt v. The Mayor, 8 Bos. 375 ; Taylor v. Brookman, 45 Barb. 106 ; Crocker v. The Mayor, 21 N. Y. 197. See also a case decided in the U. S. Circuit Ct., Southern District of N. Y., in which it was held that where a party held his land by ancient patent from the crown, bounding him on a navigable river, his right to the riparian use of the river could not be taken by a municipality «vithout compensation. Van Dolsen v. The Mayor, 21 Blatch. 454. Made Land. — It is held that if the State fill in the shallow water upon the bank of a navigable lake, the part filled in is to be deemed no longer navi- gable, and the riparian owner has a title to it as against all but the State. Ledyard v. Ten Eyck, 36 Barb. 103. So of wrongful dumping or pier building by a municipality. The riparian owner has title to it as an accretion. Steers v. Brooklyn, 101 N. Y. 51. A grant to individuals authorizing them to fill up in front of their several lands on tide-water, is a grant to each in severalty.* As to the .ules and their variations for drawing the boundary lines of the made land between them, also as to how far the coterminous proprietors are bound by an actual location acquiesced in, vide O'DonneU v. Kelsey, 4 Sand. 202; aflBrmed, 10 N. Y. 412; also People v. Schermerhorn, 19 Barb. 541. * See Beach v. Mayor, 45 How. Pr. 357, as to parties taking jointly if they desire, and that any right to land in front of water lots would, pass under the terms " water rights" or " privileges," "hereditaments and appurtenances." 832 TIDE- WATER STREAMS. [CH. XLIII. Rights of the United States, and of the Public, as Con- trolling State Action,— The right of the public is consid- ered superior to that of the State where a nuisance or en- croachment is authorized, or where there is an abridgment of the common right of navigation, of which the State is considered a trustee of the public, and which is deemed inalienable. In a proper case of excess of action by the State, in authorizing encroachments on the common water highway, there would be a remedy in the United States Courts in behalf of the public against official bodies , or others, and for the abatement of an undue encroach- ment as a nuisance. Under the Constitution of the United States, the proprietary right of the State and its grantees is subject to the authority of Congress over navigation and navigable waters. This is a restriction on the State power. Congress may interpose, whenever it shall be deemed nec- essary, by general or special laws; and whenever State laws militate against its constitutional provisions or authority for the regulation of commercie, they will be deemed inoperative by the United States Courts, at the instance of individuals, corporations, or States, where damage is shown. Offending bridges or other obstruc- tions over navigable waters may be enjoined or removed by judicial action. Gibbons v. Ogden, 9 Wheat. 1 ; The People v. The Rensselaer, &c. R. R. Co. 15 Wendell, 114; The People v. Tibbets, 5 N. T. 523; Hart v. The Mayor, 9 Wend. 607 ; Fort Plain Bridge Co. v. Smith, 30 N. T. 44 ; Baird v. Shore Line R. R. 6 Blatch. 276 ; U. S. v. Dnluth, 1 Dill. 469. See the Passen- ger cases, 7 How. U. 8. 288; State of Pennsylvania v. Wheeling Bridge Co. 9 How. U. S. 647, and 17 Wheaton, 518, and also 18 How. U. S. 421; Ren- wick V. Morris, 3 Hill, 621 ; affirmed, 7 Hill, 525 ; People v. Central R. R. of New Jersey, 42 N. T. 468. An act of Congress declaring a bridge a lawful structure legalizes it, and it cannot be removed as obstructing navigation. Gray v. Chicago R. R. 1 Woolw. 63. As to when a bridge would be considered as obstructing navigation, vide Gilman v. Philadelphia, 3 Wall. 713, and also p. 782 of said reports. As to when it would be deemed a nuisance, as erected in opposition to a franchise or State law, vide Chenango Bridge Co. v. Lewis, 68 Barb. 111. In the absence of congressional legislation, or unless the legislation of a State conflicts with that of Congress, or with the Constitution of the United States, courts will not annul or impede the legislation of a State in its regu- lation of ferries, bridges, etc. Silliman v. Hud. Riv. Bridge Co. 4 Blatch. 395; People v. N. Y. &c., Co. 68 N. Y. 71; Pound v. Funk, 5 Otto, 469. TIT. III.] TIDB-WATEE STREAMS. 833 Riparian proprietors have the right to erect bridge piers and landing places on the shores of rivers, lakes, and arms of the sea, if they conform to State regulations, and do not obstruct the paramount right of navigation. Button V. Strong, 1 Black U. S. 33. As to the power of the United States and State Governments to regulate streams for the purposes of commerce or the public good, vide ante, p. 40, and People v. Murphy, 76 N. Y. 475. The legislature may pass acts as to structures, etc., even if its action may involve a partial obstruction or inconsiderable detention to navigation, but it has not power to authorize any serious obstruction to those streams which are channels of commerce between the States. Woodman v. The Kilboum Man. Co. Dist. of Wisconsin C. Ct., reported 1 Abb. U. S. 158; Neaderhauser V. The State, 28 Indiana, 357. The rights of the State also are subservient to the general public rights of navigation and fishery; and the State cannot make any disposition of land under water prejiidicial to such rights. But the State may grant such lands in private ownership for the purpose of reclamation and use. Ward v. Mulford, 33 Cal. 365 ; and see post, "Wharves." The State may declare streams to be highways, and may control the use of a public river, as trustee for the public, and prevent the erection of bridges, dams, etc., obstructing their use. Suits may be instituted by the At- tomey-Greneral for the people. By declaring a stream a highway, the State acquires no title to the river-bed, but only declares the easement as existing. The People v. The Canal Appraisers, 33 N. Y. 461 ; Canal Appraisers v. The People, 17 Wend. 571 ; People v. Gutchess, 48 Barb. 656. A navigable stream is such as in its natural state affords a useful channel for commerce. The Montello, 30 Wall. 480; The Daniel Ball, 10 Wall. 557. See also more fiilly, infra, as to obstructions in harbors and slips, and Bar- ney V. W. Tel. Co. 60 N. Y. 510. Jurisdiction of the State over the Inland Bays and Seas. — It is asserted as a priaciple of State jurisdiction, that the cession to the Federal authorities, under the Federal compact of admiralty and maritime jurisdiction over the inland seas and bays of the respective States, was not a cession or alienation of their waters, or of general juris- diction over them ; and in respect of these, the States are held to retain unimpaired their residuary powers of legis- lation, and their rights of territorial dominion. It is held, also, tliat the counties and towns which are bounded gen- erally on a bay or sound comprehend within their limits, for the purposes of ordinary civil and criminal jurisdiction, the waters between their respective shores and the exte- rior water line of the State. The United States v. Bevan, 3 Wheat. 386 ; Manley v. The People, 3 Seld. 395; Mahler v. Transportation Co. 35 N. Y. 353; The New England Ins. Co. V. Dunham, 3 Cliff. 333 ; Brookman v. Hamol, 43 N. Y. 554. Boundaries.— When the sea, bay, or navigable river is 53 834 TIDE-WATER STREAMS. [OH. XLIII. named as the boundary of land in a grant of the title ot land, the line of ordinary high-water mark is intended and inferred where the common law prevails. Where the grant, however, is one of jwrisdiction, the boundary would extend to low-water mark United States v. Pacheco, 2 Wall. 587; Palmer v. Hicks, 6 Johns. 133; Gough V. Bell, 1 Zabriskie N. J. R. 150 ; The Railroad Co. v. Schurmier, 7 Wallace, 372. Where a Power or State cedes territory on the other side of ariverit pos- sesses, making the river the boundary, the power retains the river to high- water on the further bank. Howard v. IngersoU, 13 How. U. S. 381. Encroachments in a Harbor or River. — All such en- croachments, without a specific grant or authority, are, ^er S6, nuisances, and may be abated. Vide The People v. Vanderbilt, 88 Barb. 282 ; 26 N. T. 487 ; 28 N. Y. 396 ; Ogdensburgh v. Lovejoy, 2 N. Y. S. 0. 83 ; People v. Horton, 5 Hun, 516 ; affi'd, 64 N. Y. 610, and cases above cited ; also Burbank v. Pay, 65 N. Y. 57, holding that no private use can raise a prescriptive right as against the State or public. But the right to a dam in a navigable river may be acquired by forty_ years prescription when it does not interfere with navigation. Matter of State Res. at Niagara, 37 Hun, 537. Bemedy. — The remedy to prevent the erection of a purpresture and nui- sance in a bay or navigable river is by injunction at the suit of the Attorney General. The People v. Vanderbilt, mpra. It would be necessary, if the intrusion was by parties in another State, to institute action in the Federal courts. People v. C. R. R. of N. J. 42 N. Y. 283, Buildings beyond Low Water, — A building beyond low water is not in itself a nuisance. Whether it be so or not depends upon its eflFect upon the channel or navigation, and is always a question of fact. Wetmore v. Atlan- tic White Lead Co. 37 Barb. 71 ; affirmed, 41 N. Y. 384. This case alsp holds that the filling up, according to law, of navigable water adjacent to a bank, imless made as an accretion to a public highway, does not create the land so filled in a highway, but is a gain to the adjoining proprietor, and does not bring a public right of passage over the land thus gained, in consequence of the former public right of navigation over the water filled up. Also, that if there is an encroachment on the State line without impeding navigation, none but the State can interfere. Obstructions as Affecting Private Rights. — In a case in the New York Superior Court, it is held that obstruction to a public stream is a nuisance, and is the subject of indictment, and also of private action at the suit of any individual who sustains an injury personal and peculiar to himself; but that an obstruction to a public navigable stream unaccompanied by any personal injury does not authorize an action by a private person. Hudson R. R. R. Co. V. Loeb, 7 Robert'n, 418; Blanchard v. W. U. Tel. Co. 60 N. Y. 510; De- laney v. Blizzard, 7 Hun, 7. Bight of Way along the Borders of Public Rivers. — By the civil law, a littoral right of way for purposes of navigation, anchorage or towing, ex- isted on the banks or shores of public streams over private lands. Such TIT. III.] TIDEWATER STREAMS. 835 right, however, has been held not to exist under the common law as prevail- ing in England and this country. A special custom, however, may be shown as conferring the right. The whole doctrine is discussed in the case of Ball V. Herbert, 3 Term Rep. 253. Sea-Shore. — Any one may pass over the sea-shore between high and low water mark. Murphy v. Brooklyn, 98 N. T. 643. Wharves and Slips. — Where the State makes an abso- lute grant of land covered by water of a bay or navigable river, and the grantee builds a wharf thereon, it has been held that he has not a mere franchise to collect wharfage, but the rights that pertain to the ownership of land; and may exclude any other from the occupation. It is sup- posed, however, that the legislature can only authorize the erection of wharves on the public waters by individuals for the purposes of common benefit and enjoyment. And to a certain extent they remain subject to legislative con- trol, and cannot be used for mere storage to the exclusion and hindrance of public commerce and navigation, or for private purposes. The legislature, by the grant of the land under water^ does not divest itself of the right to regulate its use in the interest of the public. Taylor v. Mayor, 4 E. D. Smith, 559 ; Board of Commissioners v. Clark, 33 N. T. 351 ; Radway v. Briggs, 37 N. T. 256; Mayor v. Hill, 13 How. Pr. 280 ; Smith v. Levinus, 4 Said. 473 ; People v. Kelsey, 38 Barb. 269 ; Hecker v. N. T. Balance Dry Dock Co. 13 How. Pr. 549; Penniman v. Same, 13 How. Pr. 40; Lansing v. Smith, 8 Cow. 161; People v. N. Y. Co. 68 N. Y. 71. And parties have a right to make use of public wharves, for purposes of commerce, without special application therefor; but not, it seems, of a pri- vate pier. Dutton v. Strong, 1 Blatch. U. S. 23 ; Heeney v. Heeney, 3 Den, 635; Swords v. Edgar, 59 N. Y. 38. The legislature may authorize the ap- propriation of piers, etc., for a ferry by a corporation under the right of eminent domain. Matter of Union Perry Co. 98 N. Y. 139. The right to wharves in New York city is, in fact, a fee in the land. Wil- liams V. The Mayor, 105 N. Y. 419. There is an easement over wharves in the public in New York city, as against lessees of public wharves. Taylor v. Mut. Ins. Co. 37 N. Y. 375. Leases of wharves in New York city must be made at public auction or they are void. Laws of 1883, ch. 410. In Post V. Pearsall, 20 Wend. 11; affirmed, 33 Wend. 435, it is held, that the public have no right to occupy the soil of an individual as a public land- ing against his will, although it has been so used for twenty years with his An act authorizing a filling up of land for a wharf, up to which there was a public highway, extends the highway, by operation of law, over the made land to the water. People v. Lairabier, 5 Den. 9. See also as to the use of such made land by the public, Waterbury v. Dry Dock Co. 54 Barb. 389 ; reversing 30 How. 39. 836 TIDE-WATER STREAMS. [CH. XLIII. As to ejectment for wharf or right thereto, vide ante, p. 808 ; and Child V. Chappell, 5 Seld. 346. There may be summary proceedings to recover wharf property. People V. Kelsey, 14 Abb. 372. A conveyance of a pier carries the right to use adjacent water as a neces- sary appurtenance. Knickerbocker Ice Co. v. 42d St. &c. Co. 48 Super. 489 ; Langdon v. The Mayor, &c. 93 N. T. 129. Wharfage and Regulation of Wharves. — Statutes providing for the oc- cupation and regulation of wharves (i.e., of 1862, ch.487, and of 1867, ch. 945, 1882, ch. 410, as to the city of New York), are mere police regulations and do not deprive wharf-owners of any of their rights or privileges, although they may regulate their use or enjoyment. Rosevelt v. Godard, 52 Barb. 534. Such acts have been held constitutional, and also the delegation of power over the wharves to officials, and the imposition of port charges. Mayor v. Ryan, 2 E. D. S. 368; Hecker v. H. T. Bal. D. D. Co. 24 Barb. 215; Benedict V. Vanderbilt, 1 Robt. 194 ; Mayor v. Tucker, 1 Daly, 107. But care must be taken not to conflict with the constitutional prohibition of duties or a tonnage tax. Cannon v. New Orleans, 30 Wall. 577. The Dock Commissioners in N. T. can authorize no private use that will interfere with the public use of the wharves. Hoefts v. Seaman, 38 Super. 62. Nor can the power to regulate be used so as to prevent the owners of uplands and water fronts from the enjoyment of their property. Brooklyn V. N. Y. Ferry Co. 87 N. Y. 304. Taxation. — Where there is a mere right to collect wharfage, there is but an incorporeal hereditament, and in default of special statute, it has been held not taxable either as real or personal property. Boreel v. Mayor of N. Y. 2 Sand. 553; distinguished in Smith v. Mayor, 68 N. Y. 552; The Mayor V. Hill, 13 How. Pr. 280. Obstruction of Rivers, Harbors and Slips. — Any per- manent occupation and exclusive appropriation of a por- tion of a port or public river, unless sanctioned by the legislature, is held to be an obstruction to its free and common use, and as such is a public nuisance. The State or corporation, or other body whose duty it is to prevent obstructions in a river, will be considered as a party aggrieved, and may by its own act, without indictment, remove such nuisance, whether any actual damage has been occasioned or not. Hart V. Mayor, &c. of Albany, 9 Wend. 571 ; People v. Horton, 5 Him, 516; affi'd, 64N. Y. 610. An injunction to prevent and restrain such a nuisance would also be granted at the instance of any private individual who sustains a special in- jury. Penniman v. The N. Y. Balance Co. 13 How. 41 ; Hecker v. N. Y. Bal. Dock Co. ih. 649. It has been held that the provisions of the ordinances of a municipal cor- poration, imposing penalties as to the use or obstruction of the pvMic wharves, do not extend to wharves, etc., owned by private citizens, Vandewater v. City of N. Y. 2 Sand. 358. TIT. IV.] FISHERIES. 837 It has been judicially decided that erecting cribs or piers, or even station^ iDg vessels permanently in the harbor, or in the basins or docks thereof, is a public nuisance, unless placed there by direction or grant of a competent authority. Nor is it necessary for the removal of the obstruction that actual •damage to the public should be shown. The sinking of a pier, therefore, outside of the legally established harbor lines, could not be authorized even hy a city corporation, and would be a purpresture and a nuisance; and «ould be restrained or abated by the State, by action through the courts whether any actual damage had been occasioned by it or not. The court might either abate it by its own officers or require the party offending to do «o. The People v. Vanderbilt, 26 N. Y. 287 ; also, same case, 28 N. T. 396 ; Hudson R. R. R. Co. v. Loeb, 7 Eob'n, 418. It has been held that occupation of basins and slips by a balance dock is for a legitimate commercial purpose, and if sanctioned by the proper officers, and assented to by the owner of the pier, no other person can complain or restrain such occupation. Hecker v. N. Y. Bal. Dock Co. 24 Barb. 315 ; Eosevelt v. Q-odard, 52 Barb. 533. The above decision does not conflict with the case reported in Howard's P. R., Penniman v. N. Y. Bal. Co. 13 How. 41, in which such a structure •was held a nuisance, inasmuch as the plaintiff therein sustained damage specially, by its interfering with the wharfage. A subsequent act legalized the location of the docks of the said New York Balance Dry Dock Co. in the slips. Parties Aggrieved. — ^It is established by legal decision that lessees of land under water, and of bulkheads, piers, etc. , have no peculiar claim to relief by injunction, against alleged obstructions, founded upon any rights ss riparian owners. Their rights, if any, are in common with other people •of the State, when the use of a highway has been obstructed. Any obstruc- tion or disturbance of a highway as such is the subject of action, however, by any individual specially aggrieved or injured. Hudson R. R. R. Co. v. Loeb. 7 Rob'n, 418 ; The People v. Vanderbilt, 28 N. Y. 396. As to whose duty it is to raise a sunken vessel in the harbor, vide Taylor V. Atlantic Mutual Insurance Co. 37 New York, 275. As to the use of wharves by the public where they are beyond the legal water Une, vide Wetmore v. Brooklyn Gas Light Co. 43 N. Y. 385, and ante, p. 834. See also as to obstructions of commerce and navigation, supra, pp. «25, 836, 887. Local Ordinances. — The legislature may confer upon a municipality power to make ordinances to prevent obstructions of its harbor, and they may be ■enforced in the State courts. Ogdensburgh v. Lyon, 7 Lans. 215. Title IV. Fisheeies. The right of fishing in the sea or public waters of a State is held to be a common right ; that is, a right in- herent in all the people of a State by the common law. It is one of those rights held by the sovereign power in trust for all the people. This State, in the exercise of such trust, has made various regulations as to fishery in its waters, both inland and in tide-water. It is held that the legislature has power to pass such laws regulating fisheries and forbidding fisheries at specified times, within the 838 FISHERIES. [CH. XLIII. waters of this State. The right is founded in considera- tions of public policy, and the legislature may delegate such right to minor bodies or officials. Smith V. Levinus, 4 Seld. 473 ; People v. Eeed, 47 Barb. 335. See also, Corfleld v. Coryell, 4 Wash. C. 0. 371, as to the power of a State to regulate the fisheries within its territorial courts, as to its own citizens and the citi- zens of other States. An Act was passed April 33, 1864, ch. 388, to prevent the taking of fish from any private or artificial pond. An Act was also passed April 33, 1868, ch. 385, amended May 3, 1870, appointing Commissioners of Fisheries in the State, with specified powers, and otherwise providing regulations as to fish- ing in the State; continued March 13, 1873, ch. 74. A general Act was passed May 13, 1867, ch. 898; amended, 1868, ch. 3; also ch. 785; 1869, ch. 909. A consolidation act was passed Ap. 36, 1871, ch. 731 ; amended,Law of 1873, ch. 433, § 5 ; amended. Law of May 7, 1873, chs. 435, 436, 439. An Act was passed as to the protection of fish in private bonds, June 7, 1873, ch. 665. By Law of Ap. 3, 1840, ch. 194, certain powers were given to the super- visors of counties as to taking fish, and repealing all other laws on the sub- ject then in force. This law and the others above specifled have probably virtually repealed the provisions of the Rev. Stat., part i, ch. 30, tit. 3, as to fisheries generally, and giving the Courts of Common Pleas of certain coun- ties certain powers as to them. Various special acts wiU be found in the statutes regulating the taking, offish in specified localities in the State. Vide also the general Law of 1874, ch. 340. The right must be so exercised, whether by State or citizens, as not to interfere with navigation. McCready v. Virginia, 4 Otto, 391. It is a proprietary right, and non-residents may be, by law, excluded irom- enjoying it. IHd. It has been seen above that the law gives to riparian proprietors on certain inland fresh water rivers and streams, above tide- water, ownership ad filum medium- aqiUB. The law also gives such proprietors the exclusive right of fishing over the same, each on his own side. The right, however, is subordinate to the right of way or ease- ment in the public over the waters as a public highway^ and there can be no such diversion or obstruction of the stream as to injure or impair the rights of others in the fishery by preventing the free passage of fish, or other- wise. Such private right is also held subordinate to the power of the legislature to regulate fisheries for the gen- eral good ; and the legislature, as before seen, has power-to make general laws for that purpose. The presumption of the ownership of the adjoining owner in the fishery right, may be removed if there be a grant or prescriptive right existing in another, to the exclusion of the former. TIT. IV.] FERRIES. ' 839 Lewis V. Keeling, 1 Jones, 399; Moulton v. Libbey, 37 Maine, 472 ; Commonwealth v. Bailey, 13 Allen (Mass.), 541. As regards what are or what are not navigable rivers, within the above principles giving exclusive and several right of fishery, it has been held in several of the States, that such right would not be held appurtenant to owners on great inland rivers, although not having tide-water, at least so far up as they have capacity for public use, as commercial highways ; but that fishery on such rivers would be common to the public. Hooker v. Cum- mings, 20 Johns. 90 ; Carson v. Blazer, 2 Binney, 475 ; 3 Kent, 418 ; titump V. The Presid't, &c. of the Schuylkill Nav. Co. 14 Serg. & Rawle, 71 ; Gates V. Waddington, 1 McCord, 580; Collins v. Benbury, 3 Iredell (N. C), 277; Lewis v. Keeling, 1 Jones. 299 ; Moulton v. Libbey, 87 Maine, 472 ; Com- monwealth V. Bailey, 13 Allen (Mass.), 541 ; and see ante, p. 821. The above principles relative to the private right of fishery only apply to certain fresh water rivers above tide-water, but the right of fishing in the sea, and in the bays and arms of the sea, and in navigable or tide waters, is a right common to the public ; and persons using the common right of fishery on such rivers, may do so on the river-bed up to high- water line on either bank. Lowndes v. Dickerson, 84 Barh. 586; Palmer v. Hicks, 6 Johns. 138; Rogers v. Jones, 1 Wend. 237 ; Delaware, &c. v. Stump, 8 Gill & J. 479. There is no right in the public to pass over the lands of an individual in order to reach the common fishing waters, unless there be a usage or dedica- tion to the contrary. On navigable rivers, adjoining proprietors have the exclusive right to draw the seine and take fish on their own lands ; and if an island or a rock in tide-waters be private property, no person but the owner has the right to use it for purposes of fishing. Lay v. King, 5 Day, 73 ; The Commonwealth v. Shaw, 14 Serg. & Rawle, 9 ; 3 Kent, 417. Common of Piscary. — This is a right existing in one Or more persons of taking fish in waters running over lands of others. The principles regulating the right are distinguished from a general right in the public to take fish in an open sea. Although there is a common right of piscary open to all in the sea or arms thereof, it has been claimed that there may be a franchise, or a right by prescription to a several right of fishery in a portion of a public river, or arm of the sea. The weight of authority, however, seems to be adverse to the existence of any power in the State to grant to an individual the right of taking fish in the open sea and in the creeks or arms thereof, in exclusion of the common liberty. See Jacobson v. Fountain, 2 John. 170; Gould v. James, 6 Cow. 369; Rogers v. Jones, 1 Wend. 287; Martin v. Waddell, 16 Pet. 367 ; Den v. Jersey Co. 15 How. U. S. 426 ; Lowndes v. Dickerson, 84 Barb. 586. But it has been held that an exclusive right to oyster fisheries may be maintained liy proof of grant or prescription. Gould v. Gaines, 6 Cow. 369; Rogers v. Jones, 12 Wend. 237 ; McCarty v. Holman, 22 Hua, 53 ; Town of Brookhaven v. Strong, 60 N. Y. 56 ; Robins v. Ackeriy, 91 N. T. 98. This last case expressly disapproved Lowndes v. Dickerson, supra, and approved Brookhaven v. Strong. The decision in Brookhaven v. Strong was expressly limited to sJiell fish, and no opinion as to floating flsh was expressed. The question is considered as no longer open to argument in Hand v. Newton, 92 N. T. 88, following Brookhaven v. Strong, and Robins v. Ackeriy. Yide also infra. 840 EISHBEIES. [CH. XLIII. Shell Fish.— Shell fish, planted even in tide or navi- gable waters, in a bed where there is no interruption of navigation, are the exclusive property of those who plant them ; but the bed must be clearly defined ; and the shell fish must not have existed there in their native state. Lowndes v. Dickerson, 34 Barb. 586 ; Decker v. Fisher, 4 Barb. 593 ; Fleet V. Hegeman, 14 Wend. 43; Brinckerhoof v. Starkins, 11 Barb. 348. Various acts have been passed in this State as to this fishery. See an act as to the unlawfully taking oysters planted by others, 1866, ch. 753. As to the planting and protection of oyster beds in the towns of Hempstead and Jamaica, vide Law of 1863, ch. 493; Queens Co., Law of 1865, ch. 343, amended Ap. .5, 1866 ; Richmond Co. and surrounding waters, 1866, ch. 404 ; 15 Abb. N. C. 415; Jamaica and Hempstead bays, 1870, ch. 93; 1871, ch. 639; Suffolk Co., 1870, ch. 334; see also Laws of 1873, chs. 483, 659, 666, 667 ; Islip, 1874, ch. 549. As to powers of superrisors in regulating shell fisheries, vide Laws of 1849, ch. 194, and Hallock v. Donning, 7 Hun, 53. Common Law Rights. — By common law oysters planted in tide-water belong to the planter. Deposit of material thereon by the grantee of the land imder water is trespass. Post v. Kreischer, 18 Abb. N. C. 193 ; s. C, 103 N. T. 110. Constitutionality of Act Regulating. — An act giving a town power to regulate oyster fisheries within its boundaries, though in waters where it had no exclusive right of piscary, is constitutional and proper. People v. Thomp- son, 30 Hun, 457. Vide cases, supra. Title V. Feeries. Among incorporeal hereditaments is the right or fran- chise to establish and maintain a public ferry. The right to establish ferries, and to appoint others to establish and maintain them, is one of the provinces of the sovereign power of the State. Power V. Athens, 99 N. Y. 593. The general principle as regards the right of the gran- tee of a ferry franchise to maintain a ferry in a particular locality, is, that it is in the nature of a grant, as of an estate and interest in property, subject to be resumed by the sovereign power only in cases where the public good requires, on due compensation made to the owners of the franchise. Exclusive Privilege.— The grantee of an exclusive ferry privilege has a good cause of action against any other TIT. v.] FERRIES. 841 person who conveys passengers, even if free of charge, across the stream within the ferry limits. As has been seen, under the present views of the courts, a grant of a franchise is no longer considered as implying a peculiar and continuous privilege to the gran- tee, or a contract, on the part of the State, for an exclusion of any conflicting interest, unless there be a specification to that effect. With respect to ferries, it is held that it is competent for the legislature, after granting a ferry fran- chise to one, to grant a similar franchise to another person, the use of which might impair the value of the first fran- chise, although the right so to do may not be reserved in the first grant. It would be otherwise if the right so to do is expressly prohibited in the first grant. The Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; The People v. The Mayor, 32 Barb. 102 ; Aikin v. West. R. R. 20 N. T. 370 ; People v. N. Y. &c. Co. 68 N. Y. 71. City of New York. — As to rights to ferries in the city of New York, vide Benson v. The Mayor, 10 Barb. 323; to the contrary. The People v. The Mayor, 82 Barb. 102 ; also, Costar v. Brush, 25 Wend. 628 ; Mayor, &c. v. Starin, 106 N. Y. 2 ; Mayor, &c. v. N. J. Stmbt. Co. id. 38 ; Starin v. Mayor, &C..42 Hun, 549; Laws of 1884, ch. 193. In the Revised Statutes provision is made as to the general regulation of ferries; and the Courts of Common Pleas are authorized to grant ferry licenses in their counties respectively, for not over three years. Part 1, ch, 16, tit. 2. See as to ferries on a river where the State has only jurisdiction over one- half thereof. People v. Babcock, 11 Wend. 586. CHAPTEE XLIV. THE COMMISSIONERS OF THE LAND OFFICE AND THEIR DUTIES. Title I. — General Powbes of the Commissioners. Title II. — Grants of Land under Water. Title I. General Powers op the CoMMiasioNEES. This commission was created and had its powers under various early laws of the State, the most impor- tant of which are noted for reference. 5 May, 1786, ch. 67; March 34, 1801, ch. 69; April 5, 1803, ch. 88; 1805, ch. 350; April 6, 1813, 1 R. L. p. 193; October 30, 1814, ch. 199; Laws of 1815. By Constitution of 1846 (Art. V, § 5), the Board is to consist of the Lieutenant-Governor, Speaker, Secretary of State, Comptroller, Treasurer, Attorney-General, and State Engineer and Surveyor. By the Revised Statutes (part i, ch. ix, tit. 5, art. i), the commissioners of the land office are to have the general care and superintendence of all lands belonging to the State, the superintendence whereof is not vested in some other board. They also have power to direct the granting of the unappropriated lands of the State, according to the directions, from time to time, to be prescribed by law. A majority may act, or any three of them, the Surveyor-General to be one. Minutes of their proceedings are to be kept. And letters patent to be issued are to contain a reservation of gold and silver mines. On failure of title they are to refund purchase moneys, with six per cent, interest. They may lease unappropriated lands of the State (if improved) for not over a year, and until disposed of. Provision is made in art. iii as to how the sale of unappropriated lands is to be made, and as to the execution of grants therefor. In arts. V and vi are provisions concerning the protection of the public lands, and the payment of charges thereon, and the duties of the commissioners as to lands belong- ing to the canal fund. TIT. II.] LAND UNDER WATER. 843 The provisions as to the sales of land were amended by Law of May 35, 1886. ch. 457, repealing Act of May 11, 1835. See also, Law of May 9, 1840, ch. 252, as to sales; also 1841, ch. 70; 1830, ch. 323; 1831, ch. 61; 1839, ch. 184, as to attendance of witnesses. Escheated Lands. — As to the action of the commissioners of the land oflSce with respect to escheated lands, vide Law of 1831, ch. 116; 1839, ch. 259; 1833, ch. 800; 1834, ch. 37. Indians. — As to the powers of the commissioners as to Oneida Indians, OTfZeLaw 1839, ch. 58; as to other Indians, Law of 1841, ch. 334; 1849, ch. 420; 1850, ch. 37; 1851, ch. 198. As to resale of land for non-payment of dues, vide Allen v. The Commissioners, 38 N. Y. 313. By Laws of 1843, ch. 57, the Commissioners may take any proof by aflSdavit administered by them. Form of Grant and Reservation. — The statutes prescribe that all letters patent to be granted shall be in such form as the commissioners shall direct, and shall contain a reservation to the people of all gold and silver mines. The want of this reservation would not invalidate the grant of land under water. The People v. Mauran, 5 Den. 389. There is also an implied reservation that the grant is subject to the power of the legislature to prescribe the mode of enjoyment. People v. N. Y. and S. L Ferry Co., 7 Hun, 105 ; affl'd, 68 N. T. 71. The grant may be by letters patent, under the seal of the State, or by deed under the hands and seals of the commissioners. People v. Mauran, 5 Den. 389. It would take effect only from the time when approved by the commis- sioners, and passed the secretary's office, although dated and signed by the governor before that time. Jackson v. Douglass, 5 Cow. 458. Summary Inquiry. — By Law of 1869, ch. 196, whenever the commis- sioners have power to make a grant (except as to land under water), they are to have power summarily to inquire as to the rights of parties thereto. Salt lands in Sjrracuse.— Fn'c^e Law of 1870, ch. 379. Mines. — As to the working of mines reserved to the State, and over mining lands, vide Law of 1867, ch. 943. Lake George. — As to lands in Lake George, 'oide Laws of 1876, ch. 397. Taxes on lands sold by the State. — Vide Laws of 1875, ch. 573. Title II. Land Under Water. Powers under early Laws.— By the above Laws of 1786 and 1801, and Act of April 6, 1813 (vol. i, p. 292), they were allowed to grant such lands under water of naviga- Ue rivers as they should deem necessary for the com- merce of the State — the grants to le made only to proprie- tor$ of adjacent lands ; six weeks' notice was to be given by applicants as provided. By Law of April 7, 1807, ch. 177, 5 Web. 233, the powers of the com- missioners were extended to land under water in the Hudson river adja- cent to the State of New Jersey, subject to all the above restrictions. (Re- enacted by said Law of 1813.) By Act of March 24, 1809, 5 Web. 473, 844 LAND ONBBE WATER. [OH. XLIV. their powers -were extended to the waters adjacent to and surrounding Great Bam Island, and land between high and low water thereon. No in- fringement to be made on the rights of the city of New York, or on the navigation of surrounding waters. (Re-enacted by said Law of 1813.) By Laws of April 4, 1815, ch. 199, p. 301, the powers of the commissioners were extended to land under water on navigable lakes, and to lands under water adjacent to and surrounding Staten Island, provided that no grant should interfere with the rights of the corporation of the city of New York, nor extend more than 500 feet into the water beyond low-water mark. Eepealed in 1828, but re-enacted in the Rev. Stats, of 1830, as below. Revised Statutes and Subsequent Laws. — The above powers of the com- missioners were confirmed by the Revised Statutes of 1830 and by Law of May 6, 1835, ch. 383. The latter statute extended their powers, as below seen. The provisions of the Revised Statutes were as fol- lows: Vol. i, R. S. 1st edit, part i, chap. 9, title 5, art. 4. § 67. The commissioners have power to grant lands under the water as above ; but grants to any person other than the proprietor of the adjacent lands are void. Vide post, amend't of 1850. § 68. The powers of the commissioners extend to lands under the waters of Hudson river, adjacent to the State of New Jersey, and also to lands under the waters adjacent to and surrounding Great Bam Island, in the city and county of New York, and to the land between high and low-water mark on said island ; but no grant shall be so made as to interfere with the rights of the corporation of the city of New York, or to aflfect the navigation of the waters surrounding the said island. 1 R. L. 393 ; Laws of 1815, 201. § 69. The powers of the commissioners shall also extend to the lands under water adjacent to and surrounding Staten Island; but no such grant shall be so made as to interfere with any rights of the corporation of the city of New York, or to extend more than five hundred feet into the water from low-water mark. 1 R. L. 393; Laws ot 1815, 201; 1850, ch. 383. As to the mode of application to the commissioners, see sections 70, 71, 1 R. L. 33; Laws of 1815, 301; 1850, ch. 383. By an act to amend the Revised Statutes relative to grants of the land under water, passed May 6, 1835, ch. 333 : § 1. The powers conferred on the commissioners of the land office by article fourth, title fifth, chapter ninth of part first of the Revised Statutes are hereby extended to lands under water, and between high and low -water mark, in and adjacent to and surrounding Long Island, and to all that part of the county of Westchester lying on the Bast river or Long Island Sound; but no grants shall be made within the boundaries of the city of New York, or interfere with the rights of the corporation of said city. § 3. This act or the act referred to in the preceding section shall confer upon the said commissioners no other power than to authorize the erection of such dock or docks as they shall deem necessary to promote the commerce of this State, and the collection of reasonable and accustomed dockage from persons using such dock or docks ; and the legislature may at any time regulate the same in such manner as they shall think proper. § 3. So much of article ' fourth, of title fifth, of chapter ninth, of part first of the Revised Statutes as is inconsistent with this act is hereby repealed. TIT. II.] LAND UNDER WATER. 845 By an act to amend the Revised Statutes relative to grants of land under water passed April 10, 1850, oh. 383, " by a two-third vote : " § 1. The commissioners have power to grant, in perpetuity or otherwise, so much of the lands under the waters of navigable rivers or lakes as they shall deem necessary to promote the commerce of this State, ot proper for the pwrpose ofbenefidal enjoyment oj the same by the adjacent owner; but no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void. § 2. The powers conferred by the first section of the act were extended to lands under water, and between high and low-water mark, in and adjacent to and surrounding Long Island, and to all that part of the county of West- chester lying on the East or Hudson river or Long Island Sound ; but no grant made under the act was to extend beyond any permanent exterior water line established by law, and nothing contained in the act was to authorize the commissioners to grant any lands under water belonging to the city of New Tork, nor interfere with any property, rights or franchises of said cor- poration of the city of New Tork, or interfere with the rights of the Hudson River Railroad Company. Publication of the Notice. — The publication of the notice is held to be absolutely necessary to confer jurisdiction upon the commissioners, and without it any grant made by them is void. The People v. Schermerhom, 19 Barb. 540; distinguished in Stevenson v. Mayor, 1 Hun, 51. It is not necessary, however, for one making title by patent to such lands to show affirmatively that notice was given. The presumption is that the patent was regularly issued, and that all preliminaries were complied with. People v. Mauran, 5 Den. 640. Purposes of the Grant. — A patent for lands under water cannot be in- validated in a collateral action by proof that it was granted for other pur- poses than to promote the commerce of the State, etc., as that it was granted to a turnpike corporation. It can only be invalidated by a proceedmg di- rectly for the purpose. The People v. Mauran, 5 Den. 389. Constrnctions of these Grants. — These grants are to be construed strictly, and nothing is to be implied or intended from them except what is specifi- cally given by metes and bounds, and there is no implication in them that the commissioners may not grant out land beyond what is embraced in a grant, and so interfere with the riparian privileges of the first grantee. If the grants of water lots are to be construed as giving the right to erect a wharf, a reservation to the legislature to regulate the use of it, and of the waters adjacent, will be implied. Lansing v. Smith, 4 Wendell, 9 ; and vide ante, p. 830. Grants made by these commissioners are presumptive evidence of the title of the people. People v. Mauran, 5 Den. 389. Grants of lands on a navigable stream give no rights in the bed. Matter of State Res. at Niagara, 37 Hun, 537. Adjacent Owners. — Adjacent owners under the above statute are held to be those who are owners of the land bordering upon or adjoining the waters covering the subject of the proposed grant. The lateral limits must be perpendicular to the general course of the shore. The People v. Schermer- hom, 19 Barb. 540. Or at right angles with the thread of the stream without regard to the direction of lines in the land. U. S. v. Ruggles, 5 Blatch. 35 ; and see ante p. 831. Although the commissioners are restricted to making grants to adjacent owners, it is always lawful for the State to make grants to others than such owners. People v. Canal Appraisers, 38 N. Y. 461. The owner of an easement in a street bordering on the water is not an 846 liAND UNDBB WATEE. [OH. XLIV. adjacent owner, but the owner of the 'fee is. People v. Colgate, 67 N. T 514. The upland owner has no rights before actual grant. Matter of N. Y. W. 8. & B. R. W. Co., 29 Hun, 369. But he may have damages if the grant be made to another. Bedlow v. N. T. Floating, &c. Co., 44 Hun, 378. It is to be noted that the statute of 1850, amending the Kevised Statutes, did not re-enact the provisions of the Law of 1835 against grants being made " in the city of New York." It is questionable whether that restriction is now in force. Repeals by implication, as a general rule, are not favored by the courts. There is a principle of law, however, that a subsequent statute making a diflFerent provision of the same subject is not to be construed as an explana- tory act, but as an implied repeal of the former, especially if it appears that the latter statute was intended to prescribe the only rule which should govern in the case provided for. If the latter act is to be construed as the sole ex- pression of the will of the legislature on the subject, it should prevail over the Law of 1835. The question, however, is yet one of argument, and not of adjudication. ViAe Harrington v. Trustees of Rochester, 10 Wend. 547 ; Columbian Man'g Co. v. Vanderpoel, 4 Cow. 556 ; Davies v. Fairbarh, 3 How. U. 8. 636 ; Dexter P. R. Co. v. Allen, 16 Barb. 15. Application for Grants. — The mode of application for grants is given in the statutes, and if not complied with the grant is held void. People v. Schermerhom, 19 Barb. 540. Rules have been adopted by the hoard to be observed by applicants. On application to the Secretary of State, printed copies of these rules are sent to those desiring them, and copies of the minutes of the board of Sept. 38, 1854, and July 3, 1861, amended Feb. 11, 1870, and March 6, 1873, as to what applicants are to do and furnish, are also supplied. Void Grants. — A grant of land by the commissioners of a water lot to one, adjacent to land of another, is void. Champlain, &c. R. R. v. Valen- tine, 19 Barb. 484 ; and see Beach v. Mayor, 45 How. Pr. 357. Vacation of Grants. — Yldie People v. Colgate, 67 N. Y. 514. Confirmatory Grants. — Confirmatory grants may be issued to grantees or their successors in title in cases of error or accidental omission. Laws of 1881, ch. 605. Confirming Act. — By Laws of 1881, ch. 635, sales theretofore made are confirmed in spite of irregularities, except where the lands are in the bay or harbor of New York or in the waters adjacent thereto. Harlem River. — By Laws of 1853, ch. 285, all lands under water along the Harlem River, from the East to the North River, were granted to the Mayor, Aldermen and Commonalty of the city of New York, with pre-emptive right in adjacent owners. For construction of this act, vide Mayor, &c. v. Hart, 95 N. Y. 443. Grants by the City of New York. — A grant by the city of lands under water binds it, even though it had no title, and it cannot by a subsequent grant from the legislature interfere with its grantee's enjoyment without compensation. Langdon v. Mayor, 93 N. Y. 139; Kingsland v. Mayor, 35 Hun, 458. As to rights of grantees, vide Duryee v. Mayor, 96 N. Y. 477. The owner of uplands in the city of New York, has no right to land be- tween high and low-water marks, except by grant from the city, but he has a right to damages if the city grant to another. Bedlow v. N. Y. Floating, &c. Co., 44 Hun, 378, distinguishing Langdon v. Mayor, gwpra, and following Whitney v. Mayor, 6 Abb. N. C. 329. Under the act of 1873, and ordinance of 1856, laying out East St., one who filled up the land between his lot and the wharf or pier got the land but no riparian rights. Turner v. People's Ferry Co., 23 Blatch. 272. CHAPTER XLV. NOTICES OF LIS PENDENS. An Action per se Notice. — It was a general rule, that, independent of statute provisions, a purchaser of real estate, pending a suit affecting it, was bound by the decree, and that the suit istelf was constructive notice. Conse- quently any rights acquired in land after the commence- ment of an action affecting the title, were subordinate to those of the plaintiff in such action, and this although the purchaser might never have heard of the suit. 6 Barb. 133; 15 id. 520; Cleveland v. Boerum, 23 Barb. 201; affirmed, 34 N. y. 613; 27 Barb. 253; 11 Wend. 443. Provisions of Law of 1823 and of Revised Statutes. — To remedy the injuBtice worked by the above legal principle, by the Law of 1823, April 17, p. 213, ch. 182, if a bill was filed affecting real estate, the bill was not to be deemed constructive notice to purchasers, unless a notice of lis pendens were filed with the clerk of the county in which the lands were situated — the notice to give the title of the cause and general object thereof, and descrip- tion of the lands, etc. ; and the county clerk was directed to index such notices in books in his office, so that all persons might search for such notices without inconvenience. The same provision substantially was incorporated in the Revised Statutes relative to bills in chancery affecting real estate. Provisions of the Code of Procedure. — The following are the provisions of that Code on the subject, and the period when each amendment of the original section went into operation. This Code, with all the amendments thereto, was repealed by Laws of 1880, ch. 245. By the Code of Procedure, § 133, '"In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a warrant of attaclmient under ch. 4, tit. 7, part ii of the Code of Procedure shall be issued, or at any time afterwards \amendment of 1857], or a defendant when he sets up an affirmative cause of action in his answer, and demands substahtial relief at the time of filing his answer, or at any time afterwards [amendment of 1866J, if the same be in- tended to affect real estate, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the oiject of the action, and the description of the prop- erty in that county affected thereby ; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. Prom the time of filing only, shall the pen- dency of the action be constructive notice to a purchaser or incumbrancer of the property ^ected thereby." A general description of ''all lands owned by defendants," was not sufficient. Jaffray v. Brown, 17 Hun, 573. 848 NOTICES OP lilS PENDENS. [CH. XLV. Amendment of 1858.— § 133. " And every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken aifter the filing of such notice, to the same extent as if he were made a party to the action. As against a grantee by unrecorded conveyance it had merely the effect of making him a party. Lament v. Cheshire, 65 N. T. 30. So of subsequent judgment-creditor. Fuller v. Scribner, 76 N. T. 190. But it was wholly inoperative until complaint filed. Weeks v. Tomes, 16 Hun, 349; afll'd, 76 N. T. 601. Amendment of 1862. — § 133. " For the purposes of this section, an ac- tion shall be deemed to be pending from the time of the filing of such notice ; provided, however, that such notice shall be of no avail unless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing." Cancellation. — ^By amendment of 1866, provision was made for the can- cellation of such notices by the clerk on good cause shown. Laws of 1866, ch. 824. Real Action. — It was held under the Code of Procedure that a notice of lis pendens was unnecessary in an action to recover possession of real property, even as against a purchaser pendente lite. The plaintiff in such an action could only recover upon a legal title ; it is only against mere equities that a purchaser without notice was protected. Sheridan v. Andrews, 49 N. Y. 478. This is not law now, having been changed by Co. Civ. Proc. See post, p. 850. Foreclosure and Partition. — The Law of May 14, 1840, ch. 343, also provided for the filing of a special lispendensin foreclosure suits, substantially as in the Code of Procedure. The county clerk was to index the notices, so that persons might find them without inconvenience. By this act the notice was to be filed at least 40 days before any decree could be made; also by Law of 1844, ch. 346. Both these acts were repealed by Laws of 1880, ch. 245. As to the filing in a partition suit, and the effect of irregularities in filing, vide Waring v. Waring, 7 Abb. 473. A decree in foreclosure made without affidavit of filing is not void (Su- preme Court rule 73) ; nor will an omission merely to state the place of re- cord of the mortgage vitiate. Potter v. Kowland, 8 N. T. 448. As to change by Co. Civ. Proc. see §§ 1595 and 1670, Co. Civ. Proc. Notices to be Recorded and Indexed. — The names of all parties should be inserted in the notice. By Law of March 22, 1864, ch. 53, the clerks of the different counties were directed to record, in suitable books, and index all notices thereafter filed, All notices theretofore filed might also be re- corded. The party filing was to indicate the names of such of the defendants as were to be inserted in the index. The record, or a certified copy thereof, to be evidence. Repealed by Laws of 1880, ch. 245. If a defendant's middle name is omitted, the notice is still sufficient to put a party upon inquiry. Weber v. Fowler, 11 How. 558; see post a,s to changes by Co. Civ. Proc. Queens County. — By Law of 1867, ch. 538, the clerk of Queens county was to record and index notices of lis pendens filed between January 1, 1820, and April 1, 1864. Efiiect of. — A purchaser or mortgagee after notice filed is bound by the decree. The notice is as effectual against any disposition of the property as is an injunction. It is a substitute for actual notice. Hall v. Nelson, 14 How. CH, XliV.] NOTICES OP LIS PENDENS. 849 33 ; 23 Barb. 88 ; Stevenson v. Fayreweather, 31 How. 449 ; Harrington v. Slade, 32 Barb. 163; Zeiter v. Bowman, 6 id. 133 ; Jeffres v. Cochrane, 48 N. Y. 671 ; Griswold v. Miller, 15 id. 530; Murray v. Ballou, 1 Johns. Ch. 566; Cleveland v. Boerum, 33 JBarb. 301 ; 27 id. 253 ; 34 N. T. 613 ; Ostrom v. McCann, 21 How. 431 ; Ayrault v. Murphy, 54 N. Y. 203 ; Lamont v. Cheshire, 65 N. Y. 30. See post, as to changes by Co. Civ. Proc. Amendment of 1858. — Prior to the amendment of 1858, a grantee of the equity of redemption had to be made party, although Tiia deed was not recwded at the time of filing the complaint and lis pendens. Hall v. Nelson, 23 Barb. 88. After that amendment, deeds not recorded before filing the lis pendens were inoperative as against parties taking under the judgment. Amendment of 1862. — Prior to the amendment of this section (133), in 1862, it was held that the filing a notice under this section did not charge the grantee of an equity of redemption unless, prior to the conveyance, the grantor Tiad ieen served with the summons in the action. 13 How. 171 ; 17 How. 477; 7 Aob. 61 ; Butler v. Tomlinson, 38 Barb. 641. When Complaint Amended. — In case of amendment of complaint by changing the description or the parties, a new notice must be filed. Curtis V. Hitchcock, 10 Paige, 399. The filing of the new notice seems to have been necessary only as to the added parties. Waring v. Waring, 7 Abb. 473. A decree made without proof of filing would be irregular, not void. 4 Seld. 448. Kings County. — In Kings county, by Laws of 1859, ch. 312, the notices were to be recorded by county clerk. When it takes Effect. — If the lis pendens is filed before the complaint, it takes effect from the time of filing the complaint, and not before. 13 How. 171; 7 Abb. 473; 9 Abb. 61; 17 How. 477; Leitch v. Wells, 48 N. Y. 5; Butler V. Tomlinson, 38 Barb. 641 ; 15 Abb. 88. As the Code existed in 1859, a notice might be filed before the service of the summon'' or compla'ut ; the filing was alone necessary. Stern v. O'Con- nell, 35 N. Y. 104. It has been held that a lis pendens does not operate as notice unless the court has jurisdiction of the thing. Carrington v. Brentz, 1 McLean, 167. The notice cannot be filed against prior incumbrancers not parties to the action. Pepple v. Connolly, 8 Abb. 128 ; Chapman v. West, 17 N. Y. 125 ; aflarming 10 How. 867. Amendment. — Tt may be amended by inserting a description omitted. Vanderheyden v. Gary, C3 How. 367 ; see also, 13 Abb. N. S. 265. Judgment. — A judgment lien was not an encumbrance within the meaning of the above section 133. Kodgers v. Bonner, 45 N. Y. 379. Assignees, etc. — See as to the effect of a decree on an assignee in bank- ruptcy, taking after notice o" lis pendens. Cleveland v. Boerum, 33 Barb. 301 ; affl'd, 24 N. Y. 613; also Griswold v. Fowler, 6 Abb. 113. An assignee (in insolvency) for a precedent liability he 'd not a purchaser within the statute. Leavitt v. Tyler, 1 Sand. Ch. 307 ; see also, 13 Abb. N. S. 365. Paramount Title. — A notice of lis pendens applies to those who derive the title to the subject-matter from a party to the suit after it is commenced. It does not affect one who has a paramount title superior to that of all the parties to the suit. Stuyvesant v. Hone, 1 Sand. Ch. 419. Attachment Suits. — In such suits the notice only binds the property levied on. Fitzgerald v. Blake, 38 How. 110; 43 Barb. 513. 54 850 NOTICES OF LIS PENDENS. [CH. XLV. It will have no eflfect in an attachment suit to recover money. Bm'khardt V. Sandford, 7 How. 339. The notice must be filed to make the lien effectual as against bona fide purchasers and incumbrancers. Learned v. Vrandenburgh, 7 How. 379 ; and People V. Connolly, 8 Abb. 128 ; but see as to the effect generally of a Us jiendem notice in an attachment suit, Lament v, Cheshire, 6 Lans. 335; affl'd, 65 N, Y. 30; cited fully, ante, p. 803; and see Bassett v. Spofford, 45 N. Y. 387, as to effect of an attachment suit wdth lis pendens over a judgment lien. The omission to file the notice in an attachment suit until another cred- itor has obtained a judgment against the defendant has no effect to postpone the lien of the attachment to that of the judgment. Kodgers v. Bonner, 55 Barb. 9 ; affl'd, 45 N. Y. 379. Removal of the Notice. — By the amendment of 1863, the court might, after action was settled, discontinued or abated, direct the notice to be can- celed from the record, to be noted in the margin thereof. Expiration of the Notice. — The effect of the notice was held to be lost If the action were not expedited. So held as to a delay of eight years. Myrick v. Seldon, 36 Barb. 15. But as a general rule the right is absolute, and the court cannot cancel the notice so long as the action is pending and undetermined. Mills v. Bliss, 55 N. Y. 139. Action to Cancel Assignment of Lease. — Under Co. Proc. a Us pendens might be filed in an action to cancel of record a lease of lands. Wilmont v. Merserole, 41 Super. 374. Provisions of the Code of Civil Procedure.— Since Sept. 1, 1880, the provisions of the Code of Civil Procedure have been in force as to the filing of notices of pendency of action and their effect when filed. (§§ 1670-1674.) Little change is made further than to include actions '' brought to recover a judgment affecting the title to or the possession, use or enjoyment of real property," in which such notices may be filed ; to provide that they shall be so filed " before final judgment "; and that where service by publication is allowed, personal service of the sum- mons, '■'■without the State^'' shall be made (if adopted instead of publication) within the sixty days after filing. By § 1526 of Co. Civ. Proc. filing of notice of pendency of action, as above provided, is made to apply to actions of ejectment, thus doing away with the effect of Sheridan v. Andrews, 49 N. Y. 478; ante, p. 847. The notice is inoperative until the complaint is filed. Burroughs v. Reiger, 13 How. 171; 3 Abb. 893, n., Sp. T. See Tate v. Jordan, 8 Abb. 393. In Foreclosure, as.to when required to be filed. Co. Civ. Proc. § 1631. Effect.— The only change made by the Code of Civil Procedure as to the effect of filing is to make it notice OH. XLV.] NOTICES OF LIS PENDENS. 851 only to a purchaser or incumbrancer '•'■from or against a de- fendant with respect to whom the notice is directed to be indexed, as prescribed in the next section," and said section. (§ 1672) provides for such indexing by the county clerk. The notice applies only to parties in the action, and purchasers and in- cumbrancers from them subsequent to the notice being filed. Patterson v. Brown, 33 N. Y. 81. Assignee of mortgage is bound. Hovey v. Hill, 3 Lans. 167; distin- guished in Lament v. Cheshire, 65 N. T. 30. A judgment lien is not an incumbrance within this section. Rodgers v. Bonner, 45 N. Y. 379; affi'g 55 Barb. 9. Cross-Noticing.— Section 1673 of the Code of Civil Pro- cedure contains provisions similar to those of § 132 of the Code of Procedure as to cross- noticing, by a defendant setting up a counter-claim, and restricting such cross-notic- ing to cases where an affirmative judgment is sought by such defendant, "affecting the title to, or the possession, use or enjoyment of, real property. ''"' CEtncellation. — Provision is also made (§ 1674) for cancellation of the notice where '■'■final judgment is rendered * * against tlie party filirig the ■notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice umreasondbVy neglects to proceed in the action," as well as when the action was settled, discontinued or abated, as provided by the Code of Pro- cedure. As to cancellation of lis pendens in attachment, see § 711, Co. Civ. Proc. CHAPTER XLVI. THE LIEN OF TAXES AND ASSESSMENTS, AND SALES OF LAND THEREFOR. Title I. — General Principles op Taxation. Title II. — The Assessment and Collection of Taxes on Land. Title III. — The Sale op Lands por Taxes, and the Conveyance AND Redemption thereof. Title IV. — Local Assessments and Sales therefor. Title V. — Miscellaneous. Title I. General Principles of Taxation. In this chapter only the general principles of taxation, and the tax laws as applicable to the State at large, are considered. A multitude of tax laws have been passed for specific cities, towns, and other localities, which it would require volumes to review, and which cannot here be investigated. The Power to Tax.— A power to tax individual prop- erty for the general benefit is one of the sovereign attri- butes and powers of a State, in the exercise of its right of eminent domain, and one whick it may delegate to inferior bodies. This taxing power is unlimited except as specifi- cally restrained by the constitution of the State or of the United States. It can, however, only be exercised for some public object or benefit. It is for the courts to de- termine whether; in any particular case, the boundary of legislative power has been passed. The power to tax im- plies a power to apportion the tax as the legislature may see fit. The legislature may also grant immunity fi'om taxation and revoke the privilege. The People v. Mayor of Brooklyn, 4 Corns, pp. 419, 420 ; People v. Lawrence, 36 Barb. 177; affi'd, 41 N. Y. 137; People v. Roper, 35 N. TIX. I.] PRINCIPLES OP TAXATION. 853 T. 629; People v. Haws, 34 Barb. 69; Gordon v. Comes, 47 N. T. 608; Mat- ter of Van Antwerp, 56 N. T. 361; Loan Ass'n v. Topeka, 20 Wall. 655 ; Weismer v. Douglas, 64 N.Y. 91. Without express enactment no property of the United States, the State, or a municipality is taxable. People v. Assessors of Brooklyn, 19 Abb. N. C. 168. As regards conflict with the authority of the United States, it may be remarked that the taxing power is in the States respectively, except so far as the Constitution of the United States prevents its affecting the means and resources of the General Government, or so far as prop- erty is exempt by the Federal Constitution. Weston V. The City Council of Charleston, 2 Pet. R. 49; People v. Cunningham, 35 N. Y. 629; Ward v. Maryland, 12 Wall. 418, and the Cases infra. As to assessment on shares of a "national bank," under the Act of 1865, ch. 97, vide Van Alen v. Assessors, &c., 3 Wall. 573; First National Bank v. Pancher, 48 N. Y. 524 ; overruling City of Utica v. Churchill, 33 N. Y. 61, which was reversed in Van Alen v. Assessors, supra ; National Bank v. Commonwealth, 9 Wall. 353. Aliens holding real estate under the Law of 1845, ch. 115, ante, p. 88, are subject to taxation as if citizens. § 12 of the act. Different Kinds of Taxation. — The two systems of taxation, the one for municipal purposes and the other for county and State purposes, are distinct. The latter species forms the subject of the general provisions of the Revised Statutes, and they apply to municipalities only so far as by the provisions of the laws imposing and regulating municipal taxation, they are either ex- pressly or impliedly adopted. Mayor v. Mutual Bank, 20 N. Y. 387. Tax Laws.— By the Bill of Rights of this State, passed December 1, 1827, taking effect January 1, 1830, no tax, duty, aid, or imposition whatever, except such as may be laid by a law of the United States, can be taken or levied within this State, without the grant and assent of the people of this State by their representatives in Senate and Assembly ; and no citizen of this State can be by any means compelled to contribute to any gift, loan, tax, or other like charge, not laid or imposed by a law of the United States, or by the legislature of this State. 1 R. L. 48, § 13. Tax Laws, What to State. — By the State Constitution of 1846, art. 7, § 13, every law which imposes, continues, or revives a tax shall distinctly state the tax, and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object. Laws, How Passed. — § 14. On the final passage, in either house, of all laws imposing, continuing or reviving a tax, the question shall be taken by 854 COIiLBCTION OF TAXES. [OH. XLVI. aye» and noes, which shall be duly entered on the journal, and a quorum of three-fifths in either house is necessary. The presumption is, the law was properly passed. Pumpelly v. Village of Owego, 45 How. Pr. 319 ; and see ante, as to the passage of such laws, p. 19. Former Laws. — As title is made according to laws in force at time of sale, reference may be made to the following laws. The first regular system of taxation in this State after the peace was adopted in 1788. Vide 3. & V. vol. 2, p. 340. The laws for the assessment of taxes and sales therefor, up to the first revision of the State statutes are collected in 1 Web. Laws of 1801, April 8, p. 547, and the Revised Laws of 1813, ch. 52, vol. 2, p. 509. The Law of 1818 has reference to all the real estate in the State. The Act of April 5, 1813, and all other subsequent acts relative to the assessment and collection of taxes, including a revival of the Act of April, 1813, passed April 23, 1823, ch. 242, were abolished by Act of December 10, 1828, and provisions of the Revised Statutes adopted. The Revised Statutes re-enact most of the provisions of the Act of 1823, with additions from acts passed in 1824, pp. 16, 112; 1825, pp. 33, 282, 355, 378; 1826, pp. 45, 94, 135, 327; 1827, p. 4. They, in turn, have been modified by subsequent statutes. Title II. The Assessment and Collection of Taxes ON Land. Lands to be Taxed,— By law all lands and all personal estates within this State, whether owned by individuals or by corporations, shall be liable to taxation, subject to cer- tain exemptions as from time to time established by various acts. 1 R. S. 1st ed, p. 387. Among the exemptions are property real and per- sonal exempted from taxation by the Constitution of the State or the Consti- tution of the United States ; and all lands belonging to the State or the United States, and certain scholastic, religious, and eleemosynary properties. Lands sold by the State are to be taxed as if conveyed. Exempting statutes are to be strictly construed. Exemption from public taxes and assessments will not exempt from assessments for local improvement. So held as to rural cemeteries which were to be assessed as a whole and not in lots. Buff. City Cem. V. City of Buff. 46 N. T. 506 ; ib. p. 503 ; In re N.T. 11 John. 77. Ceme- teries are now exempt (except such as are owned by the city of Rochester) by Laws of 1879, ch. 310. These exempting statutes are not contracts, and may be repealed. People V. Commissioners, 47 N. T. 501 ; People v. Cunningham, 35 N. T. 629. Exemption of school property does not cover private property hired for & school. People v. Assessors, &c., 32 Hun, 457 ; Hebrew, &c.. Ass. v. Mayor, 99 N. T. 488. The exemption is determined by the use not by the extent of the property. People v. Barber, 42 Hun, 37. An academy does not lose its exemption by leasing its building in summer for a boarding-house. Temple Grove Seminary v. Cramer, 98 N. Y. 131. Assessments of taxes is valid on a person to pay debts of a locality in- curred before he became a resident. Pumpelly v. Village of Oweso, 45 How. Pr. 473. Lands of non-residents are liable for road-tax. Chamberlain v. Taylor, 36 Hun, 24. TIT. II.] COLLECTION OF TAXES. 855 An exemption by special act is not affected by a subsequent general law. Bufialo Cem. Ass. v. City of Buffalo, 43 Hun, 127. If the tax be not a lien when the religious society acquires the land it is void. Wardens, &c. v. Mayor, &c., 41 Hun, 309. As to what is a religious society under Laws of 1853, ch. 383, vide Young Men's Christ. Ass. v. Mayor, 44 Hun, 103. Railroads and buildings, etc. — The term lands would include certain fixtures and buildings, although not accompanied by the fee, e. g. railroads. People V. Cassidy, 46 N. Y. 46. See further as to assessments of railroad property, where all the statutes are cited and reviewed. People v. Barker, 48 N. Y. 70 ; Buffalo, &c. R. R. v. Supervisors Erie Co. ib. 93; also, 46. Wharf Property. — As to taxes on, vide ante, p. 835. Debts Due to Non-Residents. — Debts due by inhabitants of the State to non-residents of the United States for the purchase of real property are to be taxed as personal property. The manner of collection is specified. Law of 1851, ch. 371. This is held applicable only to towns. As to taxation in villages, the gen- eral law authorizing assessments to agents (1 R. S. ch. 13, tit. 1) remains in force as amended in 1851. People v. Westbrook, 48 N. Y, 390. Bridges. — As to taxes on, vide Law of 1848, ch. 359. The Term " Land." — The terms " land " or "real estate " or " real prop- erty " are stated to include all buildings and what is erected on or affixed to the same, trees, etc., thereon, and all mines, minerals, quarries, etc., except mines belonging to the State. By Law of 1873, ch. 530, the words "land under water " were added. Where Assessed. — Every person is to be assessed in the town or ward where he resides, when the assessment is made for all the lands then owned by him within such town or ward and occupied by him, or wholly unoccu- pied. § 1, p. 389, R. S. To Whom Assessed. — Land occupied by a person other than the owner may be assessed to the occupant, as non-resident lands, or to the owner if he reside in the county. 2 Rev. Stat. vol. 1, p. 389, 1st ed. as amended by Laws of 1851, ch. 176, and Laws of 1878, ch. 153. But a non-resident owner may waive the error of assessing lands to him. Hilton v. Fonda, 86 N. Y. 339. Except there be such waiver, an assessment to any one but the occupant is void. Ih.; Stewart v. Grysler, 100 N. Y. 378. This leaves to the assessors a discretion. Johnson v. Learn, 30 Barb. 616 ; disapproving N.Y. & H. R. R. v. Lyon, 16 Barb. 651 ; see also, Van Rensselaer V. Cottrell, 7 Barb. 137 ; affi'd, Selden's Notes, No. 1, 33. Unoccupied lands not owned by a person residing in the ward or town where the same are situated shall be denominated "lands of non-residents." The returns must show that they are assessed as such or any sale will be void. Thompson v. Burhans, 61 N. Y. 52. The name of the present owner or occupant must appear. Dubois v. Webster, 7 Hun, 371. An assessment against a former owner is void. Ritter v. Worth, 58 N. Y. 637; Franklin v. Pearsall, 58 Super. 371. As to vacated and railroad lands, etc., vide Laws of 1850, ch. 437; amended by Laws of 1876, ch. 101. Where the land belongs to one and the buildings to another the assess- ment must be separately made. People v. Assessors, 93 N. Y. 308. Corporations. — The real estate of corporations shall be assessed in the town or ward where the same shall lie. § 6. See also Laws of 1857, ch. 456 ; 856 COLLECTION OF TAXES. [CH. XLVl. 1853, ch. 654; 30 N. T. 387; 1863, ch. 240, as to banking and moneyed cor- porations ; 1866, ch. 761 ; 86 N. T. 59, holding the last act invalid; and 1865, ch. 27 ; also, First National Bank of Sandy Hill v. Fancher, 48 N. T. 524, holding assessment of national bank shares under the Act of 1865 void. As to the Act of 1857, vide People v. Comm'rs, &c. 95 N. Y. 554. Mode of Assessment. — The manner in which assessments are made by the assessors, divided into assessment districts, is ^ven in the Revised Statutes, 1st ed. vol. 1, pp. 390 to 397; as amended by Laws of 1851, 1857, and 1858, infra; 1858, ch. 357; 1859, ch. 312; 1862, ch. 194; 1865, ch. 453; 1868, ch. 575 ; 1869, ch. 855 ; 1878, ch. 152. The Assessment and Notices. — When the assessment is finished, notices that the roll may be inspected, have to be put in three public places of their town or ward, except that in cities the local regulations are to govern. Laws of 1851, ch. 176 ; 1857, ch. 536; 1858, ch. 110. The assessment roll is to be finished by the 1st of August, in each year; and a fair copy left with one assessor. lb. The contents of the notice are specified, but in the several cities notices are to conform to their respective laws. Laws of 1851, ch. 176. The certified roll, as corrected, is to be sent to the Supervisors (except as otherwise specially provided), beJfore 1st September in each year. By Law of 1851, ch. 176, the roll is to be sworn to. As to the swearing to the roll, and its validity, mde "Westfall v. Gere, 49 N. Y. 349. After completion of the roll the assessors have no power to alter it in any respect. People v. Forrest, 96 N. Y. 544. As to the form of oath, etc., vide Laws of 1885, ch. 201, amending the Act of 1851 ; also Laws of 1886, ch. 300, legalizing rolls irregularly verified, etc. Unless the oath be in strict statutory form the assessment is invalid. Shattuck v. Basoom, 105 N. Y.' 39. But it is sufficient if a proper oath be annexed before the roll is delivered to the supervisors. People v. Jones, 106 N. Y. 330. By Law of 1857, ch. 536, the term ^^ person " is to include corporations. The Rev. Stat, (part 1, ch. xiii, tit. 2, art. 3) make further provision as to equalization of the assessments, and the correction of the assessment rolls by the supervisors ; and a corrected copy is to be given to the clerk of the city or town, and also to the town or ward collector, before December 16, in each year ; and a warrant tor collection ; and in case of f aihu:e to pay, he is to levy the same by distress of goods and chattels. The warrant may be changed as to the collection to conform to local laws. Laws of 1845, ch. 180. After the deposit of the assessment roll on or before the 1st of August, the assessors have no jurisdiction over tax-payers, or the roll, save for review and verification ; and if their affidavit is made prior to the third Tuesday of August, and the defect appears on the paper, the tax warrant is null, and the collector is a trespasser. Westfall v. Preston, 49 N. Y. 349 ; Bellinger v. Gray, 51 N. Y. 610. If affidavit is not made, the assessment is invalid. lb. A certificate of the assessors, if required by any law, is necessary to valid- ity and to protect the collector. Van Rensselaer v. Witbeck, 3 Seld. 517. The.assessment roll must be completed before the warrants can be annexed. Bellinger v. Gray, 51 N. Y. 610. As to the affidavits and other proof submitted to the assessors, and how far they are conclusive, vide Law of 1851, ch. 176; 1885, ch. 300; 1886, ch. 301 ; People v. Barker, 48 N.Y. 70 ; Colman v. Shattuck, 62 N. Y. 348 ; Thomp- son V. Burhans, 61 N. Y. 53. Their decision is quasi judicial and based on their judgments as well as the proofs, and they are personally protected, and their decision cannot be reviewed collaterally, nor at all, unless perhaps there has been a flagrant dis- regard of facts or in an extraordinary case. Bufi'., &c. R. R. v. Supervisors of TIT. II.] COLLECTION OF TAXES. 867 Erie, 48 N. T. 93; Westeyn R. R. v. Kolan, 48 N. Y. 514; Barhyte v. Shep- herd, 35 N. Y. 238 ; People v. Trustees, &c. 48 N. Y. 390 ; Van Rensselaer v. Witbeck, 7 N. Y. 517 ; Foster v. Van Wyck, 3 Abb. Ap. Oa. 167. But they are liable if they exceed their powers, and they cannot change or add names or lands to the assessment roll after It is finished. Clark v. Norton, 40 N. Y. 243 ; Overing v. Overing, 65 N. Y. 363 ; Mygatt v. Wash- bum, 15 N. Y. 306. The affidavit must be in the form prescribed by statute or the sale is void. Johnson v. Elwood, 53 N. Y. 431. See also on various irregularities, Colman V. Shattuck, 62 N. Y. 348. If the assessors have no jurisdiction, a personal action lies against them. Mygatt V. Supervisors, &c. 11 N. Y. 563 ; Genesee, &c. Bank v. Supervisors, 53 Barb. 323. And their action may be reviewed collaterally. Nat. Bk. of Chemung v. Elmira, 63 N. Y. 50. By Law of 1836, eh. 461, warrants may be issued by County Treasurers to other counties in cases of removal. By Law of 1853, ch. 69, the time when proceedings are stayed by injunc- tion, etc., are not to affect the collection and collector's return. Non-resident's Lands may be assessed if occupied, to occupant or owner if he reside in the county (Van Rensselaer v.Cottrell, 7 Barb. 127), and must be to one. or the other. Whitney v. Thomas, 23 N.Y. 281 ; and vide ante, p. 854. If regular notice of the completion of the assessment, etc., is not given for the full term as required by law, the tax is invalid, and a sale of land therefor confers no title. Wheeler v. Mills, 40 Barb. 644. When the Lien arises. — The confirmation of an assessment for taxes creates a lien on the land. Manice v. Miller, 26 Barb. 41. So held as to the city of New York. There is no lien before confirmation. Washington Heights, &c. Church v. Mayor, &c. 30 Hun, 297. In the case of Rundell v. Lakey, 40 N. Y. 513, a tax assessed, but not laid, was held a breach of covenant, on conveyance of farm lands. So also if the assessment roll is completed but the supervisors have not confirmed it. Edwards v. Cogswell, 1 N. Y. S. C. 416. This decision is, however, practically overruled by Dowdney v. Mayor, infra. Rundell v. Lakey was distinguished in Barlow v. St. Nicholas Bk. 63 N. Y. 399, holding the covenants not to apply in such a case. See also, Kerr v. Towsley, 45 Barb. 150 ; Post v. Leet, 8 Paige, 337 ; Dowdney v. Mayor, 57 N. Y. 187. A covenant to pay taxes becoming due after a given date, refers to taxes confirmed thereafter, even though assessed before. Skidmore v. Hart, 13 Hun, 441. On Decease of Owner, who Liable. — Taxes due at the death of a de- cedent should be paid from the personal estate ; and taxes accruing subse- quently are chargeable on the land. There is no ratable apportionment for the year. 4 Brad. 216. Correct Assessment Necessary. — Care must be taken in making title under a tax or assessment sale to see that the land has been properly assessed by boundaries, or lot number, township, etc. Vol. 1, Rev. Stat. p. 391. An assessment or advertisement by wrong number would pass no title. 2 Barb. 344 ; 4 Denio, 237 ; 3 Coms. 66 ; and see post, Title HI. And it must be assessed to the proper person. 16 Barb. 651 ; 30 ib. 616. As to the city of New York, vide Laws of 1867 , ch. 410, § 5 (repealed by Laws of 1881, cb. 537); Laws of 1882, ch. 410, § 818; Whitney v. Thomas, 23 N, Y. 281; Haight v. Mayor, 33 Hun, 153 ; affl'd, 99 N. Y. 380; Laior V. Mayor, 13 Daly, 235. 858 COLLECTION OF TAXES. [CH. XLVI. As to the proper assessment of land under Law of 1850, vide Whitney v. Thomas, 33 N. ¥.281. Taxation Omitted. — If taxation on any land, or property is omitted, the assessors of any town, city, or ward, on application of three tax-payers are to enter it for taxation, as of the current year. Law of 1865, ch. 453. The assessors have no discretion but mmt assess. People v. Goff, 53 N. T. 434. This act applies to omissions from taxation under subsequent acts. People V. Assessors, &c. 93 N. T. 430. Disputed Location. — An Act was passed, April 21, 1870, ch. 335, provid- ing for actions to determine in which counties disputed lands were taxable. An Act was passed, April 4, 1871, ch. 287, as to assessment where farms or lots were on town or country lines, which was repealed by Law of 1873, ch. 355. By the Rev. Stat, a farm or lot on a county line was to be assessed where the occupant resided ; if unoccupied, it was to be assessed where each portion lay. The Act of 1873 repealed the provisions of the Revised Statutes (Harris V. Supervisors, 38 Hun, 379), but the above provision was re-enacted by Laws of 1886, ch. 315, as an amendment. By Laws of 1883, ch. 343, as amended by Laws of 1886, ch. 59, where property lies on the boundary between towns or cities, the occupant may elect his residence and the tax be laid accordingly on the whole. Redress for Errors in Taxation. — A suit in equity will not lie to restrain the collection of a tax on the sole ground that it is illegal, nor where there is a remedy at law. There must exist, in addition, special circumstances bring- ing the case under some recognized head of equity jurisdiction. The charge that a municipal body intends to collect the tax, and assess and collect similar taxes, is not sufficient. Dows v. City of Chicago, 11 "Wall. 108; Pumpelly v. Village of Owego, 45 How. Pr. 330 ; Comins v. Supervisors, &c. 3 N. T. 8. 0. 396. Any injunction is not to be against the assessors, who are quctai judicial officers ; but against the parties acting, i. e., the ministerial officials. As a general rule, however, injunctions will not be granted to restrain the collec- tion of a tax or assessment. Mohawk & Hudson R. R. v. Archer, 6 Pai. 83^ Susquehanna Bank v. Supervisors Broome Co. 35 N. T. 313 ; Western R. R. V. Nolan, 48 N. Y. 513. ■A tax-payer at large not privately interested cannot enjoin collection of a tax, though he may have that remedy where he is specially injured. But he may in either case have certiorari. TiflEt v. Bufialo, 65 Barb. 460 ; People v. Morgan, 65 Barb. 473. The action of the assessors, however, may be reviewed by certiorari,* e. g., as il property not liable to taxation is put upon the assessment roll. Genes- see, &c. Bank v. Supervisors, 53 Barb. 333 ; People v. Trustees, &c. 48 N. T. 390; Western R. R. v. Nolan, 48 N. Y. 513. But their action will not be reversed where there is any evidence to sup- port it. People V. Williams, 17 Abb. N. 0. 376. Their action cannot be reviewed collaterally unless under a flagrant dis- regard of facts ; and the tax, after it has reached the treasury, cannot be re- covered back. An entirely illegal tax collected, it has been held, could be recovered from the county if taken by wrongful act of the officers. Buff. &c. R. R. V. Supervisors of Erie, 48 N. Y. 93 ; Newman v. Supervisors, 45 N. Y. 676 ; Genesee, &c. Bank v. Supervisoi's, 53 Barb. 233 ; Hill v. Supervisors, 3 Ker. 53. And their judgments may be reviewed for fraud, mistake, or other cause * A certiorari brings up the merits aa well as questions of jurisdiction and reg- ularity. People V. Assessors of W. Albany, 40 N. Y. 154. TIT. ni.] THE SALE FOB TAXES. 859 giving jurisdiction to courts of equity. Western R. B. v. Nolan, 48 N. Y. 513. An action, however, would lie in equity, where the tax is upon land which is liable to be sold ; and where the conveyance to be executed would he conclusive evidence of title; and where the tax was not void on its face; or where there might be otherwise a multiplicity of suits. ' Western R. R. v. Nolan, 48 N. Y. 513. By Laws of 1 873, ch. 580, actions to vacate certain void assessments were forbidden. This act was held constitutional, and it was held that the only constitutional right to action would be against an attempt to enforce a pre- tended hut illegal lien. Lennon v. Mayor, 55 N. Y. 361. By Laws of 1874, ch. 313, remedies are provided for improper assessments and actions are prohibited. This does not apply where there was a total want of jurisdiction in the assessing oflBcers. Matter of 3d Ave. &c. 66 N. Y. 895. The act was sustained in Eno v. Mayor, 68 N. Y. 314. By Laws of 1875, ch. 831, provision is made for correcting erroneous assessments. It was held in Matter of Striker, 10 Hun, 308, that a paid assessment may be removed. As to removal of tax lease as a cloud on title, vide Bensel v. Gray, 62 N. Y. 363 ; Stewart v. Crysler, 31 Hun, 386; Sanders v. Yonkers, 83 N. Y. 89; Crook V. Andrews, 40 N. Y. 547. Recovery on Erroneous Taxation. — Where theiebas been jurisdiction of the person, i. «., the person being a resident, no action will lie to recover back an erroneous tax or assessment. So held as to personalty. Genesee, &c. Bank v. Supervisors, &c. 53 Barb. 333 ; Mygatt v. Supervisors, &c. 11 N. Y. 563. While the assessment of the tax is in forpe, no action will lie for the re- covery of the tax paid, although the property was not subject to taxation. Bank of Commonwealth v. Mayor, 43 N. Y. 184. An action will tie to recover an assessment paid which was afterward de- clared void. Peyser v. Mayor, 70 N. Y. 497. Or one paid by mistake on the wrong lot. Mayer v. Mayor, 63 N. Y. 455 ; Pinchbeck v. Mayor, 13 Hun, 556. Collector's Return of Unpaid Taxes. — The Rev. Stat. (art. 1, tit. 8, supra) further provide that the collector is to return to the county treasurer an account of unpaid taxes. Exemption of Cemetery Lots. — Vide Laws of 1879, ch. 310. Title III, The Sale oe Lands eoe Taxes and the Conveyance and Redemption thereof. To divest the owner of lands by a sale for taxes, or local " assessments," every preliminary step must be shown to be in comformity with the statutory requirements reg- ulating the sale. The power given is a naked one not coupled with any interest, and is in derogation of a com- mon law right ; therefore every prerequisite to the exer- cise of the power must precede it. Newell v. Wheeler, 48 N. Y. 486; 5 Hill, 386; 4 ib. 93; Leggett v. Rogers, 9 Barb. 411; Stryker v. Kelly, 3 Den. 333; Doughty v. Hope, 3 860 THE SALE FOR TAXES. [OH. XLVI. Den. 594; 1 Com. 79 ; Varick v. Tallman, 3 Barb. 113; see also, 3 Com. 66; 16 Wend. 550; 7 ib. 148; 50 Barb. 639. A power to sell for taxes imposed on lands does not authorize a sale for taxes imposed on their owners or occupants, and not nominatim on the lands ; nor will a power to sell for taxes authorize a sale for an assessment for local benefit. A pa/rty claiming under a tax sale has the omu of proof as to all the pro- ceedings, except when otherwise provided. Sharp v. Speir, 4 Hill, 76 ; ap- proved, 10 N. T. 338. Non-Residents and Unoccupied Lands, and where there are no Chattels, etc.— The statute defines lands of non- residents as unoccupied lands, the owners not residing in the ward or town where the same are ^situated. Land where there is not sufficient personal property to satisfy the tax, and lands vacated by removal of ooGupant, are to he proceeded against in the same way as non-resident lands. Laws of 1855, ch. 437, § 5 ; amended by Laws of 1876, ch. 101 ; Newman V. Board of Supervisors, 45 N. Y. 676. The Act of 1855. — The following provisions are taken from Act of April 13, 1855, ch. 437, entitled " An act in relation to collection of taxes on lands of non-residents, and to provide for the sale of such lands," etc., which re- pealed the statutes of April 10, 1850, and April 6, 1850. This act is not an amendment of the Eevised Statutes, but an independ- ent act and operates to repeal any prior enactments inconsistent with it. Caulkins v. Chamberlain, 37 Hun, 163. Lists and Publication, etc. — County treasurers are to compare lists of impaid taxes received from collectors with the assessment roll, and transmit the same with their certificate and the collector's affidavit to the comptroller. Whenever any tax charged on lands returned to the comptroller is unpaid for two years from the first of May following the year in which the same was assessed, the comptroller shall make out lists of the lands charged, taxes and interest, and transmit them to the different town clerhs and county treasurers. §§ 4 ("amended by Laws of 1885, ch. 453), 33, 34. The last two sections amended by Laws of 1878, ch. 153. Publication by Clerks and Treasurers. — They shall each publish the list for ten weeks before the commencement of the sale in the county news- papers that are designated to publish the Sessions Laws in their county, and if none are designated, then in two county newspapers, or in those most generally circulating therein, to be designated by the treasurer. Errors in the advertisement are not to vitiate sales. The town clerk is to give notice at the town election meeting, that the lists are in his office for inspection. The omission of the town clerk to give notice according to the statute will not avoid a sale. § 40. So held in Pierce v. Hall, 41 Barb. 143. Advertisement by Comptroller. — The comptroller is then to advertise that the lists are deposited as above, and the lands for sale, at the Capitol, at Albany, once a week, for twelve weeks, in all the newspapers in the State designated by the county supervisors for publishing the Session Laws. (Under the Act ot May 14, 1845.) § 41. TIT. III.] THE SALE FOE TAXES. 861 The regular statutory notice is absolutely essential to the validity of the sale. Thompson v. Burhans, 61 N. Y. 53. Sale. — On the day prescribed, and from day to day, the comptroller is to sell sufficient of each parcel assessed to pay the taxes, interest, and charges, and the purchasers shall pay the purchase moneys within forty-eight hours after the last day of the sale, and in default thereof, the comptroller may sue, or, in his discretion, resell. §§ 44 (amended by Laws of 1881, oh. 403), 45. Sale under a warrant of supervisors for taxes, some legal and some illegal, is void. People v. Hagadorn, 36 Hun, 610. Sales for taxes must be strictly carried out according to law. O'Donnell V. Mclntyre, 37 Hun, 615. Errors in copies of lists filed with town clerks do not justify cancelling the sale. People v. Ohapin, 88 Hun, 273. Certificate. — The comptroller shall give to the purchaser a certificate in writing describing the lands purchased, the sum paid, and the time when he win be entitled to a deed. § 46. If the purchase money is not paid in three months from the conclusion of the sale, any sale may be canceled, and a new purchaser or the people sub- stituted (§§ 47, 48, as amended by Laws of 1878, ch. 153, and Laws of 1881, ch. 403), and a certificate issued. The change of purchaser is to be noted in the sales book. §§ 48 (as amended), 49. See also same provisions. Law of 1840, ch. 353. The certificate is not a cloud on title where the tax was illegally laid. Clark T. Davenport, 95 N. Y. 477. Redemption. — The owner or occupant or any other ■person, may redeem within two years from the last day of sale, by paying the sum mentioned in the certificate, with interest at ten per cent, from date of certificate. § 50. Undivided specific parts of lots may be so redeemed, and the conveyances made accordingly. §§ 53-56. A person conjointly assessed with another may redeem the whole, and recover the proportion of redemption money from the other (§ 57) ; no suit to be brought until after expiration of time to redeem. If the lands are not redeemed, a proportionate value of the lands sold may be recovered (§ 58) ; and see po»t, Tit. V, as to apportionment and re- demption where lands have been sold, and there are joint interests. Every judgment so recovered is to have preference over mortgages and judgments executed since 33 April, 1833, if an entry to that effect is made on the docket. §§ 59, 60. As to the lien oi judgments obtained under these provisions, mde ante, p. 778. The comptroller is bound to give a certificate of the amount due, other- wise, if the party is thereby prevented from redeeming, he will not be preju- diced. Van Benthuysen v. Sawyer, 36 How. 345 ; same case, 86 N. Y. 150. Notice to Redeem. — The comptroller is required to give a specific notice for each county, six months before thp expiration of the two years allowed for redemption, that unless the lands are redeemed by a certain day, they will be conveyed to purchasers. §§ 61, 63. The notice is to contain full particu- lars. So also in Law of 1833, ch. 343. The notice is to be published once a week, for six weeks, in the county newspaper designated for publishing the Session Laws, or other two selected by the comptroller ; the publication to be completed at least eighteen weeks before the two years' time for redemption expires. It must be published in the body of the newspaper. The publication must be fully completed as the law requires (3 Den. 594; 1 Com. 79), and a subsequent publication will not rectify. i6. See also, as to notices prior to 1850, Bunner v. Eastman, 50 Barb. 640. 862 THE3 SALE FOR TAXES. [OH. XLVI. If the redemption is prevented by any misconduct of the public officer through whom the redemption is to be effected, the title will not pass by the deed. 36 N. Y. 150, supra. Unless the notice is published as required at the time, the title is invalid, and will not be saved by any recitals in the deed. Westbrook v. WUley, 47 N. T. 457 ; Bunner v. Eastman, 50 Barb. 639. And the lands must be sufficiently described. Sharp v. Spier, 4 Hill, 76. The time to redeem cannot be extended by law after the sale. Dikeman V. Dikeman, 11 Pai. 484. The deed takes effect back by "relation,"' for bringing trespass. Pierce T. Hall, 41 Barb. 143. The Deed. — If no person redeems such lands within such two years, the comptroller shall execute to the purchaser, his heirs, or assigns, in the name of the People of the State, a conveyance which shall vest in the grantee, an absolute estate in fee simple, and subject to taxes or other liens or incum- brances to the State. § 63. No Title Passes, When. — If the tax had been paid, the deed passes no title. 3 Barb. Ch. 528 ; 18 Johns. 441 ; 15 Barb. 337. Or if the lot was described by a wrong number or name. Dike v. Lewis, 4 Den, 237 ; Tallmann v. White, 3 Com. 66. The recitals in the deed are not proof of fact sufficient to give title unless made so by statute. Hoyt v. Dillon, 19 Barb. 644. The lands must be regularly assessed, and the collector's affidavit made, as to the assessment roll being correct, etc. Curtis v. Van Dyke, 15 Barb. 387 ; Tallmann v. White, 3 Com. 66. Sales to the comptroller or an employee, are void. Laws of 1855, ch. 427 ; Laws of 1862, ch. 385. See also as to irregularities in the roll. Colman v. Shattuck, 62 N. Y. 348. Where an irregular assessment was validated by law a sale before the validat- ing act is not made good. Matter of Clement! v.- Jackson, 93 N. Y. 591. Form of Deed. — The deed would be good if not made in the name of the people. And see as to form of deed, 3 Barb. Ch. 528, 577 ; 9 Barb. 406 ; § 65, amended by Laws of 1861, ch. 209, and 1885, ch. 448. The deed is to be signed and sealed by the comptroller, and witnessed by the deputy comptroller, surveyor-general, or treasurer. Presumptive Evidence. — § 65. And shall thereafter be presumptive evidence that the sale and all other proceedings prior thereto, from and in- cluding the assessment, and all notices previous to expiration of the two years for redemption, were regular. Wood v. Enapp, 100 N. Y. 109. This does not apply to assessment deeds under other acts. Nichols v. Voorhis, 18 Hun, 33. Under the Act of 1829, before the Law of 1850, ch. 183, § 81, the comp- troller's deed was condusive evidence of regularity. Vide 2 Barb. 113 ; 1 Seld. 366 ; 2 Cora. 66 ; also 50 Barb. 640, as to what it was conclusive of. By the Act of 1850, § 20, the deed was made presumptive evidence of authority and of all proceedings prior to the sale. By Laws of 1860, ch. 209, where the party claiming is in possession, it is presumptive evidence, whatever the date of the deed. This would include a constructive possession, where there is actual posses- ision of a part. Finlay v. Cook, 54 Barb. 9. By Law of 1866, ch. 820, deeds executed under Law of 1850, ch. 298, were to be presumptive evidence that the sale and proceedings prior thereto and notices within the two years were correct. Under the above Law of 1850, the deed was not even presumptive evi- dence of the facts giving the comptroller authority to sell, but merely as to his acts. Beekman v. Bigham, 1 Seld. 366. It is held, in a sister State, that the legislature has no authority to make TIT. HI.] THE SALE FOB TAXES. 863 a tax deed eonelusive evidence that the tax warrant was sufBcient. Corbin v. Hill, 31 Iowa, 70. Notice to Occupant. — The grantee, or his heirs or assigns, shall serve a written notice on any person occupying such land, within two years from the expiration of the time to redeem. The notice may be served personally, or at the dwelling of occupant, with one of the family of suitable age and discretion, and is to state in substance the sale and conveyance, the person to whom made, the consideration money and thirty-seven and one-half per cent, and the sum paid for the deed ; and that unless paid within six months after the time of filingin the comptroller's office of the evidence of the service of the said notice, the said conveyance will become absolute. And no conveyance shall be recorded until the expiration of the said notice, and the evidence of the service of such notice shall be recorded with such conveyance. §§ 68, 69. This clause was substantially in Laws of 1813, 1819, 1823, 1830, 1836, 1837 and 1844, ch. 366. If no notice is given, the sale is void as to every part of the land sold. 5 Hill, 287; 8 Barb. 528; viOe 4 N. Y. 577. An error in the notice would not vitiate. 9 Barb. 406. It cannot be waived by an occupant. 7 Wend. 148; 15 id. 348; 16 id. 550 ; 15 Barb. 337. It must follow the statutory words or it is void. Becker v. Holdridge, 47 How. Pr. 439; Simonton v. Hayes, 33 Hun, 386. Notices to Occupants in City of New York.— As to notices to occupants and persons last assessed on sales for taxes and assessments in the city of New York, vide Law of May 35, 1841, ch. 280; April 18, 1843, ch. 230; 1843, ch. 235 ; as modified or repealed by Act of April 8, 1871, ch. 381, and 4 Sand. 50. See also Laws of 1882, ch. 410. As to notice under the Act of 1843, vide People v. Cady, 105 N. Y. 299. As to notice under Law of 1871, vide Willis v. Gehlert, 34 Hun, 566 • Franklin v. Pearsall, 53 Super. 271. Certain sales prior to 1855, were held invalid in Bensel v. Gray, 80 N. Y. 517. Redemption by Occupant or Deed to be Absolute. — The occupant may within the six months redeem as above, and the comptroller shall give a certificate thereof, which may be recorded in the book of deeds ; otherwise, the grantee files an affidavit of the service of the notice within one month after service, the comptroller gives a certificate of the facts, and the convey- ance to the comptroller's grantee becomes absolute. Vide 3 Barb. Ch. 530. §§ 70 to 73. The occupant or any other person may at any time before the service of such notice, redeem by filing in the office of the comptroller evidence of occupancy, and paying the above sums ; and the receipt of the treasurer and comptroller's certificate shall be presumptive evidence that the redemption was correct. §§ 74 (amended by Laws of 1885, ch. 453), 75. A mere encroachment will not make an occupant. It must be substantial. 4 N. Y. 577, reversing 3 Barb. 360. The title does not vest under the comptroller's deed, until the notice has been served, and the six months expired. 8 Barb. Ch'. 538; Hand v. Ballou, 2 Ker. 541. If land was occupied at the time of sale, the occupant was entitled to notice. So held under the provisions of the Rev. Stat, and Law of 1830. As to conveyance or redemption in certain Northern counties, vide Law of 1885, ch. 448. Invalid Sales. — Provision is also made in the above Law of 1855 as to the canceling of invalid sales, and refunding of the money paid, The comptroller may exercise full discretion as to vacating sale. People V. Chapin, 103 N. Y. 635. 864 THE SALE FOR TAXES. [OH. XLVI. But he may be compelled to act. People v. Chapin, 105 N. Y. 309. HIb decision as to who is entitled to money refunded cannot be rectified if wrong. The record of deeds is no notice to him. People v. Ohapin, 104 N. Y. 96. Lost Certificates. — On proof of lost or unduly withheld certificate, the comptroller may issue the deed to the person entitled. Law of 1835, oh. 11; 1855, ch. 427, § 64. Notice by Purchaser to Mortgagee. — By Law of May 14, 1840, ch. 387; Law of 1844, ch. 366; 1850, ch. 298, and of 1855, ch. 427, § 77, relating to lands sold for taxes throughout the State, no sale for a tax or assessment shall affect the lien of any recorded mortgage, unless written notice be given by the purchaser to the mortgagee, his representatives, etc., to redeem within six months after notice, or be barred, etc. Becker v. Howard, 66 N. Y. 5. By Laws of 1844, ch. 266, a memorandum had to be filed with the comp- troller within two years from the sale, to entitle him to notice ; otherwise his right to redemption was barred. The above provisions under Law of May 14, 1840, were general in their application, and were repealed by § 114 of ch. 298, of 1850, but by § 112 of that act, it was provided that the provisions of the Act of 1850 should not in any manner afiect or apply to the city and county of New York, or the cities of Albany and Troy, Brooklyn and Williamsburgh. The Act of 1850, ch. 298, and the Law of 1855, ch. 437, had similar general provisions as to notices to mortgagees in the State. By Law of May 14, 1840, ch. 387, and Law of 1855, ch. 427, the term " mortgagee" was to include assignees and personal representatives, and " purchaser," assignees or personal or real representatives. § 80. Section 81 provides how the notice was to be served. A notarial certificate was to be presumptive evidence which might be recorded. By § 82, the notice was only to be served upon such persons as, within two years from the sale, should file a memorandum of their mortgage with the comptroller. This § 82 was repealed by Law of 1862, ch. 285, § 1. By Law of April 18, 1870, ch. 280, the above § 77 of the Law of 1855, was amended by adding that the notice might be given at any time after expira- tion of two years from the last day of sale. This same law also amended § 81 of the Act of 1855, by providing that proof of service of the notice should be filed with the comptroller within one month after service. This same Law of 1870 provides that a mortgagee or assignee whose mortgage or assignment is recorded, or their representatives, who shall have filed with the comptroller the notice required by law, may redeem after sale and within six months after notice given under Law of 1855, ch. 427, supra. Provision is made as to the manner of redemption ; and section 1 of ch. 285, of Law of 1863, supra, amending ch. 427 of Law of 1855, is repealed. See for construction of this act, Bennett v. Peck, 28 Hun, 447 ; Becker v. Howard, 47 How. Pr. 423. As to the rights of mortgagees to redeem in the city of New York, vide Laws of May 6, 18: 9, ch. 170 ; May 25, 1841, ch. 330; 1843, ch. 230, as amend- ed; iS. ch. 235 ; also Law of 1871, ch. 381. Act of 1855 not to Apply to Certain Cities.— § 91 of the Act of 1855 provides that the above provisions of the act, viz. of 1855, ch. 427, shall not apply to the city and county oi New York, the city of Albany, the cities of Brooklyn or Williamsburgh, Kings county. The words " County Treasurer" were to apply to the city chamberlain of New York. Repeal of Former Acts.— § 93 of the above Act of 1855, ch. 427, repeals the Law of April 10, 1850, relative to taxes on lands of non-residents, and providing for the sale of land in the counties where they were assessed, and also repeals the Act of April 6, 1850, as regards the publication of notices. But the repeal shall not afifeci taxes or sales for 1849, 1850, 1851, 1852, TIT. IV.] THE lilEN OJP ASSESSMENTS. 865 or 1853, except, §§ 30, 89 and 90 of the Act of 1855, as to taxes of 1853 and 1 853, nor proceedings on sales thereon, nor accrued rights nor powers of county treasurers as to taxes of 1852 and 1853, except as provided. Deeds under Repealed Law of 1850.— By Laws of 1866, ch. 830, all deeds executed pursuant to law by the treasurer and county judge of any county, upon any sale under Laws of 1850, ch. 298, shall vest an absolute fee simple, subject to claims by the people of the State for taxes or other liens, and shall be presumptive evidence of the regularity of the assessments and other proceedings. Taxes in Cities- — As to taxes and sales in the different cities, vide the various local acts applicable to each. Taxes and sales for draining swamp and marsh lands. As to these vide title 16, ch. 8, part 3, B. S. and Laws of 1869, ch. 888, and numerous other amendatory acts which cannot here be more specifically referred to. As to taxes in the city of New York, vide Laws of 1882, ch. 410 (consoli- dation act). Title IV. Of the Lien op Local Assessments and THE Sale thekefok. Power of a State to Assess for Local Improvements.— The raising of money for local improvements by assessing a particular class of persons is held an exercise of the tax- ing power inherent in the legislature; and this power to tax implies the power to apportion the tax as the legis- lature sees fit. The legality of acts for this purpose has been well settled [vide ante, p. 32). It is in the discretion of the legislature also to provide that the whole or any part of the lands sold for charges imposed by law, be sold in fee or otherwise, and that the proceedings be conducted by judicial forms or through judicial tribunals. The power so to take lands for public uses, results from the right of emi- nent domain, which is only restricted by the constitutional provision that just compensation in some form shall be made to the owner. The State may also delegate the power to take land, or to assess the owners of land benefited by improvement, in proportion to the amount of such benefit ; and the justice of the assessment or the propriety of the improvement, is not a matter of judicial inquiry. On these heads, vide People v. Gravel, 36 Barb. 177 ; People v. Mayor of Brooklyn, 4 Corns. 419 ; overruling 6 Barb. 309, and 9 Barb. 535; In re Church St. 49 Barb. 455; People v. Flagg, 46 N. T. 401; and see fully, ante, p. 33 ; ante, Title I ; and Doughty v. Hope, 3 Den. 594 ; 1 Coms. 79 ; Trustees N. V. Epis. School, 31 N. Y. 574 ; Striker v. Kelly, 2 Den. 323; Matter of Van Antwerp, 56 N. Y. 261. A law imposing an assessment without notice or hearing is unconstitu- tional. Stuart v. Palmer, 74 N. Y. 183. Powers granted to one set of officers cannot be delegated to another. Merritt v. Portchester, 29- Hun, 619. An assessment is a tax. Astor v. Mayor, 62 N. Y. 580. Reduction of damages by amount of assessment on property of the owner for benefit is constitutional. Genet v. Brooklyn, 99 N. Y. 396. 55 866 THE lilEN OF ASSESSMENTS. [CH. XIiVI. The legislature may fix the area of assessment and apportion the burden, and its action is final. Spencer v. Merchant, 100 N. T. 585. Various provisions have been enacted by the legisla- ture relative to assessments for improvements applicable to the different cities of the State. They are local in their nature and cannot be here reviewed. Only a revievr of the general principles of the intricate law on the subject, which is applicable, more or less, to different localities, is here attempted. An assessment for a local improvement is not a " taat " within the meaning of a law providing for selling lands for taxes, and the provisions, art. 7, § 13 of the Constitution, as to the passage of the law. Sharp v. Speir, 7 Hill, 76; In re Ford, 6 Lans. 93 ; Sharp v. Johnson, 7 Hill, 99. On being confirmed it becomes a Hen. Gilbert v. Havemeyer, 2 Sand. 506. This is modified in many instances by local statutes. As to city of New Tork, vide infra. It would take preference over prior mortgages. Dale v. McEvers, 2 Cow. 118. It may be laid on premises indirectly benefited but not within the actual limits of the improvement. Stephenson v. Mayor, 3 N. Y. S. C. 133. The legislature may authorize a municipality to assess through its ofQcers the cost of local improvements. Matter of Zborowski, 68 N. T. 88. Assessments, when Void. — An assessment made by a body having no power to make it is a nullity, and not even an apparent lien. Haywood V. City of Bufialo, 14 N. T. 534. If the assessment is not made according to the charter or authority of the corporation or officers making it, it is void. 4 Hill, 76 ; Matter of Heam, 96 N. T. 378. But where assessors have jurisdiction of the person and subject-matter, and parties make no objection, although the assessment is erroneous, it is not void, and it can only be reviewed by writ of error or certiorari. Swift v. City of Poughkeepsie, 37 N. Y. 511 ; Sandford v. Mayor, 33 Barb. 147. An assessment for a local improvement, or any award made without legal notice to the owner of the land, is void. Ireland v. City of Rochester, 51 Barb. 414 ; Jordan v. Hyatt, 3 Barb. 275. Any law imposing an assessment andtakinglands in violation of the Con- stitution of 1846, art. 1, § 7, is void; that section providing, that " when pri- vate property is taken for public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. House v. Rochester, 15 Barb. 517; Rochester Water Works v. Wood, 60 Barb. 137. But see In re Commissioners of Cen- tral Park, 51 Barb. 377. An assessment is void also if not assessed against the owner or occupant, when required by the law. Chapman v. City of Brooklyn, 40 N. Y. 372 ; Newall V. Wheeler, 48 N. Y. 486; Piatt v. Stewart, 8 Barb. 493. Or if application not signed by a majority of persons designated by any law, or if assessment not made distinctly and severally against each owner and his land ; or the lands are not sufficiently described ; or the specified notice is not given ; or the collector's affidavit made, if the law so require. Sharp V. Johnson, 4 Hill, 93. Or if not certified by the assessors if so required. Piatt v. Stewart, 8 Barb. 493. TIT. IV.] THE LIEN OF ASSESSMENTS. 867 Or if illegal expenses are added in. People v. Yonkers, 39 Barb. 266. Or where notice is not published in certain newspapers to be designated SB provided. Jn re Douglass, 13 Abb. N. S. 161 ; s. c. 46 N. Y. 43. See as to when such direction is mandatory only in certain cases, Jn re N. Y. P. Epis. School, 47 N. Y. 556. Or where notice of presentation of a report of commissioners is not made if required by the law. In re Ford, 6 Lans. 98 ; McLaren v. Pennington, 1 Pai. 102. Or where there has been no demand of the assessment if so provided by law. Striker v. Kelly, 2 Den. 333 ; Bennet v. Mayor, 1 Sand. 485. Or if publication of notice of redemption is not duly made. 76. Or the affidavit of collector (if required) is not made. II. Sanders V. Leavey, 38 Barb. 70; Doughty v. Hope, 3 Den. 594 ; affl'd, 1 Coms. 79. And all the assessors must act or it is void. Doughty v. Hope, i5. But see In re Church St. 49 Barb. 455, as to this, and ante, p. 337 ; also In re Pal- mer, 1 Abb. N. S. 30. A ratification of a void assessment by a common council does not make it valid. Doughty V. Hope, 3 Den. 594; affl'd, 1 Coms. 79. Where there is authority to sell a lot, an undivided half may not be sold. Jordan v. Hyatt, 3 Barb. 275. The legislature cannot by subsequent law legalize an invalid sale for assess- ment. Hopkins v. Mason, 61 Barb. 469 ; Sharp v. Speir, 4 Hill, 76 ; affl'd, 10 N. Y. 328. See also, 4 Hill, 92. The commissioners are confined to the land which the notice describes as required for the improvement. In re Commissioners of Central Park, 51 Barb. 277, and the whole extent of the land required must be therein stated. n. Any provision by which more land is taken for a street than is necessary therefor would be unconstitutional and void, unless by assent of the owner, direct or implied, e. g., as by his accepting the award made. In re Albany St. 11 Wend. 149; Embury v. Conner, 3 Coms. 511. After a report on a street opening is confirmed, the commissioners are funeti offieiis, and it cannot be altered or sent back for correction. In re Cen- tral Park, 60 Barb. 132. The objection that more than one lot of a person is included in one assess- ment is not a valid ground for vacating, nor that expenses are charged on all lots assessed, but the assessment of each lot per foot. In re Anderson, 60 Barb. 375. Nor that the assessors have not fairly distributed the expenses, unless there is palpable evidence of fraud or misconduct. Lyon v. City of Brook- lyn, 28 Barb. 609. An assessment for a sewer through private property is invalid. Matter of Ehinelander, 68 N. Y. 105. An assessment cannot include cost of changing gas-pipes. Matter of Deering, 93 N. Y. 361. Paving and Regulating Streets. — Assessments may be made before the work is done or afterwards. 25 Wend. 696 ; Doughty v. Hope, 3 Den, 249 ; affirmed, 3 Coms. 511; 5 Barb. 49; 4 Sand. 109; 8 Barb. 95; 4 Seld. 120; 2 Sand. 341 ; 8 N. Y. 120; I Abb. N. S. 449; 31 How. Pr. 16 ; In re Lewis, 51 Barb. 83 ; Howell v. City of Buffalo, 37 N. Y. 267. City of New York. — As to acts for collection of taxes and assessments and water rates, and as to the review thereof, and the opening of streets vide Laws of 1853, eh. 579; 1857, ch. 677; 1859, ch. 302; 1861, ch. 308; 1862' ch. 483; 1869, ch. 920; 1870, ch. 366 ; 1870, ch. 383; 1871, ch. 381 ; 1871, ch! 573. These acts were for the most part repealed by Laws of 1881, ch. 537. For the law now in force, vide Laws of 1882, ch. 410, and also infra, this title. By Law of April 8, 1871, ch. 381, taxes and assessments therein, and Croton water rents, and the interest and charges laid or theretofore laid, were 868 THE LIEN OF ASSESSMENTS. [CH. XLVI. to be a lien on the real estate assessed superior to all other charges. No assessment was to be deemed confirmed so as to be a lien until the title thereof and date of confirmation was entered, with the date of entry, in a record to be kept in the office of the clerk of arrears. Provision was also made as to notice and collection of taxes, and the sale of lands ; and other laws on the subject were repealed. These matters are now regulated by the "Consolidation Act" (Laws of 1882, ch. 410), § 915 as to the liens, and §§ 926 to 954, inclusive, as to sales. The provisions as to the lien are similar to those of the Act of 1871. In Dowdney v. Mayor, &c., 54 N. T. 186, it was held that entry of an assessment is necessary to make it a lien within a covenant against incum- brances. But this case was distinguished in DePeyster v. Murphy, 66 N. T. 622, holding covfirmation sufficient. As to proof of confirmation and expiration of the lien, vide Fisher v. Mayor, 67 N. T. 77. Confirmation is necessary to create a lien. If the amount of an assess- ment be retained by a vendee and the assessment be vacated he must pay it to the vendor though another valid assessment for the same improvement be laid and confirmed. Lounsbury v. Potter, 37 Super. 57. Review and Remedies of Parties Unlawfully Assessed. —Erroneous or illegal assessraents may be reviewed on certiorari by the Supreme Court. Suits in equity will only be allowed in certain cases (for which see cmte^ p. 857). Such actions would lie only to prevent a multi- plicity of suits, or where the assessment is an apparent valid lien, and cloud on the title, and the invalidity does not appear upon the face of the proceedings, so that extrinsic evidence is necessary to show its invalidity. And an injunction will be allowed, where such an assess- ment is void, to prevent its collection. But, as a general rule, courts of equity will not interfere where there has been an error of judgment, but they may where there has been unfairness or impartiality. Heywood v. City of Buffalo, 14 N. Y. 544; Woodruff v. Fisher, 17 Barb. 224 ; Wiggin v. Mayor, 9 Pai. 16 ; Whitney v. Mayor, 1 Pai. 848 ; Scott v. Onderdonk, 14 N. Y. 9; Ireland v. City of Rochester, 51 Barb. 414; Allen v. City of Buffalo, 39 N. Y. 386 ; Hatch v. City of Buffalo, 38 N. Y. 276 ; Til- den V. Mayor, 56 Barb. 340 ; Longley v. Hudson, 4 N. Y. S. C. 358 ; Marsh v. Brooklyn, 59 N. Y. 280 ; Guest v. Brooklyn, 69 N. Y. 506 ; Boyle v. Brooklyn, 71 N. Y. 2; Clark v. Dunkirk, 12 Hun, 181 ; Knapp v. Brooklyn, 97 N. Y. 520. The procedure on certiorari is fiilly regulated by Laws of 1880, ch. 269 ; amended by Laws of 1887, ch. 342. Vide People v. Colman, 41 Hun, 807; People V. Jones, 43 Hun, 131 ; People v. Hicks, 105 N. Y. 198. Proceedings to vacate an assessment are abated by the death of the petitioner. Matter of Palmer, 43 Hun, 572. The burden of proof as to improper items is on the petitioner. Matter of Johnson, 103 N. Y. 260. TIT. IV.J THE LIEN OF ASSESSMENTS. 869 A grantee ■who takes subject to a future assessment is not estopped to con- test it. Matter of Perrine, 19 Abb. N. C. 117. Laches may defeat any application. Matter of Woolsey, 95 N. Y. 135 ; Matter of Flushing Ave. 101 N. Y. 678. In Mann v. City of Utica (44 How. Pr. 334), it is held that an action will lie to restrain a sale under an illegal assessment, but that a subsequent act is valid making the assessment a legal one; and in People v. Brooklyn (14 Abb. iT. 8. 115), that proceedings will not be vacated on certiorari for an irregular- ity which does not go to the entire assessment. A suit in equity and injunction will lie where only a nominal sum has been awarded. Baldwin v. City of Buffalo, 29 Barb. 396. Money wrongfully paid may be recovered back. Chapman v. City of Brooklyn, 40 N. Y. 373 ; Bennet v. Mayor, 1 Sand. 485 ; Purssell v. Mayor, 85 N. Y. 330 ; Strusburgh v. Mayor, 87 N. Y. 452. Even before vacation of a void assessment. Bruecher v. Portchester, 101 N. Y. 240. But a merely irregula/r assessment must be vacated before action brought, though a void assessment need not be. Vruecher v. Village of Portchester, 17 Abb. N. C. 361 ; Jex v. The Mayor, 103 N. Y. 686. The right of action accrues on a void assessment when the money is paid. Parsons v. Rochester, 43 Hun, 358. Continued ownership in the plaintiff is not essential. Schultz v. Mayor, 103 N. Y. 307. An action to cancel and annul a certificate of sale upon a void assessment is maintainable, when the defect does not appear upon the face of the pro- ceedings. Newell V. Wheeler, 48 N. Y. 486. As to when property-owners would be estopped, even if the assessment •were invalid, by adopting the improvements, vide People v. Curtis, 45 How. Pr. 289. Payment pending proceedings is no bar. Matter of Mehrbach, 97 N. Y. 601 ; Purssell v. Mayor, 85 N. Y. 330. Voluntary payment before proceedings is a bar pro tanto. Matter of Hughes, 93 N. Y. 513. But payment under a threat of sale is not voluntary. Vruecher v. Vil- lage of Portchester, 17 Abb. N. C. 361. Nor is payment under protest to carry out a contract of sale. Vaughn v. Village of Portchester, 43 Hun, 437. Nor is payment under judgment in foreclosure. Brehm v. The Mayor, 104 N. Y. 186. Proceedings of assessors cannot be reviewed as to the merits of the pro- ceedings. Patterson v. Mayor, 1 Pai. 114. The confirmation is a judgment and conclusive as such. Dolan v. Mayor, 62 N. Y. 473; Methodist, &c. Church v. Mayor, &c. 55 How. Pr. 57; and see ■supra, Tit. II, p. 855. But not as to constitutionality of the act, for that question is not before the officers. Matter of Dept. Pub. Parks, 85 N. Y. 459. The validity of certificates under assessment sales may be determined imder proceedings to determine claims to real property. Ante, p. 817 ; Burn- ham V. Onderdonk, 41 N. Y. 435. By Law of April 11, 1843, ch. 154, feigned issues might be awarded to test the validity of assessments ordered to be paid by order of Court of Chancery out of lands directed to be sold. Amended by Law of 1855, ch. 337, as supra, p. 341. An assessment will be vacated for including illegal interest, though a very small sum. Matter of Willis, 30 Hun, 13. Regularity of proceedings to open a street cannot be questioned on an assessment for improving the street. Merritt v. Portchester, 29 Hun, 619. Acceptance of an award waives irregularities. Tingue v. Portchester, 101 N. Y. 294. 870 THE LIEN OP ASSESSMENTS. [CH. XLVI. City of New York.— By Law of 1858, April 17, ch. 338, assessments for local improvements might be vacated for fraud or legal irregularity on appli- cation to a judge of the Supreme Court, who might vacate the assessment, and it was to be canceled. The land might be re-assessed at the expense of the city. By Laws of 1874, ch. 313, " substantial error " is substituted for "legal irregularity." One who takes subject to assessments may apply under this act. Matter of Gantz, 85 N. Y. 536. Laches in moving may defeat the motion. Matter of Woolsey, 95 N. T. 135. An assessment declared void at the suit of one owner is not a cloud on the title of another. Chase v. Chase, 95 N. T. 373. The Act of 1858, is repealed by Laws of 1880, ch. 550, as to future assess- ments. Matter of Smith, 99 N. T. 424. The remedy provided by the amendment of 1874, was exclusive. Rae v. Mayor, 39 Super. 193. By Law of 1868, ch. 193, the judge might enforce the cancellation by at- tachment. The order was to be entered in the oflice of the clerk of the Su- preme Court, and a certified copy filed with the ofiH.cer having charge of the assessment lists. As to the construction of this section, vide 19 How. Pr, 317, 518; 17 Abb. 321. The order only affects lands described in the proceedings. Matter of De- lancey, 52 N. Y. 80. The Act of 1868 being amendatory of the Act of 1858, is to be consid- ered repealed by the Act of 1880. Vide supra. There must have been actual fraud. 13 Abb. 118; 28 How. Pr. 118. See act to prevent fraud, &c., Law of 1863, ch. 483, as to street openings in said city. Inquiry as to whether the work was well or ill done cannot be made under these acts. In re Lewis, 51 Barb. 82. As to what is an "irregularity" within the meaning of the above statute of 1858, ch. 388, vide In re McCormack, 60 Barb. 128; In re Dunning, ih. 377; In re Lewis, 51 Barb. 82. By Law of 1870, ch. 383, § 37, on assessments for local improvements in New York city, if there was fraud or irregularity, the assessment might be vacated or modified, but not vacated for proceedings to collect the same by sale, but the sale might be set aside. Matter of Smith, 53 N. Y. 526 ; Matter of Pelton, 85 N. Y. 651 ; Matter of Upson, 89 N. Y. 67 ; Matter of Trustees, &c. 93 N. Y. 116. The Law of April 14, 1859, ch. 802, repealing Act of April 16, 1857, authorized the review and collection of assessments by eertiorari in said city. As to objections to an assessment, and their presentation to the board of revision in the city of New York, vide In re Dunning, 60 Barb. 377 ; Matter of Folsom, 2 N. Y. 8. C. 55; affl'd, 56 N. Y. 50; Matter of Astor, *. 488; afB'd, 56 N. Y. 625; Matter of Lowden, 89 N. Y. 548; see also L. 1880, c. 550, as affecting prior acts and remedies. Regulating Streets, etc. — Laws of 1872, ch. 580, amended by Laws of 1874, ch. 313 ; interpreted in Matter of Delancey, 52 N. Y. 80 ; vide also Lcnnon v. Mayor, 55 N. Y. 361; Eno v. Mayor, 68 N. Y. 215; Matter of Welsh, 30 Hun, 372. Suits to Vacate Assessments in New York City Prohibited. — By Laws of 1882, ch. 410 (consolidation act), § 897, suits to vacate assessments in the city of New York are prohibited. This applies to all assessments without exception. Mayer v. Mayor, 101 N.Y.384. ^ ' ' TIT. IV.] MISCELLANEOUS 871 Title V. Misgellaneotts. Taxes paid by Tenants or Occupants. — By Be-rised Statutes, part 1, ch. 13, title 5, § 4, where the tax on any real estate shall have been collected of any occupant or tenant, and any other person by agreement or other- wise, ought to pay such tax or any part thereof, such occupant, etc., may recover the same by action, or retain it out of rent due or accruing on the land taxed. Certificate, etc., may be Recorded. — ^Every conveyance or certificate exe- cuted by the comptroller on sales of land for taxes, may be recorded in like manner as a deed. lb. § 10. Sales for Taxes for Opening Roads. — All sales and redemption of land for taxes on opening and im/promng roads, shall be conducted in the manner before prescribed (under non-resident sales). § 11. Insolvent Discharges. — Insohent Discharges do not affect taxes to the State. Co. Civ. Proc. §§3184 and 3318, following 3 Rev. Stat. p. 39, § 30, 1st ed., which was repealed by Laws of 1880, ch. 345. Apportionment of Taxes where several Persons have Joint Interests in Lands. — See fully as to this, ante, p. 341, and Norsworthy v. Bergh, 16 How. 315 ; Powers v. Barr, 34 Barb. 143. Apportionment between a Dowress and other Owners. — Vide ante, p. 341, and Linden v. Graham, 34 Barb. 316. Any portion of the property may be sold to satisfy a tax on another portion. 34 Barb. 143. As to sales made of lands held by tenants for life and remaindermen, vide 16 How. Pr. 315. The statutes on this subject are held not to apply to cases where the tax has been paid. Ih. Indian Lands. — ^As to sales of same for taxes, vide 33 N. Y. 430, refer- ring to the various statutes. Taxes against Owners of Rents Reserved in Leases for Life over Twenty-one Years.— By Laws of 1846, ch. 337, and 1851, ch. 371, such rents are taxable, and a warrant issued by a county treasurer to a sheriflf to collect a tax against such owners of rents on lands in his county, shall be a lien on and bind therein real and personal estate from the time of actual levy, and the sheriff shall proceed as under an execution under a justice's judg- ment. In case of the warrant being unsatisfied, the property may be seques- tered by the Court of Chancery. The same provisions are made applicable against non-residenta of the United States to whom are owing debts by resi- dent of a county for the purchase of any real estate, and these warrants are a lien on their real estate, and it may be sold as under execution. IT). See Law of 1858, ch. 357, as to mode of assessment. By Law of June 18, 1873, ch. 809, this Law of 1846, ch. 337, was amended. See as to such taxes, Cruger v. Dougherty, 1 Lans. 464; affl'd, 43 N. Y. 107. Certificate of Taxes Due. — These are to be given by the comptroller when required, and the taxes may be paid to the State Treasurer. Laws of 1850, ch. 437. Undivided Interests, etc. — ^Parties may pay tax on undivided interests when the tax is levied in gross, and it shall be a Uen on the residue only. rb. And taxes may be paid for one year and not for others, 1 b., and over- charge deducted. Roads, etc. — Application for county taxation on opening or improving a road, or for any local purpose, must be preceded by six weeks' notice be- fore the session, published in a paper in each county. 1 E. S., 1st ed. p. 155 ; 7 Barb. 431. 872 MISCELLANEOUS. [CH. XLVI. Comptroller's Books Evidence. — Extracts from the comptroller's books certified, are made evidence. Laws of 1849, ch. 180. Surplus Moneys after Tax Sales. — As to actions to recover them, vide 2 K. S. 1st ed. p. 555. Special and Local Provisions. — Special provision has been made by various statutes and charters, applicable to various cities and towns in the State respectively, for which the laws applicable to each locality will have to be consulted. Covenants in Leases to pay Taxes, etc. — ^Under such covenants the lessor may recover amounts of unpaid taxes from the lessee, without first pay- ing the tax. MiUer v. Knox, 48 N. Y. 332. Taxes and Assessments as between Dowress and Keirs.— Vide ( p. 161. Sales of Land under State Bond or Lien. — ^Laws of 1875, ch. 573. Resale and Purchase for the State.— Laws of 1875, ch. 572. CHAPTER XLVII. MECHANICS' LIENS AND OTHER LIENS ON REAL ESTATE. Title I. — Mechanics' Liens. Title II. — Other Liens on Real Estate. Title I. Mechanics' Liens. These liens given by statute on lands and buildings for the better security of mechanics and others erecting buildings or supplying materials, are of comparatively recent creation. Prior to the acts below mentioned different acts now repealed had been passed applicable to the different counties and cities of the State; for the details reference will have to be made to the acts themselves, as also refer- ence to decisions mostly applicable to the county of New York, but which in many cases also applied elsewhere. By the recent general act, Laws of 1885, ch. 342, amended by Laws of 1886, ch. 382, and Laws of 1887, ch. 420, a uniform system including all cities and coun- ties in the State was passed. Provision is made for filing notices of claim, the lien to continue for one year only, unless action be com- menced thereon and notice of pendency of action filed or an order of a court of record continuing the lien be made and docketed. For provisions as to practice and proceedings there- under including the foreclosure of the liens, the above acts should be consulted. Cancellation is provided for by : 1. Filing of a certificate of the claimant or his successor in interest duly acknowledged and proved, stating that the lien is satisfied. 3. By depositing with the coimty clerk before suit, a sum of money equal to the amount claimed, with interest to the time of deposit. 3. By the deposit, after suit begun, with the county clerk, of such sum aS in the judgment of the covurt, after due notice to all the parties, will be sufficient to 874 MBCHAHIOS' LIENS. [CH. XL VII. pay any judgment which may be recovered against the property. Any money deposited in this way, either before or after action brought, is to be repaid to the depositor upon the discharge of the lien or liens by the claimants who filed them. 4. By the lapse of one year from the time of filing the notice of lien, without suit having been begun to enforce it or an order of the court having been made continuing it. 5. By an order of the court cancelling the lien for neglect of the claimant to prosecute. The owner of the property affected, or of any part thereof, or any person against whom the claim is made may, at any time after the filing of the notice, serve a written notice on the claimant, or on any one of several claimants who are united in interest, personally, or by leaving it at his last known place of residence with a person of suitable age with directions to deliver the same, requiring the claimant to begin an action to enforce his claim within a time specified (not less than thirty days), or to show cause at a special term of any court of record in which the action might be brought, or of the county court of the county, at a time specified in the notice, why the lien should not be cancelled. Upon due proof of service of the notice and. that no action has been begun the court may make an order cancelling the lien. 6. By the owner of the prem- ises or person against whom the claim is made executing a bond to the county clerk, in an amount fixed by the court, not less than the sum claimed. There must be two sureties, both freeholders, who must justify in at least double the amount named in the bond. The claimant must have at least five days' notice of justification. Upon approval of the bond by the court or a judge, the court or a judge may make an order cancelling the lien. The failure of a contractor to carry out his contract is no defense against a sub contractor. Wright v. Roberts, 43 Hun, 413. A mechanic's lien does not exist until the notice is filed and only affects such interests as. the owner then has. Hunger v. Curtis, 42 Hun, 465. The following decisions made under the various local acts, above referred to, now superseded, are given here, as they may be of value in connection with proceedings had under those acts, and some of them state principles appli- cable under the present law. For a fuller reference to the various acts see the second edition of this book. City of New York. — As to what the lien attached to under the Law of 1851, vide Hauptman v. CatUn, 20 N. T. 247; Ernst v. Reid, 49 Barb. 867. As to when the lien operated under Law^ of 1851, Carman v. Mclncrow, 3 Ker. 70; under Law of 1844, Loonie v. Hogan, 5 Seld. 435. As to the word " owner" under the Law of 1844, McDermott v. Palmer, 11 Barb. 9; overruled, 9 N. Y. 435 ; reversed, 8 N. T. 483. No lien lies on a public building under a contract with a public oflBcer. Poillon V. M'ayor, 47 N. Y. 666 ; Brinckerhoof v. Board of Education, 37 How. 499; 6 Abb. N. S. 428. No lien can be placed if the owner has parted with his interest before filing. Ernst v. Reid, 49 Barb. 367. Unless the conveyance were made in fraud of the lien. Meehan v. Wil- hams, 36 How. 73. In an action to foreclose the lien under the Law of 1863, ch. 500, the lien must be continued as required, or the action will be dismissed, and the lien cease. Grant v. Vandercook, 57 Barb. 165; O'Donnell v. Rosenberg, 14 Abb. N. S. 59 ; Huxford v. Bogardus, 40 How. 94. See also as to the action to foreclose, Hallahan v. Herbert, 11 Abb. N. S. 336 ; McGraw v. Godfrey, 16 Abb. N. C. 358; and as to the effect of the lien and foreclosure on those having equitable interests, and as to the effect of the lien upon lands under contract, and as to the effect of the Law of 1863 on liens theretofore created. As to cessation of the lien, vide also 19 Abb. Pr. 132; 6 Abb. N. S. 172. As to continuance of the lien under an order showing that the contin- uance must be docketed. Barton v. Herman, 8 Abb. N. S. 399. TIT. I.] mechanics' liens. 875 The person for whom the building was erected, and who contracted to pay, held the owner, 12 Abb. 139. A Uen cannot be created as against a person not having the fee. A pur- chaser is not bound to notice any lien filed against a former owner after hia grantor's deed was recorded. Noyes v. Burton, 17 How. 449; same case, 39 Barb. 631. A lien cannot be acquired under a contract with the equitable owner un- less the legal owner consented thereto. MoGraw T. Godfrey, 6 Abb. Pr. N. S. 358. Effect of the Lien. — A conditional interest is not the subject of a lien. 10 Abb. 179. Sale Without Notice.-^ A sale of land in good faith before the notice of Uen is filed prevents the acquisition of any Uen. 4 E. D. Smith, 731 ; 3 id. 677 ; 1 Daly, 338. Also where a general assignment has been made. 3 E. D. Smith, 594, 616. Apportionment of Lien. — Where a lien is apportioned on different houses, vide 1 Daly, 396 ; 16 Abb. 371. Sub- Contractor and Purchaser. — Adverse rights of sub-contractor and purchaser. 1 Daly, 388. Contractor and Sub-Contractor. — The owner may show that nothing is due the contractor, and defeat a sub-contractor's lien. 1 Daly, 18 ; 38 How. Pr. 143. But not after the notice of lien is filed. Schneider v. Hobein, 41 How. Pr. 383. Subsequent Liens. — A judgment and sale of owner's interest cuts off subsequent liens. 16 Abb. 871. Rights of Purchasers. — Where the contractor has transferred his inter- est, a sub-contractor has no lien against the purchaser, if transfer made be- fore the sub-contract. 1 Daly, 338. A purchaser not having actual knowl- edge of the lien, is not bound by a Uen filed against the grantor of his grantor after the deed giving title to the latter was recorded. 39 Barb. 631. Kings and Queens Counties. — As to the discharge under Act of 1868, vide Mushlitt v. Silvermann, 50 N. Y. 360. Counties of Westchester, Putnam, Dutchess, Rensselaer, Rockland, Chemung, and the Town of Newburgh. — As to Law of 1853, ch. 384, vide Blauvelt v. Woodworth, 31 N. T. 385; also Ombory v. Jones, 19 N. Y. 334. Westchester, Putnam, Oneida, Rockland, Courtland, Orleans, Broome, Xriagara, Livingston, Otsego, Lewis, Orange, and Dutchess.— See as to effect of the amendment of the Act of 1854, by the Act of 1871, on prior liens, Trim v. Willoughby, 44 How. 189. Law of 1854. — As to the effect of the amendment of the Law of 1854, by Law of 1869, as to prior claims. Moore v. Mausert, 5 Lans. 173. As to what interest may be attached under said Law of 1854. Copley v. O'Neil, 1 Lans. 314. As to continuing liability of owner when he has paid his contractor in fuU. Thompson v. Yates, 28 How. 143. The commencement of an action does not extend the lien beyond a year. People V. Hall, 3 Lans. 136. 876 OTHBE LIENS. [OH. XL VI I. Title II. Other Liens on Eeal Estate. The following, among the minor liens on real estate, are to be noted : Notices under Unsafe Building Act as a Lien in the City of New York.— Under an Act of April 19, 1862, ch. 356, amended by Law of 1863, ch. 273, relative to the construction oflruildingg, it was provided that notice of cer- tain penalties for violating the act were to be served, and filed in the county clerk's office in the city of New York, in the same manner and with like efiect as a "Ms pendens ; " and any judgment recovered upon the suit named in the notice so filed was to be a lien upon the property described therein from the time of suchflMng, and might be enforced against said property in every respect, notwithstanding the same might be transferred subsequent to the flUng of said notice. Repealed by Laws of 1881, ch. 537. See also. Law of April 30, 1871, ch. 635, providing that judgments for penalties shall be a lien on the premises from the time of filing notice of lis pendens; repealing Laws of 1866, ch. 873 ; 1867, ch. 939; 1868, ch. 634. This Act was amended by Laws of 1874, ch. 547, Laws of 1881, ch. 434, and Laws of 1881, ch. 687. Tor the present law see Laws of 1883, ch. 410 (Consolidation Act), § 506, amended by Laws of 1885, ch. 456, and 1887, ch. 566, which largely re-cast this part of the Consolidation Act without afiecting this provision. Bonds of Collectors and Receivers of Taxes. — Various laws affecting various localities, and often obscurely created in the tax laws or charters of cities and villages, establish such bonds when filed as liens on real estate in the respective counties. Some of these are below indicated. By the Rev. Stat, also (part 1, ch. 11, tit. 3) bonds of collectors of towns and their sure- ties on being filed are made liens in the counties where filed. Laws of 1838, p. 400 ; 1 K. S. p. 346. Provisions for collector's bonds to extend time for collection of taxes were made by Laws of 1873, ch. 10 and ch. 143; 1873, ch. 5, and 1874, ch. 4. These bonds are to have all the effect of other collector's bonds. City of Rochester.— Law of April 13, 1860, ch. 295; 1869, ch. 233. City of Buffalo.- Law of April 7, 1859, ch. 162. City of Brooklyn. — Law of April 17, 1854, ch. 384. Frequently amended, and finally superseded by Laws of 1873, ch. 863, under which these bonds do not seem to be liens. City of Oswego. — Law of February 27, 1855, ch. 38 ; amended, April 16, 1860, ch. 463, and frequently since that date. City of Foughkeepsie. — Law of March 38, 1854, ch. 90. New York City.— By Laws of 1843, p. 314, ch. 380; 1849, oh. 187; 1851, ch. 148, such receivers and their deputies were to execute bonds with two sureties. They are liens on the real estate of them and their sureties when filed in the office of the comptroller of the city. Prior to said Act of 1843, by Law of 1888, April 14, p. 184, bonds of collectors of taxes in said city were made liens from the time of filing with the county clerk. The office of collector was abolished by the above Law of 1843, taking effect April 1, 1844. By Law of 1873, p. 1171, ch. 767, the Act of 1843 was amended, so that bonds of the receiver and his sureties were to be a lien on all the real estate held jointly or severally by the receiver or his sureties within the county at the time of filing, unless real estate of the value of the bond was speci- fied in it, owned by the sureties or one of them, in which case the lien was to be on the real estate so described, and on all the real estate of the receiver, and on no other, and was to continue until satisfied, but not to exceed ten years from the expiration of the term of office of the receiver, unless an action on the TIT. II.] OTHER MENS. 877 bond were pending. The deputy receiver was also to give bonds with sure- ties. Former bonds were to be deemed no longer a lien unless suit had been brought within ten years as above or was brought within six months after passage of the act. If accounts were settled, certificates might be filed to that effect, and the bonds canceled. The Acts of 1849 and 1851 were re- pealed by Laws of 1881, ch. 537. See also, Laws of 1883, ch. 410 (Consoli- dation Act), § 835, containing the present law, which contains like pro- visions. City of Auburn.— March 21, 1848; amended, April 18, 1859. Albany.— March 33, 1850, ch. 86. City of Syracuse.— March 3, 1857, ch. 63. Westchester County. — Such bonds were also liens upon lands of tax re- ceivers for the towns of Morrisania and West I'arnu, WestcTmter County, when filed with the clerk of said county. Law of 1863, April 31, ch. 393. These towns and ofiices have ceased to exist. Also, those of the receiver of the town of Mast Chester, Law of March 37, 1865, ch. 317; also, for the town of Tonhers, Law of April 21, 1865, ch. 506; amended. Law of 1866, ch. 335; also, for town of Westchester, by Law of Marcti 38, 1868, ch. 73; amended, Law of 1871, ch. 738; also, for town of OreenJywrgh, Law of March 35, 1868, ch. 59. Morrisania. — 1870, ch. 465. This town no longer exists. Rensselaer County. — Law of 1870, ch. 651, as to town of Lansingburgh. Jury Pines. — See ante, p. 770. Tribunals of Conciliation. — Vide ante, p. 770. Liens for Draining Swamp Lands.— Rev. Stat. tit. 16, ch. 8, part 3 ; 1869, ch. 888; 1871, oh. 43, exempting the county of Westchester from the provisions of the Act of 1869; also, 1873, ch. 343. Department of Health in the City of New York. — By Law of May 35, 1867, ch. 956, judgments in favor of this department, if so stated on their face, were to be liens against property on which a nuisance was abated. The lien might be removed by order of a judge of the court on eight days' notice. By Law of 1873, ch. 383, the sanitary department was substituted for the de- partment of health. By § 633 of the Consolidation Act, which now regulates this matter, such judgments are liens as other judgments are ; and by § 633, where the Board of Health, its assignee, or any person acting under its authority, has incurred any expense in executing any of its orders, a notice of lien may be filed as in Mechanics' Lien cases, and is to be indexed with mechanics' liens, which shall be a lien for four years unless sooner enforced or discharged. Unless the owner of the property takes steps to remove the lien within two months after notice filed, the notice becomes conclusive evidence that the amount claimed therein is due. The lien has precedence of all other liens except those of taxes and assessments. The Board of Health may discharge liens created by the Metropolitan Board of Health, or the Department of Health, which succeeded it, as those bodies might do. § 596. Governor's Abatement of a Nuisance. — The expenses of the governor's abatement of a nuisance are to be paid by the county, and are a lien upon the land. They may be recovered by action. Laws of 1883, ch. 308. Filling Vacant Lots in the City of New York. — The expenses of filling up such lots where the owners have neglected to do so after notice by the city, are a lien like an assessment. Consolidation Act, § 880. CHAPTER XLVIII. MEMORANDA FOR SEARCHING FOR CONVEYANCES, INCUM- BRANCES, &c., IN THE VARIOUS OFFICES. Deeds, MoBTOAaES, and other Inbtrttuents. Wills. MoBTfiAQEs TO United States Loan Commissioners. Assignments under United States Bankrupt Act. Notices of Lis Pendens, and Foreclosure Notices. Insolvent Assignments. Orders Appointing Trustees or Absconding, etc.. Debtors. General Assignments. Mutual Insurance Notes. Judgments (County Clerk). Judgments (United States), Orders for Receivers under Supplementary Proceedings. Sheriffs' Certificates. Mechanics' Liens. Forfeited Recognizances. Unsafe Building Notices. Bonds of Receivers and Collectors of Taxes. Taxes and Assessments. Other Local Liens. As has been before seen, the various conveyances through which title to land is made are matters of record in the offices of the respective clerks of counties (or regis- ters, if any) where the land is situated. Every purchaser should require a complete title of record; and is entitled to such a title, and where conveyances are not recorded, or otherwise made matter of notice, a bona fide purchaser or incumbrancer for value, is protected against them. The chain of title having been ascertained by inspection of the record, for a period satisfactory to the examiner, written requisitions for searching the records for any prior oh.xijV1ii.] memoranda for searching, etc. 879 or other conveyances, or for incumbrances, or liens of re- cord that may affect the property, are usually issued to the clerks of the various offices, on the responsibility of whose certified returns the conveyancer is supposed to rely. By this means much of the labor of the examina- tion of titles is saved to the professional man, and dele- gated to experts. The liability of the clerks or experts of the various offices, who may undertake to make searches for liens, in their respective departments, for negligence, that may cause damage to parties employing them, is well established. They are also liable for the acts or omissions of others whom they may delegate to do the work. Vide Morange v. Dix, 44 N. Y. 315; Thorn v. Shiel, 15 Abb. N. S. 581 ; Toung V. Brush, 38 N. Y. 667. But damages cannot be recovered except where there is a substantial in- jury. Kimball v. Connolly, 3 Abb. Ap. Ca. 504. A brief digest drawn from the subject-matter of the antecedent pages showing the periods for which search should be made for the respective instruments or liens, is here given: Searches in Kegistees' Offices (ob in Offices of the CotriirTT Clerk). Deeds, Mortgages, and other Instroments. — These are usually searched for in the register's office of the county in which the land is situated, or in the county clerk's office in counties having no register, for a period of at least forty years back, against parties holding or having held any estate or interest in the land, from the date ot the conveyance to them to the time of record of the conveyance /»•(»» them respectively. Deeds with a Defeasance or Given as Security, should be searched against under mortgages. Ante, p. 574. Harried Women. — As under the Law of this State, even prior to the Laws of 1848-9, married women could pass title without the husband, ante, p. 70, searching in the husband's name alone might not be sufficient, and under the present law it is necessary to search against her (vide p. 76). Powers. — Donees of powers, from the time of the instrument creating them. Ante, p. 338. Where a power is given to executors, the heirs, as well as the deceased, or his executors, should in some cases, be searched against, as the heirs may take subject to the exercise of the power. Vide pp. 264, 365. Powers of Attorney. — The principal, and not the attorney, is searched against. Deceased Person. — Searching to the time of the decease of a person would not be sufficient, as the deed might be recorded subsequent to his decease. The search should be continued against such person and his heirs or devisees as the case may be, down to the record of the deed from the heirs, or devisees or executors, if these last have a power to sell. A search against the deceased 880 MEMOKANDA FOK SEARCHING, ETC. [OH. XL VIII. by name will include a search against his executors, although it would not always include the testamentary trustee, who may act without qualifying as executor. Ante, p. 448. It is safer to search against the executors nominatim, as they might have conveyed as executors, without naming their testator. It will be necessary also to see whether there was a change of the testa- mentary trustee. Trusts. — Those having the legal estate are alone searched against. It will be necessary to see if there was a substituted trustee, so as to continue a search against him. Conveyances by trustees are usually indexed also under the name of the beneficiary, as well as in the name of the trustees. Foreclosure. — When there has been a foreclosure search should be made until filing of notice of pendency of action and complaint. Prior to Laws of 1862, ch. 460, service of summons also was required before the notice became effectual. Assignments of Mortgages. — These are usually noted in the margin of the record of the mortgage by the register or county clerk; but it is not safe to rely on such notation, as the mortgage may be assigned under a general assignment, or other general instrument, which may have been recorded with conveyances, or the notation may have been delayed or omitted. Vide ante, p. 658. Leases. — Those for three years and upwards are to be recorded. Ante, p. 647. Decree. — ^Where title is deduced through a suit or proceeding, it is safer to search for conveyances against the plaintiff after the filing of lis pendens and up to the record of the deed under the decree, as the notice of Us pendens does not, as a rule, include and bind the plaintiff's interest. Mortgages to United States Loan Commissioners. — From January 10, 1837, the date of the passage of the law creating the commissioners. Ante, p. 686. They are also to take the mortgages given under acts of 1792, and 1808, to the Loan Commissioners. Ylde ante, p. 689. The mortgages under the old acts are probably all paid off or otherwise settled. By Law of 1851, ch. 386, their office in the city of New York is to be in the register's office, and in other counties in the court house, the books to be kept at the county clerk's office. Law of 1837, § 41 ; ante, p. 686. It is usual to search by name only, or with a brief memorandum of the property, as well as the name of the party. The searches are certified to by the commissioners. Although their books are deposited by law with the registers or clerks of counties, these functionaries are not allowed access to them, as the books are kept under lock and key, at least in the county of New York. Searches in IT. S- Courts — Assignments under United States Bank- rupt Act.^From June 1, 1867, the date of the taking effect of the Bankrupt Act, to August 31, 1878, when it ceased to have effect. The search should be from that time, for the commencement of bankrupt proceedings against the party, as the assignment relates back to that period. Ante, p. 717. The search is generally made for " petitions, orders, and decrees in bankruptcy," with the clerk of the United States District Courts ; and the search should be in the district where* the bankrupt resides, and also where he carries on his business. The assignment itself is to be recorded with the registry of deeds where the land is situated, within six months after its execution. Ih. Judgments (United States). — These are to be searched for in both the offices of the clerk of the circuit and district courts of the district, against all parties having held the property situated in the dist^rict within ten years back from the time of the search. Vide ante, p. 775, as to the time of search- ing in these courts. These judgments might formerly be liens for other counties than those of the district, if docketed with the county clerks therein CH. XLVIII.] MEMORANDA FOE SBAEOHING, ETC. 881 in any part of the State. Ante, p. 776. Before 1840, they were considered liens in any part of the State, without filing the transcript. lb. Many examiners search beyond ten years, as the land may have been sold under a judgment prior thereto ; and vide ante, p. 776. Real property is sometimes condemned in the Federal Courts for viola- tion of the Internal Revenue Laws. Vide ante, p. 663. These decrees of condemnation are never searched for, but there can be no doubt that they vest all title to the property in the United States, and can only be gotten rid of, after the term at which they were entered, by proceedings for remission. Ante, p. 663. It would be difficult to frame a safe requisition to cover the points, for the property is usually described in the information only by the street number (though sometimes a description by metes and bounds is given), and the street numbers are apt to change. Searches in the County Clerk's Oefioes. In counties where no register's office has been created by law, requisitions as to deeds, mortgages, leases, and the like, as above mentioned, are made to the county clerk of the county where the land in question is situated. Judgments. — Judgments, being a lien as against third parties for only ten years, the search is to be in the different county clerks^ offices where the lands are located, against all or any of those who have held the land within that paet period, down to the time of the record of the conveyance /Voffi them res- pectively. Ante, pp. 765, 767. Extension of Lien. — If the judgment is suspended by injunction or appeal, the time of the lien is extended for the period it is suspended, if a notice to that effect is filed and noted. Ante, p. 771. As to lien of judgment suspended on appeal, vide Co. Civ. Proc. §§ 1356, 1359, also ante, p. 771. In Partition. — Searches for judgments made in partition suits, should be for 20 years, as against the ancestor. Deceased Party. — It is not necessary to search against a party for judg- ments entered after his decease ; for although, under the Rev. Stat, a judg- ment may be entered within a year of a party's death, if he died after verdict, such a judgment would not bind real estate. Ante, p. 776. Judgments against Executors or Administrators. —These are not binding on land of the decedent except when expressly so made by the terms of the judgment, and as to specific real property therein described. Co. Civ. Proc. §§ 1833, 1814; also ante, p. 777. Surrogate's Decrees. — These must be searched for for the same periods as judgments. Ante, p. 769. Trustees. — A personal judgment would not be a lien on the technical legal estate of a trustee, therefore they are not searched against. Notices of Lis Pendens. — Prom April 17, 1833, in the county clerk's office where the land is situated, during the time the party has held the prop- erty. If before the amendment of 1858, the search should be down to the record of the deed resulting from the suit. And even since that amendment, and the amendment of 1863, it is more desirable to search until that period. Where the examination of the title is of an undivided interest only, it is better to search for notices of lis pendens against all the parties in interest, as a notice of lis pendens filed by the party whose interest is under exami- nation in a partition suit in which he is plaintiflf, would not be docketed or noted against him. Notices of Foreclosure by Advertisement.— By Co. Civ. Proc. § 3388, as formerly by Law of April 9, 1857, ch. 308, such notices, which are in the nature of a ^ pendens notice, have to be filed with the county clerk. 56 882 MEMOEANDA FOR SBAKOHING, ETC. [OH. XLVrU. Insolvent Assignments. — These were first filed in about 1755, in the county clerk's office of the place where they were executed. P. 713. Co. Civ. Proc. §§ 2175, 3194 and 2311 provide that they must be recorded as con- veyances, also in the proper office. Appointment of Trustees of Absent, etc., Debtors. — These were to be filed with the county clerk. The appointment vested the trustees with the es- tates of the debtor from the first publication of notice of their appointment. Ante, p. 713. These provisions were embraced in the Law of March 31, 1801, re-enacted in 1813. Vide 1 Eev. Stat. p. 157. They are now repealed. Laws of 1880, ch. 245. There appear to be no orders appointing trustees filed in the county clerk's office in New York county before November 15, 1831. General Assignments. — From April 18, 1860, in the office of the clerk of the county of the residence of the debtor at the date of the assignment. It has been held, however, that these assignments do not operate as notice to purchasers unless recorded among contieyances, in the register's or county clerk's office. Vide ante, p. 653. Mutual Insurance Notes. — Prom March 23, 1836. This is an obscure and generally unknown lien on the building insured, created for the benefit of the Madison Mutual Insurance Company, in favor of deposit notes when filed with a county clerk, and appears to be still in force. Ante, p. 599. Orders for Receivers under Proceedings Supplementary to Execution (County Clerk). — ^Prom April 33, 1862. Against ^1 parties from the time of acquiring down to the conveyance of the land by them. Before May 4, 1868, the search is to be made with the county clerk where the judgment-roll (or a transcript from a justice's judgment) is filed; after that period, with the clerk of the county where the real estate is situated, or where the judgment- debtor resided. Ante, p. 799. Sheriffs' or Marshals' Certificates (County Clerk). — Sherifis' certificates were first filed under the Law of 1820 {ante, p. 789) with the county clerk where the land is situated. They are to be searched for against all parties holding since that period, from the time they respectively acquired thepropr eri/y until at least the time when they parted with it respectively^ It seems de- sirable that the search should be continued for at least a year beyond a con-: veyance/r of lien are filed in the county clerh's office where the land is situated. The earliest lien law was passed April. 30, 1830 (relative to New York city), and . laws were subsequently made for different counties at the times given. Ante, p. 873., Forfeited Recognizances (City of -Now York). — These were filed with OH. XLVin.] MBMOEANDA FOR SBAKOHING, ETC. 883 the county clerk of New York, by Law of May 7, 1844, as judgment liens. In other counties judgments may be obtained on them. Ante, p. 767. Unsafe Building Notices (City of New York).— By Act of April 9, 1863, these became liens on being filed with the county clerk under certain circumstances, as stated. Ante, p. 875. Bonds of Collectors and Receivers of Taxes.— These are to be searched either in the offices of the county clerk, or comptroller, or county treasurer, as indicated in the acts applicable to various localities. Ante, p. 875. Searches for Taxes. Taxes and Assessments, and Water Rates. — These are made liens from the time of their confirmation, unless otherwise provided. Searches are to be made for them with the various local officers or others who have charge of the proper imrecms, and who also search for sales made by reason of the said liens. Taxes on lands of residents of towns are held to be payable from the time the assessor's rolls are made up. Rundell v. Lakey, 40 N. Y. 513. See ante, p. 856. Taxes to the United States have preference as a lien on the estate of a deceased person to all other liens; and other taxes have a preference over all other liens or claims. 3 Rev. Stat. p. 87. Miscellaneous. Wills. — Where a title is passed through a supposed intestacy, wills of real estate should be searched for in the surrogate's office of the county, from the decease of the party having the estate until at least four years there- after ; and a longer period is desirable to avoid contingencies of infancy, mar- riage, insanity, etc. Vide ante, p. 433 ; Co. Civ. Proc. § 3638. Liens in favor of Department of Keailth.—Ante, p. 876; Laws of 1883, ch. 410, §§ 636, 596. These are indexed with mechanics' liens and continue for four years. Jury Fines as lAieus—Ante, p. 770. INDEX. The whole title in which a subject sought, is found, should be looked over, as details are often so interwoven that a reference to a single page in many cases will not entirely exhaust the subject. ABAJSTDONMENT, of an easement, what is, 746. by what acts done, 746. of way, by parol, 748. mere non-user, is not, 746, 751. act must be done with intent to abandon, 746, 751. may be by an executed license, 746. by alteration of dominant estate, 746. of highways, 753, 754. of parks, 753. ABORIGINAL TITLE, to lands in America, 2. ABSENT, concealed, absconding, etc., debtors, trustees for, 713. what the trustees took, 718. ABSTRACT OP TITLE, who to hold, on mortgage loans, 598. ACADEMIES, trustees of, 309. ACCEPTANCE, of deed, essential to its validity, 545. when presumed by law, 545. of rent, as a waiver of forfeiture, 189. ACCOUNT, for what, mortgagee is to render, 580. by executor or administrator, 457. by executor for proceeds of land sold under power, 455. by guardian, 457, 638. by trustee, 309, 457. by general assignee, 716. ACCRETION AND ALLUVION, what is, 821. belongs to the owner of the land to which it is added, 821. who entitled to islands formed in the sea and rivers, 517, 832. gained by gradual receding of the sea, belongs to what adjoins, 823. ACCUMULATION, direction for, 333-336, 363. what valid, 333. instances of valid and void, 234. of personal property, 334. when may be taken for certain purposes, 235. effect of, as to posthumous children, 336. ACKNOWLEDGMENT AND PROOF OF INSTRUMENTS, 638-645. why necessary, 638. necessary to discharge of judgment, 773. knowledge of the party, 639. form of acknowledgment, 639. by married women, under early laws, 70-73. in the State, 639. substantial compliance, 640. not necessary by, under acts of 1848, &c., 640. when out of the State, 640. of powers of attorney, 640. 886 INDEX. ACKNOWLEDGMENT AND PROOF OP INSTRUMENTS— c07i(mtt«(Z. proof of execution of instrumentB, how made, 640. certificates to be indorsed, 641. certificates, what to contain, 641. instruments acknowledged to be recorded, 643. certificates for different counties, 642. certificate of Secretary of State, 642. of county clerk, 642. re-acknowledgment, 642. the term real estate, as to, 642. , defective acknowledgment, 643. ancient deeds, acknowledgment not necessary, 642. before what ofiicers to be made, 643. when taken within the State, 643. when taken out the State, 643. commissioners of deeds, 643. justices of the peace, 643. jurisdiction of officer, 648. notaries public, 643-5. when taken out of the United States, 644. persons in military service. 645. notaries in N. T. and Kings counties, 645. acknowledgments by corporations, 604. relationship of party to officer, 645. oaths and affirmations in foreign countries, 645. ACQUIESCENCE of owner requisite to create an easement, 745. ACTIONS, by or against executors, 456. by or against lunatics and incompetents, 637. on judgments, when to be brought, 779. notice of pendency of. See Lis Pendens. limitation of See Limitations, Statute op. ACTS, certain, how passed to be valid, 19. for private or local purposes, 19. regulating use of property, 39. divesting titles in remainder, &c., 343. as to sale of trust property, 304-305. ADEMPTION, by father to heir, 418. ADMEASUREMENT of dower. See Dowkr. of lines in deed, 512-514. ADMINISTRATORS. See Exbcittoes. ADULTERY of wife does not per se bar dower, 156. of husband, 156. ADVANCEMENTS, certain estates to be, 366. effect on descent, &c., 381. powers as, 334. ADVANCES, future, mortgage to secure, 568, 778. when preferred to judgments, 778. judgment for, 779. ADVERSE POSSESSION, 726-732. See, also. Limitations, Statute of. when it may be had, 725-727, 745. corporations may have, 726, 727. the State may have, 726. what sufficient to gain prescription, 728. may be acquired as to what, 729, 731. none can be acquired by stretching electric wires or cables over land, 724. must be with the knowledge of the land-owner, 729, 745. without permission of owner, 728. INDEX. 887 ADVERSE POSSESSION— wn«mM«(Z. legal presumption against, 736, 739. of easement must be with acquiescence of owner, 745. act of, does not afifect reversioner, 726. requisites of, under a grant, 727-739. requisites of, under unwritten claim, 729-733. as to water lots and wharf property, 731. as to easements, 733. as to rights accruing before the Revised Statutes, 735. tenant, when estopped to set up, against lessor, 210, 729. mortgagor cannot have, against mortgagee, 580, 582, 665, 737. nor licensee against licensor, 781. nor one tenant in common against another, 317, 731. nor tenant of particular estate against remainderman, 736. invalid assessment lease or tax sale will not support, 737, 738. formerly a bar to partition, 694. of water lots, 731. of water courses, 729, 833, 835. against the State, 17. how far aliens may have, 726. grants by State, when lands held under, 18. alien may hold by, 83, 736. mortgages made of lands held adversely, 596. deeds made of lands held adversely, 547, 739. statute as to such deeds does not apply to the State, 548, 729. possession by Indians not adverse to patentee, 547, 729. AGREEMENTS, as to building, 763. as to party walls. See Party Walls. to devise, 418. unrecorded, of mortgagee, when they do not bind assignee, 585. AGRICULTURAL LAND, leases of, 109, 179. AIR AND LIGHT, easement of, 763. how far there may be such, 763. ALIENS, colonial acts as to, 6. treaties as to, 8, 9, 84. rules of common law as to, 81. adverse possession by, 83. statutes of this State as to, 84-95. devises to, 86, 393. leases by, 90, 180. as to joint estate, alien husband or wife, 83. remainders owned by, 83. private statutes as to, 83. women, powers by, 347. conveyances and wills by, 84-95. descent of and from, 84-95. alienism of ancestor, 85, 93, 94. how affecting descent, 381. declaration of intention by, 86-89. trusts for, 91, 95. dower of, 83, 92, 164. widows of, 91. descendants of wives of, 93. alien laws in States, legal effect of, 83. mortgages to and by, 81, 87, 95, 596. purchases by, 87. heirs of resident, 89. devisees or grantees of, 89. 888 INDEX. ALIENS — continued. confirmation acts, 90, 93, 94. as executors, &c., 91, 439. alien wives, 91, 92. how far may set up the statute of limitations in real actions, 726. See, also. Citizen, Citizenship. ALIENATION, restraints on illegal, 105, 121, 132. in the State, changes of law as to, 133, 502. right of, incident to a fee, 503. when contract of sale amounts to, in its effect on insurance, 479. by tenant at will determines the estate, 196. by holder of the freehold formerly, under rule in Shelley's Case, 219. mode of, regulated by law of the place of the land, 96. suspension of power of, 322-233. suspension of power of, in trusts, 263, 270. none by annuity or charge, 328, 276. at common law, 322. for how long allowed, 223. to -what statute applies, 224. character of the limitation, 234. the lives in being, 225. the lives need not be those of the beneficiaries, 325. no absolute term in lieu of lives good, 235. remainder need not be to one in being, 336. limitation upon minorities, 226. postponement of enjoyment immaterial, 337. only the lives which suspend the power considered, 328. distributive interests, 229. courts lean to holding gift to several to be in severalty, 239. effect of power to exchange or re-invest, 330. effect of power to lease or sell, 280. successive life estates, 230. successive life estates in trust, 331. valid and invalid creation of future estates, 380. limitations in the alternative, 333. suspension of ownership of personalty, 333. corporations, 282. ALLODIAL ESTATE, substitution for feudal tenure, 106-110. lands allodial, 12. ALLUVION AND ACCKETION, rights by, 516, 821. ALTEEATION in deeds, eflect of, and by whom to be explained, 546. by filling in blanks in mortgage, 597. AMBIGUITY, latent, explained by parol, 512. ANCIENT DEEDS, when they prove themselves, 643. ANDROS, Governor, his proclamation, 8, 34. ANNUITY, 261. till when mortgage to secure, cannot be discharged, 586. does not suspend power of alienation, 228, 276. ANTENATI, rights of, 10. ANTE NUPTIAL AGREEMENTS, 153. ANTICIPATION, restraint of, 275. APPEAL, effect of on duration of judgment lien, 771. suspension of lien of judgment on, 771. Federal courts cannot suspend lien of judgment on, 776. APPENDANT AND APPURTENANT powers, what are, 324. powers, abolished by Revised Statutes, 325. rights of common, 756. APPOINTMENT under a power, 339-847. INBEX. 889 APPORTIONMENT of charges on land in dower, 161. between life-tenant and remainderman, 143. of taxes, where there are future estates, 241. where several have a joint interest, 871. between a dowress and other owners, 871. of rent, diiference between charge and service, 137. between tenant and reversioner, 137, 148, 304, 361. reserved on leases in fee, 137. rent not apportionable by time, except by statute, 187, 143, 204, 861. when made upon a partial eviction, 186, 187. of mortgages on sale for taxes, 599. APPURTENANCES. See Dbbds, Leases, &c. APPURTENANT. See also Appendant and Appuetbnant. easements pass with principal estate, 746. rights of common, 756. AQUEDUCT, right of, how acquired and used, 764. ASSENT to a delivery necessary to make a deed valid, 545. when presumed, 545. effect of record as creating a presumption of, 536. ASSESSMENT of taxes. See Taxes. ASSESSMENTS, the lien of and sales of land therefor, 865-870. powers in the State and others as to, 865. what, and when liens, 866. when void in various instances, 866. for paving and regulating streets, 867. in the city of New York, 867. review and remedy of parties aggrieved, 868. review in the city of New York, 870. when recoverable after payment, 859. taxes and, as between dowress and heirs, 161. invalid assessment lease will not support adverse possession, 727, 738. as to leases, 208. covenant to pay, in leases, liability of assignee on, 1 84. on land under contract, 499. ASSETS, what savor of the realty, 443. ixpon surrogate's sales, distribution of, 468. insufficiency of, a ground for sale by order of surrogate, 461. ASSIGNEE of mortgage, has its power of sale, 584. takes, subject to all equities, 583-585. when not bound by unrecorded agreement of mortgagee, 585. can only enforce it for amount due, 583. of a recorded second mortgage preferred to holder of a prior unre- corded one, 652. may redeem if not made party to foreclosure of first mortgage, 653. of lessor or lessee, bound like assignor, 183, 18i. when he may sue on covenants, 1 84. what bound to take notice of, 183. under a lease in fee, rights of, 134-139. of a mortgage is a purchaser and bound by notice of lis pendens, 584. when not bound unless named, 184, 530-533. for what liable, by privity of estate, 183, 530-532. when he should give notice of the assignment, 185, 583-585. of mortgage made by vendor, how affected by after conveyance to vendee, 650. of insolvent debtor, his rights as to leases, 172. how far liable for rent, 173. has the benefit of covenants, 134, 183. 890 INDEX. A&SlGr^EK— continued. of tenant at will, a tort feasor, 198. of land charged with rent, liable only while holding it, 183. ASSIGrNEB, GENERAL. See "Insolvent Assignments." ASSIGNMENT of mortgage, 583. infant cannot make, 584. warranty implied in, 584. by trustee, 384, 585. of a mortgage passes the power of sale, 578. of the debt secured by a mortgage, when it passes the estate, 584. to grantor enables him to enforce it against his grantee who has as- sumed, 578. to mortgagor when it effects a merger, 584. of premises, without the debt, effect of, 584. of the mortgage without the bond a nullity, 584. effect of record in giving notice of, 583. discharge of mortgage after record of, 586. rights under, the same however made, 583-585. when payment of a mortgage is, 588. compelling, of prior mortgage to junior mortgagee who pays it, 597. what is, of a mortgage, and what a discharge, 588. to grantor who has warranted, effect of, 590. of a lease, 180-185. of a lease distinguished from subletting, 181. record of, as notice, 651. of reversion, effect of on covenants, 134. of covenants in leases, 184, 183, 183. of rent alone, effect of, 184. covenant not to make, how broken, 181. of powers, 333. of sheriff's certificate, 794. record of assignment as notice, 651. of Dower, see Dower; General, see Insolvent Assignments; Bank- rupt, see Bankrupt Act. ASSUMPTION of mortgage. See Deeds, Mortgages. ATTACHMENT, title under, 803-3. of real estate, how made, 803. proceedings before the Code of Civil Procedure, 803. lis pendens in, 803, 847, 849. execution on, 785, 803. right to attachment ceases with judgment, 803. when barred by unrecorded deed, 646. ATTESTATION of deeds when necessary, and by how many witnesses, 541. of wills, how many witnesses requisite, 405. ATTORNEY of record may discharge judgment, when, 778. any person may execute will for another in his presence as, 403. power of, 351-354. how made, 851. execution of instruments by, 353. discharge of judgments by, 773. revocation of, 353. record of, 353. how far wife can make a deed by, 354. mode of executing deeds by, 353. what form requisite to bind the principal, 353. provisions of Rev. Stats, as to powers do not affect, 334. authority strictly construed, 351. revocation must be recorded, 353. powers of, by married woman, 854. INDEX. 891 ATTORNMENT defined, 180. conveyance by landlord valid without, 180. made under a judgment, avoided by reversal, 180. made to a stranger void unless, etc., 304. A UTRE VIE, estate pur, their character, 140. how regulated by statute, 140. not subject to dower, 148. no remainder on, except in fee, 337. And see Estates for Life. AVOIDANCE of deeds, 545. BANKING- CORPORATIONS. See also Corporations, Moneyed, State, usury by, 594. national, mortgages to, 599. BANKRUPT ACT (U. S.), assignments and transfers under, 717. the assignment, 717. record of, 717. what passes under, 717. sales by assignee, 718. preferences by bankrupts void, 718. assignees under, as parties to foreclosure, 719. as parties in partition, 695. exemptions, 718, possession, 718. title of assignee, 718. sales by bankrupt valid, when, 719. attachment under State law dissolved, 719. nature of the assignment, 719. proceedings by assignee to set aside deeds, 730. discharge, 730. constitutionality of the act, 730. effect of, on general assignment, 716. BARGAIN AND SA.LE, deed of, on what it rests, 555. in what it consists, 555. consideration for, how far money necessary, 555. deed of, now operates as a grant, 556. how far freehold in futuro may be created by, 556. BAWDY-HOUSE, lease for, 210. tenants may be summarily removed, 813. BAYS AND SEAS, jurisdiction of the State over, 833. boundaries by, 517, 833. BENEVOLENT, CHARITABLE, &c., SOCIETIES, 611. devises to, 430. BETTERMENTS. See also Dower. by husband on wife's land, 80. BILLS for private purposes, how to be passed, 19. BIRTH, what sufficient to give curtesy, 164. of a child, efiect of on a will made, 359, 380, 383, 411. BOARD OP HEALTH, judgments for and liens of, in New York, 779. BONA VIDE PURCHASKR. See Purchaser, Fraudxjient Convey- ances, Record. BOND. See Mortgage. BONDS of collectors and receivers of taxes, as liens, 876. of general assignees, prosecuting, 716. BOUNDARIES. See also Deeds. how far parties estopped by long concurrence in, 511. by a stream means the filum aqum, 515. how this is applied, 516, 517. 892 INDEX. B0XJNDAR1ES—C(mtmued. rules as to applying in description of premises, 511-530. monuments generally govern, 513. BOUNTY LANDS, military, escheat of, 723. BREACH. See also Deeds. of covenant of seisin, what is, 533. for further assurance, 536. against incumbrance, what is, 583. for quiet enjoyment, 534. of warranty, what is, 534. to repair, 173, 531. in lease not to sublet, 181. of condition in a lease, how availed of, 188. BRIDGE, franchise of, 20. charter for, when a contract limiting legislative power, 31. BRIDGES AND OBSTRUCTIONS affecting navigation, 33, 832. And see WATBB, liAUD TINDER. BUILDINGS. See also Fixttirbs. what not waste in, 208. agreement as to, 763. removable by tenant, when, 101, 205. when personal and when real estate, 101. improvements added by mortgagor held by the mortgage, 598. on land of another, 101. acts as to, in New York city, 760. act as to unsafe, notices under, 876. BURDEN, imposition of, on land, 764. BURIAL SOCIETIES. See Oorpobationb. BURYING-GROUND, exempt from sale on execution, when, 785. CANCELLING, deed, 546. mechanics' liens, 873, 874. Us pendens, 848, 850, 851. CAPACITY to take, governed by lex rei sitce, 97. of foreign corporations to take lands in New York, 97. to take by devise, 393, 394. to lease, 171. See also Aiibnb, Infahts, Lttnatics, Mabried Women, Corpo- rations. O AYE AT EMPTOR, apphes to leasing houses, 177. when applies to purchaser from executor under power of sale, 453. when applies to purchaser of trust property, 304. CEMETERIES and burial corporations, 617. Taxes on. See Taxes. CEMETERY LOT, devise of, 401. mortgage of, 598. taxes on, 617. CERTIFICATE of sheriff on execution sale, 789. assignments of, 794. on redemption from execution sale, 792. CESSION of territory does not affect private lights, 6. CESTUI QUE TBUST. See Trusts. CHAMPERTY, what is, and effect of, 548. effect on leases, 209. CHANGE OF SOVEREIGNTY, effect of, 6. treaties as to, 7. CHANNELS, artificial. See Watbr-courses. INDEX. 893 CHAEGE, or annuity does not suspend power of alienation, 328, 376. rent, what is, 138. CHARITABLE CORPORATIONS. Bee Corpokationb. CHARITABLE USES, trusts for, 287-303. for religious corporations under law of 1813, 399. doctrine of perpetuities does not apply to, 389. cy pres, doctrine of, how far to apply, 387. CHARTERS, Duke of York's, 8. DoDgan and Montgomerie, 24. of franchise, contracts with the legislature, 30, 31. subject to eminent domain, 43. CHILD, does not as a rule include illegitimates, 418. posthumous, descent to, 380. en ventre sa mere, how far treated as alive, 371. illegitimate, descent to, 880. post testamentary, descent to, 359, 383. effect of birth of, on will of parent, 411, 413. illegimate, devise to, 393. actual birth requisite to give curtesy, 164. now not a word of purchase, but of limitation, 319. CHURCH, devise to, 394. CITIES, trusts created for, 301. CITIZEN AND CITIZENSHIP, colonial acts as to, 6. infants, right of election by, 7, 57. ante nati, right to, 10. treaties as to. with Great Britain, 9. citizens to take and hold lands, 49. right of expatriation, 49, 59, 60. who are citizens, 50. treaties as to, 51-53. naturalization laws, 54-63. as to negroes, 59-61. colonial acts as to, 53. original powers of the States, 53. children of, 55, 58. jurisdiction of State courts, 56. widows and children of aliens, 57. residence required, 57. wife of citizen, 58. alien soldier, o9. seamen, 61. traitors, etc., 63. devises to citizens, 393. See also Indians. CITY OR TOWN LIMITS, change of, 16. And see Taxes. CIVIL LAW, rules of property, under, govern Mohawk and Hudson rivers, 823. CLAIM OF STATE, acts affecting how passed, 19. CLAIMS TO REAL PROPERTY, determination of, 816. who may bring the action, 816. who to be the defendant, 816. does not apply to dower, 816. report or decision, 816. effect of the judgment, 817. ' infant defendants, 818. new trial, 818. CLASS, devise to, 393. 894 INDEX CLOUD ON TITLE, removal of tax lease as, 859. contract for sale though recorded, not, 483. act of 1880, as to removing contracts from record, 483. CODICIL, effect of, upon an existing will, 407. See also Wni,. COLLATERAL, or naked power, what was, 324. abolished by Rev. Stats., 835. COLLECTORS OF TAXES, bonds of, as liens, 876. COLLEGES, trusts for, 301. COLONY, acts of the, as to title and citizenship, 6. grants from the, 13. acts of the, restricting grants, 14. presumption of authority as to governors of, etc., 15. COLONIAL LAWS, effect of in the State, 34. COLONIAL PROPERTY, vested in the State, 11. COMMERCE, rights of United States to regulate, 33. obstruction of, 835, 836, 887. COMMISSIONERS OF DEEDS, acknowledgments before, 643. COMMISSIONERS OP LAND OFFICE, when office created, 843. how composed, 843. powers under various early laws, 843, as to escheated lands, 843. as to Indians, 848. foim of grant, 843. proofs taken, 843. salt lands in Syracuse, 848. mines, 843. Lake George, 843. taxes on lands sold by, 843. as to land under water. See Water, laud tendeb. COMMISSIONERS U. S. LOAN. See Loan Commissionehs. COMMISSIONERS IN PARTITION. See Partition. COMMON, rights of, 756. of piscary, 839. COMMON LAW, force of, in the State, 24. rules of descent by, 369-371, 379. how far they still prevail, 379. COMMON SCHOOLS, trusts for, 303. COMMON, TENANCY IN, 818. nature of, 818. rights of parties, 314. in partnership lands, 317. in lands descended, 380. right of by prescription, 749. possession of one the possession of all, 314. shares in crops, 314. improvements and repairs, 314. waste, 315. accounting for rents, 315. for mesne profits, 315. not liable for use and occupation to each other in general, 315. for trespass except when, 316. acts of one enuring to benefit of both, 316. children and heirs, as tenants in common^ 380. right of each in respect to the estate, 314. may have partition, 693. neither can convey a specific part, 314. possession of one presumed to be of all, 314. INDEX. 895 COMMON, TENANCY IN— continued. one cannot set up title in a stranger against the other, 316. each has a separate freehold, 814. one not liable to the other, in respect to the use of the land, 315. effect of one making improvement on the estate, 314. action by, for injury to possession, joint, 316. action by to recover freehold, may be separate, 316. possession of one not generally adverse to the others, 731. by what acts one may disseize the others, 317. of the rights growing out of a separate occupancy, 731. effect of one buying up an adverse title, 316. his remedy if evicted of his property, 317. liability of one for the acts of others, 316. actions by, how brought, 316. leases by, 171. remedy of one against others, 317. foreclosure of joint mortgage of, 317. ouster of co-tenant, 317. adverse possession as to, 317. tenure of partnership lands, similar to, 317. how far personalty, 318. conveyance of partnership lands by one pattner, 318, 319. marshaling of lands of partnership to pay creditors, 319. one partner cannot in general bind the other by deed, 319. purchases and sales of land by a real estate partnership, 319. dower in partnership lands, when allowed, 320. CONCBALBD DEBTORS. See Absent. CONDITIONAL DEEDS. See Moktqagbs. CONDITION. See also Leases, Deeds, Mortgages. I. Jn Leases, 138, 139, 173. in restraint of alienation good in leases for lives or years, 130. void in leases in fee made since 1776, 130. breach of, excused if in invitum, 130. how availed of, if broken, 138. breach of, does not affect lessee's estate till entry made, 188. when there must be a clause of re-entry to defeat the estate, 131, 189. what acts must be done to avail of, by entry for breach, 180. II. In Mortgages. ' what sufficient to constitute a mortgage, 570. a good one, that the whole shall be due if part is unpaid, 578. how far good to pay enhanced interest, 568. COJiTDITIONAL AND QUALIFIED FEES, 116-123. what they are, and how defined, 116. what are implied, and what by deed, ISO. what words may make a condition, 119. when made so by clause of re-entry, 131. distinction between precedent and subsequent, 117, 118. covenants as conditions, 130; subsequent, strictly construed, 131. effect of, if impossible or unlawful, &c., 119. void, if repugnant to the grant, 131. limiting or restraining conveyance, how far good, 131. such conditions void in leases in fee made since 1776, ISOi- in restraint of marriage, howfai good, 119. if precedent fails,, the estate fails^ 117. when to be performed, if no time fixed, 119. how and when they defeat estates, 118. 896 IKDEX. CONDITIONAL AND QUALIFIED F'EES— continued. determination of the nature of, 119. right to exercise it, not a subject of grant, 138. to be enforced only by entry, 132. who may enforce them, 118, 138. effect of breach, where land granted as one parcel, 118. breach of, where excused, and how waived, 118, 119, 130, 130. in what cases equity relieves against, 131. descend, and may be devised, 365, 395. how they differ from conditional limitations, 133. when performed, estate becomes absolute, 118. so if maker of condition grant the reversion, 118. to enter and hold land for non-payment of rent, good, 138. mortgagee's interests formerly deemed, 579. infants and married women bound as others to perform conditions, 133. See also Grants and Lbasbs in Fee. CONDITIONAL LIMITATIONS, what are, 133, 317. constructions of under the Eevised Statutes, 133, 318. distinguished from remainders, 133. CONDITIONAL SALES, 570. estate of the parties in, 572. CONFIRMATION, deed of, 553. CONFIRMATORY ACT of 1691, as to grants, 15. CONFISCATION of estates, what and where applied, 733. for violation of United States revenue laws, 663. CONGRESS, powers of as to navigation, 33, 883. CONSIDERATION, in deed, what kinds and what sufficient, 507. what requisite in bargain and sale, 555. why expressed in a deed, 508. a deed or gift good without one, 509. what it is, may be shown by parol, 508. if acknowledged rebuts resulting use, 508. such acknowledgment can be contradicted, 508. how far one different from that expressed, may be proved, 509. See also FEATJDtTLENT CONVEYANCES. CONSIDERATION MONEY, mortgages for. See Mortgages. CONSTITUTIONS of 1777, 1779, 11. CONSTITUTIONAL PROVISIONS, 8, 19. as to effect of treaties, 31. as to eminent domain, 80. as to use of streets for railroads, 44. as to escheat, 731. CONSTRUCTION OF DEEDS, object of, to ascertain meaning of parties, 524. the means to attain, with the fruits of the thing granted, pass, 531. all usual and accustomed ways pass with it, 521, 746. what passes by a grant of a mill, mill-site, &c., 531, 834. what, by a right to lay a pipe for water, 531. principal carries accessory, 99, 530. grant of a thing carries all its parts, 99, 509. grant of land carries everything on or under it, 100. what is included in appurtenances, 530. things properly appurtenant pass with the principal, 99. land not appurtenant to land, 531. courts reject repugnant parts of description, 530. if description fails to show the thing granted, deed void, 510. falsa demonstratio non nocet, 510. how far quantity mentioned, is a description only, 514. INDEX. 897 CONSTRUCTION OF DE^DS— continued. in fixing boundaries, lines, &c., give place to monuments, 513. how far parol evidence allowed to explain deeds, 512. competent to show meaning of terms of art, and latent ambiguities, 513. may ascertain monuments, but not control them, 513. a line between two monuments always straight, 514. one parcel may be a boundary for another, 514. streams, ponds, &c., rules as to, when boundaries, 515. rules as to bounding on ponds, 515. rule as to beach as a boundary, 516. of navigable streams and sea, as boundaries, 517, 838. of highways, &c., as boundaries, 518. bounding on a park, 520. reference in a deed to other papers the same as if copied into it, 530. lines on a plan referred to in a deed, taken as a part of it, 530. CONSTRUCTION OF WILLS. See Devises. CONSTRUCTIVE trust. See Tettsts. mortgage. See Mortgages. CONTINGENT, interest in lands, wha,t is, 316. interest in trust, 368. limitation, 116. limitation distinguished from conditional, 132. CONTINGENT REMAINDERS, 316, 317. not liable to sale on execution, 318, 786. when barred by partition, 699. holders of, as parties in partition, 694, 695. what possibility formerly too remote, 317. remoteness no objection now, 317. CONTINUOUS user necessary to create an easement, 744. how far it must be in the same precise form, 748. easements pass with parts of dominant estate, 746. CONTRACTS FOR SALE OF LANDS. I. Sow Made, 473-477. when must be in writing, 473. when need not be in writing, 474. substance of the contract— words, seal, etc., 474, 475. how and by whom subscribed, 475. delivery and acceptance, 476. by a married woman, 75, 76. by an agent, 476. in principal's name, 476. by parol appointment, 476. by partners, 477. by auctioneers, 477. for escheated lands, 733. II. Sffect of the GonPract, 477-484. equitable changes of ownership caused by contract, 478. damage or improvement after contract, 479, 480. repairs, liens, and taxes, 480. possession under a contract, 480. vendor's lien, 481. vendee's lien, 483. warranty of title, 483. how afiFected by acceptance of deed, 483. recording agreement, 483. assignment of the contract, 483. possession of vendee cannot be adverse to vendor, 738. 57 898 INDEX. CONTRACTS FOR SALE OF LANDS— continued. in. Sufficiency of the Deed and Title, 484-488. effect of various clauses and words, 485. title to part defective, 485. various objections to the title enumerated, 485-487. quantity, boundaries, etc., 487. mistake, 488. wbat defects remediable, 500. IV. Tender and Time of Performance, 488-493. when time is of the essence, 489. tender, 490. effect of non-performance by vendor or vendee, 493. implied rescission, 493. mutual rescission, 492. action to rescind, 493. , broker's commissions, when earned, 493. V. Specific Performance, 493-498. when enforced and when not, 493, 494. parol agreement, when enforced, 494. delay. 494, 496. readiness to perform, 495. infants, lunatics, specific performance against, 635. fraud, 495. demand not necessary, 495. when enforced against married woman, 495. title by adverse possession may justify, 737. not decreed after parol rescission, 495. effect of encumbrances, 495. when decreed for part, 496. effect of judgment for vendor, 496. lands without the State, 496. in favor of deceased persons, 496. against heirs of deceased persons, 496, 500. delivery of possession as part performance, 497. who may maintain the action, 497. performance after action brought, 500. damages for nonperformance, 499, 500. effect of part performance, 496. payment, 497. limitation of action to enforce, 497. VI. Miscellaneous, 498-500. interest of purchaser sold by surrogate, 498. descent of, 365. effect of judgment after contract, 498. lien of judgment against vendee, 498. taxes imposed, 499. damages for non-performance, 499. heirs of vendor bound to convey, 496, 500. broker's commissions, 493. effect of mortgage by vendor, 499, 650. effect of grant by vendor, 499. performance after action brought, 500. contracts not fraudulent conveyances, 500. vendor's continued possession notice of his lien, 660. vendee in possession entitled to emblements, 481. liability to sale on execution, 787. dower in lands contracted to be sold, 151. vendee's interest may be mortgaged, 568. INDEX. CONTRIBUTION towards re]pairs, how made, 315. between tenants for life, etc., and reversioner, 143, 143. of the order of making, between purchasers of mortgaged estates, 597. depends upon equities of parties being equal, 597. mortgagee not afifected by questions of, 659. when mortgagor cannot call on purchaser for, 577. by widow of mortgagor, how made, 149. for taxes paid, when and between whom, 778. for payments to redeem from sale for taxes, 861. CONVERSIOTSr, equitable, 363-365. by virtue of a power, 396. by direction to executors to sell, 397. by power of sale to executors, 455. how affects dower, 153. CONVEYAKCES, miscellaneous, 566. transfers to receivers, 566. for money lost at play, 566. for lotteries or games, 566. by absconding, etc., debtors, 566. by guardians ad litem, 566. by special partnership, 566. against the usury laws, 566. before judgment, effect of on lien, 766. revenue stamps on, 661. conveyance defined as to record, 647. leases, 308. See for other Oormeyances, Deeds, FkaudtjI/EKT Convbtancbs. CONVICT. See Imprisonment. COPARCENARY, 311. CORPORATIONS, holding and transfer of land by, 600. general powers as to realty, 600-603. may have adverse possession, 726, 737. rule against perpetuities does not affect, 332. the United States, 601. foreign corporations, 601, 604. judgments against, a lien, 766. unlawful alienations, 603. transfers by, how made, 603. seal, 603. acknowledgment of, 604. delivery, 604. execution by agent, 604. certain transfers void, 603, 604. sub-leases by, void, 180. assignments for the benefit of creditors by, 613, 716. unauthorized purchase or loan, 603, 605. void grant or mortgage, how confirmed, 601, 605. reverter of lands on dissolution, 605. consolidation, 605. change of name, 606. proceedings to obtain receiver, 606. dissolution for insolvency, 606. purchase of franchise and property on foreclosure, 606. lien of judgments against stockholders, 778. amended certificates of, 606. transfers to stockholders, 606. * purchases of corporation property by trustees or agents, 285. dividends, how made, 606. 900 INDEX- CORPORATIONS— bied Women. how executed by, so as to be valid, 505. See also Married Women. of infant. See Infants. by and to lunatics and idiots. See Lunatics, Idiots. by and to aliens. See Aliens. by and to corporations. See Corporations. names of grantors and grantees, how far requisite in deeds, 505. grantor estopped to deny the one used by him, 506. creditor may have benefit of, 778. if wife join, dower barred though not mentioned, 157. to ecclesiastics void under Act of 1855, 431. executed by trustees as individuals good, 385, 506. III. The Consideration, 507-509. must be good or valuable, 507. definitions of, 507, 508. consideration not required in early times, 507. became necessary under Statute of Uses, 507. need not be expressed, 507, 508. consideration not essential under the Revised Statutes, 507. seal evidence of, 508. failure of consideration, 508. may be inquired into as between parties, 509. voluntary conveyance good as between the parties, 509. may be ground for avoidance by creditors, however. See Fraudu- lent Convhtanobs. existing debt not sufficient to prefer deed to prior unrecorded mort- gage, 646. IV. Description, 509-530. See also Construction. sufficiency, 509. actual location, mistake, &c., 511, 513. reference to other deeds, &c., 510. parol evidence, 513, 519. summary of Intention governs, 511. 904 INDEX. DEEDS — continued. monuments and boundaries, 513. courses and distances, 514, 530. quantity, 514. streams, tidewater and arms of the sea, 515-518, 819, 833. streets and highways, 518. parks, 520. maps, 530. appurtenances, 530. use of water as appurtenant to a mill, 834. fixtures, 530. profits d prendre may pass, 531. deed of water does not carry the land under it, 819. V. Estate Conveyed, 535-527. habendum and tenendum clauses, 525, 526. See also ielow. words of inheritance necessary before the Revised Statutes, 525. rule in Shelley's Case, 319, 536. implication of estate conveyed, 536. reddendum clause, &c., 526. what passes under Revised Statutes, 638. deed intended as a mortgage, purchaser from grantee bv, protected, 574. VI. Other Component Parts, tenendum, 525. Premises, effect of discrepancy between grant and habendum, 525. what are suflBcient granting words, 550. " dedi et concessi " a grant, a gift or surrender, 550. " release " may avail by estoppel, though neither party in pos- session, 552. how far courts authorized to reform deeds and correct mistakes, 512. Exceptions in deeds, what and how applied, 533. often used when reservation is meant, 538. what belongs to, as an incident, 533. Habendum, what is, and its effect, 116-139, 525. how far words of grant qualified by, 535. it yields, if repugnant to the grant. 535. Reservation, what it is and how used, 532. must be made to the grantor himself, 523. must be out of the estate granted, 523. is liable to sale on execution, 785. Covenants, 527-539. at common law, 537. under Revised Statutes, 537. no particular words required to make a covenant, 528. divisibility of, 538. by married women, 78. implied covenants, 528. acceptance of covenants by grantee implied, 539. covenants that run with the land, 530-531. not to build within certain distance of street, 763. of seisin, 583. against encumbrances, 533, 633. restrictions, 538, 537. of quiet enjoyment, 533, 634. breach of, by flowing of lands conveyed, under paramount right, 836. of warranty, 533-536. INDEX. 905 DEEDS — continued. not broken by an easement to carry water in pipes over the land, 838. effect of, on assignment of mortgage to grantor, 199, 590. for further assurance, 536. covenants and stipulations by grantee, 536. assumption of mortgage by grantee, 536, 575-578. mutuality and dependence of covenants, 537. covenants as conditions, 130. breach of covenant before assignment, 538. covenants in a void deed, 538. transfer of, 588. descent of, 538. discharge of, 538. Recitals, 538. Conditions (see also CorroiTioNAii Estates), 533. no express words required, 534. implied by law, 130. how construed, 534. determination of the nature of, 119. right of re-entry, 534. as covenants, 584. covenants as, 130. precedent and subsequent, 117, 118, 534. illegal and impossible, 119. VII. Construction, Interpretation, &c., 534. See also Construction of Deeds; also IV. Description, supra. of words "lands " and " real estate," 536. VIII. Execution of. how to be executed, 506. where writing of, need not be complete before delivery, 545, 546. effect of making erasures, &c., 545. who to explain these, 546. how to be noted in executing, 545. when they have no effect on title, if after delivery, 546. how far signing essential to, 540. executor need not sign as such if so described, 443. trustee's deed good, though made as an individual, 385, 506. sealing essential to, 540. not necessary to convey estates less than freehold, 541. calling it a deed without a seal does not make it so, 540. but equity may relieve, 540. what is, and mode of affixing seal or scrolls, 540. seal as evidence of consideration, 508. how deeds by corporations to be made. See Cokporations. execution of by attorney, 505. how fax feme covert can execute by attorney. See Married Women. of witness, when required, and how many, 541. of date of the deed, 539. revenue stamps on, 661. IX. Deliwry and Acceptance, 543-545. possession as evidence of, 543. presumption of, 543. after death, 543. re-delivery, effect of, 543. conditional, 544. in escrow, of no effect until happening of event, 544. acceptance and ratification, 543, 645. as affecting dower, 154. 906 INDEX. DEED S — continued. X. Avoidance, Alteration and Cancellation, 545-547. by erasure, interlining, &c., 545. by breaking or defacing seal, 546. by cancellation, 546. XI. Deeds given under Adverse Possession, 547, 739. cliamperty and maintenance, 548. XII. Different Forms of Conveyance, 549. feoffment, 550. gifts and grants, 550. leases, 551. See also Leases. exchange and partition, 552. releases, 552. confirmation, surrender, assignment and defeasance, 553. conveyances by Statute of Uses, 554-556. 1. covenant to stand seized, 554. 2. bargain and sale, 554. 3. lease and release, 556. fines and recoveries, 557. former law as to, 557. abolished by Revised Statutes, 557. DEFEASANCE. See Mortgages. DELIVERY. See Deed. DEMAND of rent, as to re-entry, 189, 190. necessary to an action of damages for dower, 162. DEMISE, used in creating terms, 551. DEPOSIT, right of, 762. DESCENT. I. In General, and Who Take hy, 355-359. what is meant by, in law, 355. English law of, recognized under Duke of York's charter, 8. is an incident to estates in fee, 112. that and purchase the modes of acquiring title, 355. course of, in estates tail, 114. history of the law of, 368-383. common law rules, 369-372. how far they still prevail, 379. statutory changes, 372-383. the lex rei sitce at death of ancestor, governs, 98. distinction between lineal and collateral, 359. what is meant by stirps or stirpes, 369. civil and common-law modes of computing degrees of kindred, 371. what included under lands, in rules of descent, 860-368. definition of word "living," 381. application of the rule that seisin makes the stirps, 369. sale or devise of remainder creates a new stirps, 369. different rules as to limit of descent to while and half blood, 379. rule as to posthumous children inheriting, 871, 380. rules as to illegitimate children being heirs, 380. rules as to descent to and from aliens. See Aliens. where a child takes his parent's share in the grandfathers estate, 414. heir takes as such, though named as devisee, 383. heirs take subject to debts — marshaling assets, 383, 384. descent by the rule in Shelley's case, 219. descent of right to defeat estate upon condition, 138. descent of rents of land leased in fee, 361. doctrine of advancements in descent, 366. citizens may take, 355. INDEX. 907 D ESCEWi:— continued. to what taxes on land heirs liable, 857. taxes and assessments between heirs and dowress, 161. lunatics, 355. heirs as against residuary devisees, 356. lapsed devises, 356. post-testamentary children, 359, 383, 413. order of descents, under the Rev. Stats., 374. tenants in common, 380. probate of heirship, 356. dower not affected by law of descents, 153, 380. curtesy not affected by law of descents, 153, 380. limitations of estates by will or deed not affected by law of descents, 381. alienism of ancestor, 381. statutory terms construed, 381. II. What Descends, 360-368. fixtures, 360. rent, 361. crops, 361. equity ot redemption, 363. converted property, 363, 363. proceeds of sale of infant's or incompetent's estates by order of court, 364. effect of a power of sale, 365. expectant estates, 365. determinable fees, 365. pews, 365. rights of re-entry, 136, 138, 365. lands in trust, 365, 381. proceeds of insurance, 366. partnership lands, 366. terms for years do not descend, 180, 360, 443. advancements and hotch-pot, 366, 381. land conveyed on gaming contract, 366, 367. of trusts, 303. descent of lands mortgaged, 382, 596. of lands subject to a power, 383. of proceeds of sale of lands of lunatics, etc., 363. of lands charged with legacies, 417. of lands charged with debts, 418. how lost will, if found, cuts off rights of bona fide purchasers from heirs, 383. III. Liability of Lands Descended to pa/y Debts, 383-387. simple contract debts, 384. judgments, 385, 778. alienated before notice of pendency of action filed, 385. liability of devisees, 385. miscellaneous, 386. DESCENT CAST, 383. DESCRIPTION. Bee Deed. DESERTERS, forfeiture of citizenship by, 63. DESTRUCTION, of leased premises, its effect on rent, 174. See also Leases. DETERMINABLE FEE. Bee also Conditional and Qualified Fees. husband's curtesy in. See Ctjbtesy. of wife's dower in. Bee Doweb. descent of, 365. 908 INDEX. DETERMINATION OF CLAIMS TO REAL PROPERTY, provisions of law as to, 816-818. DEVISE OF LANDS. See also Wills. what is a will, 388. early history of, 388. I. Those Capable of Making, 389-393. acts as to, 389. married women, 389, 390. joint tenants, 391. persons of unsound mind, 389, 391. mfants, 389, 391. n. Those Oapahle of Taking ly Devise, 393, 394, 418-432. provisions of statute as to, 393. illegitimate children, 393. aliens, 393. " heirs '' of a person not yet dead, 393. citizens, 393. a class, 393. a government, 394. infants, _/e»ies coverts, etc., 394. to a church, 894. to a witness, 394, 406. to corporations, 418-423. to corporations in trust, 399. void except expressly authorized to take by their charter, 418. right by charter to purchase does not include devise to, 418. when distinguished, 422. under a power or trust for benefit of, 419. gift of proceeds held good, 419, 431. devise in trust for, when and when not void, 387-303, 419, 421, 433. devises to religious societies formed under Act of 1784, 419. to religious societies formed under Act of 1813, 399, 419. to societies and corporations formed under Act of 1860, 420. limited to one half of estate, when, 300, 420. to societies and corporations, when will must have been exe- cuted two months before death, 420. conveyances and devises to ecclesiastics, etc., in general, made void by Act of 1855, 421. devises for prayers, masses, etc., 422. to foreign corporations, 432. to governments, 394. in trust tor religious purposes, 300. III. Nature and Extent of Estate Devised, 395-403. provisions of the Rev. Stats, as to, 395. what may be devised, 395. expectant estates now devisable, 395. definition of " real estate " and " lands," 396. " estate," 396. efilect of the provisions of the Rev. Stats, on interests vested, 396. conversion by virtue of a power, 396. land when considered money, 396. devisor may impress what character he may choose on estate devised, 396, 397. power of sale to executors, when it operates a conversion, 397-399. failure of object for which power granted prevents conversion, 898. election of beneficiary, when may prevent, 398. infants' estates not converted, 364, 398. INDEX. 909 DEVISE OF LAl!iI)S— continued. summary of principles governing, 398, 399. tefore Rev. Stats, word "heirs'' generally necessary to a fee, 399. might be by other words showing intention to grant a fee, 399. now a devise passes a fee unless limited, 400. lands held under a power to devise, included in general devise, 401. devise of lands subject to a mortgage, 401, 596. lien of legacy charged on land, 401. crops carried by devise of a farm, 401. devise of cemetery lots, 401. subsequently-acquired land now passes under will, 403. former law as to, 402, 415. construction of residuary clause with regard to this provision, 403. IV. Execution of Wills. See Wills. V. Bevocation and Cancellation of Wills. See Wills. VI. Lapse of, 357, 413, 414. by failure of title, 413. death or incompetency of devisee during lifetime of testator, 413. lapsed devise passes, when to heir and when to residuary devisee , 413. devise to child subsequently dying passes fo grandchild, 414. Vn. Construction, General Rules of, 414-418. law of domicil and locality, 414. from what time will speaks, 415, 418. provisions of the Rev. Stats, when to take effect, 415. intention of testator as a rule of, 415, 416. inconsistent devises, 416. power of sale to executors inconsistent, when, 445, and see Powbks OP Sale. effect of void provisions on others, 417. See also Trusts. lands charged with legacies, 417. debts, 418. illegitimates do not in general take in devise to " children," 393, 418. term " will " includes " codicil," 418, 433. ademption by father to heir apparent, its effect on uncanceled devise, 418. agieement to devise, 418. may create a fee without word " heirs," 399. to executors to pay debts, effect of, 443, 444. to a class, opening, 393. if to heirs, of the same estate as descends, void, 383. the doctrine of cy pres is not applied here, 291. how far after-acquired property passes by, 402. who may be devisees, 393, 394. to charitable uses, law as to, 287-303. for accumulation, laws as to, 233-336. effect if devise be void ab initio, 356. whether such devises go to residuary devisees, 356, 357. effect of judgments on lands devised, 778. lex loci as to, 96, 359, 367, to sell for benefit of devisees, void, 361. DEVISEE, liability of, for debts of testator, 385. limitation of the action, 470. how affected by execution sale, 784. redemption by, of land sold on execution, 790. as a party in partition, 695. 910 INDEX. DIGGING- clay and soil, when waste, 142. in one's own land, how far lawful in respect to adjacent land, 761. DISABILITY. See Limitations, Statotb of. DISAFFIRMANCE, within what time it must be exercised, 624. infant's remedy on, is ejectment, 625. by widow, of release of dower made when an infant, 625. DISCHARGE OF MORTGAGE, 585. by assignment to grantor who has warranted, 590. by judgment in foreclosure, 589. by merger,- 589. record of satisfaction piece on, 587. is eflFected by any act which discharges the bond, 583. by foreign administrator when there is a domestic one, 587. by one of several trustees, executors or joint owners, 586. forged, estoppel of mortgagee on, 586. improper, effect on priority, 649. after foreclosure judgment, 586. after assignment recorded, 586. of lien by payment or tender, 588. of mortgage to secure a trust, 586. of mortgage to secure performance of a contract, 586. DISCHARGE OF JUDGMENT, by attorney of record, 773. by one party, 773. acknowledgment necessary to, 773. when transcript of to be filed, 773. what effects a, 774. vacation of, 774. DISCLAIMER OF TENANCY, how far lays foundation for bar by limita- tions, 731. of lessor's title by tenant, effect of, 178. is a waiver of notice to quit, 196. how far tenant is estopped to make, 178. how far it works a forfeiture, 178. DISTRESS for rent abolished, 145, 192, 311. DITCH, easement of, 835. See also Watbb Courses. DIVERSION, of trust, 304. DIVERTING WATER, what allowed, 823. to what waters the rule applies, 823. when damages recoverable for, 834. when restoration not allowed after, 835. as to underground waters, 837, 838. DIVISION FENCES, 758-761. DIVORCE a bar to dower. 156. statutes relating to, as such, 156. may bar curtesy, 167. if granted in one State, how far binding in another, 156. DOMICIL, as affecting devises, 414. does not affect capacity of parties to take, 97. DOMINANT ESTATE. See Easements. DONEE. See Powers. DONGAN and Montgomerie Charters, 4, 34. DONOR AND DONEE. See Powers. DOWER, 147-164. I. NMure of the Estate. nature of the estate, 147. what it consists of, 147. relates to real estate alone, 147. of a widow's quarantine, 168. INDEX. 911 DOWER — continued. II. In what Property and Estate, of what widow is dowable, 147. under act of 1860, 150. statute of descents does not aflfect, 153. what seisin of husband requisite, 148. how far husband's estate must be an inheritance, 147. not in a reversion, 148. not in a mortgage, 148. might be had in a rent, 161. in estate of tenant in common, 148. in exchanged lands, 153. in mortgaged lands, 149, 150, 596. purchase-money mortgage superior to, 596. in partnership lands, how far allowed, 148, 320. in equitable estates, 151, 153. in trust estates, 151. in equities of redemption, 149, 150, 598. in hereditaments, 151. in moneys, when, 150, 153. in lands purchased, and not paid for, 151. in lands contracted to be sold, 151. when lands are taken by eminent domain during lifetime of hus- band, 153. in lands subject to liens, 149, 150. in lands purchased at execution sale, 151. in mines, &c., 151. in grass, fruits, crops, &c., 151, 163. in incorporeal hereditaments, 151. equitable conversion as affecting, 152. in a defeasible estate of husband, 148. power of sale as affecting, 148, 153. none in estates per autre vie, 148. none in hydraulic rights, 824. none in joint tenancies, 148. how far the right carries emblements, 163. in lunatic's lands, 637. in. Bequisites of. legal marriage, 147. seisin of husband, 148. what seisin of husband necessary, 148. when union of life estate and reversion gives, 148. how aSected by a possibility between them, 148. effect on, of conveyance before marriage, 147. of mortgage before marriage, 149. instantaneous seisin not sufficient, 148. effect on, of foreclosure of mortgage, 149. death of husband a requisite, 147. IV. Sow Lost or Barred. not barred by agreement to release in articles of separation, 157. in general no act of husband can defeat, 153, 155, 156. beneficial provision when construed not in lieu of, 154. setting aside deed, when it revives dower, 154, 155. deed, when not barring, if obtained under duress, 156. widow' cannot be required to take a gross sum, 154. how forfeited, 156. 912 INDEX. DOWER— continued. how barred by estoppel, 155, 158. by assignment of dower to her, and acceptance, 158. by limitation of time, 158. by defeasance, 155. how partition affects, 158. by what form of release she bars her claim, 157. infant's release of, by order of court, 633. requisites of deeds of release to be effectual, 70, 155, 157. release by infant wife may be disaffirmed within twenty years, 625. how far she can release by attorney, 164. must join with husband to make a good deed, 155, 157. how far barred by husband's deed, 158, 155. when barred by levy of husband's creditors, 155. how far by elopement and adultery, 156. is barred by divorce, if the party in fault, 156. foreign divorce, 156. divorce for adultery bars, 156. husband's adultery does not bar, 156. an infant wife cannot convey so as to bar dower, 157. how far avoiding the husband's deed affects her right to, 154, 155, 157. when defeating husband's seizin bars her right, 155. effect of defeating husband's estate by collateral limitations, 155. how far barred by jointure, 153. how barred by exercise of eminent domain, 36, 153. her right not affected by foreclosure of husband's mortgage, 149. election as to being barred by beneficial provision, 154. rules as to election, 154. V. Proceedings to liecover and Asdgn, 159-163. how regulated by the Code of Civil Procedure, 159. former regulations of, 159. ejectment for, 160, 161. in what cases formerly tenant estopped to deny husband's seisin, 162. what damages allowed for withholding, 162. effect of admeasurement, 160. how and by whom assigned, 159, 160. improvements, rule as to, 161, 162. consent to accept a gross sum, 163. how set out by act of law, 159. parol assignment sufficient, 159. must be by tenant of the freehold, 159, remedy of infant, if collusively made, 163. how set out in mines, 161. what reference had to increased value of estate, 161. action to recover at law, 159. what she contributes to redeem a mortgage, 149. to redeem from taxes and assessments, 161. how far affected by change of value of the premises, 161. VI. Character amd Incidents of. how far bound to contribute towards charges upon, 161, 164. liable for waste upon, 1 64. statutes relating to effect of divorce on dower, 156. effect of legislative acts on dower, 163. as to aliens and their widows, 164. how regulated in surrogate's sales, 164. in sales of infant's estates, 164. INDEX. 913 BOWER— continued. with relation to partition, 164, 698, 704, 705. how affected by judgment in partition, 703. how affected by sale on execution, 705. by sales by order of surrogate, 467, 468. DOWKESS, how to contribute towards incumbrances, 149. taxes and assessments as between, and heirs, 161. right of, to emblements, 163. as a party in partition, 694, 695, 696. when not a necessary party to proceedings before surrogate to sell lands of decedent, 463. DRAIN, right of, 763, 836. And see Wateb-couksbs. DRIP, right of, 763. DRUNKARDS. See Lunatics. DUKE OF YORK'S charter, 3. DURESS, effect of, upon release of dower, 156. DUTCH, occupancy and title, 3. grants from the, 7. form of grants, 7. confirmation, of grants from, 8. BASEMENTS, strictly incorporeal rights, 100. not personal rights, but attached to estates, 746. I, How Oonstituled and Created. one cannot have in his own land, 750. created by deed of grant or prescription, 744. cannot be by parol, 748. cannot be gained by prescription against the public in a navigable stream, 837. may be excepted but not reserved by graittor in favor of a stranger, 533. may be created by implication, 750, 764. creating one in one part of premises by granting another part, 531, 748. what is necessary to produce this, 748, 749. public cannot gain by prescription, 744. not gained by stretching electric wires or cables over land, 734. not gained by user under a license, 733. II. Different Kinds of Easements. nature and incidents of appurtenant easements, 531. how far they pass with the parts of an estate, 748. of prospect, only by express grant or covenant, 763. right of way, 747. temporary, 749. assignment of, 747. limitation, 747. how prescription arises and how lost, 747. obstructions, 749. way by necessity, 749. private roads, 750. extinguishment of right of way, 750. of discharging water from, and of clearing race-way of a mill, 834. of ditch, 835. of drip, 763. of discharging water on to another's land, 763, 763. See also Watbb-cotjeses. of a dam in a navigable river, 834. 58 914 INDEX. E A.SEM:ENTB— continued. of aqueduct, 763, 764. is an incumbrance, but not breach of covenant for warranty or quiet enjoyment, 828. of detaining or using running water, 836, 837. of rights in water, 732. how far there may be, in an artificial flow of, 824. of support of houses knd land, 761, 763. of support of surface, etc., in case of mines, 761. of support of one house by another, 761. vaults under street, 763. deposit on another's land, 763. of light and air, 763. of highways, 7.51-755. transfer of title in highways, 753. presumption as to ownership in highway, 733. abandonment of highway, 758. abandonment of parks, 758. laws relating to highways, 754. turnpikes and toll-bridges, 755. trees on highways, 755. obstruction of highways, 755. use of highways for railroads, 755. streams as highways, 820. rights of common, general principles, 756. on highway, 756. extinguishment of, 756. licenses, what they are, 757. license by parol, 757. revocation, 758. party walls and division fences, how created, 759. how far covenants as to, run with the land, 759. as to taking down, 759. use of, 759. rebuilding and repairs, 760. building acts in N. T. city, 760. division fences, 760. fences in N. Y. city, 761. buildings, agreements as to, 763. burdens, imposition of, 761, 764. III. ffow Lost or Extinguished, 746. when by joint ownership of the two estates, 751. by release or abandonment, 746. what acts are an abandonment, 746. EAVES, ejectment will not lie for projecting, 807. right of drip from, upon another's land, 763. ECCLESIASTICS, devises to, 431. EJECTMENT, when it lies, 804. parties to, 805, 806. by the people, 806. title in plaintiff, 806. occupants as defendants, 806. death of parties, 807. for easements and encroachments, 807. as to streets, 807. reversioners or remaindermen, 808. encroachments m highways, 808. land under water, 808, 839. INDEX. 915 'EJECTMEWT— continued. tenants sued in, to give notice, 206, 809. after default by tenant for life or years, 810. landlord may be made party, 810. for a forfeiture, 138, 808. by landlord, 190, 808. redemption after, 191. re-entry by landlord, 809. lis pendens in, 809. on sales by execution, 810. by mortgagor, 581. by mortgagees, 581, 666, 810. remedy of wife on feigned recovery, 810. change of interest during suit, 810. the verdict, 810. the judgment and its effect, 811. under Rev. Stats., 811, under Co. Civ. Proc. 811. new trials, 811. when judgment by default, 813. for dower, 813. See also Dowbr. limitation, 725. as to rights accruing before the Revised Statutes, 735. under Rev. Stats, 805. under Co. Proc, 804. mesne profits, 817. by the people for made land beyond high-water mark, 808, 839. for wharves, 808, 836. is the proper remedy for infant on disaffirmance, 635. ELECTIOK by widow of dower or jointure, 154. by lessor to treat assignee of tenant at will as disseisor, 198. EMBLEMENTS under leases, 303. incident to life estates, 143. incident to estates at will, 303. if tenant die his sub-lessee has emblements, 303. vendee in possession has, 481. EMINENT DOMAIN, right of, how exercised, 27-48. constitutional provisions as to, 30, 31, 44. judicial interpretation of, 31-43, 46. taxation and assessment under, 83. what may be taken under, 33-37. dower right in lands taken, 36, 153. the compensation, 86-42. compensation for street railroads, 47. the notice, 38. railroads as public improvements, 42-48. as to land under water, 823. as to AssBssMBNTS and Taxes, see those heads. use of streets for railroads, 44, 48. use of highways for railroads, 48. navigable streams, 40. inland waters, 833. ferries, 840. rule of compensation, 40. franchises, 43. actions for injuries, 47. ENCLOSURE, what necessary in adverse possession, 730. ENCROACHMENTS in a river or harbor, 834. ENGLAND, treaties with, 9. 916 INDEX. ENGLISH, discovery and possession, 3. ENGLISH LAW, how far adopted here, 25. ENTIRETY. Bee also Mabeied Women. of interest and estate in husband and wife, incidents of, 67, 313, 313. distinct from joint tenancies and tenancies in common, 313. effect on, ot the survivorship of either, 313. effect on, of conveyance by husband, 67. voluntary partition of, 70, 813. ENTRY, when not necessary to determine estate for years on breach of con- dition, 131. under leases and grants in fee, 138. right of, li ble to execution, 786. forcible, and detainer, 814. EQUITABLE CLAIMS, when preferred, 777. EQUITABLE CONVERSION. See Conteksion. EQUITABLE ESTATES. Bee also Trusts. not bound by judgment, 777, 778. EQUITABLE MORTGAGES. Bee Mobtgagbs. how far vendee has, for advances made. See Conteacts. EQUITY OF REDEMPTION, dower in, 149. descent of, 863. liable to execution, 786. And see Mortgage. ERASURES. See Deeds. ESCHEAT, title by, 731. when title divested by, 731. what title passes, 731. trusts in escheated lands, 808, 731. proceedings for, 733. actions by the people for, 733. suspension of proceedings for, 733. of remainders, 88. unknown owners, 733. bounty lands, 733. contracts for sale of, 733. taking possession of, 722. as to title by forfeiture to the State. See Forpeitube. ESCROW. See Deeds. ESTATE, expectant. See Expectant Estates. conveyed. See Deeds. I. In General. definition of the term; 99, 396. indicates the interest in land, 99. classes and divisions of, 110, 113. vested, effect of the Revised Statutes on, 396. equitable, not bound by judgment, 777, 778. what freehold and what chattel, 110, 112. in common. See Common, Tenancy in. upon condition. See Conditional and Qualified Fees. in joint tenancy. See Joint Tenancy. by entirety, what they are. See Entirety. in partnership. See Partners. expectant, descent of, 365. what taken by executor with power of sale, 444. when conferred on trustee by power of sale, 444. all, of the grantor passes by grant unless restricted, 400. limitations by will not affected by statute of descents, 380. INDEX. 917 Ti8TA.TE— continued. II. Name and Character of. 1. In fee-simple, defined, 110. natures and qualities of, 112. when "heirs" necessary to create, 113. what are incidents of, 112. tenant in fee as party in partition, 694, 695. right to alienate, 116. what carries a fee to trustees, 359, 360, 361, 362, 264, 265. .remainder after, 313. fees conditional and base, 116. See also Conditional and Qualified Fees. 2. For life are freeholds not of inheritance, 140. successive, 330. more than two make the rest void, 337. for one's own life better than for that of another, 140. in a term for years, 337. when pur autre vie, 140. no remainder in, 337. effect, if tenant dies before, cestui que vie, 140, 360. what are peculiar to these, 140. how the latter are regulated by statute, 140. when estates for life merge in reversion, 199. effect on, if tenant conveys a greater estate, 141. lien of judgments on, 766. duties of tenant, 143. tenant as a party in partition, 695, 696. must pay taxes assessed, 143. must contribute to pay charges on estate, 143. must keep houses and fences in repair, 143. if he surrender to another or default, remainderman may have ejectment, 810. apportionment of rent due on termination of, 143. if tenant dies, its effect on his sub-tenant, 303. presumption of death of life-tenant, 141, 341. possession by, not adverse to reversioner, 736. power to make leases extending beyond life, 171, 833. mortgage by, effect of, 333, 596. tenant of, liable for waste, 143. entitled to estovers and emblements, 141, 143. remedy against him for waste, 144. application for production of life-tenant, 145. liability of guardians and others holding over after, 145. puf autre vie a freehold only during life of grantee or devisee, 110. to husband or wife under act of 1860, 156. 3. At will, what are, 193. what are such at this day, 193. not liable to sale on execution, 192, 786. how they grew into estates from year to year, 193. rights of parties to, at common law, 192. nature of lessor's and tenant's interests, 193. tenant's interest not assignable, 196. tenant entitled to estovers and emblements, 303. in what cases the law implies such tenancy, 193, 194. presumption as to term in New York city, 196. what parol leases good under the statute of frauds, 170. parties bound by the terms of the letting though by parol, 170. 918 lUDEX. ESTATE— core«i?i«€(i. tenant liable to lessor for willful not permissive waste, 196. how determinable, 195. determination by notice, 195. what acts have the effect to determine, 195, 196. conveyance or lease by lessor determines it, 196. effect of disclaiming lessor's title, 196. is a waiver of notice to quit, 196. may be determined by some prescribed time or event, 195, 196. in such case no notice required, 195, 196. how far accepting rent after notice revives the tenancy, 196. if determined by notice, lessor may have ejectment, 195. 4. Estates for years, what are, 168. are chattels, 168. common law as to, largely superseded, 168. might be made at common law to begin infuturo, 168. entry requisite to, at common law, 169. merger of, 199. life estate in, 237. remainder on, 237. Bee also Leases. 5. From year to year. See also Estate at Will. their origin, 193. what constitutes, 198. entry and paying rent makes one, 198. paying rent on a parol lease sufficient, 195. letting must be for an indefinite time, 193. when holding over, after lease expires, creates it, 193. how determined, 194, 195. may be determined by notice, 195. 6. At sufferance, what are, 197. distinction between, and tenancy at will, 197. determination by notice, 197. not liable to sale on execution, 198, 786. not subject of grant, 198. tenant's grantee liable in trespass, 198. guardians, &c., holding over not tenants at sufferance, 198. ESTATES OF INFANTS. See Iiwahts. ESTATES OF LUNATICS, IDIOTS, &c. See Lunatics, Idiots. ESTATES OF TRUSTEES. See Trusts; Trustees. ESTATES TAIL. See Fees Tail. ESTOPPEL. I. As to Suits. for dower when tenant may not deny husband's seisin, 162. when widow barred by, to claim dower, 158. n. Applied to Leases. makes them good as to after-acquired estate, 171. did not extend to femes covert, 78. does not apply to leases, when lessor has any estate, 171. of lessee to deny lessor's title, 178. in setting up adverse title, how far it extends, 178. in what cases tenant not bound by it, 178. till substantial eviction, tenant bound to pay rent, 186. Bub-tenant may show entry and ouster by original lessor, 181. tenant may show his lessor has assigned his interest, 178. cannot attorn to a title hostile to that of his lessor, 180, 204. tenant may yield lonafide to a better title than lessor's, 188. tenant, to avoid his lease, must first surrender possession, and give notice, 201. INDEX. 919 'ESTOPP'Elj— continued. III. Between Co-tenants. See Common, Tenancy in. rV. In Pais. public dedication established by, 733. ■water rights gained by, 837. ■where one has induced another to settle on his land, 738. how far parties estopped by fixing fences, lines, and bounds, be- tween lands, 511. mortgagor, when estopped by representations, 584. of mortgagee on forged satisfaction of mortgage, 586. of infant heirs who accept proceeds of surrogate's sale, 472. V. £y Deed. effect is to give effect to a deed otherwise ineffectual, 535. applies only to parties and privies, 535. difference as to, between indentures and deeds poll, 506, 539. effect of recitals in deeds, and in deeds referred to, as estoppels, 538. how far grantor estopped, by referring to a street as boundary, 738. grantor may not deny a name used in a deed, 506. how far a deed estops grantor and heirs from claiming the land, 535. feoffor estops himself, 550. release passes only what releasor has, 552. how far one without title estopped to claim land granted, 585. title not in esse, passes by estoppel by warranty, 535. effect of grant, without warranty, 535. doctrine of estoppel extends to mortgages, 535, 568, 570. covenant does not work an estoppel if deed is void, 538. how far feme covert is estopped by joining with husband in deed. See DowBK. after-acquired estate in land passes by covenant of warranty, 535. grantor who assumes mortgage estopped to question it, 577. assignor of mortgage, estoppel of, 584. estoppel as to adverse possession, 729. ESTOVERS, in what they consist, 141. may not be exchanged, 143. life tenant has, 141. tenant for years has, 303. EVICTION of tenants, 185. from part of the premises when it relieves from rent of all, 186. by title paramount, 187. sale under foreclosure is, 188. EXCAVATIONS, rights of parties as to, 761. EXCEPTIONS. See Deeds. EXCHANGE of land, its effect on dower. See Dower. EXECUTED and executory trusts, 363. EXECUTION of instruments. See Deeds. proceedings supplementary to. See Rbcbiver. former laws, 780. general principles, 780. statutory enactments in general, 783. under Revised Statutes, 783. under Co. Proc, 783. under Co. Civ. Proc, 783. levy, 785. attachment, under, 785. against stranger, 785. non-residents, 785. 920 INDEX. EXECUTION— cflwJirauf^. in attachment cases, 803. title to real estate by, 780. irregularities and errors in, 781. ■when to issue, 783. variance, 783. wrong name, 788. against what property, 783. after decease of defendant, 788. against heirs, devisees, &c., 386, 784. death of plaintiff, 784. recitals, 784. return, 784. executors, 784. what property liable to, and what not, 785, 787. burying-ground, 785. reservation in a deed, 785. homestead not, 785. rent charges, 786. rights of entry, 786. equity of redemption, 786. leasehold, 786. curtesy, estates by, 786. contingent remainders, 786. reversions, 786. property of married women, 786. estates at will, 786. at sufferance, 198, 786. trust estates, 308, 787. contracts for sale of land, 787. partnership property, 787. effect of unrecorded deed, 646. The Sale, advertisement and notice of, 787. regularity of sale, 788. who may purchase, 788. fraud in, 789. sheriff's certificate, 789. filing and recording sheriff's certificate, 648, 789. dower in lands purchased at, 151. effect of sale on dower, 705. redemption, 790, 793. by defendant, 790. or his heirs, devisee, &c., 790. by creditors, 791. leases may be redeemed, when, 790. by part owners, 790. effect of payment, 790. by mortgagees, 791. , by superintendents of the poor, 793. certificate of redemption, 793. if recorded, effect of, 793. The Deed, 793-796. title not divested till, 793. completion of sale after fifteen months, 793. to whom deed to be made, 794. recording assignments, 794. authority of sheriff to make conveyance, 794. death of sheriff before conveyance, 795. INDEX. 921 EXECXJTlO'N—conUnued. death of purchaser before conveyance, 795. obtaining possession after conveyance, 795. effect ofthe deed, 796. record of the deed, 796. deed by sheriff on void sale may found adverse possession, 728. sales by United States marshals, 796. remedies for failure of title on execution sales, 797. EXECUTORS AND ADMINISTRATORS, power over the realty, 438-457. appointment of, 438. renunciation of, 489. when powers begin, 440. administrator with will annexed, 440. incapacity and removal of. 489, 440, 441. death of, pending sale by order of surrogate, 467. acts by superseded executor, 441. letters conclusive, 441. letters on estates of non-residents, 441. receiver in place of, 441. what assets savoring of realty to take, 443, 443. leases, 180, 360, 443. rents, 442. crops, 442. fixtures, 443. powers of sale to executors, 443. when an estate conferred by, 444. executors as trustees, 383. implied power, 443. power inconsistent with devise, 445. ^ who may execute the power, 447. survivorship as to the power, 448, 449, 450. when power of sale may be exercised by administrator with the will annexed, 451. sales under a power, how made, 453. cessation of the power, 453, 454. surplus and disposition of proceeds of sale, 455, 456. authority to mortgage, 451. discharge of mortgage by one, 586. power to divide, 453. waste and trespass, 456. powers to protect against fraud, 456. application for surplus moneys by, 456. preference of rents due from, 456. in New Tork county, provisions as to, 457. miscellaneous provisions as to, 456. judgments against, 456. married women as, 439. need not sign as such if so described, 443. time of sale, 453. exercise of discretion, 453. selling land in another State, 458. when purchaser bound to ascertain if power rightly exercised, 453. power to be strictly exercised, 453. does not fail if one of several purposes is void or lapses, 455. accounting to surrogate as to avails, 455. in general, 457. the power as an equitable conversion, 396, 397, 455. 922 INDEX. EXECUTORS AND ADMINISTRATORS— coraiiwMci. actions by, for waste and trespass, 456. judgments against, 456. actions by and against, 456. may disaiBrm fraud by decedent, 456. for what taxes on land liable, 857. execution sales as affecting, 784. foreign, may foreclose mortgage in New York, 423. satisfaction of mortgage by foreign administrator when there is a domestic one, 587. frauds of, penalties for, 469. application by, to surrogate to sell decedent's lands to pay debts, 459. lease by administrator de bonis non under surrogate's decree, 310. EXECUTORY AND EXECUTED trusts defined and explained, 363. EXECUTORY DEVISES, 221. distinction between and remainders, 321, 222. practically none under Revised Statutes, 330. when a devise over may be a remainder or executory devise, 323. where contingent remainders and executory devises, may change to each other, 223. limitation may take effect though prior contingent ones fail, 222. holder of prior estate can do no act to affect, 232. how affected by rules against perpetuity, 222. EXPATRIATION, right of, 49. acts as to, 51, 59, 60, EXPECTANT ESTATES, 212-344. transfer of, 318. descent and devise of, 318, 365. rule in Shelley's case, as to, 319. executory devises, 221. suspension of power of alienation in, 333, 233. valid and invalid creation of, 222-233. limitation in the alternative, 232. suspension as to personal property, 233. accumulation, directions for, 233-236. accumulation of personal property, 234. general provisions as to, 336-243. abolition, except as provided, 236, 340. successive life estates, 237. estates for life in a term for years, 237. devise of, 395. may be aliened, 395. descend, 395. See also Remainder ; Reversion and Executory Devise. EXPRESS TRUSTS allowed by Revised Statutes, 260. EXTINGUISHMENT, of mortgage by waiver of mortgagee, 586. of mortgage given to secure performance of a contract, 586. of trust, 279. of easement, 746. FAILURE OF ISSUE, effect of limiting estate after, 338. when held to create an estate tail, 338. when too remote and void, 237", 338. FEE. See Estates. FEE FARM RENTS, what are, and how created, 138. FEES, base. See Conditional Fbbs. conditional. See Conditional Fees. tail, what are, 114. INDEX. 923 PEES — continued. how created, 115. how barred, 115. abolished, 115. right to alienate, 116. FEE-SIMPLE, estate in, 113. theoretically entire, and infinite in duration, 112. " absolute, " meaning of , 110, 113. FSJMB COVERT. See Mabbibd Women. FENCES, division, 760, 761. acts as to, in New York city, 761. FEOFFMENT, title by. See Deeds. FERRIES, rights in, 840. exclusive privilege in, 840. in city of New York, 841. State may establish, 840. as a subject of eminent domain, 840. adverse possession of ferry slips, 732. FEUDAL SYSTEM, what it was, 103, 103. the principle in this State, 103, 106. substitution of allodial estates for, 106. FEUDS, how created, 103. at first inalienable, 103. FINES AND RECOVERIES, 115, 557. FINES ON ALIENATION, abolished, 105, 109. FINES, JURY. See Jury Fines. FIRE, when tenant not liable for rent after total destruction by, 174. when landlord need not rebuild after, 175. effect of destruction by, of building on land contracted to be sold, 479. FISHERIES, rights in, 837-840. regulations of, 837. rights of adjacent owners, 838. shell fish, 840. in common, right in, 839. common law rights, 839. constitutionalitv of acts regulating, 838, 840. FIXTURES, in general, 101. when and by whom may be removed, 101. attached by tenant of mortgagor, are subject to the mortgage, 101. as between grantor and grantee, 520. as between representatives of deceased and heir at law, 360, 443. as between mortgagor and mortgagee, 598. as between lessor and lessee, 205, 206. FLOWING LANDS, rights of, for mill purposes, 834. by paramount right is a breach of covenant for quiet enjoyment, 836. FORCIBLE ENTRY AND DETAINER, provisions of law as to, 814. FORECLOSURE, title through, 664-690. I. By AeUon. in general, 664-5. limitation of right of, 664. object of, 664. what is a default, 578. jurisdiction of courts, 665. record after lU pendens filed, not notice, 659. lis pendens in, 847. parties to actions of, 666, 719. 924 INDEX. WOREOLOSVRE— continued. foreign executors may foreclose, 433. of mortgages to railroad and plank road companies, 685. of mortgages of the people, 685. when judgment-creditors not necessary parties, 778. jurisdiction over defendants, 670. jurisdiction, how acquired, 670, 671. failure of title no defense to foreclosure of purchase-money mort- gage, 597. the judgment in, 671. The Sale, 673-677. re-sale, 675. how lands are to be sold, 673. the deed, 673. objections to the title, 674. irregularities, 674. when title taken, 675. resale, when ordered, 575. purchasers refusing, 676. deficiency on sale, 676. liability of grantee who has assumed the mortgage, 575. when he may set up fraud or mistake as a defense, 577. surplus moneys, 676. when surrogate may distribute surplus moneys on, 456. lessee's interest in, 311.. ejectment can no longer be had, 666. discharge of mortgage after judgment in, 586. continued possession of mortgagor after, as notice, 660. foreclosure and sale of lessor's interest an eviction, 188. II. Strict Woreclomre, 677, 678. ni. 8aU Under a Power, 678. early provisions as to, 678. provisions of Revised Statutes, 679. of Code of Civil Procedure, 679. notice to be given, 679-683. filing, 681. personal service, 681. sale, how made, 682. record of proceedings, 683. efiect of the record as a conveyance, 684. stamps, 685. when sale under a power may not be resorted to, 684. redemption, 685. deficiency, 685. IV. Of Mortgages to the Loan Commissioners, 687. default, 687. redemption, 688. act of 1844, 688. advertisement and notice, 688. sale by one commissioner, 688. papers to be given to the purchaser, 688. effect of sale, 688. void sales, 689. Co. Civ. Proc. does not apply to, 689. former acts, 689. FORFEITED RECOGNIZANCES, as liens, 767. judgments for, 767. INDEX. 925 FORFEITURE of letters patent, action for, 18, 723. of trust, 304. of term for years, 188-190. waiver of, 189. ejectment for, 138, 190, 808. redemption after, 191. title through, 723, 728. provisions of statute for, 722. of land to the State, 723, 728. to what crimes confined, 722. title derived through commissioners of, 723. action by the people to recover lands forfeited, 723. of land for violation of United States revenue laws, 663. FORMS OF CONVEYANCE. See Deeds. FRANCHISE, in what it consists, 19. what the subject-matter of, 31. how created, 19. charter granting one, a contract, 21. how far legislature restricted by prior grant of one, 20. legislature may authorize one to destroy another by eminent do- main, 30. for a ferry, 840. when granted or resumed, 19. taken under the right of eminent domain, 43. FRAUD, impeaching assignments for the benefit of creditors for, 564. when trust implied to prevent, 370, 395. of decedent, executors may disaffirm, 456. of creditors, executors, etc., may impeach assignments, etc., ia, 309. on execution sale, 789. when will release grantee from covenant of assumption, 577. forfeiture of land held under letters patent for, 18, 723. when equity will relieve parties to deeds from, 512. FRAUDS, STATUTE OF, how far afiecting parol leases, 170. how far violated by the effect given to equitable mortgages, 573. or by proving an absolute deed a mortgage, 573. does not apply to licenses which do not transfer an interest, 756. first to require deeds to convey lands, 504. FRAUDULENT CONVEYANCES, 558-565. conveyances voluntary, when sustained, 558. frauds on purchasers, 558. bonafde purchaser, 564. valuable consideration, 559. notice of fraud, 560. conveyance to wife when not fraudulent, 561. conveyance before marriage in fraud of dower, 155. against creditors, 561-564. what creditors, 561. decisions on question of what constitutes fraud, 563-3. when construed to be implied and resulting trusts, 563. fraud punishable, 664. fraud of principal may be disaffirmed, 564. miscellaneous provisions as to, 564-5. contracts of sale are not, 500. FREEHOLD, estates of, 110, 113. in future, 339. FRENCH grants and treaties, 7. FUTURE ESTATES. See also Expectant Estates. what are, 313. 926 INDEX. FUTURE ESTATES— cOTi«mM«— continued. VII. Sevocation, 347, 348. former law, 847. under Rev. Stats., 847. how affected by Statute of Frauds, 848. purchaser for value, how protected, 348. VIII. Extinguishment, 348-350. in general, 348. former law, S49. under Rev. Stats., 849. of powers of life tenant, 349. of express power, 849. by ceasing of the purpose for which created, 350, 398. POWER OF ATTORNEY. Bee Attokkbt. POWER OP SALE under a mortgage, 331. See also Fobbclosure ; Mobt- GAGB. to executors, 443. effect of, on land descended, 365. inconsistent with devise, 445. See also Exbcutoes. to trustees. See Trustees. PRECATORY WORDS, creating trusts, 357. PREFERENCE. See Record. PREMISES. See Deed. PRESCRIPTION, 744-740. See also Adverse Possession and Easements. general principles, 744, 745. a mode pf gaining an easement, 744. can give no right as against the public in navigable streams, 837. is evidence of a grant or deed, 744. stretching electric wires or cables over lands raises no presumption of grant, 734. modern prescription is a presumed grant, 744. what length of enjoyment presumes a grant, 744. the extent and mode of enjoyment limits the right, 745. user and enjoyment, to be the ground of, must be adverse, 745. must be open and notorious, 744. must be acquiesced in, not resisted nor forbidden, 745. when prescription begins to run, 736. the public cannot claim a right by, 744. successors in privity of estate may gain, by united user, 747. not affected by a disability arising after ancestor's death, 735. right of tenancy in common by, 749. for rights in water, 733. may be for support of houses, by earth under and adjacent, 761. for rights as to wharves, 835. for maintaining fences, 760. to maintain a dam in a navigable river, 834. PRESUMPTION, of Grant. See Prescription. of title in highways. See Highways. of payment of judgment, 775. of payment of mortgage, 588. PRIORITY. See also Record. of judgments, 599, 650, 768. PRIVATE ROADS. See Easements. PRIVITY, of contract between lessor and leasee, 183. binds parties to lease, independent of possession, 183. none of estate between lessor and sub-lessee, 181. by it assignee of lease liable for rent, 183. 954 INDEX, PROBATE of "Will. See Will. of heirship, 356. PROFITS A PRENDRE, may be in gross or may be annexed to and pass with land, 521. PROFITS, MESNE, as between tenants in common, 315. in ejectment, 813. PROOF OF DEEDS, 541, 638. PROPERTY, public acts appropriating, how passed, 19. in a stream, indivisible, 834. PUBLIC GRA.NTS, 13-34. See also Commisbioheks op the Lank Ofpicb. PUBLIC LANDS, 34. PUBLIC PROPERTY, acts appropriating, how passed, 19. PUBLIC OFFICER, deed by, 18. PUBLIC PLACES, dedication of, 743. PUBLICATION of Wills. See Wills. PURCHASE, as a mode of title contrasted with descent, 355. what are words of, and what of limitation, 319. at sale by executor under a power, when caveat emptor applies to, 453. on foreclosure of mortgage, objections to title. See Foeeclosueb. on foreclosure of mortgage by loan commissioners, 688. on execution sale, who may take by, 788. death of purchaser on execution sale after, 795. purchase-money mortgages. See Moetgagbs. PURCHASERS defined, as to record, 647. successive, of mortgaged premises, how to contribute, 597. how far a mortgagee is regarded as sucli, 579. from a trustee, how far affected by a violation of the trust, 378. in possession of land when not liable for rent, 207, 480,481, 493. would be liable, if holding after contract at an end, 493. how liable, if he refuses to execute the agreement on his part, 493. conveyance to, subsequent to making purchase-money mortgage, 590. of land sold for quit-rents, 599. of land, when bound to see to the application of purchase-money, 304. one in a fiduciary capacity as, 284, 385. from an executor under power of sale, how far rule of caveat emptor applies to, 453. with notice at surrogate's sale, 463. from trustee, caveat emptor as to, 278. trustees as, of outstanding title, 385. trustees as, of superior title, 384. at tax sale, notice to be given by, 863, 804. joint, who pays mortgage, subrogated, 578. from grantee whose deed is intended as a mortgage, protected, 574. lionajide, from heirs, four years after ancestor's death, protected, 470, 471. lien of for improvements, 659. when unrecorded deed void as against, 645, 646. when preferred to judgment-creditor, 646. how affected, by release of mortgage after assignment, 556. protected against revival of paid mortgage, 588. rights as to release of mortgage, 587. no trust implied as against, 371. not protected against outstanding trust by recitals of eztia- guishment, 260. QUAKERS, trusts for, 310. shaking, trusts for, 310. INDEX. 955 QUALIFIED FEES. Bee Conditional Pees. QU ARAN TINE of ^vidow, 163. QUARTER SALES, 109, 132. abolition of, 109, 132. QUIA EMPTORES, statute of, 123. in this State, 124-132. QUIET ENJOYMENT, breach of covenant for, by flowing of land conveyed, under paramount right, 836. not broken by easement to convey water in pipes over the land, 828. See aho Leases ; Deeds. QUITCLAIM DEED, 552. QUIT- RENTS, purchasers of lands sold for, 599. QUITTING premises destroyed, 174, 175, notice as to, to determine estates at will, 195. in case of tenancy from year to year, 193-194. RACEWAY, of mill may be changed by owner, 824. RAILROADS, franchises for, 20. as public improvements, 42-48. in streets, 44. in highways, 42-48, 755. corporations for, as to holding and transfer of land, 562. mortgages on, 568. fixtures under mortgages on, 568. foreclosure of mortgages on, 685. taxes on. See Taxes. See also Eminent Domain ; Cokporations. RATIFICATION of deed or lease of infant, 624. REAL ESTATE, definition of, 111, 396, 526. definition of, as to leases, 208. as to trusts, 303. as to recording, 642, 647. And see Estate and Land. RECEIVER, under supplementary proceedings, 799-801. order for, 799. order to be filed and recorded, 799. when real property to vest, 800. his title and authority, 800. when (ippointment complete, 800. relating back of his title, 800. what property passes, 801. dower, 801. curtesy, 801. property out of the State, 801. actions by, 801. in partition, 695. in place of executors, 441. when will is under probate, 435, 441. of estates of decedents in partition, 441. RECEIVERS OF TAXES, bonds of, as liens, 876. RECITALS in instruments. See Deeds. RECOGNIZANCES, forfeited. See Foufeitbd Recoqnizances. RECORD OF INSTRUMENTS, 645-656. as to notice therefrom. See Notice. before the Revised Statutes, 653-656. effect and object of the record, 645. effect of record of conveyance on partition sale, 706. defeasance to be recorded, 573, 647. order of recording, 647. 956 IKDEX. RECORD OF mST'RVME'NTB— continued. record of, the evidence of proof, 647. instruments in Secretary of State's office, 647. terms "real estate " and " purchasers," 643, 647. term " conveyance," 647. imperfect or improper record, 647, 648, 649. military bounty lands, deeds of, 659. notices of lis pendens, 848. of powers, 334. of powers of attorney, 358, 648. of instruments executed under power of attorney, 834. of judgment in partition, 625. penalty for not recording, 645. compelling record, 646. lona fide purchaser, 646. failure to record as between parties, 646. as to those having notice, 646. as to those claiming under a party, 646. as to subsequent attachment, 646. as to execution, 646. as to mortgage, 646. as to judgments, 650. books in which record is to be made, 646. care necessary as to record in proper book, 647. what may be recorded, 645-653. deeds proved in another State, 647. defeasances, 647. certificates of notary, etc, must be, 647. covenant passing an equitable title, 648. powers of attorney, 648. revocations of powers of attorney, 354. contracts for sale of land, 648. mortgages, 648. leases for over three years, 308, 648. leases for life in certain counties, 653. satisfaction-pieces, 648, 651. assignments of mortgages, 648, 651. general assignments, 653. releases of easement, 653. sheriflE's certificates of sale, 789. assignments thereof, 794. sherifl^s certificates of redemption, 793. sheriff's deeds on execution sale, 796. other instruments, 653, 653. of mortgages and assignments, 648-653. the defeasance, 647, 649. when to be recorded in different counties, 649. preference of unrecorded mortgage over other instruments and liens, 649, 650. effect of improper discharge of mortgage, 649. effect of record as to mortgages, etc., 649. mortgages recorded simultaneously, 650. of assignments of mortgages, 583, 651-653. discharge of mortgage after, 686. of satisfaction of mortgage, 587. of partial release of mortgage, 587. former acts as to assignments of mortgage, etc., 651. ol copy of lost deed, 653. i:ndex. 957 EECORD OF mSTmjM'ENTS— continued. of patents for lands, 653. of Holland Land Company, 653. of Treasurer of Connecticut, 653. of insolvent assignments, 712. of general assignments for creditors, 714. record of, notice, 716. of discharge of assignee, 713. of acknowledgment and proof of instruments, 647. as to recording in Montgomery Co., 658. in Hamilton Co., 653. of judgments. See Judgments. of probate. See Wills. RECOVERY, fine and. See Deeds. of land, limitation of actions for. See Limitations, Statute op. of possession of , land, action for. See Ejectment. REDEMPTION, equity of. See Mortgage. REDEMPTION. See Execution; Taxes; Mortgages; Leases. RE-ENTRY, rlgbts of, descent of, 136, 138, 191, 365. And see Lease and Ejectment. REFORM, power of court to, in cases of mistake in deed, 512. RELATIONSHIP, as affecting acknowledgments, 645. RELEASE, lease and. See Deeds. different classes of, 553. of grantee with covenant of assumption, discharges grantor, 576. partial, of mortgage, record of, 587. of mortgaged premises, 587. of part does not release all, 587. dower revived by release of mortgage, 587. partner's release of mortgage, 587. rights of hona fide purchasers as to release of mortgage, 587. release of mortgage by mortgagee, after assignment, 587. of sureties of trustees, 310. and quit-claim, a mode of valid conveyance of land, 553. RELIGIOUS, CHARITABLE, EDUCATIONAL, &c.. corporations, 607. See also Corporations. RELIGIOUS CORPORATIONS, under Act of 1813, trusts for, 607. devises to, 399, 419. See also Corporations. REMAINDER. I. In General. definition of, 313. when the estate begins, 315. held not to be one in being, 336. what is a prior, or particular estate, 314. remainder must have had one, at common law, to sustain it, 214. there can be none where there is no reversion, 233, 337. distinction between, and executory devise, 321, 333. doctrine of, no violation of dogma as to seisin, 314. at common law must take effect immediately, on ceasing of prior estate, 214. not so by Revised Statutes, 314. remainder and particular estate, form one equal to both, 214. cannot be barred by act of holder of particular estate, 314. formerly could be no remainder after a fee, 213. what may be after a fee under the Revised Statutes, 313. distinction between and conditional limitation, 317. what are conditional limitations, 317. 958 INDEX. REMAINDER— corafinwei. limitation never construed an executory devise, that can be a re- mainder, 231. in the alternative, 213, 215, 233. failure of, if prior estate defeated ah initio, 314. escheat of, 83. not affected by escheat or forfeiture of particular estate, 721, 723, 723. limited on more than two life estates, 237. in a term for years, 237. on a life estate pur autre vie, 337. posthumous children, 339. "dying without issue" before Revised Statues, 237, 338. " dying without issue " under the Revised Statutes, 338. freehold estates infuturo, 239. abolition of other expectant estates than, &c., 240. apportionment of taxes, &c., 341. presumed death of life-tenant, 241. guardians holding over, 343. remedies of remaindermen for waste or trespass, 343. legislative acts divesting title of remaindermen, 343. they may have ejectment if life-tenant surrender or default, 810. remaindermen' as parties in partition, 694, 695, 698. descent and alienation of remainders, 318. n. Vested or Contingent. distinction between, 315. when remainder vested, 215. lien of judgments on vested, 766. distinction between vested in possession, and in interest, 315. the law inclines to vested interests, 216. vested remainders alienable like estates in possession, 318. devise to a class may be vested though not all in esse, 316. uncertainty of future enjoyment, no test of contingency, 315. vested remainder may be mortgaged, 568. m. Cross Bemninders. how they may be limited, 313. rV. Contingent Bemainders. instances of what are, 216. the contingency, 217. how far alienable, 218. not liable to sale on execution, 318, 786. on what event may be limited, 216. formerly void if possibility too remote, 317. remoteness no objection now, 317. how contingent remainders are distinguished from executory de- vises, 232, 287. practically no distinction under the Revised Statutes, 236. as to creating freehold infuturo, 239. as affected by suspension of power of alienation. Bee Alienatioh. RENT, reserved on a lease in fee, remedies for, 134. apportionment of, 187. payable after life estate, 304, 205. payable by decedent, 311. after decease of lessor, 304. service, on the tenure of land, 107-109. descent of, 361. distress for, abolished, 135. apportionment of, in leases in fee, 137. INBEX. 959 R^^T— continued. liability of tenants in common, to each other for, 816. ■what goes to executor, 443. mortgagee's right to, 580. And see Leases. RENT CHARGE, 1»8-133. as realty, 100. not liable to sale on execution, 786. taxes on, 871. RENUNCIATION, of executors, 439. of trustees, 383. REPAIRS. See Leases. REPRESENTATIONS, when mortgagor estopped by, 584. of lessor as to condition of premises, 177. RESERVATIONS, in instruments. See Deeds. in grants of water-rights, 834. RESIDUARY DEVISEE, rights as between and heirs, 356. rights as to after-acquired lands before the Revised Statutes, 403. RESTRAINTS ON ALIENATION, 131, 132-139. abolition of, 105. See Grants, &c., in Feb on Conditioh. RESTRICTIONS, on building within certain distance of streets, 763. RESULTING TRUSTS. See Tbusts. REVENUE STAMP, as affecting title, 661. REVERSION, what it is, 343. may be sold on execution, 244. legislative acts divesting title to, 343. apportionment of taxes on, 341. REVERTER, of trust property after cessation of trust, 364. when object fails, 304. REVIVAL, of paid mortgage, 588. REVOCATION, of dedication, 740. of license, 758. of wills. See Wills. RIGHT of re-entry. See Re-entrt. of common; of way. See Easements. RIPARIAN PROPRIETOR, entitled lo accretion and alluvion, 516, 821. how lands of, divided by a stream, 831. rights of to use of water, 838. rights as to fisheiieg, 838. See also Watbk-courskb. RIVERS, boundaries by, 831. when navigable in law, 517, 839. the filum aqucB, the boundary of land, 515, 831. the rule as to the large rivers of America, 516, 517. rights of parties to islands formed in, 517, 831. public may use the large rivers as highways, 830. navigable, pubiic right of way along the banks, 834. encroachments on, 834. And see Water, Land Under, and Water-coCbses. ROADS, private, opening of, 750. as to highways, 754. ROLLING STOCK, of railroads, not real estate, 568. RULE IN SHELLEyS CASE, 319. SALE under a power. See Mortgage ; Foreclosure ; Pq-webs, by order of surrogate. See Surrogate's Sales. of land, contracts for. See Contracts. under execution. See Execution. power of, in a will, effect upon lands descended, 365. inconsistent with devise, 445. to trustees, when it confers an estate, 444. 960 INDEX. SALE — continued. by heirs, within what period unsafe, 383. powers of executors and trustees to make, 451, 453. when carnal emptor applies to purchases at sales under powers, 453. bargain and, conveyance by. See Deeds. of trust property in contravention of trust, 277, 378. acts of Legislature as to, 304, 305. of trust property to trustees, 384. of corporation property to trustees or agents, 285, by trustee, eflFect of failure to give notice, 385. under foreclosure of a mortgage by tenants in common, 317. of lands for assessments, 865-870. for taxes. See Taxes. by and of land of lunatics. See Ltjnatics. of infants. See Lsi'ants. SALT-LANDS, State, leases of, 210. SATISFACTION. See Dischabge. SCHOOLS, trusts for, 302. SCIENTIFIC SOCIETIES. See Cokporations. SEA, boundaries on, what to include, 516, 517. And see Water, Laud under. SEASHORE, public right of way along, 835. SEALS, when necessary and what to be, 540, 541. SEARCHING, memoranda for, in public offices, 878-883. Register's searches, 879, 880. in U. S. courts, 880. Loan Commissioner's searches, 880. in County Clerk's office, 881-883. tax searches, 883. miscellaneous, 883. SECRET TRUSTS, liability to creditors, 358. SEIGNORT of land in this State transferred to the People, 106. SENTENCE TO IMPRISONMENT, effect of, 95. SEISIN, how it was conferred, 550. what necessary to dower, 148. to curtesy, 164. transient, gives no dower, 148. nor does joint, 148. effect on dower of defeating husband's, 148. covenants of, in deeds, 530, 531, 532. lien of judgment in cases of transient, 766. of joint tenant, of whole estate, 311. SERVICE in attachment cases, 803. of citations, 437, 430, 461. of order to show cause in surrogate's proceedings before the Code, 463. of summons in foreclosure, 670. of notice in foreclosure under power of sale, 679, 681. by loan commissioners, 688. SERVIENT ESTATE. See Easements. SERVITUDES. See Easements. SHAKING QUAKERS, trusts for, 310. SHARES, letting lands upon, not a lease, 169. SHELL-FISH, 839, 840. SHELLEY'S case, rule in, 219. abolition of, 221. SHERIFF'S SALES on execution. See Execution. INDEX. 961 SHORES, of rules as to bounding lands by, 516, 517. ■what state of tide fixes the shore line, 516, 517. of the sea, public right of way along, 835. SIGNING. See also Deeds. required now, 540. how far necessaiy to corporate deed, 603. SOCAGE TENURE under law of 1787, 105. SOCIETIES. See Cobpokations. SOURCE OP TITLE. See Title. SOVEREIGNTY, changes of, 6. SPECIAL CORPORATIONS, organized under general acts, 618-623. SPECIAL PARTNERSHIP, conveyances by, 566. mortgages by, 567. leases by special to general partners, 311. SPECIFIC PERFORMANCE, 493-498. See Contracts. SPRINGS AND WELLS, law as to, 827. use of as an easement, 828. SQUATTERS, 783. STAMPS, revenue, on deeds and conveyances, 661. STATE, action controlled by United States, when, 22. contracts by, 31. commencement of the government of, 10. grants from the, 14, 1 8. presumption of title in, 17. title to land in, 5, 10, 11. transfer of title from, 18. adverse possession as affecting, 17, 726. statute prohibiting conveyance of lands held adversely does not ap- ply to, 548, 749. limitation of real actions by the People of, 724. patents from, when they take effect, 14. conditions in grants from, 18. deed by public officer of, 18. forfeiture by, 18. acts appropriating State land, 19. for private purposes, 19. may establish ferries, 840. mortgages to, 596. leases of salt-lands of, 210. STATUTE, transfer of land by, 13, 504. STATUTE OF USES, 246-250. construction of, 247, 248. eflfeot of, 247. deeds by virtue of the, 554-556. STREAMS AND RIVERS, boundaries by, 517. when navigable in law, 839, 833. rights of the public in, 820. beds of private, cannot pass as appurtenances in deeds, 821. And see Water, Land under. STREETS AND ROADS, boundary by, what to include, 518. railroads over, 44-48. dedicated, 742. State to authorize, 29. use of by the United States, 29. on closing, title to land in, 35. taken or closed under right of eminent domain, 37. dedication of, 786. 61 962 INDEX. STREETS AND nO kDB— continued. ejectment for, 807. vaults under streets, 763. ownership of land in, 741. limitation of actions as to land once part of, 736. leases of lands taken for streets in New York city, 310. STRICT FORECLOSURE. See Fokbclosueb. SUBLETTING, 180-185. And see Lease. SUBSTITUTION AND SUBROGATION, when holder of an equity pays mortgage, 697. when stranger pays mortgage, 588. of mortgagor to place of mortgagee, 300. of insurer to place of mortgagee insured, 596. of junior mortgagee who pays prior mortgage, 597. of surety in place of mortgagee, 575, 576. how affected by usury, 594. SUBTENANCY. See Undeelbtting and Lease. SUBTERRANEAN. See Undbrgbotjnd. SUCCESSION DUTIES, 661-663. State tax on legacies and successions, 663. SUCCESSOR in privity, adverse possession inures to, 725, 737. how far the State is, to the crown, 10, 11, 13. SUFFERANCE, estates at, 197. See Estates at Sufferance. SUMMARY PROCEEDINGS to recover land, 813. redemption under, 814. deserted premises, 813. as to wharves, 836. tenants holding over, 813. squatters, 814. removal of others, 813. the trial, 814. redemption after, 814. effect of, on rent accrued, 814. forcible entry, 814. SUPPLEMENTARY PROCEEDINGS, title under. See Receivek. SUPPORT of land, right of, incident to property in, 761. how far one owner may disturb that of another, 763. of house and structure, no right for upon adjacent land, 761. right may be gained by prescription, 761. or by both buildings being constructed by common owner, 531, 761, 764. acquired for house in a block, when sold, 531, 761, 764. right of, as an easement, 761, 764. when passes by deed as an appurtenance, 531, 761, 764. SURETIES, of trustees, release of, 310. SURPLUS MONEYS, on surrogate's sales, 468. on foreclosure, 676. lessee's interest in, 311. dower in, 150. interest of decedent in, is personalty, 362. paid into surrogate's court, as to guardians obtaining, 629, See BxEcuTOKS. SURRENDER, what is a, 201. effect of, 201. to whom made, 301. must be in writing when, 301. INDEX. 963 SURRENDER— core«ireMe(?. implied, 302. acceptance of, 303, 203. deed of, 553. of mortgage on payment of debt, 586. SURROGrATES, as to proof and record of wills. See Wills. SURROGATE'S DECREES, liens of, 769. discharge of, 774. for tax on legacies and successions, 661, 663. SURROGATES, leases by order of. 8ee Stjbbo&atb's Sales. mortgages by order of. See Sttrbogate's Salbs. SURROGATE'S SALES, &c., under the Rev. Stat., and Code of Civil Proce- dure, 458-473. provision for dower in case of, 164, 467, 468. for curtesy, 469. as to correcting irregularities in, 469-473. the application, 458, 463. the petition, 460. character of debts on which sale may be had, 461. appointment of guardians for minors in, 461, citation, 463. service of infants, 461. serwce and publication, 463. the decree, 468. what lands or interests in, to be sold, 464. the sale, 465. exemption of certain lands sold by heirs, when, 471. SURVIVORSHIP, right of, in husband and wife, 67, 313, 318. in joint tenants, 312. in case of trustees, 284. when survivor may act, 384. in estates by entirety, 67, 313, 313. estate to two, and the survivor creates a tenancy in common, 313. of powers of sale to executors, 448-451. SUSPENSION, of the power of alienation. See Alienation. SWAMP LANDS, lien for draining, 877. TAIL, ESTATES. See Fees. TAXES. I. General Principles of, 853-854. the power to tax, 852. conflict with the United States as to, 853. on national banks, 853. on aliens, 853. different kinds of, 853. bill of rights of this State, 853. tax laws, what to state, 853. how passed, 853. presumption as to regularity of their passage, 854. early, in this State, 854. tei-m " land " defined, 855. term " person " defined, 856. term " non-residents " defined, 860. on cemetery lots, 617. taxes paid by tenants or occupants, 871. When tenant may recover, 308. certificates of sales to be recorded, 871. applications and sales for opening roads, 871. 964 INDEX. TAXES — continued. effect of insolvent discharges on, 871. apportionment of, 871. apportionment of on remainder, 341. Indian lands, 871. on leases in fee, 871. certificate of taxes due, 871. on undivided interests, 871. comptroller's books as to, evidence, 872, surplus moneys after tax sales, 872. covenants in leases, as to, 176, 873. under right of eminent domain, 33. state, on legacies and successions, 663. special and local provisions, 873. taxes and assessments as between dowress and heirs, 161. invalid t^x sale will not support adverse possession, 737, 738. payment of in partition, 704. payment of by mortgagee, 597. possession under tax lease as notice, 660. of wharf property, 836. on lands under contract, 499. apportionment on future estates, 341. apportionment of mortgages on tax sales, 599. contribution for, 778. II. The Assessment and Collection of , 854 859. Avhat lands to be taxed, 854. exemptions, 854, 859. exempting laws, construction of, 855. railroads and buildings, 855. wharf property, 885. debts due to non-residents, 855. on bridges, 855. where and to whom assessed, 855. corporations, 855. mode of assessment, 856. eflFect of assessment, 856. non-resident lands, 857. when the lien arises, 857. on decease of owners, who liable, 857. correct assessment necessary, 857. correct lot number, etc., on sale, necessary, 857. action on omission to tax, 858. disputed location, 858. redress for errors in taxation, 858. the assessment, how reviewed, 858. recovering an erroneous taxation, 859. ni. Sale of Land for Taxes, Conveyance, Redemption, Ac, 859-865. strict proceeding necessary, 859. sale of non-resident and unoccupied lands, 860. sale when there are no chattels, 860. re-sale and purchase by the State, 873. lists and publications, 860. advertisements for sale, 860. the sale, 861. certificate on sale, 861. redemption and notice to redeem, 861. the deed on sale, 863. effect of the deed, 863. INDEX. 965 TAXES— continued. form of the deed, 863- no title passes, -when, 862. presumptive evidence, 863. notice to occupants, 863. redemption by occupant, 863. invalid sales, 863. lost certificates, 864. notice to mortgagees, 596, 864. act of 1855, to what cities not to apply, 864. repeal of prior acts, 864. TENANTS, holding over, 197, 304. responsible for damages by reason of want of repair, 173. user adverse to, does not affect reversioner, 726. for life. 8e6 Estates. by entirety. See ENTniETT. at sufferance. See Estates. in common. See Common, Tenancy in. joint. See Joint Tenants. at will. See Estates. for years. See Leases ; Estates. TENDER, of rent, where it saves forfeiture, 120. of debt, by mortgagor, before suit to redeem, 589. by mortgagor, effect upon possession of mortgagee, 589. discharge of lien of mortgage by, 588. by junior incumbrancer, 588. of performance of condition, discharges the land, 130. of mortgage debt invalidated by demand of satisfaction price, 589. TENENDUM. See Deeds. TENURE, feudal, act concerning, 107. abolition of, 108, 109. TESTAMENTARY, LETTERS. See ExBcrrons. TESTATOR. See Wills. TIDE-WATER, boundary of land on, 517. TIMBER. See Trees. TIME, computation of, 309. presumption of payment of mortgage from lapse of, 588. for what, suspension of power of alienation allowed, 323. no absolute, in lieu of lives allowed for suspension of power of alienation, 335. of prescription, twenty years, 744. a limitation, same, 735. TITLE to land in this State by discovery and possession, 1-13. English. 3, 7. Dutch, 3. transfer of, to the State, 5. colonial property transferred, 11, 13. from the State, transfer of, 13, 14. of the People, 10-13. mode of transfer from the colony and State, 13. outstanding, purchase of by trustee, 385. in highways. See Highways. TITLE DEEDS, who has the custody of, 100. mortgage by deposit of, 573. TOLL-BRIDGES, abandonment of, 755. TRAITOR, forfeiture of rights of, 63. of property, 732. TRANSCRIPT of j udgment and of discharge of judgment. See JuDaMBNTB. 966 IKDBX. TRANSFER, of title of people, 13-34. modes of, governed by lex situs, 96, 98. by order of court, 96. by operation of law, 98. TREATIES, as to citizenship, etc., 51. •with Grreat Britain, 9. with France, 7. effect of, as laws, 31. TREES or timber, how conveyed, 100, 536, as realty, 100, 536. on highways, 755. overhanging, 100. in nursery, 100. TRESPASS, guardians and others holding over liable in, 198. action for, by executors, 456. when tenants in common liable to each other for, 316. grantee of tenant at sufferance liable for, 198. TRIBUNALS OP CONCILIATION, lien of judgments of, 770. TRUSTS. See also Uses. I. In General, 345-310. active, effect of the statute of uses, 346, 347. distinction between, and powers, 349, 364, 365, 336. express, estate of trustee in, 251, 363. passive, effect of the statutes on, 353, 363. active, 351, 353, 362. never fail for lack of trustee, 380. in escheated lands, 308, 731. law of domicil, as to, 96, 259, 367. lien of judgments on the estate, 766. how reached by creditors, 374, 376, 808, 787. lands in, descent of, 365, 381. for villages, 301. for schools, 303. the words " real estate " and "lands," as to, 303. failure of objects of, 304. legislative acts affecting, 386, 304. for cities and villages, 301. knowledge of, by third person, 304. liable to executions and judgments, when, 308. for Quakers, 303, 310. for aliens, 91. relating to personal estate, 310. dower in trust estates, 151. mortgage to secure, 586. as affected by suspension of power of alienation. See Alienation. annuities not a suspension, 328, 376. precatory words, 257. parol evidence to show trust, 357. trustee not necessary to validity, 257. when the purpose ceases the trust ceases, 259. duration of, 363. estate of the trustees, 363. reverter of the property, 364. the trustee, 379-386. See Trustees. IL Vses and Trusts 'before the Revised Statutes. definition and origin of, 245. the "Statute of Uses," 246. origin of " trusts," 248. INDEX. 967 TB.TJSTS— continued. nature of early trusts, 248, 356. early distinction between powers and trusts, 349. III. Ohangea by Statute in this State. changes wrought by the Revised Statutes, 350, 365. general pro\'isions as to trusts, 350-354. certain equitable interests made legal estates, 350, 351. estate of trustees defined, 251, 359, 363, 365. estate of cestui que trust defined, 351. effect of changes was to abolish passive tinists, 353. executed and executory trusts, 353. active trusts, 353, 363. IV. Creation of Trusts. three requisites of a valid trust, 354. must be in writing, 354, 355, specific words not necessary, 354. provisions of the Rev. Stat, as to instruments creating, 355. must be a beneficiary, 355, 356. trustee not necessary, 357. created by precatory words, 357. parol evidence, 357, 373. secret trusts, 358. duration of the trust estate, 353, 358, 363. created without knowledge of the party, 359. , as to realty in another State, 359, 367. what carries a "fee " to trustee, 359, 360, 361, 363. severability of trusts, 359, 361, 368, 417. estate remaining in the creator, 364. V. Trusts allowed ly Mevised Statutes. See also Tkitsts, G-enebal Principles of, supra. to sell for creditors, 360, 361. to sell for legatees, 360. annuities, 361. trust for life, 361. the life need not be that of the beneficiary, 361. accumulation, 363. undue suspension of power of alienation. See Alienation. estate of the trustee, 363, 364, 365. powers of the creator, 264. reverter to, 364. certain trusts as powers, 363, 364, 365, 367. powers in trust, 264^367. assignability of, 367. law of domicil, 96, 359, 367. future and contingent interests in trust, 368. trust mortgages, 368. trusts upheld in part, 359, 261, 368, 417. duration, 363. VI. Implied and Resulting Trusts. in general, 370. as to creditors, 371-375. not raised from consideration being paid by other than the grantee, 371-275. unless without his knowledge or consent, 271-375. not raised as against bona fide purchaser, 371, 375. equity governs the courts in construction of, 373, 373. VII Assigrimient, Transfer and Extinguishment of Trusts. in general, 364, 375-379. 968 TTSDEX. TmjSTS— continued. creditors can reach surplus, 375. to be in writing, 277. acts in contravention of, 377, 278, 284. reconveyance, 378. mortgage, application to court for leave to, 278. powers of legislature to legalize variances, 279, 286, 304. extinguishment of trusts, 279. VIII. Charitable Trusts. See also CoBPOBiTiONS. general history of decisions as to, 387-299. as to religious corporations created under Act of 1813, 399, 607. limitation of trusts to corporations by Act of 1860, 300. as to devises in trust for religious purposes, 300, 301 . trusts for colleges and literary institutions under Act of 1840, 301, 302. trusts for common schools, 802. TRUSTEES. See also Trusts. executors as, 383. holding over, penalty for, 198. to be supplied by the court, when, 380-282. forfeiture of powers by, on conviction and sentence, 286. removal of incompetent, by court, 381, 383. of non resident, when, 583. purchase of outstanding, title by, 385. presumption of acceptance, 279. descent of interest of, 280. renunciation, resignation, and removal, 281, 283. disclaimer by, 283. estate of, 251, 259, 363-365. when power of sale confers an estate on, 444. as joint tenants, 284. responsibility of, as stockholders, 309. delegation of powers by, 384. dealings with trust property, 284. leases by, 171. mortgages by, 278, 568. acts of, in contravention of the trust, 360, 277, 378. when purchaser from, put upon inquiry, 304. when purchaser from, protected, 285. sale by, 285, 451. assignment of mortgage by, 384, 585. discharge of mortgage by one of several, 586. infant and insane, 286. infant, power of court over, 625. married women as, 286. enforcement of trust against, 286. charge of legislative acts, as to, 804. misapplication of money by, 304. may impeach assignments, etc. , 309. infants, lunatics, and drunkards, trustees of, 309. testamentary, laws as to changes of, 304, 308. settlements of accounts of, 309. for absent, concealed, etc., debtors, 718. of insolvent debtors, 809. of academies, 309. as parties in partition, 695. release of sureties of, 310. change of, and variation of trust by legislature, 286, 304. INDEX. 969 TURNPIKES AND TOLL-BRIDGES, abandonment of, 756, 623. acts as to companies for building, 622. UNDERGROUND water, by what rule rights to, governed, 827. when one owner may divert from another, 828. right to use of spring not affected by prescription, 828. UNDERLETTING distinguished from assignment, 181. may be for the whole term, 181. no privity between lessor and sub-tenant, 182. when sub-tenant may pay lessor, 181. breach of condition against, 181. right of, incident to lease, if not restrained by covenant, 180. See also Leasbs. UNDIVIDED interests, taxes on, 871. UNINTERRUPTED USER, necessary to gain an easement, 745. UNITED STATES, power to take realty, 28, 601. devises to, void, 394. rights of, as against the State, 22, 24. And see Water, Land tindbb. sales of land for violation of revenue laws of, 663. UNKNOWN OWNERS, within what time may contest escheat, 722. as parties in partition, 699, 700. UNSAFE BUILDING ACT, notices under, 876. UNSOUND MIND, persons of. See Lunatics. USE AND OCCUPATION, action for, 206,207. tenants in common not generally liable to each other for, 315. USE OP LAND, digging on, 761. drainage, 762. right of deposit, 763. of drip, 763. burdens on, 764. diverting water, 828. overhanging trees, 100. electric wires crossing over one's land, 734. USE OP PREMISES. See also Leases. USER. See also Adverse Possession ; Prescription . of gaining easements by, 744. must be uninterrupted and continuous, 744, 745. except of light, must be under adverse claim of right, 744. while owner of servient estate is seized in fee, 726. while he is not under disability, 735, 726. with knowledge and acquiescence, of such owner, 745. must be peaceable, 744. USES, 245-810. See also Trusts. origin and history of, 345-349. how created, 247. how perverted, 247. statute of, 348. construction of the statute, 247, 348. changes in this State as to, 250-254. early Acts in this State as to, 250. Revised Statutes as to, 250. conveyances under Statute of, 554-556. USURY defined, 590. place as affecting, 590. agreement essential to, 591. obligation to pay essential to, 592. 970 INDEX. USURY — continued. reservation of money not essential to, 591. chance of advantage may constitute, 591. indemnification of lender is not, 591. subsequent, how affecting a valid instrument, 592. as to accommodation mortgages, 593. usurious extension of mortgage, 593. bonus to agent is not, 593. when lender may share bonus without, 593. agreement to pay interest in advance, 594. compound interest, 594. subrogation of usurer, 594. cuidng, 595. as a defense, 595. as a cause of action, 595. as an offense, 595. by State banks, 594. conveyances against usury laws, 566. as affecting purchaser at foreclosure sale under a power, 685. VACATION of sales for assessments, 868-870. of satisfaction of judgment, 774. VALIDITY and interpretation. See Deeds ; Mortgages. VALUE, purchaser for. See Pxtbchaser. VAULTS, 763. VENDEE, of land, how far liable after occupation, 481, 493. his right to recover advances towards purchase-money, 493. his lien for improvements, 483. VENDOR, his lien on land for purchase-money, 481, 573. effect of mortgage by, 650. continued possession of, notice of lien, 660. VERDICT, death of defendant before, effect of, 777. VESTED, rights not affected by Rev. Stats., 111. interest, if future liable to be divested, 315. remainder, what is, 315. And see Rematndgb. VILLAGES, trusts for, 301. VIOLATION of trusts, 804. VOID AND VOIDABLE, applied to deeds, what are, 634. how and when ratified, 634. VOLUNTARY CONVEYANCES. See Deeds, Featotilent Conveyances. VOLUNTARY INSOLVENT ASSIGNMENTS, do not affect the lien of judgments, 777. And see Insolvent Assignments. WAIVER, by mortgagee, when it extinguishes a mortgage, 586. of condition in grant, effect of, 118. "WARRANTY, of covenants of, 533-535. what is implied in deeds, 538, 539. implied, in assignment of mortgage, 584. of fitness for use, none implied in a lease, 173, 1 77. WASTE, what is, 143. by felling timber, 143, 304. by digging clay and soil, 143. when in buildings, 208. when damage by fire is not, 175. who liable for, 144, 196. by life-tenant, 144. by tenant in common, 315. by tenant at will, 196. INDEX. 971 "WASTE— contm'ued. by dowress, 164. by mortgagee, 580. by mortgagor, 580. by lessee, 208. remedy for, 144. action for, by executors, 456. WATER. See also Watbh-cotirsbs. rights of easement in, 824, 826. no property in, except its use, 823. use of natural stream an incident of property, 824. each riparian owner has a right to the reasonable use of a stream, 823. is liable to others for excessive use of, 825. underground, not governed by the same rules as other, 827. one land-owner may divert surface water from another, 826. rights of, in artificial streams, 824. flow of, from the eaves, 763. WATER-COURSES, general principles as to, 828. for drainage, 823, 826. milling, 824. artificial channels, 824, 826. obstructions, barriers, &c., 824, 825. prescriptive rights to, 826. wells and springs, 827, 828. percolating waters, 827. pollution of water-courses, 824, 825. diversion of, 824, 825, 826. water rights as appurtenances, 824. reservations of water rights, 824. no dower in a hydraulic right, 824. underground water-courses, 827. may be the subject of adverse possession, 729. WATER, LAND UNDER, 819-841, 843-846. I. In General. streams above tide-water, 819, lands in, 821, 824. deed of water does not carry the land under it, 819. descriptive words in grants that carry to centre of stream, 819. rights of adjacent owners, 820, 821. right of public to use as highway, 820. adjacent owner subjected to right of use of public, 820. what streams held to be highways, 820. right to dam a stream lies with the State, 820. right to regulate navigable streams, 40, 820. riparian owners restricted in case of large lakes and rivers as national boundaries, 821. rivers as boundaries, 821. jurisdiction of the State over, 40, 820, 821. effect of accretion, 821. right of eminent domain, as to, 822. adverse possession, as to, 729, 731, 823, 825. as to water-courses. See above, Watbb-cotjesbs. the cutting of ice, 825. in tide-water and navigable streams. See infra. II. Powers of Oommisaioners of Land Office, as to. powers under early laws, 843. under Revised Statutes, 844, 845. 972 INDEX WATBB, LAND UNDER— cora^iraaerf. grants to whom to be made, 844. publication of the notice, 845. construction of the grant, 845. adjacent owners, who are and what their rights, 845. how to apply for grant, 846. grants by the city of New York, 846. confirmatory grants, 846. as to general powers of the commissioners. See Commissionebs of THE Land Office. in. Tide-Water and Arms of the Sea, 828-837. general principles as to tide-water, 828. ownership of land under tide-water, 828, 830. title of the State thereto, 839. regulation and disposal of land under water, 830. made land, 839, 881. rights of the United States and the public, as to control of naviga ble waters, &o., 833. obstructions in harbors, bays, or navigable streams, 883, 833. jurisdiction of State over bays and seas, 833. boundaries by tide-water, 833. wharves and slips, 830, 835. adverse possession of ferry slips, V33. ownership and regulation of wharves, &c., 836. taxation of wharf rights, 836. encroachments or obstructions in rivers, harbors, &c., 834, 836. obstructions as affecting private rights, 834. can be no prescriptive rights gained in. tide-water, &c., 827. ownership between high and low-water mark, 829. what are navigabh waters, 829, 831, 833. right of way along border of rivers or sea-shore, 834, 835. fisheries. See Fisheries. ferries. See Ferries. WAT. See also Easements. granted for one purpose, or one parcel cannot be used for another, 748. how far the right passes with several parts of the estate, 748. when a right of, is reserved by implication, 748. when one has a way of necessity, 749. land-owner may designate it, 749. is not lost by mere non-user, 750. when cannot be abandoned by parol, 748. WELLS AND SPRINGS, law as to, 827. WHARVES AND SLIPS, who may build, 831. adverse possession of, 731. ownership of, 835. rights in and to, 836. regulation of, 886. as obstructions, 880, 831. grescriptive rights as to, 835. ighway over, 835. ejectment for, 808, 886. summary proceedings as to, 836. eminent domain as to, 835. leases of, of New York city, 835. WIFE'S SEPARATE ESTATE. See Husband and Wipe, and Married Women. WILL, estates at. See Estates at WilIi. INDEX. 973 WILLS. I. WTu) may Make. See Dbtisbs. IL Who may Tale Land under. See Devises. III. Nature and Extent of Estate passing ly. See Devises. IV. Execution of, 403-406. what is a will, 388. any person may sign for another in his presence, 403. early laws as to, 403. requirements of Revised Statutes, 403. as to subscription, 403. as to witnesses, 404, 405. as to acknowledging and publication, 404, 405. codicil as a republication, 408. revival of a revoked will, 413. number of witnesses required, 405. witnesses must be requested to act by testator, 405. substantial compliance, what held, 406. V. Bevocation and Cancellation of, 407-413. what constitutes, 407, 408. codicil as a republication, 408. provisions of Rev. Stats, took effect as to what future time, 408, 415 432. revocations established by common law, 409. agreement to devise property already otherwise devised, 409. incumbrances put upon property already devised do not revoke, but are a charge on, 409. conveyance of property already devised not a revocation in toto, 410. except when, 410, 411. by marriage of testator and birth of children, 411. pro Unto by birth of child, 388, 41 3. ' revival of first will, 412. revocation by marriage of testatrix, 413. VI. Proof 433 433. provisions of Rev. Stats, as to, took effect as to what time, 415, 483. necessity of probate to prevent sale by heirs after four years, 433. wills proved in another State, 433. lex loci, 96, 97, 438. executors of will proven in another State, when may foreclose here, 423. proof of, before wrong surrogate, 434. 1. Wills proven before Rev. Stats. under Dutch government, 435. colonial acts as to, 424. under laws of 1786, 1787, 1790, 435. 1801, 434. 1813, 435. record of, under laws of 1787, 425. 1801, 434. 1813, 435. 1833, 435. 1839, 435. exemplifications of records, 435. jurisdiction of surrogates' courts confined to wills of personalty, 435. 3. Wills proven since Rev. Stats. before what surrogate to be proven, 430, 437, 438, 430, 433. entry of surrogate's decision, 433. powers of surrogate's clerks, 487. 974 INDEX. WILLS — continued. efEect of such probate, 426, 432. See also post, VII. record of probate, 426. See also post, VIII. proving by commission, 430. foreign wills, 429. recording same, 436, 437. lost or destroyed' wills, 429. citations to lunatics and idiots, 427. in proving foreign wills, 430. witnesses, evidence of execution, etc., 428, 430, 431. proof of heirship, 437. revocation of probate, 431, 432. repeals of the Bev. Stats., in part, 431, 438. VII. Validity, EstablisTiment and Impeachment of, 433-485. former effect of probate, 433-435. effect of, since the Code of Civil Procedure, 433-435. impeaching probate, 434, 435. VIII. Becord and Exemplification, 435-437. before Rev. Stats. See above, VI. record of the testimony, 435. exemplifications of records before 1785, 435. before 1830, 1840, 436. under law of 1837, 436. recording in other counties, 436. effect of record of will proven, before 1840, 436. recording will of non-resident testator, 436. record of foreign wills, 487. signing by surrogates of records of previous probate, 487. powers of surrogate's clerk, 437. IX. Lapse of Devise. See Devises. X. Oonstruction, General Sules of. See Dktises. WITNESSES to deeds; how many required, 638. to wills •, how many required, 405. effect of a devise to a witness to a will, 394. WOOD, what a tenant may cut, 141, 143, 203. YEARS, estate for. See Estates for Ybabs ; Leases. YORK, Duke of, charter, 3. ADDENDA The following additions and corrections it is desirable to note in the body of the book. By so doing the State decisions and Statutes to January Ist, 1889, will be in- cluded in it. Page 14. To line 21 add " Coffee t. Groover, 123 U. S. 1." 29. After line 25 add " Albany t. Watervliet Turnpike,